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United States v. Young

United States Court of Appeals, Fourth Circuit

February 21, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
NICHOLAS YOUNG, Defendant-Appellant.

          Argued: November 1, 2018

          Appeal 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.

          Gordon D. Kromberg, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

         ON BRIEF:

          G. Zachary Terwilliger, United States Attorney, John T. Gibbs, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

          Before AGEE, KEENAN, and RICHARDSON, Circuit Judges.


         A jury 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 resentencing.


         In 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 2012.

         In May 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.

         That 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.

         In 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.

         On 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.

         In 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. 868:13.

         In 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).[1] 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 concurrently.

         Young 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.

         This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

         II. Grounds One to Three: Entrapment-Centered Challenges

         At 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).[2] 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.

         In 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).

         A. Ground One: Nazi and White Supremacist Paraphernalia

         To 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 the materials.

         The 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[3] 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. 1633.

         Young 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 ...

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