United States District Court, D. Massachusetts
MEMORANDUM OF DECISION
WILLIAM G. YOUNG UNITED STATES DISTRICT JUDGE
Let me explain this sentence to you, Mr. Wright. In one sense
this case follows a familiar arc --they've got graphs of
all these things, there was superb law enforcement activity
here to protect us all, your case came on reasonably promptly
for trial, fair procedures throughout, a guilty verdict on
overwhelming evidence, and a severe sentence. But if I stop
there, I have not fully explained the reason for the sentence
and we miss out on the larger issues, and they seem to me to
You are not a monster, yet you embrace a monstrous evil. You
stand before this Court a convicted terrorist, no doubt in my
mind about that. You've got to live with the fact that
you sent your uncle out there to be killed, laughing and
chortling in the hope obviously that he would kill or maim
someone else. That's on your conscience.
. . .
[T]rials matter, and jury trials matter especially, they
really are both a test and a celebration of a free people
governing themselves. Thomas Jefferson said, “The jury
is the greatest anchor humankind has ever conceived for
holding the government to the principles of its
Constitution.” And so it is here.
For the first time I, as a presiding officer, as a citizen,
came to understand what it meant to be
“radicalized.” A couple of clicks on the
computer, the dark web, and all this material is there. And
like the jurors -- and the government properly provided me
with the full record of the evidence and I have reviewed all
of it before this hearing, I have sat and watched with
horrified fascination, and I admit it, the monstrous evil
that you embraced.
Now ISIS is just about done, it's about to be relegated
to the dust bin of history, forgotten and reviled, and
whatever you say now that's what you chose[.]
[A]t the same time we are a society awash in vicarious
violence and . . . the evidence here . . . ha[s] the hideous
attraction of a snuff video. And there's [sic] always
going to be restless young men in search of a cause. You made
the wrong choice, a terrible choice, and in my mind you made
it knowingly and this sentence reflects it. But I cannot
sentence you without acknowledging that we're not going
to arrest our way out of this situation. There's [sic]
going to be other young men, restless, on the web --ISIS will
be gone -- looking for a cause.
. . .
I have searched my conscience as to what we do about that,
and the best I can come up with is . . . the life's work
of Justice Sandra Day O'Connor, who challenges us to
understand American democracy. [T]hat's a challenge,
that's where heroism and self-sacrifice and struggling
against the odds . . . goes on day by day.
Remarks, Transcript of David Wright's Sentencing Hearing
at 53:4-55:5, United States v. Wright, No.
15-cr-10153 (D. Mass. Dec. 19, 2017), ECF No. 417.
October 18, 2017, a jury convicted the defendant David Wright
(“Wright”) of five counts including conspiracy to
provide material support to a designated foreign terrorist
organization and obstruction of justice. Wright moved for a
new trial pursuant to Rule 33 of the Federal Rules of
Criminal Procedure. This Court DENIED Wright's motion on
December 18, 2017. Electronic Order, ECF No. 407. This
memorandum explains the Court's reasoning for that and
other trial-related decisions.
February 15, 2017, a federal grand jury charged Wright with
conspiracy to provide material support to a designated
foreign terrorist organization and aiding and abetting in
violation of 18 U.S.C. § 2339B(a)(1) and 18 U.S.C.
§ 2 (“Count 1”); conspiracy to obstruct
justice in violation of 18 U.S.C. § 371 (“Count
2”); obstruction of justice and aiding and abetting in
violation of 18 U.S.C. § 1519 and 18 U.S.C. § 2
(“Count 3”); conspiracy to commit acts of
terrorism transcending national boundaries in violation of 18
U.S.C. § 2332b(a)(2) and (c) (“Count 4”);
and obstruction of justice in violation of 18 U.S.C. §
1519 (“Count 5”). See Second Superseding
Indictment, ECF No. 171.
trial began on September 18, 2017 and ran until October 17,
2017. During the thirteen-day trial, the government presented
evidence that Wright conspired with several individuals,
including his uncle, Usaamah Abdullah Rahim
(“Rahim”), co-defendant Nicholas Rovinski
(“Rovinski”), and others to support the Islamic
State of Iraq and Syria (“ISIS”).
government contended that Wright recruited Rahim and Rovinski
in efforts to organize a terrorist cell in Massachusetts.
