United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION & ORDER
J. BOYLE, UNITED STATES DISTRICT JUDGE
the Court is the Government's Federal Rule of Evidence
404(b) Notice (Doc. 101) and Defendant Said Azzam Mohamad
Rahim's Objections thereto (Doc. 107).
Government seeks to introduce evidence of various allegedly
bad acts committed by Rahim. This evidence falls into two
categories: (1) Rahim's statements related to Hamas; and
(2) Rahim's statements related to past criminal conduct.
The Court addresses each in turn.
Rahim's Statements Related to Hamas
the Government provides notice of its intention to introduce
statements Rahim made on the social-media application Zello.
Doc. 101, Gov't's Notice, 1. Rahim made the
statements in question on December 30, 2015-within the period
of the charged conspiracy. Id. In full, Rahim
I asked the question; meaning Hamas has this thorn in Gaza,
then why doesn't Hamas implement the God's
Shari'ah, what is preventing it?
You may tell me because they are believers in appeasement.
Then it means they believe in Israel. And here we mention
Haniyeh when he swore by God that he will never recognize
Israel although inclusively he does recognize it. But the
appeasement? Why doesn't the state of war continue? Why?
Then why does the state of war continue, due to some
political considerations. Why?
Then why doesn't Hamas take advantage of the state of
disgrace and submissiveness that God has disgraced them with
eternally? Why doesn't Hamas take advantage of it? Why
don't they take advantage of it? But Hamas takes everyone
into account. And I used to be uh from Hamas. I used to be
Hamas. But I had enough of it and denounced it.
“Declare the tyrants and infidels and kill all their
countrymen. And direct your heart to worship only worshiped
God.” That's it. I was done with Hamas. I was
Hamas, I used to defend it but thank God, the Lord of the
Worlds, I became aware of the Islamic nullifications, I got
to know the rules of no god but God, and I got to know what
the most trustworthy and unbreakable handhold is, I got to
know what the tyrants are, its parts and such.
Who do they have other than God, may He be exalted: So, may
God bless you, this is an invitation to myself and everybody
else to denounce the Muslim Brotherhood, because their
unbelief has been proven and became apparent to all. Al-Sisi
is an unbeliever literally and unanimously, an unbeliever,
why don't the go announce it? But, there are
Id. at 1-2. The Government has not provided the
Court with information on to whom these statements were made.
Government first argues these statements are not even subject
to Rule 404(b) because they are intrinsic to the charges
Rahim faces. Id. “Rule 404(b) is only
implicated when the offered evidence is extrinsic; evidence
intrinsic to the charged offense does not implicate the
rule.” United States v. Crawley, 533
F.3d 349, 353-54 (5th Cir. 2008). “Other act evidence
is ‘intrinsic' when the evidence of the other act
and the evidence of the crime charged are ‘inextricably
intertwined' or both acts are part of a ‘single
criminal episode' or the other acts were ‘necessary
preliminaries' to the crime charged.” United
States v. Rice, 607 F.3d 133, 141 (5th Cir. 2010)
(quoting United States v. Williams, 900 F.2d 823,
825 (5th Cir. 1990)). “Intrinsic evidence is admissible
to complete the story of the crime by providing the immediate
context of events in time and place, and to evaluate all of
the circumstances under which the defendant acted.”
Id. (internal citations and quotations omitted).
Additionally, “acts committed in furtherance of the
charged conspiracy are themselves part of the act charged and
therefore qualify as intrinsic evidence.” United
States v. Ceballos, 789 F.3d 607, 621 (5th Cir. 2015)
(cleaned up). On the other hand, “when evidence of a
defendant's uncharged crimes, wrongs, or other acts is
extrinsic to the offense, the admission of that
evidence is limited under Rule 404(b).” Id.
(emphasis in original).
Government argues these statements are intrinsic to the
crimes charged-conspiring and attempting to provide material
support to a foreign terrorist organization-because they are
“admissions that he is a terrorist and supporter of the
most extreme forms of terrorism.” Doc. 101,
Gov't's Notice, 2. Rahim responds that these
statements are not intrinsic because they do not fit into any
of the categories for intrinsic evidence the Fifth Circuit
has established. Rahim argues these statements do not
“complete the story” presented of his alleged
criminal conduct because these statements do not involve
ISIS. Rahim contends that because he is being tried for his
alleged support of ISIS, not Hamas, his purported support of
Hamas is not relevant the narrative of the crime charged.
Doc. 107, Rahim's Obj., 2-3. He also argues that these
statements are not evidence of a “single criminal
episode” because a “claim that someone used
to be a member of a terrorist organization is not a
crime.” Id. at 3 (emphasis in original). Nor,
Rahim argues, are these statements a “necessary
preliminary” to the crimes charged because it is not
necessary the Government proves that he was a member of Hamas
prior to his alleged support of ISIS. Id. Thus,
Rahim concludes that the statements should be classified as
“extrinsic” evidence and subject to Rule 404(b).
Court agrees with the Government that these statements are
intrinsic to the crimes with which Rahim is charged. Rahim
made these statements about his previous association with
Hamas during the time of the conspiracy alleged in this case.
Doc. 101, Gov't's Notice, 1. These statements are
probative of the context in which both the alleged conspiracy
and material support occurred. They are also relative to
essential elements of the crimes charged, including whether
or not Rahim had knowledge about ISIS's connection to
terrorism. See 18 U.S.C. § 2339B(a)(1).
even if the evidence is not intrinsic, the Court would find
that these statements are admissible under 404(b) as proof of
Rahim's state of mind in relation to the crimes charged.
Rahim's statements arguably reflect that he had the
intent to join and support a group that had stronger
convictions than Hamas. Doc. 101, Gov't's Notice,
1-2. He admitted to being a member of Hamas, but
“denouncing it” for its weakness. Id.
This also shows he had knowledge of the objectives of certain
foreign terrorist organizations, and it may reflect a motive
to provide support to such organizations that were more
extreme than Hamas. Cf. United States v. Mustafa,
406 Fed.Appx. 526, 528 (2d Cir. 2011) (holding district court
did not abuse discretion in admitting evidence under 404(b)
that the defendant associated with a terrorist group other
than the one the defendant was charged with supporting
because it was “highly probative” of his state of
mind). Rahim does not challenge that these statements are
relevant to the issues of his state of mind; he does
challenge, however, their admissibility under Rule 403. Doc.
107, Rahim's Obj., 3. Rahim claims that showing this
evidence to a jury would result in the impermissible
inference that because Rahim previously supported a different
terrorist organization, he “must have” supported
ISIS. Id. While the Court understands Rahim's
concern, the Court is confident any prejudice can be cured
with an instruction to the jury that they shall consider
these statements solely for the purposes of proving
Rahim's intent, knowledge, motive, etc. See United
States v. ...