[00:00:05] Speaker 02:
All right, we'll hear argument now in the next case on calendar for argument today, which is United States of America versus Abdul Malik Abdul Karim, number 20-10155, 21-10315, and 24-3202.

[00:00:40] Speaker 02:
And we'll hear first from Ms.

[00:00:41] Speaker 02:
Elm.

[00:00:42] Speaker 05:
Yes.

[00:00:42] Speaker 02:
Okay.

[00:01:05] Speaker 02:
You may proceed.

[00:01:06] Speaker 05:
Thank you.

[00:01:07] Speaker 05:
May I please record Donna Elm.

[00:01:09] Speaker 05:
I'd like to reserve seven minutes.

[00:01:12] Speaker 05:
Mr. Abdul Karim didn't have a chance of receiving a fundamentally fair trial.

[00:01:17] Speaker 05:
Between multiple varieties of withheld Brady evidence, flames of wars contorted path into the jury room, unadmitted and unreviewed, a tsunami of horrifying other act evidence, very little tied to Mr. Karim and no limiting instruction.

[00:01:34] Speaker 05:
diverting the jury from reviewing the indented letter to nurse, an instruction lowering the scienter element of conspiracies, and a slew of secret filings to avoid disclosure.

[00:01:44] Speaker 05:
Cumulatively, this undermined the fairness and integrity of the trial process, which he faced.

[00:01:52] Speaker 01:
The curtain.

[00:01:52] Speaker 01:
Counsel, under the SIPA context, only information that is relevant and helpful must be disclosed to the accused.

[00:02:00] Speaker 01:
Under the Supreme case of Rovario and the DC Circuit Court's

[00:02:04] Speaker 01:
foundational cases of Eunice and Mejia, the law seems to be that relevant and helpful is much larger than Brady material, the Brady materiality requirement.

[00:02:16] Speaker 01:
Is that the correct standard that we should apply in this case?

[00:02:20] Speaker 01:
Or if you agree with that, how then do you deal with Climavicious?

[00:02:28] Speaker 05:
I take it you're talking about then the ex parte filings.

[00:02:32] Speaker 02:
And the law is very clear that the... The substance of which you are unaware of, correct?

[00:02:38] Speaker 05:
The substance of which I'm unaware of.

[00:02:40] Speaker 02:
Right.

[00:02:40] Speaker 02:
So the only questions you're being asked are legal standards that we'll have to apply to those because we can't discuss those.

[00:02:47] Speaker 02:
Correct.

[00:02:47] Speaker 02:
The contents either.

[00:02:48] Speaker 01:
And the purpose of me asking you that question is because you will not be involved.

[00:02:52] Speaker 01:
And so I want to give you the opportunity to address the standard that we should be applying.

[00:02:57] Speaker 05:
The standard is very clear that it's actually broader than even Brady.

[00:03:01] Speaker 05:
And that's in the cases that it's broader than Brady.

[00:03:05] Speaker 05:
And so in order to meet that, you have to be able to show a very minimal amount of relevance.

[00:03:19] Speaker 05:
The curtain issue that we have.

[00:03:23] Speaker 05:
Curtain was not objected to.

[00:03:26] Speaker 05:
And of course, there's a problem as to the no objection.

[00:03:30] Speaker 05:
However, the court

[00:03:31] Speaker 05:
should not allow the government to avoid the 471 issue and curtain by claiming that there was no objection.

[00:03:41] Speaker 05:
There was no objection because there was no notice of that and that the defense only got 471 on the day it was admitted and did not have an opportunity to review it.

[00:03:56] Speaker 05:
And so there was no objection.

[00:03:58] Speaker 05:
We have on the day that it was first brought in

[00:04:02] Speaker 05:
that there was a representation that it was going to be for limited purposes.

[00:04:12] Speaker 05:
And so there was no objection, just a conditional admission.

[00:04:15] Speaker 05:
When we got to it the next day being brought in, there was a clarification.

[00:04:20] Speaker 05:
471 was just a subpart, just the beginning couple minutes.

[00:04:25] Speaker 05:
So again, there would be no objection.

[00:04:31] Speaker 05:
Curtin found that you can't rely on the government's representations and the government's representation was this is the first few minutes.

[00:04:41] Speaker 05:
This is just the sub part.

[00:04:44] Speaker 05:
That is now the court did not get an objection, but at the same time, the court had heard already in opening before two witnesses about all the horrifying acts

[00:04:58] Speaker 05:
Certainly in Curtin, it's very clear.

[00:05:00] Speaker 05:
You've got to review it.

[00:05:02] Speaker 05:
The court has got to review it.

