Opinion
Criminal No. 03-296-A
March 4, 2004
MEMORANDUM OPINION
This case came on for trial by the Court beginning February 9, 2004 on an indictment against defendants Masoud Khan, Seifullah Chapman, Hammad Abdur-Raheem, and Caliph Basha Ibn Abdur-Raheem (hereinafter Caliph Basha). The indictment charged these four defendants, co-defendants who entered guilty pleas, and unnamed, unindicted co-conspirators with 32 counts. The superseding indictment alleged against these four defendants conspiracy (Count 1, 18 U.S.C. § 371), conspiracy to levy war against the United States (Count 2, 18 U.S.C. § 2384), conspiracy to provide material support to al-Qaeda (Count 3, 18 U.S.C. § 2339B), conspiracy to contribute services to the Taliban (Count 4, 50 U.S.C. § 1705), conspiracy to contribute material support to Lashkar-e-Taiba ("LET") (Count 5, 18 U.S.C. § 2339A), commencing an expedition against a friendly nation (Counts 9-10, 18 U.S.C. § 960), conspiracy to possess and use firearms in connection with a crime of violence (Count 11, 18 U.S.C. § 924(o)), receipt of ammunition with cause to believe a felony will be committed therewith (Counts 12-14, 18 U.S.C. § 924 (b)), and use and possession of firearms in connection with a crime of violence (Counts 20-22, 24-27, 31-32, 18 U.S.C. § 924(c)). Co-defendants Randall Royer, Ibrahim Al-Hamdi, Yong Kwon, Mohammed Aatique, Donald Surratt, and Mahmoud Hasan entered into plea agreements and pled guilty to various counts in the indictment.
The Government and all four defendants waived the right to trial by jury.
Count 15, charging Chapman with making false official statements, was dismissed with prejudice by Order of January 16, 2004 because the motion to suppress the underlying statements was granted. Counts 6, 16, and 17 relate only to defendant Sabri Benkhala. The counts against Benkhala were severed for trial and are not discussed in this opinion.
The factual allegations in the indictment focus on the defendants' involvement in activities starting in January 2000 and continuing through June 2003, which the government maintained constituted preparation for violent jihad overseas against nations with whom the United States was at peace and providing material support to terrorist organizations. The indictment alleges that the preparations culminated in Khan and other co-conspirators attending a terrorist and jihad training camp after September 11, 2001, with the intent to proceed to Afghanistan and fight for the Taliban and Al-Qaeda against United States troops. The indictment further alleges that Royer and Al-Hamdi had participated in attacks on Indian forces in the disputed Kashmir region.
After the conclusion of the government's evidence, defendants moved for judgment of acquittal pursuant to Fed.R. Grim. P. 29. The motions of Khan, Chapman, and Hammad Abdur-Raheem were granted in part and denied in part, and various counts dismissed with prejudice as to these defendants, as detailed in our Order of February 20, 2004. The motion was granted in its entirety as to Caliph Basha, and all counts against him were dismissed with prejudice, because we found insufficient evidence to support conviction on any count, for the reasons stated in open court. At the conclusion of all the evidence, the defendants renewed their motions for judgment of acquittal as to the remaining counts. Those motions were denied.
This memorandum opinion explains the factual findings and legal conclusions that support our judgment that defendant Khan is guilty of Counts 1, 2, 4, 5, 11, 24, 25, and 27; defendant Chapman is guilty of Counts 1, 5, 11, 20, and 22, and defendant Abdur-Raheem is guilty of Counts 1, 5, and 11; and that these defendants are not guilty of the remaining counts.
I. Procedural background — Motion to suppress
Before trial, defendant Chapman moved to suppress, pursuant toSimmons v. United States, 390 U.S. 377, 394 (1968) andKastigar v. United States, 406 U.S. 441 (1972), the use and derivative use of statements that his former counsel, Phillip Leiser, made during a pretrial suppression hearing. As explained in open court and discussed in more detail in this opinion, we suppressed direct use of Leiser's testimony, but allowed the use of evidence related to his statements, finding that the Kastigar derivative use doctrine did not apply, and that even if Kastigar did apply, that the government satisfied its burden to show that the evidence at issue was an inevitable discovery from an independent source.