Evidence showed that the group initially planned to join ISIS
in Syria, but then changed course when ISIS issued a fatwa
against American journalist Pamela Geller
(“Geller”). Rovinski testified that, at that
point, Wright, Rahim, and Rovinski conspired to behead Geller
pursuant to that fatwa. Much of their planning,
communication, and recruiting efforts took place via the
internet, where Wright distributed ISIS propaganda,
researched various weapons, managed a Twitter account
advocating pro-ISIS beliefs, and chatted with other ISIS
supporters. One of these individuals, Zulfi Hoxha
(“Hoxha”), was an individual living in the United
States whom Wright successfully encouraged to travel to Syria
and join ISIS. Other individuals with whom Rahim communicated
included an individual seemingly located in Turkey whose
online moniker was “abu3antar” (“Abu
Antar”), as well as a shadowy individual who operated
numerous Twitter accounts under the name “Abu Hussain
al-Britani” (“Abu Hussain”). Evidence was
presented showing that this second individual was in fact
Junaid Hussain, an ISIS member in Syria.
morning of June 2, 2015, Rahim called Wright and told him
that he planned to attack law enforcement officers on behalf
of ISIS. Wright encouraged Rahim to do so, instructing him to
destroy his electronic devices before the attack. Shortly
thereafter, Rahim attacked several police officers in a
Roslindale parking lot and was killed. After learning of this
incident, Wright erased the data on his computer by restoring
it to its original factory settings. Law enforcement officers
arrested Wright later that day, searched his home, and
conducted a lengthy interview with him.
jury convicted Wright on all counts. Wright moved to set
aside the verdict and ordered a new trial on November 2,
2017. Def. Wright's Mot. New Trial (“Def.'s
Mot.”), ECF. No. 393. The government opposed the
motion. Gov't Opp'n Def.'s Mot. (“Gov't
Opp'n”), ECF No. 395. This Court DENIED the motion
on December 18, 2017. Electronic Order, ECF No. 407.
to trial, the government sought to introduce the certified
conviction in a court of the United Kingdom (U.K.) of one
Junaid Hussain of “Causing [a] Computer to Perform [a]
Function with Intent to Secure Unauthorized Access” in
the United Kingdom to support the inference that this British
citizen is Abu Hussain, a U.K. born terrorist and
“hacker, ” who assisted Wright with the alleged
terrorist plot, and the subject of a telephone call between
Wright and Rahim on May 26, 2015. Gov't's Opp'n
to Def.'s Mot. in Lim. Exclude Crim. Conviction of Junaid
Hussain 1 (“Gov't's Opp'n Mot.
Lim.”), ECF No. 260.
moved in limine to exclude the criminal conviction of Junaid
Hussain on the grounds that no exception to the rule against
hearsay applied. Def.'s Mot. in Lim. Exclude Crim.
Conviction of Junaid Hussain 1 (“Def.'s Mot.
Lim.”), ECF No. 250. Specifically, Wright contended:
(i) Federal Rule of Evidence 803(22) is the only exception
under which this Court could admit the foreign conviction of
Junaid Hussain, and (ii) the foreign conviction of Junaid
Hussain is not a public record within the meaning of Federal
Rule of Evidence 803(8). Def.'s Mot. Lim. 2. In response,
the government argued that the conviction of Junaid Hussain
was admissible under either Rule 803(8) as a public record or
Federal Rule of Evidence 807, the residual exception to the
rule against hearsay. Gov't's Opp'n Mot. Lim. 1.
There was no dispute that Junaid Hussain's conviction was
properly authenticated. Def.'s Mot. Lim. 1.
Court DENIED the motion on September 15, 2017, Electronic
Order, ECF No. 318, and will explain its ruling below.
Rule 803(22) is not a Rule of Exclusion
803(22) provides that “[e]vidence of a final judgment
of conviction” is not excluded by the rule against
hearsay, regardless of whether the declarant is available as
a witness, if, among other requirements, “(C) the
evidence is admitted to prove any fact essential to the
judgment; and (D) when offered by the prosecutor in a
criminal case for a purpose other than impeachment, the
judgment was against the defendant.” Fed.R.Evid.
parties appear to agree that Rule 803(22) does not apply
here. See Def.'s Mot. Lim. 1 (stating that the
conviction is not against the defendant); Gov't's
Opp'n Mot. Lim. 1 (implicitly conceding the
inapplicability of Rule 803(22) by arguing that Rule 803(8)
or Rule 807 applies instead). Therefore, the only issue left
here is whether the inapplicability of Rule 803(22) excludes
the application of other hearsay exceptions.
citing any authorities, Wright argues that Rule 803(22) is
“[t]he only possible vehicle for the admission”
of prior convictions and because Rule 803(22) “on its
face excludes third party convictions, ” Junaid
Hussain's conviction is inadmissible. Def.'s Mot.