[00:05:03] Speaker 05:
And it didn't.

[00:05:05] Speaker 05:
If it had reviewed it, it might find out that it was in fact not the first few minutes, but the entire video.

[00:05:15] Speaker 01:
As a result, we had- Why, counsel, why not?

[00:05:18] Speaker 01:
I mean, jurors are routinely presented with evidence that is inflammatory in some way.

[00:05:26] Speaker 01:
What's your best argument in saying that it wasn't necessary to provide full context to the jury as to some of the counts involved in this case?

[00:05:36] Speaker 05:
There's actually a couple of good arguments.

[00:05:40] Speaker 05:
The one is the necessity wasn't there.

[00:05:42] Speaker 05:
It was very clear from the start that Simpson and Sufi

[00:05:47] Speaker 05:
were ISIS adherents, you did not need all of that deluge of evidence to show that in Curtin, there were 144 stories they wanted to get in.

[00:05:58] Speaker 05:
And at the end, this court said that the court below should consider whether it even needed five.

[00:06:06] Speaker 05:
It starts to be a lessening of the relevance as more and more came in.

[00:06:16] Speaker 05:
Now the other thing about it is that there is extreme prejudice here.

[00:06:22] Speaker 05:
It not only was the room full of dead babies and multiple mass executions live action, which the court never would have allowed in if she had seen it, but that closed with a message.

[00:06:34] Speaker 05:
And the message is, we're coming for you.

[00:06:37] Speaker 01:
Do you think it was error for the judge not to have reviewed that?

[00:06:40] Speaker 02:
Absolutely it was error.

[00:06:43] Speaker 02:
What's our standard of review?

[00:06:45] Speaker 02:
Is this plain error in reviewing the admission of 471 in its entirety?

[00:06:53] Speaker 05:
No, it's not a plain error.

[00:06:56] Speaker 05:
And that is because... Why isn't it subject to plain error?

[00:07:00] Speaker 05:
Because under Curtin, you are required to review it.

[00:07:03] Speaker 02:
It is a procedural... No, that goes to whether it's an error.

[00:07:06] Speaker 02:
I mean, was an objection, timely objection made to its admission?

[00:07:12] Speaker 02:
No, Your Honor.

[00:07:13] Speaker 02:
Okay, then it's reviewed for plain error.

[00:07:16] Speaker 05:
except that we have a misdirection, a misrepresentation of what it was.

[00:07:24] Speaker 05:
We never got to a point to admit it.

[00:07:29] Speaker 05:
We never got to a motion to admit it, at which point there would have been an objection.

[00:07:35] Speaker 05:
This wasn't just unreviewed, it was unadmitted.

[00:07:40] Speaker 00:
Let's assume for a moment that the district court erred in admitting the video.

[00:07:45] Speaker 00:
How would this have substantially affected the outcome of the trial?

[00:07:50] Speaker 05:
This would have substantially affected the outcome of trial because the way the government portrayed it.

[00:07:58] Speaker 05:
If you look at the opening arguments of the government and how they're talking about, especially expert Coleman, they're talking about how this shows that it's a propaganda.

[00:08:11] Speaker 05:
You've got to come join us.

[00:08:12] Speaker 05:
You've got to come join the fight.

[00:08:15] Speaker 05:
And so they wanted to make the point that Mr. Abdul Karim watched it when, in fact, their expert, our expert, said no.

[00:08:25] Speaker 05:
There is no evidence of that.

[00:08:27] Speaker 05:
But the fact is that they wanted to show material support, the critical center of material support, that this was Karim wanting to join this fight.

[00:08:42] Speaker 05:
And that's why that one became particularly prejudicial as well as ending with the, we're coming for you now, which places a jury, no one would have let that in.

[00:08:55] Speaker 02:
I mean, you may dispute the point, but if he did watch the video, would that be relevant to his intent and motivation in the alleged conduct with Simpson?

[00:09:06] Speaker 05:
It would have minimal relevance.

[00:09:09] Speaker 02:
So then it'd be a 403 issue at that time.

[00:09:12] Speaker 02:
point.

[00:09:12] Speaker 05:
That would certainly come under 404B as state of mind.

[00:09:16] Speaker 05:
It then goes to 403.

[00:09:18] Speaker 05:
Was it more prejudicial?

[00:09:20] Speaker 05:
And it was phenomenally prejudicial.

[00:09:22] Speaker 01:
Counsel, I just want to be clear on something.

[00:09:24] Speaker 01:
I'm not sure I understand.

[00:09:26] Speaker 01:
Because of something you said, you said that the video was not admitted.

