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United States v. Wright

United States District Court, D. Massachusetts

January 22, 2018

UNITED STATES OF AMERICA,
v.
DAVID WRIGHT, Defendant.

          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 be these[:]
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.

         Court's 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.

         On 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.

         I. BACKGROUND

         On 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.

         Wright's 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”).

         The 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.

         On the 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.

         The 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.

         II. PRE-TRIAL RULING

         Prior 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.

         Wright 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.

         This Court DENIED the motion on September 15, 2017, Electronic Order, ECF No. 318, and will explain its ruling below.

         A. Rule 803(22) is not a Rule of Exclusion

         Rule 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. 803(22).

         Both 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.

         Without 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.

         In 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.

         B. Applicability of Rule 803(8)

         Rule 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, [1] 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).

         Wright 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).

         1. Foreign Convictions

         First, 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.

         The 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 convictions.

         2. Office Activities and Factual Findings

         Second, 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).

         In 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 expressly”).

         Nipper 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 with Nipper.

         Wright 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).[2] 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).

         3. Facts that Can Be Proved Under Rule 803(8)

         Finally, 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.

         Breitkreutz 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.

         Here, 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 ...


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