Lim. 2. This Court disagrees.
Olsen v. Correiro, 189 F.3d 52 (1st Cir. 1999), the
First Circuit refused to interpret Rule 803(22) as an
affirmative bar of certain final judgments excepted from the
rule. Id. at 62-63 (“Evidence of a final
judgment that does not fall within [Rule 803(22)] could still
be admissible, either because it is not being offered for the
truth of the matter asserted or because it falls within some
other hearsay exception.” (citing Hinshaw v.
Keith, 645 F.Supp. 180, 182 (D.Me. 1986) (“Rule
803(22) is not a rule of exclusion, but rather an exception
to the broad exclusionary rule known as the hearsay
rule.”))); Hancock v. Dodson, 958 F.2d 1367,
1372 (6th Cir. 1992) (noting that guilty pleas inadmissible
under Rule 803(22) may still be admissible under other
hearsay exceptions); United States v. Breitkreutz,
977 F.2d 214, 221 (6th Cir. 1992) (holding a judgment and
commitment order admissible under Rule 803(8) as a public
record even though it is inadmissible under Rule 803(22)). In
sum, this Court agrees with the government that Rule 803(22)
is not a rule of exclusion.
Applicability of Rule 803(8)
803(8) provides that “[a] record or statement of a
public office” is not excluded by the rule against
hearsay, regardless of whether the declarant is available as
a witness, if “(A) it sets out: (i) the office's
activities . . . or (iii) in a civil case or against the
government in a criminal case, factual findings from a
legally authorized investigation.” Fed.R.Evid. 803(8).
Before the 2011 amendments restyling the language of Rule
803,  Rule 803(8)(A) specified “the
activities of the office or agency, ” United States
v. Romero, 32 F.3d 641, 650 (1st Cir. 1994), which is
functionally equivalent to current Rule 803(8)(A)(i). The
current Rule 803(8)(A)(iii) is functionally equivalent to the
provision formerly styled as Rule 803(8)(C), which applied to
“factual findings resulting from an investigation made
pursuant to authority granted by law.” Nipper v.
Snipes, 7 F.3d 415, 417 (4th Cir. 1993).
alleges that Rule 803(8) does not apply for three different
reasons: (i) Rule 803(8) does not apply to foreign
convictions; (ii) convictions are not public records within
the meaning of Rule 803(8); and (iii) Rule 803(8) applies
only if convictions are offered “to prove facts such as
dates or the length of a criminal sentence.” Def.'s
Mot. Lim. 2 (quoting Breitkreutz, 977 F.2d at 221).
Wright incorrectly cites United States v. $125,
938.62, 537 F.3d 1287 (11th Cir. 2008), to support the
proposition that foreign convictions are not within the
meaning of public records under Rule 803(8). Def.'s Mot.
Lim. 2. In $125, 938.62, the government introduced
the defendants' prior foreign conviction to show facts
described in the conviction in addition to the conviction
itself. 537 F.3d at 1290. The Eleventh Circuit observed that
while the foreign conviction was admissible under Rule
803(22), the district court erred in admitting the
factual findings articulated in the foreign judgment
of conviction under what was then called Rule 803(8)(C).
Id. at 1292 (explaining that “Rule 803(8)(C),
by its plain language, does not apply to judicial findings of
fact” and thus “none of the relevant facts found
in the judgment of conviction were admissible”). The
Eleventh Circuit did not discuss the significance of a
foreign conviction. See id. The Court was also
silent on whether the foreign conviction would be admissible
under Rule 803(8) as a public record if offered to show only
the fact of conviction. See id.
government correctly distinguishes $125, 938.62 from
the case at issue because here, it introduced Junaid
Hussain's foreign conviction to show only the fact of
conviction, not the factual findings contained in the
conviction. Gov't's Opp'n Mot. Lim. 4. In
addition, the foreign nature of the conviction in $125,
938.62 was not the reason that Rule 803(8) did not
apply. 537 F.3d at 1292. Thus, Wright is incorrect to draw
the conclusion that Rule 803(8) does not apply to foreign
Office Activities and Factual Findings
Wright argues that convictions are not public records within
the meaning of Rule 803(8) because Rule 803(8) does not apply
to judicial findings of fact. Def.'s Mot. Lim. 2. Rule
803(8) “draws a distinction” between a public
office's activities and “factual findings from a
legally authorized investigation.” United States v.
Murgio, No. 15-CR-769(AJN), 2017 WL 365496, at *7
(S.D.N.Y. Jan. 20, 2017).