A. Background
After he was initially indicted, Chapman was arrested by authorities in Saudi Arabia, and was turned over to United States law enforcement agents. Chapman was then transported from Saudi Arabia to the Eastern District of Virginia by airplane. Count 15 of a superseding indictment alleges that during this flight Chapman made false statements, in violation of 18 U.S.C. § 1001(a), that he had not attended or seen LET or jihad training camps.
Chapman moved to suppress any statements made to law enforcement after his arrest in Saudi Arabia, on the grounds that they were in violation of his Sixth Amendment right to counsel. See Edwards v. Arizona, 451 U.S. 477 (1981). Specifically, Chapman argued that his statements must be suppressed because he had retained Leiser as counsel, the government was aware that Leiser had been retained, and Chapman desired his attorney's assistance in dealing with interrogation. The government responded to the motion by arguing that Chapman had told FBI agents aboard the plane that Leiser was no longer his attorney, he did not know whether an attorney had been appointed for him, and that the FBI agents relied on these statements in continuing to question Chapman.
To resolve the disputed facts regarding whether Leiser was Chapman's attorney at the time of questioning, the Court held an evidentiary hearing. Chapman's present counsel, Lisa Kemler, called Leiser as a witness to testify as to the existence and scope of the attorney-client relationship between Chapman and Leiser. Leiser's testimony detailed his communications with Chapman regarding FBI Special Agent Wade Ammerman's request for an interview with Chapman and Leiser's efforts to arrange such an interview. On cross-examination, Assistant U.S. Attorney Gordon Kromberg asked:
Q. In your communications with Mr. Chapman, did he tell you that he needed representation regarding his attendance at a Lashkar-e-Taiba training camp in Pakistan?
A. No.
Q. About his travel to Pakistan?
A. No.
Q. About violations of the Neutrality Act for going to Pakistan?
A. No.
Q. Material to support terrorism?
A. No.
Q. For firearms charges?
A. No.
THE COURT: Mr. Kromberg, why are these questions relevant?
MR. KROMBERG: I think they're relevant, Your Honor, because if the suggestion is that Mr. Chapman had retained this attorney for the purposes of this case, I would think that Mr. Chapman would have said what some of the problems that he — some of the liability he was facing. He may not have known the particular statutes involved, but maybe he did, because at this point in time, Mr. Royer was talking to his lawyers about these very issues.
On redirect, Kemler asked:
Q. Mr. Leiser, what was Mr. Chapman's understanding of what they wanted to talk to him about?
A. Mr. Chapman had indicated that he had regularly attended the Islamic Institute, I believe, here in Northern Virginia, that he had met somebody there who had asked him to make a purchase of some video equipment which he understood was later used on some type of remote-controlled, like, model airplane, and that his understanding was that Agent Ammerman wanted to discuss that, that purchase with him.
While Leiser was reviewing his notes, the Court noted:
Ms. Kemler, I didn't probe this with you, but obviously, by asking these questions on behalf of Mr. Chapman, there's been a waiver to some degree of the attorney-client privilege.
MS. KEMLER: Yes. We were aware of that, Your Honor.
Kemler then followed up:
Q. Okay. After looking at your notes, do you recall any additional matters that were discussed about what the scope of the interview would be?
A. No, that was it. Mr. Chapman had informed me about the prior questioning in '99 or 2000, that it concerned this paintball exercises that he engaged in with some friends, but that he believed that this particular questioning concerned a purchase of the video equipment for a person named Khalid, Khalid Singh.
Chapman then sought to suppress at trial the direct use of Leiser's testimony regarding the purchase of video equipment under the holding inSimmons, and argued that records documenting the purchase of video equipment and communications regarding the purchase must also be suppressed as fruits of the suppression hearing testimony pursuant toKastigar.
B. Discussion
Chapman relies on Simmons, which held that a defendant may testify in a pretrial suppression hearing without surrendering his Fifth Amendment right not to be forced to incriminate himself. InSimmons, the defendant testified at a suppression hearing to establish he had standing to bring a Fourth Amendment challenge to a search. The state then sought to admit the defendant's suppression hearing testimony at trial to link him to the evidence. The Supreme Court ruled that the defendant's testimony at the suppression hearing did not waive his Fifth Amendment right not to have his testimony used against him at trial, reasoning that it is "intolerable that one constitutional right should have to be surrendered in order to assert another." Id. at 394. Here, Chapman faced a similar predicament, as he was required to waive his attorney-client privilege, derived from the Fifth and Sixth Amendments, in order to assert his rights under the Fifth and Sixth Amendments to suppress statements made without benefit of counsel.