[00:09:31] Speaker 01:
It was shown but not admitted.

[00:09:32] Speaker 01:
Is that what you said?

[00:09:33] Speaker 05:
That is absolutely correct.

[00:09:35] Speaker 01:
Okay.

[00:09:35] Speaker 01:
Because Judge Desai asked a question about admitted evidence, but this was just a video that was shown but not admitted.

[00:09:41] Speaker 05:
Correct.

[00:09:42] Speaker 05:
It was conditionally admitted pending a 403 evaluation.

[00:09:46] Speaker 05:
And then the next day, they played the little clip of it.

[00:09:51] Speaker 05:
But again, did not move for admission.

[00:09:53] Speaker 05:
We don't have an admitted piece of evidence.

[00:09:58] Speaker 02:
Now, when we turn to the Brady... Was the 403 objection ever renewed?

[00:10:08] Speaker 02:
No.

[00:10:10] Speaker 02:
You know, if you have an evidentiary objection and the district court conditionally admits it's subject to a later determination, can you just sit by while the district court then never revisits the issue?

[00:10:23] Speaker 02:
Isn't it defense counsel's job to say, now, here's my 403 objection.

[00:10:30] Speaker 02:
This came in conditionally, but now I'm going to assert it.

[00:10:33] Speaker 02:
If that isn't made, it's reviewed for plain error, isn't it?

[00:10:37] Speaker 05:
I understand your honor's question.

[00:10:39] Speaker 05:
We have first, the party who's trying to submit evidence has a responsibility to get those things done, not the other side.

[00:10:49] Speaker 05:
Could they have, of course, but here's the problem.

[00:10:52] Speaker 02:
Your 403 objection, the government thought it was not barred by 403 and the district court admitted it conditionally subject to the 403 determination and then the objection's not renewed.

[00:11:04] Speaker 05:
But there would be no objection at that point because it was the first few minutes which just talked about the history of it.

[00:11:11] Speaker 02:
No, but 471 is the whole tape, isn't it?

[00:11:14] Speaker 02:
It was the whole thing.

[00:11:14] Speaker 02:
That's what was conditionally admitted subject to 403.

[00:11:19] Speaker 05:
That's what was conditionally admitted subject to 403, but the next day she clarifies.

[00:11:26] Speaker 02:
Well, the next day there's a mistake.

[00:11:27] Speaker 02:
There's a reference to 187 as being the tape which it wasn't.

[00:11:32] Speaker 02:
and as being the document, as being the item that had been admitted the day before.

[00:11:36] Speaker 02:
But it's clear from the record that it's a mistake, because it's a reference to the item the day before, and the one the day before is 471.

[00:11:46] Speaker 05:
And 471, that second day, is clarified, because it's not entirely clear the first day.

[00:11:53] Speaker 05:
If the 471 they're talking about is the full Flames of War video, when you read that, he might be talking about

[00:12:01] Speaker 00:
I want to make sure I understand your argument.

[00:12:04] Speaker 00:
So are you saying that you didn't renew your 403 the objection because the government had represented that this was just the first two minutes, and that was what was conditionally admitted, but ultimately what was shown was the full, that you never even had notice about the full video, and that is why you did not renew your objection?

[00:12:29] Speaker 05:
There was no objection made, no 403 objection made because it was only conditionally admitted.

[00:12:37] Speaker 05:
When it came in the next day or four days later, when it came in,

[00:12:43] Speaker 05:
Um, there was, she clarified it's just the first few minutes.

[00:12:49] Speaker 05:
So there was no objection at that point.

[00:12:51] Speaker 00:
There was a strategic decision or determination by defense counsel not to object because it's understanding based on the representations of the government was that it was just the first two minutes.

[00:13:01] Speaker 00:
Yes.

[00:13:03] Speaker 02:
What the transcript says, so on the first day it's 471 admitted conditionally subject to 403, then the next day Coleman is on the stand and the government mistakenly refers to the video which is 471 as being 187 and says that 187 in its entirety is already in evidence

[00:13:28] Speaker 02:
and stated that it wished to play, quote, a portion of it for the jury to hear a close quote.

[00:13:33] Speaker 02:
And then the government said, actually, the subpart is marked as 471.

[00:13:37] Speaker 02:
So the government just got the numbers mixed up.

[00:13:43] Speaker 02:
Potentially.

[00:13:45] Speaker 02:
But the government also represented on the record on the second day that the entire thing was in evidence clearly referring to the ruling the day before.

