EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, November 2, 2011

Terror Alert: 11th Circuit Finds Special Agent's Testimony Navigated Fine Line, Didn't Violate Rule 704(b)

Federal Rule of Evidence 704(b) provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Here are three examples of testimony by a Special Agent at a defendant's trial for terrorism-related crimes. Does this testimony violate Rule 704(b)?:

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  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.

According to the recent opinion of the Eleventh Circuit in United States v. Augustin, 2011 WL 5141523 (11th Cir. 2011), the answer is "no." In Augustin

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 18 U.S.C. § 2339B; and (2) conspiracy to provide material support by agreeing to provide personnel (including themselves), knowing and intending that they were to be used in preparation for and in carrying out a violation of 18 U.S.C. §§ 844(f)(1) and (i), and to conceal and disguise the nature, location, source, and ownership of such material support, all in violation of 18 U.S.C. § 2339A. Abraham and Batiste were also convicted of conspiracy to maliciously damage and destroy by means of an explosive a building leased to an agency of the United States (the FBI) and a building used in interstate and foreign commerce (the Sears Tower), all in violation of 18 U.S.C. § 844(n). Additionally, Batiste was convicted of conspiracy to levy war against the Government of the United States and to oppose by force the authority thereof in violation of 18 U.S.C. § 2384.

Batiste's defense at trial "'was that he was simply pretending to conspire with the purported terrorist[s], and posturing for the purpose of ripping them off, or scamming them out of money.'" After he was convicted, Batiste appealed, claiming that, based upon his defense, the jury was tasked with deciding whether he "meant what he said," and that testimony such as in the three examples above was admitted in violation of Rule 704(b) because it implied that his true intent was to commit the charged offenses.

The Eleventh Circuit disagreed, concluding that

We do not find this argument convincing. We note that [the Special Agent] 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, [the Special Agent] 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 [the Special Agent] left the ultimate issue of Batiste's state of mind for the jury to decide....We therefore conclude that the testimony did not violate Rule 704(b).



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