Argued: November 1, 2018
from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:16-cr-00265-LMB-1)
Nicholas David Smith, DAVID B. SMITH, PLLC, Alexandria,
Virginia, for Appellant.
D. Kromberg, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Zachary Terwilliger, United States Attorney, John T. Gibbs,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
AGEE, KEENAN, and RICHARDSON, Circuit Judges.
in the United States District Court for the Eastern District
of Virginia convicted Nicholas Young of one count of
attempting to provide material support to the Islamic State
of Iraq and the Levant ("ISIL"), a designated
foreign terrorist organization ("FTO"), in
violation of 18 U.S.C. § 2339B, as well as two counts of
attempting to obstruct justice, in violation of 18 U.S.C.
§ 1512(c)(2). Asserting a host of district court errors,
Young challenges his convictions and sentence. For the
following reasons, we affirm the material support conviction,
vacate the obstruction convictions, and remand for
2010, the Federal Bureau of Investigation ("FBI")
opened a counterterrorism investigation into Young, a police
officer with the Washington Metropolitan Area Transit
Authority, prompted in part by his connections to an
acquaintance who had been arrested on 18 U.S.C. § 2339B
charges. That December, "Khalil," an undercover FBI
agent, began maintaining contact with Young, who would
discuss with Khalil his wariness of FBI surveillance, the
measures he had taken to thwart such surveillance, and the
skills needed-which he purported to possess-to attack an FBI
or a federal office. During this period, law enforcement also
observed Young traveling to and from Libya, though law
enforcement was unable to determine the purpose of his trips.
Khalil's contact with Young eventually concluded in April
2014, the FBI again began observing Young more actively after
an FBI informant, "Mo," met Young through
Young's acquaintances, whom Mo was monitoring. Over the
next several months, Mo and Young met approximately 20 times.
During their meetings, Mo indicated that he was interested in
traveling to Syria to join ISIL. Young in turn offered advice
on how to travel overseas without being flagged by government
authorities. Specifically, Young suggested that Mo devise a
cover story for his trip, such as pretending that he was
taking a guided tour of Turkey (or that he actually take such
a tour). Young also advised Mo to book a roundtrip ticket and
volunteered to send a text to Mo a few days after Mo's
"return date" to assist Mo in evading law
enforcement suspicion, explaining that the text would make it
look like Young was expecting Mo's return (rather than
staying on in the region to travel to ISIL-controlled
territory). Finally, Young and Mo set up covert email
accounts to communicate.
October, Mo traveled to Turkey with his FBI handler, Special
Agent John Minichello. While there, Mo emailed Young that he
was planning to travel to ISIL-controlled territory in Syria.
Mo then returned to the U.S. In November 2014, Young sent Mo
the pre-arranged text message: "Hope you had a good
vacation. If you want to grab lunch . . . hit me up."
J.A. 566:3-5. After forwarding that message to Agent
Minichello, Mo's involvement in the investigation
concluded; from that point on, Agent Minichello and another
agent impersonated Mo to Young through the email account.
subsequent emails to Mo, Young made it clear that he believed
Mo had joined ISIL. In 2015, Young asked Mo to mention him to
any Libyan ISIL members Mo might encounter and to tell them
that Young had been in Libya with the Abu Salem Martyrs'
Brigade, a militia group with connections to al Qaeda that
had been fighting Muammar al Qaddafi's regime. Young also
emailed his contacts in the Brigade on Mo's behalf.
December 3 and 5, 2015, two FBI agents interviewed Young.
Although the agents purported to be questioning Young about
Mo's whereabouts, they were attempting to determine
whether Young himself was in contact with any terrorists.
During the interviews, Young denied having current contact
information for Mo. He informed the agents that he believed
Mo had gone on vacation but that he had not been in touch
with Mo since October 2014. He also denied knowing anyone who
had given Mo travel guidance. Young later emailed Mo to
inform him about the FBI's inquiry.
April 2016, Mo suggested to Young that they should
communicate through an encrypted messaging app, Threema. In
July, Young created a Threema account and received a message
from Mo noting that ISIL needed more fighters. Mo explained
that Google gift cards could be used to buy Threema accounts
to help fighters communicate with ISIL, thereby facilitating
their travel to ISIL-controlled territory. At the end of the
month, Young used Threema to transmit $245 in Google gift
cards to Mo. After confirming that Mo had received the cards,
Young responded that he was "glad" and would be
disposing of the device used to communicate with Mo. J.A.