[00:13:54] Speaker 02:
So I don't see how you can

[00:13:57] Speaker 02:
say that the need to raise and renew the 403 objection is somehow excused by any misrepresentation, because even though the government mixes up the numbers, it is clearly stating that the entirety of the exhibit is in the record.

[00:14:13] Speaker 05:
It stated that, but it misstated that.

[00:14:16] Speaker 05:
And there was no objection.

[00:14:18] Speaker 02:
Only because the number was wrong.

[00:14:20] Speaker 02:
If it had said 471, 471 had been admitted.

[00:14:24] Speaker 02:
subject to the 403 that was then never renewed.

[00:14:27] Speaker 01:
The misstatement, the fact that the entirety of the video was admitted, is that what you're saying that the mistake was or misstatement?

[00:14:35] Speaker 05:
The misstatement is that the video, the video that is 471 is only the first couple minutes.

[00:14:49] Speaker 05:
Now 187 being admitted,

[00:14:51] Speaker 05:
That was very clear that it was just that piece of paper with the URL printed on it.

[00:14:58] Speaker 05:
The 107, 187 was already admitted and referring to it as flames of war did not change what that was.

[00:15:07] Speaker 05:
And so when they put in just the little bit later, it only means that we are now having to deal with that.

[00:15:16] Speaker 05:
And again, if that's all it is, and the defense doesn't object,

[00:15:21] Speaker 05:
One thing I think Judge Tsai brought up is you have to understand, exhibits were being disclosed during trial.

[00:15:30] Speaker 05:
There were 170 that were disclosed during trial.

[00:15:33] Speaker 05:
And there was no disclosure.

[00:15:36] Speaker 05:
If you look at 10 ER 2437 to 40, the disclosures are going in each day.

[00:15:46] Speaker 05:
And what we have on the first day,

[00:15:48] Speaker 02:
Where 187 comes in.

[00:15:53] Speaker 05:
Sorry, 10ER 2437 to 40.

[00:15:57] Speaker 05:
It outlines how they came in.

[00:16:00] Speaker 05:
And the day that 187 comes in, the government gave new exhibits for that day, which were 448 to 70.

[00:16:12] Speaker 05:
The next day, they hand delivered starting at 471.

[00:16:17] Speaker 05:
starting at 472.

[00:16:18] Speaker 05:
471 must have been numbered by then, but they did not give it.

[00:16:22] Speaker 05:
The next day, it continues on that scope, starting at 478.

[00:16:28] Speaker 05:
Still, 471 is not given.

[00:16:30] Speaker 05:
471 must have been brought into evidence then the next day, which is when she talks about it and conditionally admits it.

[00:16:40] Speaker 05:
So it's not like

[00:16:42] Speaker 05:
we were aware of what 471 was when we're getting these exhibits during trial.

[00:16:48] Speaker 02:
I mean, now this is a significant case.

[00:16:51] Speaker 02:
There are a lot of issues in the case.

[00:16:54] Speaker 02:
And you've used all of your opening argument on one of the issues.

[00:17:01] Speaker 02:
And there are a number of other issues in the case.

[00:17:05] Speaker 02:
We don't have another case on calendar, so I'm going to give you some additional time.

[00:17:11] Speaker 02:
Can you address some of the other issues in the case that you want to call out to us?

[00:17:17] Speaker 05:
Happily.

[00:17:17] Speaker 05:
Thank you, Your Honor.

[00:17:18] Speaker 05:
The ruling on the pole camera, the indicative ruling on the pole camera was error.

[00:17:31] Speaker 05:
She did find that the pole camera, incidentally, the pole camera evidence

[00:17:37] Speaker 05:
is a little piece of the Brady.

[00:17:39] Speaker 05:
If you think about it, it's only really relevant one day of pole camera compared to all the rest of the Brady.

[00:17:46] Speaker 05:
Now, she did find it was favorable to both of the conspiracy counts that we raised.

[00:17:52] Speaker 05:
And she said it was a very close call as to materiality.

[00:17:56] Speaker 05:
The way she found materiality when you read that order is that she said, would that little tiny bit have changed the outcome?

[00:18:07] Speaker 05:
First of all, just changing the outcome may not be our better standard.

[00:18:11] Speaker 05:
The better standard is probably would have material affected the fairness of the case.

[00:18:18] Speaker 05:
But she did that.

[00:18:20] Speaker 05:
This is error.

[00:18:22] Speaker 05:
This is error because both Kyle's and Bagley's say

[00:18:27] Speaker 05:
The materiality has to be addressed cumulatively.

[00:18:31] Speaker 05:
She expressly refused to and rejected consideration of anything but the pole camera.

[00:18:38] