Opinion
CR-19-02162-TUC-JGZ
07-31-2024
United States of America, Plaintiff, v. Ahmed Mahad Mohamed, et al., Defendants.
ORDER RE: GOVERNMENT'S MOTION TO PRECLUDE THE TESTIMONY OF DR. PETER CHALK
JENNIFER G. ZIPPS, UNITED STATES DISTRICT JUDGE
Having considered the Government's Motion to Preclude the Testimony of Defendant Hussein's Proffered Expert Peter Chalk (Doc. 432) and Defendant Hussein's Response (Doc. 456), the Court orders as follows.
1. Dr. Chalk may not comment directly on Defendant Hussein's mens rea with respect to the charged offenses.
Because Hussein is charged with conspiring and attempting to provide himself as “personnel” to ISIS, in violation of 18 U.S.C. § 2339B, the Government must prove that Hussein joined a conspiracy with Mohamed to put himself and Mohamed under ISIS's direction or control, see 18 U.S.C. § 2339B(h), knowing the purpose of that conspiracy and intending to help accomplish it. See Ninth Circuit Model Criminal Jury Instructions 4.4 (“Attempt”) and 11.1 (“Conspiracy”). In addition, the Government must prove that Hussein had knowledge that ISIS was designated as an FTO or had engaged in “terrorism” or “terrorist activity,” as defined by statute. 18 U.S.C. § 2339B(a)(1).
Federal Rule of Evidence 704(b) prohibits expert witnesses from offering opinions or inferences “about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.” Fed.R.Evid. 704(b). “A prohibited ‘opinion or inference' under Rule 704(b) is testimony from which it necessarily follows, if the testimony is credited, that the defendant did or did not possess the requisite mens rea.” United States v. Morales, 108 F.3d 1031, 1037 (9th Cir. 1997). In other words, “the expert may not ‘draw[ ] an inference which would necessarily compel the conclusion' that the defendant lacked the requisite mens rea.” United States v. Cohen, 510 F.3d 1114, 1125 (9th Cir. 2007) (cleaned up). Applying Rule 704(b) to the proposed expert testimony, the Court concludes that Dr. Chalk may not testify that:
• “Hussein's personal behavior in no manner reflects a person who has undergone a major militant Salafi transformation.” (Doc. 382 at 3.)
• Hussein was not “really.. .a staunch advocate of ISIS,” and had not “morphed into a truly indoctrinated jihadi fighter.” (Id. at 4-5.)
• Hussein “was the very antithesis of the type of dedicated Islamist who would knowingly risk going abroad to join ISIS confident that [he] had the necessary skills, knowledge and commitment to ultimately join the movement.” (Id. at 6.)
Such testimony is a direct comment on whether Hussein intended to carry out the purpose of the conspiracy and intended to provide himself to ISIS as a fighter, which is impermissible under Rule 704(b). In addition, Dr. Chalk may not testify that:
Upon laying proper foundation under Federal Rule of Evidence 702, Dr. Chalk may testify as to the beliefs of an ISIS supporter, how those beliefs are developed, and the actions one might take to pursue the objectives of ISIS. (Doc. 456 at 2, 3.)
• “Hussein demonstrated little knowledge of ISIS or its goals.” (Id. at 5.)
• Hussein's plan to join ISIS in Egypt “suggests that [Hussein] had not read” and was not familiar with the “plethora of statements put out by ISIS” in the years leading up to his offense. (Id.)
Such testimony is a direct comment on whether Hussein knew that ISIS was a terrorist organization or engaged in terrorism or terrorist activity, which is a question that the jury must answer.
Defense counsel does not appear to disagree with the Government's contention. They state that “Mr. Hussein's lack of familiarity with ISIS theological dogma goes directly to whether he intended to put himself “under ISIS's direction and control” and is a factual determination for the jury. (Doc. 456 at 2 (emphasis added).)
2. Dr. Chalk may not comment on the strength of the evidence.
Expert testimony should not be permitted if it concerns a subject that invades the province of the jury. United States v. Binder, 769 F.2d 595, 602 (9th Cir.1985), overruled on other grounds by Morales, 108 F.3d 1031. Expert opinions that comment on the strength of a case, including the nature of the evidence against the defendant, invade the province of the jury. United States v. Farrell, 563 F.3d 364, 377 (8th Cir. 2009). Expert testimony “summarizing evidence” and “drawing inferences from the evidence that the jury must draw (or not draw) for itself” is inadmissible. United States v. Hawkins, 934 F.3d 1251, 1261 (11th Cir. 2019). Applying this standard to Dr. Chalk's proposed testimony, Dr. Chalk may not testify that:
• Certain evidence, such as texts between the UCE and Mohamed, Mohamed's comments about Hussein's “prevarication” in finalizing his travel paperwork, and aspects of Hussein's behavior upon his arrest, demonstrate that Hussein lacked “fervor” to fight for ISIS, are “not reflective of a hardened Salafist imbued with a bitter and enduring hatred of America,” and are “inconsistent with a radicalized follower of ISIS preparing to make hijrah.” (Doc. 382 at 4-5.)
• “There is an absence of evidence that Hussein frequented jihadi online chat rooms on the dark web,” unlike “true supporters” of ISIS. (Id. at 4.)
Such testimony is improper. Dr. Chalk may not directly opine that evidence is lacking in relation to the elements the government must prove. Here, the Government must prove that Hussein intended to join and carry out the conspiracy to provide material support to an FTO. Dr. Chalk's proposed testimony comments directly on the strength of the evidence with respect to Hussein's intent.
3. Dr. Chalk may not testify as to the hearsay statements of Defendant Hussein's family, friends, or from Defendant Hussein, himself, if they did not form the basis of a permissible opinion.
While experts may rely on inadmissible hearsay in formulating their opinions if experts in the particular field would reasonably rely on such statements, the hearsay statements themselves are not admissible unless “their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.” Fed.R.Evid. 703. “[T]he entirety of [an expert's] testimony cannot be the mere repetition of the out-of-court statements of others.” United States v. Luna, 649 F.3d 91, 105 (1st Cir. 2011).
Dr. Chalk states that he relied upon a series of statements made by Hussein's family members and a friend who was interviewed by the FBI to form his opinion that Hussein's “personal behavior in no manner reflected a person who has undergone major militant Salafi transformation.” (Doc. 382 at 3-5.) In addition, Hussein's statement that “he would readily cooperate with U.S. law enforcement and provide any information he could” informed Dr. Chalk's opinion that Hussein's “acquiescence” was “not reflective of a hardened Salafist imbued with a bitter and enduring hatred of America.” (Id.) As discussed above, Dr. Chalk may not testify that “Hussein's personal behavior in no manner reflected a person who has undergone major militant Salafi transformation” because it is a direct comment on Hussein's mens rea. Similarly, Dr. Chalk may not testify that Hussein's behavior upon his arrest was “not reflective of a hardened Salafist imbued with a bitter and enduring hatred of America” because it is a direct comment on the strength of the evidence. Given the Court's conclusion that those opinions are improper, Dr. Chalk may not relay to the jury the underlying hearsay statements that formed the basis of those opinions. To the extent that Dr. Chalk relied on hearsay statements in forming an otherwise proper expert opinion, the Court will allow Dr. Chalk to relay those statements, should the Court first be alerted to the proposed testimony.
According to the Hussein's family and friend, “Hussein did not pray regularly, did not attend Mosque, drank alcohol, smoked marijuana, regularly played video games, did not exhibit religious (or political) convictions, and did not espouse theological arguments justifying the use of violence against kuffar (infidels, nonbelievers).” (Doc. 382 at 3-4.)
4. Dr. Chalk is precluded from testifying that Defendant Hussein's alleged plan to join and fight for ISIS was factually impossible.
Dr. Chalk intends to opine that Hussein's conspiracy and attempt to join ISIS in the Sinai Peninsula, after traveling from Tucson to Cairo, “would not happen in reality.” (Doc. 382 at 5.)
Whether the conspiracy was factually possible is not an element that the Government must prove beyond a reasonable doubt. Moreover, factual impossibility is not a valid defense to the charged offenses. United States v. Fleming, 215 F.3d 930, 936 (9th Cir. 2000) (“Factual impossibility is not a defense to an inchoate offense” like attempt or conspiracy). Given that it lacks a relevant purpose, the introduction of factual impossibility as an idea through an expert in this case would only confuse and mislead the jury regarding the issues material to Hussein's guilt. Accordingly, IT IS ORDERED that the Government's Motion to Preclude the Testimony of Defendant Hussein's Proffered Expert Peter Chalk (Doc. 432) is granted to the extent provided in this Order.