Olsen, the First Circuit ruled that a party's
prior manslaughter conviction was admissible under what was
then called Rule 803(8)(A) to show a sentence of time already
served. 189 F.3d at 63 (“When offered to show the fact
of conviction rather than underlying guilt ‘a judgment
readily fits the public records exception.'”
(quoting 4 Mueller & Kirkpatrick, Federal
Evidence § 472, at 660 (2d ed. 1994))). But cf.
Nipper, 7 F.3d at 417-18 (holding that “judicial
findings of fact are not public records within the meaning of
Rule 803(8)(C), ” noting that “when the drafters
of the Federal Rules of Evidence wanted to allow the
admission of judgments or their underlying facts, they did so
is distinguishable from Olsen. In Olsen,
the First Circuit ruled a prior conviction was admissible to
prove a sentence of time already served as a public record
for office or agency activities under the old Rule 803(8)(A).
189 F.3d at 63. In Nipper, the Fourth Circuit ruled
a prior court order inadmissible to prove a party's prior
wrongdoings under the old Rule 803(8)(C) because that
subsection does not apply to judicial fact finding. 7 F.3d at
418. Because these two cases reached different results based
on different grounds, Olsen is not contradictory
fails to recognize that Nipper and Olsen
concern different evidentiary rules. Def.'s Mot. Lim. 2.
Olsen does not stand for the proposition that
judicial determinations are not public records under what was
then called Rule 803(8)(C). Rule 803(8)(C) is immaterial
here. Olsen's holding is under what was then
called Rule 803(8)(A). Accordingly, this Court follows
Olsen to rule that the certified foreign conviction
of Junaid Hussain is admissible within the meaning of public
records under Rule 803(8)(A)(i).
Facts that Can Be Proved Under Rule 803(8)
Wright alleges that “convictions are admissible under
Rule 803(8) as public records only if offered ‘to prove
facts such as dates or the length of a criminal
sentence.'” Def.'s Mot. Lim. 2 (quoting
Breitkreutz, 977 F.2d at 221). In
Breitkreutz, the government introduced a judgment
and commitment order of a third party to bolster the
credibility of a witness. 977 F.2d at 215. The Sixth Circuit
affirmed the district court's decision to admit the
judgment and commitment order under Rule 803(8) as a public
record. Id. at 221 (holding that “the
admission of the judgment and commitment order for purposes
of establishing the date and length of [a third party's]
sentence was entirely proper and resulted in no unfair
prejudice to the defendant”). In United States v.
Wilson, 690 F.2d 1267 (9th Cir. 1982), the Ninth Circuit
noted that an “adequately authenticated” judgment
and commitment order is admissible “in its
entirety” under Rule 803(8) as a public record.
Id. at 1275 n.2. The judgment and commitment order
was inadmissible under Rule 803(22) in both
Breitkreutz and Wilson, though for
different reasons. Compare Breitkreutz, 977 F.2d at
221 (Rule 803(22) not applicable because the previous
conviction of a third party was “not offered to prove a
fact essential to sustain the judgment”), with
Wilson, 690 F.2d at 1275 (Rule 803(22) not applicable
because the conviction was related to a misdemeanor instead
of a felony). The Sixth Circuit noted that with respect to
the admissibility of a prior conviction “introduced to
prove facts such as dates or the length of a criminal
sentence, ” there was “no meaningful
distinction” between the judgment and commitment orders
in Breitkreutz and Wilson under Rule
803(8). Breitkreutz, 77 F.2d at 221.
does not stand for, as construed by Wright, the proposition
that “convictions are admissible under Rule 803(8) as
public records only if offered ‘to prove facts
such as dates or the length of a criminal
sentence.'” Def.'s Mot. Lim. 2 (quoting
Breitkreutz, 977 F.2d at 221) (emphasis added).
Breitkreutz does not include any language indicating
that Court intended to limit the admissibility of prior
convictions under Rule 803(8) to show only dates or the
length of a criminal sentence. As correctly argued by the
government, the term “such as” means that
convictions may be admitted to prove facts including, but not
limited to, dates and the length of a sentence.
Gov't's Opp'n Mot. Lim. 3.
the government introduced Junaid Hussain's prior
conviction solely to prove the fact that this individual was
previously convicted in the United Kingdom for the offense of
“Causing [a] Computer to Perform [a] Function with
Intent to Secure Unauthorized Access.” That's all.
The fact of that conviction, standing alone, was competent
circumstantial evidence from which others might think that
individual was a computer facile “hacker.” This,
coupled with evidence that Junaid Hussain had fled the United
Kingdom and Abu ...