The Eleventh Circuit, United States v. Augustin, has affirmed the convictions of Burson Augustin, Stanley Grant Phanor, Patrick Abraham, Rotschild Augustine, and Narseal Batiste (collectively, “Appellants”).

They were all convicted of:

(1) conspiracy to provide material support to a Foreign Terrorist Organization (Al Qaeda) by agreeing to provide personnel (including themselves) to work under Al Qaeda’s direction and control, knowing that Al Qaeda has engaged or engages in terrorist activity, in violation of 18 U.S.C. § 2339B;

and (2) conspiracy to provide material support by agreeing to provide personnel (including themselves), knowing and intending that they were to be used in preparation for and in carrying out a violation of 18 U.S.C. §§ 844(f)(1) and (i), and to conceal and disguise the nature, location, source, and ownership of such material support, all in violation of 18 U.S.C. § 2339A.

Abraham and Batiste were also convicted of conspiracy to maliciously damage and destroy by means of an explosive a building leased to an agency of the United States (the FBI) and a building used in interstate and foreign commerce (the Sears Tower), all in violation of 18 U.S.C. § 844(n). Additionally, Batiste was convicted of conspiracy to levy war against the Government of the United States and to oppose by force the authority thereof in violation of 18 U.S.C. § 2384.
This opinion dealt with multiple issues, which Bobby Chesney has summarized at Lawfare, Convictions Affirmed in “Miami Seven” Case:

* Charges under the material support statutes (2339A and 2339B) are not subject to the Treason Clause because the elements of those offenses differ from a charge of treason.

* The evidence was sufficient to support the conclusion that the defendants conspired to act under al Qaeda’s direction and control, rather than to act independently.

* The opinion is somewhat unclear regarding the defendants’ argument that taking photographs of federal buildings from public viewpoints cannot constitute material support. On one hand, the opinion clearly rejects the argument that such activity implicates the language in Holder v. HLP in which the Supreme Court discussed whether speech imparted specialized knowledge. On the other hand, the panel went on to focus on the defendants’ participation in an al Qaeda oath ceremony as well as their acts of photography, rather than just saying that the photography was itself an act of material support.

* It does not matter if a person takes an oath to support al Qaeda based on financial motivations rather than ideological affinity.

* It is not clear whether the definition of “personnel” contained in 18 USC 2339B(h) apply as well to a material support charge based on “personnel” under 18 USC 2339A, though that turned out not to matter in this case since the evidence sufficed to meet the direction-and-control standard.

* On the overall strength of the evidence and the fact that there were two prior hung juries: “We recognize that the evidence supporting Augustin’s, Phanor’s, and Augustine’s convictions on both Count 1 and Count 2 is far from overwhelming. Indeed, two juries failed to convict on these counts. But those juries also failed to acquit. Ultimately, with the benefit of three months of testimony and over five days of deliberation, the third jury arrived at a verdict, distinguishing between the various defendants and various counts. We cannot say that the jury was unreasonable in concluding that the government carried its burden of proving beyond a reasonable doubt that Augustin, Phanor, and Augustine violated § 2339A and § 2339B as charged.”

* Applying a plain error standard, the panel rejected the argument that the FBI’s role in the scheme amounted to outrageous government conduct in violation of the Due Process Clause.

* It was permissible for one of the investigating agents to testify about how various statements by a defendant had impacted the course of the investigation; this did not constitute improper testimony about the defendant’s state of mind, though the court called this a “very fine line.” The testimony also was relevant in that it was probative of why the investigation unfolded as it did, an issue that had become material because of the entrapment issue.
The importance of this case is that, from start to finish, the plot was fabricated by the FBI and its informant from the local Muslim community - and was, in that sense, not "real". As I've said a number of times, the defense of entrapment (in one form or another) is often asserted, bur rarely successfully.

Regards

Mike