The government argues that Leiser's testimony about the subject matter of his discussions with Chapman was a voluntary disclosure inconsistent with the confidential attorney-client relationship which waives the privilege. See In re Grand Jury Subpoena, 204 F.3d 516, 521 (4th Cir. 2000); United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). The government also argues that Simmons is inapplicable here, because the attorney-client privilege is a common law privilege and not a constitutional right. The government found authority for its arguments in the Eleventh Circuit's decision in In re Federal Grand Jury Proceedings (Cohen), 975 F.2d 1488 (11th Cir. 1992), which held that an attorney's testimony at a suppression hearing waived the attorney-client privilege, rejecting theSimmons analogy.
We agree with Chapman that Simmons is an appropriate analogy, and therefore applies to the facts of this case. Although the attorney-client privilege is a common law right, when, as here, it is invoked by a criminal defendant to protect the confidentiality of his communication with his attorney regarding a law enforcement investigation, the privilege must be considered an extension of the Fifth Amendment right against self-incrimination and the Sixth Amendment right to effective assistance of counsel. See Swidler Berlin v. United States, 524 U.S. 399, 407 (1998); Bittaker v. Woodford, 331 F.3d 715, 723 n. 9 (9th Cir. 2003) (citing cases). On the facts of this case, Chapman faced a Hobson's choice similar to that of the defendant in Simmons, in which Chapman was required to waive the privilege in order to effectively assert his Fifth and Sixth Amendment rights. Because the government, in its opposition to the motion to suppress and on cross-examination, suggested that Leiser was not representing Chapman in relation to the criminal charges about which Chapman was questioned on the flight, defendant's counsel had to elicit testimony about the subject matter of the representation to assert fully Chapman's right to counsel.
We are not persuaded by the Eleventh Circuit's conclusion in In re Federal Grand Jury Proceedings (Cohen) that Simmons does not apply to a waiver of the attorney-client privilege in a suppression hearing. To reach its conclusion, the Eleventh Circuit questioned the continuing vitality of Simmons, and found thatSimmons had never been extended to situations involving the exclusion of prior testimony when competing rights, whether constitutional or statutory, are at issue. The Supreme Court has repeatedly reaffirmed Simmons, see, e.g., United States v. Salvucci, 448 U.S. 83, 89 (1980), and Simmons remains good law in the Fourth Circuit, see, e.g., Oken v. Corcoran, 220 F.3d 259, 267 (4th Cir. 2000). Further, the reasoning ofSimmons has been extended to bar the government's use at trial of a defendant's prior statements when competing rights are at issue.See United States v. Branker, 418 F.2d 378 (2d Cir. 1969) (defendant's testimony supporting his application for appointed counsel not admissible at trial). Finally, the Eleventh Circuit's decision is in tension with the Fifth Circuit's decision in In re United States of America, 878 F.2d 153 (5th Cir. 1989). In that case, defendants sought to take a Rule 15 deposition of an attorney to establish the existence of an attorney-client relationship, to show that conversations between the defendants and that attorney were privileged, and therefore could not be used by the government. The defendants sought to take the deposition ex parte because they were concerned that the participation of government counsel in the deposition would constitute a waiver of the privilege. The Court dismissed this concern, rejecting the contention that calling the attorney to testify at a hearing on a motion to dismiss or suppress would waive the privilege:
"We are aware of no authority that would support such a waiver, and neither the district court nor the [defendants] (here or below) have cited any authority which assertedly supports it. . . . [I]t would appear that use of the attorney's testimony by the [defendants] at the hearing on their motion to dismiss the indictment or to suppress, to establish that the indictment, or the evidence to be suppressed, resulted from a government-induced breach of the attorney-client privilege would not result in a waiver thereof. Seeking to thus enforce the privilege hardly seems to constitute a waiver of it."878 F.2d at 158. We find that the facts described in this case are closely analogous to the issue before us.
