Entrapment Defense Overcome Despite “Absolute Consistency of Belief,” Fourth Circuit
“Absolute consistency of belief is not a prerequisite to proving predisposition” to overcome an entrapment defense, the Fourth Circuit recently held in a case involving a former law enforcement officer who supported militant Islamism, Nazism, and white supremacy.
In 2010, the FBI opened a counterterrorism investigation into Nicholas Young, a police officer with the Washington Metropolitan Area Transit Authority. In 2014, an FBI informant, “Mo,” met Young through acquaintances whom Mo was monitoring. During their meetings, Young offered Mo advice on how to travel overseas to Syria to join ISIL without being flagged by government authorities, including the specifics of a cover story, booking a roundtrip ticket, and having Young text with Mo to create the appearance that Young expected Mo to return.
In October 2014, Mo traveled to Turkey. While there, Mo e-mailed Young that he was planning to travel to ISIL controlled territory in Syria. Mo then returned to the U.S. In November, Young sent Mo the pre-arranged text message: “Hope you had a good vacation. If you want to grab lunch…hit me up.”
In subsequent e-mails to Mo, Young made 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 tell them that Young had been in Libya with the Abu Salem Martyrs’ Brigade, a militia group with connections to al Qaeda.
In December, FBI agents interviewed Young, purportedly about Mo’s whereabouts. Young denied having current contact information for Mo, telling them he believed Mo had gone on vacation but that he had not had contact with Mo since October 2014. Young later e-mailed Mo to inform him about the FBI inquiry.
Young subsequently used an encrypted messaging app to send Mo $245 in Google gift cards to help fighters buy encrypted apps to communicate with ISIL.
In August 2016, Young was arrested for attempted material support of ISIL, a designated foreign terrorist organization, or “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 Young’s home.
Young was indicted with attempting to provide material support to a designated FTO, and attempting to obstruct an official proceeding. At trial, Young asserted an entrapment defense. To overcome that defense, the government proved Young’s predisposition to assist an FTO, in part by introducing the Nazi and white supremacist paraphernalia seized from Young’s home.
Young moved to suppress admission of the paraphernalia, arguing the seizure of the items exceeded the scope of the search warrant and that their admission violated Federal Rules of Evidence 401 and 403. The trial court denied Young’s motion, and jury convicted Young. He was sentenced to 180 months imprisonment and appealed.
On appeal to the U.S. Court of Appeals for the Fourth Circuit, Young argued the paraphernalia should have been suppressed as being outside the scope of the search warrant, which permitted the seizure of items related to ISIL as was all “other designated terrorist groups.” Young argued the Nazi and white supremacist items were not included within the warrant’s language. The Fourth Circuit rejected that argument.
First, the court held that even if Nazi organizations are not designated FTOs, “a reasonable officer would be able to draw on common knowledge to conclude that the Nazis’ threats and use of violence as a means of achieving their political ends meant that Nazis engaged in terroristic activity” as defined by federal statute. Second, the court factually concluded “some of the items illustrated a historical and present-day connection between Nazism and radical Islamism.” And third, the criminal complaint against Young described how Young told law enforcement about his affinity for Nazi symbolism.
The Court thus held the “agents reasonably concluded both that Nazis qualified as a terrorist organization and that as to this particular case, the Nazi paraphernalia was relevant to or probative of material support for a terrorist organization.” The Court therefore affirmed the district court’s denial of Young’s motion to suppress.
The Court then turned to Young’s argument that admission of the paraphernalia was improper under Federal Rules of Evidence 401 and 403, which prohibit admission of evidence that is irrelevant and/or unduly prejudicial.
Young contended the items were irrelevant because Nazism and militant Islamism are “mutually exclusive belief systems.” The court rejected that argument, noting they each share “radical, anti-Semitic viewpoints.” Moreover, the court held “absolute consistency of belief is not a prerequisite to proving predisposition.” Because the seized items were probative of Young’s disposition for such viewpoints and the length of such a predisposition, the court held the items were relevant.
The court then rejected Young’s argument that the items were unfairly prejudicial, finding the evidence was “highly probative of Young’s particular predisposition to support ISIL.” This “highly probative value meant that any prejudicial effect was not unfair.”
The Fourth Circuit thus denied Young’s appeal on the district court’s denial of his motion to suppress.
The Fourth Circuit’s full opinion in United States v. Young may be read here.
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Posted in Case Law Update