Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, September 20, 2011

Jayyousi: Terror convictions affirmed; sentence reversed

In U.S. v. Jayyousi, No. 08-10494 (Sept. 19, 2011), the Court affirmed (2-1) the convictions of three defendants for offenses relating to their support for Islamist violence overseas, but vacated the sentence of defendant Padilla.

The Court rejected the argument that the district court erred in admitting under FRE 701 the testimony of an FBI agent about the meaning of code words in conversations among the co-defendants. The Court found that the testimony was based on five years of investigation, and review of thousands of wiretap summaries – it was rationally based on his perception. The Court noted it had “never held that a lay witness must be a participant or observer of a conversation to provide testimony about the meaning of coded language used in the conversation.”

The Court rejected challenges to the sufficiency of the evidence, noting, inter alia, that defendant Padilla was “secretive” about his plans to attend an al-Qaeda training camp, that the conspirators planned for him to travel to fight in “jihad,” and that Jayyousi oversaw the purchase of satellite phones to send to Chechnya to aid in armed conflict.

The Court rejected Padilla’s challenge to the admission of statements he made without Miranda warnings during his interview with FBI agent at Chicago O’Hare airport. The Court noted that questioning at the border must rise to a “distinctly accusatory level” before a person is deemed in “custody.” The Court found that the questioning was not accusatory until one agent accused Padilla of links to a terrorist organization. It rejected the dissent’s contention that the questioning became accusatorial when an agent confronted Padilla about not the telling the truth and about the source and purpose of the money he had failed to declare.

The Court rejected Padilla’s argument that the indictment should have been dismissed because of the outrageous government conduct when he was held in custody as an enemy combatant at a Navy Brig in South Carolina. The Court held that the outrageous government conduct doctrine only applies when the government conduct relates to the defendant’s underlying or charged criminal acts. Padilla’s claim related to mistreatment at the brig after the conclusion of his criminal acts.

The Court rejected co-defendant Hassoun’s argument that the district court should not have excluded a statement that someone other than Hassoun recruited Padilla for jihad. The Court found that the statement lacked the exceptional trustworthiness required under FRE 807 to admit otherwise inadmissible hearsay.

Turning to sentencing, the Court affirmed the district court’s imposition of a Guidelines terrorism sentence enhancement. The Court found that the defendants’ intended outcome was to displace “infidel” government that opposed radical Islamist goals. As to Padilla, however, the Court reversed the district court’s 208 months’ sentence. The Court faulted the district court for failing to adequately reflect Padilla’s criminal history. The district court also failed to account for Padilla’s “heightened risk of future dangerousness due to his al-Qaeda training.” The district court also failed to consider significant distinctions between Padilla and the other offenders the district court referenced. because these offenders pleaded guilty, were convicted of less serious offenses, or lacked extensive criminal histories. Finally, although the district court’s reliance on Padilla’s harsh conditions of pretrial confinement was a valid basis for a sentence reduction, it did not justify a reduction as “extensive” as the one the district court gave Padilla. The Court therefore remanded the case for resentencing.