We also find an appropriate analogy to the instant case in the Ninth Circuit's recent decision in Bittaker, 331 F.3d at 723. InBittaker, the Ninth Circuit, sitting en bane, appliedSimmons to hold that a habeas petitioner's waiver of the attorney-client privilege to bring claims of ineffective assistance of counsel was a limited waiver for purposes of the habeas proceedings only, and did not waive the privilege for any subsequent retrial. In reaching this conclusion, the court assumed that the attorney-client privilege had a constitutional dimension in the criminal context, and found that the waiver of the privilege in the habeas proceeding was "voluntary . . . only because there is no other means of protecting legal rights. . . . The scope of required disclosure should not be so broad as to effectively eliminate any incentive to vindicate [one's] constitutional right[s]." 331 F.3d at 723 (internal citations and quotations omitted). The Ninth Circuit upheld the protective order entered by the district court that limited the use of privileged material disclosed in the habeas proceeding in any future retrial. Id. at 728.
Accordingly, we prohibited the government from introducing Leiser's testimony at trial. After Leiser testified at the suppression hearing, the government discovered documentary evidence that Chapman had helped Pal Singh in Coventry, England purchase equipment from www.wirelessvideocameras.com. Chapman moved that this evidence be suppressed as fruits of Leiser's testimony, arguing thatSimmons prohibits both use and derivative use of suppression hearing testimony. See United States v. Boruff, 870 F.2d 316, 318-19 (5th Cir. 1989). As to the derivative use of Leiser's testimony, Chapman argued that Kastigar requires the government to show that the discovery of evidence about wireless video equipment and Khalid Singh after Leiser's testimony was not tainted by that privileged testimony.
Chapman also urged that the evidence be suppressed as a sanction against the government for failure to timely disclose that the FBI had intercepted e-mail communications between Chapman and Leiser demonstrating their attorney-client relationship, because timely disclosure would have made Leiser's suppression hearing testimony unnecessary. We rejected this argument because we found that the government's disclosure of the information complied with the discovery orders in this case, and that there is no evidence of bad faith or deliberate concealment.
The government responded that Kastigar applies only to compelled testimony and does not apply to evidence derived from privileged communications. See United States v. Squillacote, 221 F.3d 542 (2000); Nickel v. Hannigan, 97 F.3d 403, 409 (10th Cir. 1996). The government further argued that even ifKastigar did apply, the bank records that documented the purchase had been subpoenaed and received by agents before Leiser testified. The agent charged with reviewing the records had not been through them, but had been tasked to do so before trial. Lastly, the purchase of the electronic equipment was sufficiently clear from the bank records that it would have triggered further investigation.
We agree with the government that Kastigar does not apply to the facts of this case. In Squillacote, the Fourth Circuit held that Kastigar's protections against derivative use are triggered by the government's efforts to compel testimony over assertions of constitutional privilege, not the mere existence of evidence that may be protected by a privilege. 221 F.3d at 559. Although the facts ofSquillacote involved the non-constitutional psychotherapist-patient privilege, the Fourth Circuit relied on the reasoning of the Tenth Circuit in Nickel, which concerned the attorney-client privilege of a criminal defendant. Nickel held that even if the testimony of a defendant's attorney should have been suppressed on the basis of the attorney-client privilege, the "fruit of the poisonous tree" doctrine does not apply to suppress evidence derived from the attorney's testimony. 97 F.3d at 409. Based on these authorities, we found that a Kastigar hearing was not necessary in this case.
Nonetheless, in an abundance of caution, we required the government to submit information detailing how it came to discover the details surrounding Chapman's purchase of wireless video equipment. The government responded that FBI agents reviewed Chapman's banking records, which had been subpoenaed previously, in preparation for trial. On or about January 9, 2004, agents identified a $986 purchase from www.wirelessvideocameras.com, and contacted that vendor to obtain additional evidence regarding the purchase. The vendor's records led the agents to Pal Singh.
Kastigar imposes on the government "the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony," 406 U.S. at 460. Moreover, the government may not use compelled testimony to provide a lead that alters the course of the investigation. See United States v. Harris, 973 F.2d 333 (4th Cir. 1992).