August 2016, Young was arrested for attempted material
support of ISIL, an FTO. On the day of his arrest, agents
executed a search warrant and seized militant Islamist, Nazi,
and white supremacist paraphernalia as well as weapons from
his home. An indictment subsequently charged Young with
attempting to provide material support-the gift cards-to a
designated FTO, in violation of 18 U.S.C. § 2339B (Count
One), and attempting to obstruct-during the 2015 interviews
(Count Two) and with the November 2014 text (Count Four)-an
official proceeding, in violation of 18 U.S.C. §
1512(c)(2). Young proceeded to a trial on these
counts. The jury convicted Young of all three counts and the
district court imposed a below-Guidelines sentence of 180
months as to each count, with the sentences to run
timely appealed, asserting five sets of errors by the
district court. The first three concern Count One, to which
Young had asserted an entrapment defense during trial. To
establish Young's predisposition to commit the offense
conduct, the Government had introduced evidence of the seized
items over Young's objections. On appeal, Young asserts
in Ground One that the district court erred by admitting into
evidence the white supremacist and Nazi paraphernalia. Ground
Two contends that the district court erroneously certified an
expert witness on militant Islamist and Nazi
"convergence." Ground Three asserts that a number
of the district court's evidentiary rulings deprived
Young of his due process right to a fair trial. Ground Four
posits that the Government failed to offer sufficient
evidence to prove the two attempted obstruction of justice
charges. Finally, Ground Five asserts that his sentence was
both procedurally erroneous and substantively unreasonable.
Court has jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742.
Grounds One to Three: Entrapment-Centered Challenges
trial, Young presented an entrapment defense to Count One,
which charged Young with attempting to provide material
support to a designated FTO. To establish entrapment, a
defendant must first demonstrate the government induced him
to engage in the criminal activity. United States v.
McLaurin, 764 F.3d 372, 380 (4th Cir. 2014). Once the
defendant has shown government inducement, the burden shifts
to the government to prove beyond a reasonable doubt the
defendant's predisposition to have engaged in the
criminal conduct. United States v. Jones, 976 F.2d
176, 179 (4th Cir. 1992). Predisposition "focuses upon
whether the defendant was an unwary innocent or, instead, an
unwary criminal who readily availed himself of the
opportunity to perpetrate the crime." Mathews v.
United States, 485 U.S. 58, 63 (1988). To establish
Young's predisposition to commit the offense conduct, the
Government introduced evidence of Young's interest in
radical, anti-Semitic terrorist causes both before and after
his first contact with Khalil in 2010. See Jacobson v.
United States, 503 U.S. 540, 548-50 (1992) (holding that
predisposition must be established prior to the
defendant's first contact with a government agent). This
evidence included Nazi and white supremacist paraphernalia
seized from Young's home, expert testimony regarding the
"convergence" of Nazism and militant Islamism, and
testimony about Young's prior support for such causes.
Young contests the admission of that evidence as well as the
exclusion of other purportedly exculpatory evidence.
reviewing evidentiary rulings, this Court reviews the
district court's legal conclusions de novo and its
factual findings for clear error. United States v.
Kolsuz, 890 F.3d 133, 141-42 (4th Cir. 2018). Such
rulings are reviewed for abuse of discretion and overturned
only if the error was not harmless. United States v.
Cloud, 680 F.3d 396, 401 (4th Cir. 2012); United
States v. Forrest, 429 F.3d 73, 81 (4th Cir. 2005)
(concerning expert testimony).
Ground One: Nazi and White Supremacist Paraphernalia
prove Young's predisposition to assist an FTO, the
Government introduced Nazi and white supremacist
paraphernalia seized from Young's home pursuant to a
search warrant. The warrant had authorized the seizure of
"[a]ll records, documents, and paraphernalia . . .
relating to ISIL/ISIS," as well as "other
designated terrorist groups, or any individual or group
engaged in terrorism or terrorist activity, or communications
with or involving such groups and/or individuals." J.A.
56; 66. After finding the items in Young's home and
consulting with a Government attorney, law enforcement seized
Government then moved to admit this evidence (1) to
corroborate testimony from Young's college friends and
former housemates concerning his pre-2010 interest in these
causes and (2) to further illustrate his interest
in a historical and modern-day connection between Nazis and
militant Islamists. To this latter point, the Government
introduced, among other items, a poster Young had downloaded
in 2007 depicting a Nazi shaking hands with the Mufti of
Jerusalem-who had allied himself with Adolf Hitler and
recruited Muslim troops to serve in the SS-titled "The
Alliance: Worldwide Association of Nazis and Islamists
1939-2004," Response Br. 35; photos of the Mufti and
Hitler as well as the Mufti and Muslim SS troops; Young's
prayer list, which included Hitler and the Mufti; a 2007
photo on his computer of Muslim women with a sign saying,
"God Bless Hitler," J.A. 1636; a copy of
Young's Facebook page from 2011, in which Young linked to
a story about the arrest of neo-Nazi turned jihadist Emerson
Begolly; and a 2014 graphic on his phone with the words,
"Together, we can finish what Hitler started," J.A.
moved prior to trial to suppress the admission of the Nazi
and white supremacist paraphernalia based on two asserted
errors: first, the seizure of the items exceeded the
warrant's scope and second, their admission violated
Federal Rules of Evidence 401 and 403. The district court
denied the motion, and Young challenges the district
court's holding ...