Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, November 02, 2011

Augustin: Terrorism convictions affirmed

In U.S. v. Augustin, No. 09-15985 (Nov. 1, 2011), the Court affirmed terrorism-related convictions in connection with a plans to provide support to al Qaeda and bomb the Sears Tower in Chicago.
The Court rejected the argument that the government should not have been permitted to amend the indictment to delete surplusage, noting that the government is in fact permitted to do so.
The Court also rejected the argument that the Constitution’s Treason Clause, which requires a showing that the defendant owed allegiance to the United States, foreclosed conviction under certain counts, because they did not allege that the defendants swore an oath of allegiance to al Qaeda. The Court noted that the statutes at issue did not have as an element allegiance to the United States, and therefore did not implicate the Treason Clause.
Though recognizing that the proof was "far from overwhelming," the Court rejected challenges to the sufficiency of the evidence, noting that the defendants photographed buildings as potential terrorist targets, and volunteered to serve under al Qaeda. Moreover, they participated in an oath ceremony.
The Court rejected the argument that the government’s involvement in creating the crime was so pervasive that it violated Due Process. The Court found that the conduct was not "outrageous."
The Court also rejected the argument that an FBI agent gave opinion testimony about the defendant’s criminal mind that was inadmissible under Fed. R. Evid. 704(b). Though recognizing that there is a "fine line" between testimony about what an observer "would take to be" the defendant’s intent and testimony about a defendant’s "actual state of mind," the Court concluded that the agent’s testimony left the ultimate issue of the defendant’s state of mind to the jury.
The Court found that the district court properly qualified a witness as an expert to testify about a criminal organization’s structure, noting the witness’ experience and qualifications.
The Court upheld the district court’s exclusion of testimony of a witness proffered by the defense to testify about gangs. The Court noted that, under Fed. R. Evid. 701, the testimony was only admissible to the extent it was based on perception, and impermissible if based on "expertise."
The Court found no error in the dismissal of a juror during deliberations. The district court has broad discretion in dealing with juror misconduct. Here, it questioned each of the other jurors individually, as well as the juror who was said not to want to follow the court’s instructions on the law.