The facts in this record led us to find that the discovery of the wireless video purchase was wholly independent from Leiser's testimony. First, although the purchase was not identified in the bank records until January 9, 2004, after Leiser's testimony in December 2003, the records themselves were subpoenaed and in the possession of the government before Leiser's testimony. Second, the review of financial records in preparation for trial is a routine investigative tool, and we did not find that such a routine task would have been ignored but for Leiser's testimony. Finally, any agent would have immediately recognized the significance of the wireless video purchase, even without the lead provided by Leiser. The $986 purchase was by far the largest purchase in Chapman's records for the relevant month. Well before Leiser testified, the government had flagged as significant the fact that LET had used model airplanes, and agents already knew that Khan had purchased model airplane equipment with wireless video capacity. Indeed, Khan's purchase of model airplane equipment was alleged in the indictment as overt act #83 in furtherance of several conspiracy counts. For these reasons, we found that even if the derivative use of Leiser's statements were prohibited by Simmons and Kastigar, the government established that the discovery of Chapman's wireless video purchase was independent, and not derived from that testimony.
II. Findings of Fact
The majority of the facts in this case are not in dispute. Rather, the parties differ dramatically as to the interpretation to be placed on the facts. More specifically, the government contends that the three defendants on trial shared extremist views of Islam with the others indicted in this case, which led them to prepare for violent physical jihad themselves or to prepare others for violent jihad directed at nations with whom the United States is at peace, and ultimately, at the United States.
Defendant Chapman counters that he is a moderate Muslim with no interest in violent jihad against any country. He argues that his possession of weapons was lawful and for legitimate recreational purposes, that he played paintball with other named co-conspirators for physical exercise, that he did not know the LET camp he and others visited in Pakistan trained persons for violent jihad, and that he had no intention himself of fighting India or any other nation and no intention of helping others engage in such fighting. Defendant Abdur-Raheem similarly argues that his possession of firearms, his training co-conspirators about the safety and maintenance of their firearms, and his participation in paintball were for purely recreational purposes. He disavows knowing the intention of other paintball players to use the game as a preparation for violent jihad. He also argues that he was never a part of any of the conspiracies. Defendant Khan argues that he was not a part of the paintball group and that his trip to Pakistan was for the purpose of settling a family legal problem. He argues that the time he spent at the LET camp was purely recreational and he disavows any intention to go to Afghanistan to fight on behalf of the Taliban against the United States.
The evidence as to each defendant's involvement in each count is entitled to separate evaluation and the evidence supporting or undercutting each count must be considered on its own merits. Due to the sharp conflict over the knowledge and intention of the defendants, the Court necessarily must determine what each defendant knew and intended. Because we cannot look directly into the human brain or heart to make such a determination, the Court has relied on evidence of what the defendant has said or done, or failed to say or do, during and around the time period at issue in the indictment, which runs from January 1, 2000 through June 2003. The Court has also used both the direct and circumstantial evidence that it found to be reliable and drawn from that evidence reasonable conclusions justified in light of common sense. Lastly, the Court has judged the credibility of the witnesses who have testified. The evaluation of witness credibility in this case has been based in what the witness said; his demeanor while on the witness stand; the extent to which the testimony has been substantiated or contradicted by other evidence in the case, including the testimony of other witnesses, the degree to which the witness may have been impeached; any relation the witness may have to either side of the case; and any motive, such as a plea bargain, to testify either truthfully or falsely. Two defendants, Abdur-Raheem and Chapman, testified. The credibility of their testimony has been evaluated using the same principles that apply to any other witness. Defendant Khan exercised his Fifth Amendment right not to testify and no inference has been drawn from that silence. Based on this evaluation, we have found the following facts.
A. How the defendants met
All the defendants on trial and their co-conspirators are Muslim, who met each other at different times. Abdur-Raheem met co-defendants Caliph Basha and Surratt and witness Maurice McCoy at Prince George's Community College around 1996. They started a Muslim student group there. In 1998 Abdur-Raheem moved to Northern Virginia and transferred to the Northern Virginia Community College ("NOVA"). Caliph Basha introduced Abdur-Raheem to Nabil Gharbieh some time before 2000. Gharbieh was a devout Muslim who along with Sheikh Jaafar and Ali Al-Timimi set up the Dar al-Arqam Center ("the Center") in Falls Church, VA. Gharbieh testified that the purpose for establishing the Center was to provide instruction on Islam in English, rather than Arabic, to improve local Muslims' understanding of their religion. Kwon, a Korean convert to Islam, met Al-Timimi and Royer in 1997 at a convention. Kwon met Aatique and Omar Khan, the brother of defendant Masoud Khan, while they were students at Virginia Tech in the late 1990s. Kwon often stayed at the Khan residence and became a close friend of defendant Masoud Khan. Kwon met Abdur-Raheem, Caliph Basha, Surratt, Al-Hamdi and Gharbieh at the Center. He met Chapman through a friend before going to the Center. All the defendants knew each other by the dates of the conspiracy. B. Paintball
It is uncontested that Nabil Gharbieh came up with the idea of playing paintball. He and Kwon both testified that in early January 2000 after dining with Al-Timimi, the two of them discussed setting up a paintball group as a way of doing jihad. Jihad literally means a struggle, which may range from exercising self-discipline, such as controlling one's appetite, to violent combat against perceived enemies of Islam. Gharbieh, who the Court found to be a very credible witness, testified clearly that in early 2000, the war in Chechnya was a very "hot topic" among Muslims and was regularly discussed in the mosques and on Arabic satellite television. When he and Kwon discussed setting up paintball as a vehicle for jihad, their intention was to prepare for physical jihad in the sense of physical preparation for possible combat. They relied upon the Koran's teaching that Muslims must be proficient in the use of the crossbow, horseback riding, and swimming for their view about the requirement of being physically prepared for combat.
Kwon and Gharbieh spoke to other Muslim men they knew from the Center about paintball. These people included defendants Abdur-Raheem and Chapman and co-conspirators Royer, Al-Hamdi, Aatique, and Caliph Basha. Chapman was not as regular an attendee at the Center as the others, but was well enough known to be invited to join. Khan, although well-known to Kwon, who had lived at the Khan home, was not a member of the paintball group.
Kwon made the initial purchases of the paintball equipment in the spring of 2000. By early summer the paintball games were a regular occurrence every other weekend. Initially played at public courses, the games were moved to private farm land in Spotsylvania County. Because Abdur-Raheem, Chapman, and Surratt had prior military experience, they were asked to lead the paintball teams and train the players to improve their game. Although the defendants have tried to portray the paintball exercises as innocent fun, the Court concludes that for the defendants and their co-conspirators, these games were viewed as not just an opportunity for outdoor exercise, fellowship, and an opportunity to improve self-defense skills, but also as preparation for real combat. The Court bases this conclusion on the following facts.
The witnesses consistently testified that violent jihad in Chechnya was actively discussed by the paintballers. The players shared videotapes of war and their paintball Website, which was password protected, was used to disseminate information about jihad. To improve their paintball skills, the group asked those with military experience, Surratt, Abdur-Raheem, and Chapman, to lead drills. Both Abdur-Raheem and Chapman testified that they did lead these exercises.
In September 2000, Chapman was visited by two FBI agents at his job site on the NOVA campus and asked about the paintball activity. Chapman testified that he told the agents all about the activity and that this candor demonstrates his understanding that the games were not violating any laws. That argument is undercut by testimony of other witnesses who testified that after Chapman was interviewed, the paintball activity continued but with heightened secrecy. For example, Aatique joined the paintball group in the summer of 2000 after being invited to join. He testified that in the second season, the games were more secretive. New players had to have two or three sponsors and were told not to speak to the police if questioned about paintball.
Paintball was not played during the winter, both because of cold weather and because it was dangerous to wear camouflage in the woods during hunting season. The first paintball season ended in late October 2000. The second season began in spring 2001 and ended as of September 11, 2001.
The defendants have tried to downplay the secrecy and the seriousness of the games. However, an outside observer of the games, Yusuf Wells, provided extremely reliable evidence that corroborates Aatique's testimony. Wells, who was a fund raiser for the Benevolence International Foundation, an Islamic relief organization, visited Gharbieh in Northern Virginia over the April 14-15, 2001 weekend. On April 15, 2001, Gharbieh brought him to a paintball game. Part of Wells' job involved writing reports about his fund raising trips. In his April 15, 2001 report he states:
I was taken on a trip to the woods where a group of twenty brothers get together to play Paintball. It is a very secret and elite group and as I understand it, it is an honor to be invited to come. The brothers are fully geared up in camouflage fatigues, facemasks, and state of the art paintball weaponry. They call it "training" and are very-serious about it. I knew at least 4 or 5 of them were ex US military, the rest varied.
Most all of them young men between the ages of 17-35. I was asked by the amir of the group to give a talk after Thuhr prayer. I spoke about seeing the conditions of Muslims overseas while with BIF, and how the fire of Islam is still very much alive in the hearts of the people even in the midst of extreme oppression. I also stressed the idea of being balanced. That we should not just be jihadis and perfect our fighting skills, but we should also work to perfect our character and strengthen our knowledge of Islam. I also said that Muslims are not just book reading cowards either, and that they should be commended for forming such a group.
