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Univ. of South Carolina School of Law

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Saturday, October 4, 2008

Dampening The Flames: 2nd Circuit Finds Trial Court Made Incorrect Prior Consistent Statement Ruling During Cross-X Of CI Who Set Himself On Fire In Front Of The White House

After discussing the seemingly misguided application of the prior consistent statement rule by the Court of Criminal Appeals of Texas yesterday, I wanted to cleanse my palate with a court correctly applying the rule.  And, as luck would have it, a helpful reader recently sent me a link to the Second Circuit's recent opinion in United States v. Al-Moayad, 2008 WL 4443841 (2nd Cir. 2008), which he told me had some great discussion of Federal Rule of Evidence 403.  And he's right.  The discussion of Rule 403 in the opinion is extensive and well reasoned, and I would direct readers wanting an in depth analysis of the rule to the opinion.  Al-Moayad, however, also contains a well stated application of the prior consistent statement rule, which I will address in this post.

In Al-Moayad, Mohammed Ali Al-Moayad and Mohammed Mohsen Zayed appealed from judgments of conviction in the United States District Court for the Eastern District of New York (in my old stomping ground of Brooklyn).  Both were convicted of conspiring to provide material support to designated terrorist organizations Hamas and Al-Qaeda, and attempting to provide material support to Hamas.

These charges were levied against Al-Moayad after an FBI investigation, which was aided to a great degree by a confidential informant named Mohammed Al-Anssi.  Prompted by the events of September 11, 2001, Al-Anssi approached the FBI to offer information relating to terrorism.  Al-Anssi claimed that he first met Al-Moayad in Yemen in 1995, where they were neighbors and Al-Moayad was the imam of a mosque and ran a bakery and a school.  He further alleged that in 1996 or 1997, he learned from Al-Moayad that he was involved in supplying money, arms, and recruits to terrorist groups. After Al-Anssi relayed this information to FBI Special Agent Brian Murphy, Murphy enlisted Al-Anssi as his principal confidential informant and used him to help develop the government's case against Al-Moayad, and later Zayed.

As the Secnd Circuit noted, however, "Al-Anssi did not offer his assistance for free."  Instead,

     "he admitted that he was in difficult financial circumstances when he approached the FBI and that he sought compensation in exchange for information. Al-Anssi testified that in 2001, he was in the United States on a tourist visa. He was heavily in debt, looking for work, and in need of assistance for himself and his family. Al-Anssi initially asked the FBI for 5 million dollars in exchange for his assistance, 'hoping that it will go up, no problem.' He also requested United States citizenship and that his family be brought to the United States from Yemen. In describing his motive for seeking compensation, Al-Anssi testified, 'the issue was the truth, the whole issue, and after I chase the terrorists and to bring him here to America, I deserve even 10 million dollars.'

     Al-Anssi stated that he was paid $100,000 by the FBI for his assistance. However, he believed that he deserved millions, '[a]nd I expect more than that.' Al-Anssi admitted that, because he was upset about his small payment from the FBI, he falsely told the Washington Post that the FBI promised to pay him 5 million dollars. He also testified that in November 2004, in an attempt to coerce the FBI into paying him more money, he set himself on fire in front of the White House. With regard to this incident, Al-Anssi testified that he did not intend to commit suicide, but that he 'wanted to put the government and the world on notice,' and that '[i]t is my right to get as much as I can from the FBI.'"

So, what did Al-Anssi do as a CI?  Well, a big part of his job was to go to Yemen three times in 2002 and gather incriminatory statements from Al-Moayad.  Later, In collaboration with German law enforcement agencies, the FBI arranged for Al-Moayad and Zayed to meet with Al-Anssi and another CI.  These meetings were secretly recorded, and based upon how they are presented in the Second Circuit's opinion, they don't seem very incriminatory to me.  For instance, at the first meeting, Al-Moayad expressed his desire to secure money for his charity projects, including his bakery, and no one explicitly mentioned funding terrorist activity.  The government later contended, however, that the defendants' references to Al-Moayad's charitable endeavors were actually code for various forms of support for terrorism.

So, what happened at trial?  Well, undoubtedly influenced by the fact that Al-Anssi set himself on fire in front of the White House, the prosecution didn't call him as a witness and instead tried to prove its case through the testimony of other witnesses and the recordings of the meetings.  The defendants, meanwhile, called Al-Anssi as part of their case in chief, in which they alleged entrapment.  And after calling Al-Anssi, they

     "elicited significant impeachment testimony from him, including admissions of his heavy indebtedness, financial difficulties, and his attempts to obtain large sums of money from the FBI in exchange for information. Al-Anssi also conceded that he had a prior felony conviction, having pled guilty in the Eastern District of New York to bank fraud (specifically, writing bad checks). Al-Anssi further testified that he had purchased a dry cleaning business with a portion of the $100,000 he received from the FBI, but the business failed and he returned it to the seller in June 2004. A1-Anssi admitted that, after this failure, he had run out of money, leading to his attempt in November 2004 to get more money from the FBI by setting himself on fire at the White House."

During its subsequent cross-examination of Al-Anssi, the prosecution questioned him about his three meetings with Al-Moayad in Yemen, at which point he relayed some possibly incriminatory statements that Al-Moayad had made.  The prosecution then moved to introduce into evidence handwritten notes Al-Anssi took during his three meetings with Al-Moayad, arguing that defense counsel had opened the door to their admission as prior consistent statements with his impeachment of Al-Anssi. The notes

     "memorialized, among other things, the following information: Al-Moayad was 'the right hand' to Sheikh Abdul Majid Al-Zindani; at some point in the past, Al-Moayad was 'the main person choosing the volunteers' to send to fight in the conflicts in Chechnya, Afghanistan, and Bosnia; during Al-Anssi's first trip to Yemen, Al-Moayad provided him with information about foreign arms dealers; Al-Moayad asked Al-Anssi not to call him on the phone, and to refer only to medical treatment if he did so; Al-Moayad was aware while still in Yemen that Saeed (the other CI) intended to give a substantial sum of money ($2 million) specifically to support the armed mujahidin; Al-Moayad visited and supported Bin Laden in Afghanistan; he knew young volunteers who were ready for training in jihad; and he gave $3.5 million to Palestine and $20 million to Al-Qaeda 'during last few years and before the Sept. 11, 2001.'"

On appeal, Al-Moayad claimed, inter alia, that the trial court erred by admitting these notes into evidence as prior consistent statements under Federal Rule of Evidence 801(d)(1)(B), which indicates that "[a] statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive."   

The problem for the prosecution, however, was that Rule 801(d)(1)(B) contains a "fundamental temporal requirement" in that the prior consistent statement "must have been made before the declarant developed [an] alleged motive to fabricate."  And, according to the Second Circuit, Al-Anssi created the notes only after a significant motive to fabricate arose, "namely the large amount of money he expected and was paid to furnish information to the FBI."  The Second Circuit then rejected the prosecution's weak argument that the notes were not offered as substantive evidence under Rule 801(d)(1)(B), found that this error and other errors were not harmless, and vacated andremanded for further proceedings.  And based upon the temporal requirement of the Rule, I think that the Second Circuit's decision was absolutely correct.

-CM

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