Many were confused as to why I had been "trusted" to join the group so quickly, but were comforted after my brief talk. Some offered to help me get presentations on their respective localities.
(G Ex. 7C1 at 5-6) (emphasis in original).
The defendants have tried to discredit this report by arguing that Wells was not accurate in his reporting and only trying to impress his supervisor. We find no support for that argument.
Wells' observation about the secretiveness with which paintball was played is corroborated by Gharbieh's testimony describing the rule restricting new players to those known by the group, and the need for secrecy because outsiders might view them as terrorists. Andre Thompson testified that Surratt brought him to the paintball group in the summer of 2000 and told him that to continue to play he had to follow three rules: don't tell anyone, don't bring anyone, and take the Fifth if questioned by the police. Thompson was surprised by the rules, but Surratt explained that the rules were needed because Muslims were under surveillance. Surratt also said someone would call him. Kwon called Thompson and asked him if he knew the rules, and after that Thompson became a regular player.
Wells' observations about the intensity of the players and some players' views about paintball preparing them for jihad are corroborated by the testimony of numerous witnesses. Thompson testified that the fighting in Chechnya was discussed on the paintball field constantly. Some players such as Al-Hamdi openly discussed wanting to go to Chechnya to fight. Royer encouraged Al-Hamdi, and also described paintball as a means for helping them prepare to fight. Thompson described Chapman as saying that paintball would enable them to fight but was not sufficient to qualify a person to fight overseas. Thompson also testified that Chapman once described paintball as a stepping stone to real training, and Abdur-Raheem said similar things about paintball — that it had application to real fighting but was not equivalent to it.
Thompson also described military-type drills conducted by Chapman, Abdur-Raheem, and Surratt, all of whom had previous military experience. One time Chapman e-mailed pages from a military training manual to the players, then asked if they had memorized the pages. Abdur-Raheem and Chapman taught flanking maneuvers and land navigation. Warmups included military-like calisthenics including duck walks and push-ups, with physical punishment such as pushing a car in neutral for those coming late. Chapman enforced the punishment.
Surratt's testimony echoed Thompson's description of the games and supported Gharbieh's opinion that the games became more serious over time. When Chapman took over training during the summer of 2000, it became intense with Chapman telling the group "we're going to learn to fight." Surratt described Chapman as enforcing discipline on late comers. Surratt also admitted that he provided military training out of his boot camp book. He taught assault and retreat and defend techniques, formations and hand signals. By the spring of 2001, Surratt had become concerned about the legality of what they were doing because of the cliquishness of the group, and his knowledge that Royer and Al-Hamdi had attended jihad training camps in Pakistan. He was also concerned about some of the players constant talk about really wanting to implement their training overseas. Surratt discussed his concern with Abdur-Raheem who said there was nothing illegal about their activities and that they were doing nothing more than the Michigan militia. After that discussion, he and Abdur-Raheem decided to continue playing paintball — they felt if someone went overseas and got in trouble that was not their problem.
Aatique testified that he understood a purpose of the paintball games was to get military training for jihad and that Kwon and Al-Hamdi specifically told him they were training for jihad. He learned on the paintball field that Al-Hamdi planned to go to a Pakistan camp to fight in Kashmir and ultimately die shaheed. Other paintballers were present at this discussion. Aatique testified that when Al-Hamdi returned from Pakistan in September 2000, the players were surprised to see him alive. Al-Hamdi described his camp experiences and afterwards continued to play paintball. Every witness who testified on the subject described Al-Hamdi as an improved paintball player after he returned and he even
According to the defendant's expert on Islam, Mohammad Arafa, to die shaheed means to die in a state of jihad, which does not necessarily mean combat because jihad includes all struggles, not just violent ones. However, in Al-Hamdi's testimony he described shaheed as dying in combat. The government introduced documentary evidence extolling death while battling on behalf of Islam as the highest form of shaheed, resulting in greater rewards, including rewards for family members. This view of shaheed undercuts Chapman's argument that he would not have encouraged a marriage between Al-Hamdi and Chapman's sister-in-law had Chapman known that Al-Hamdi planned to die shaheed.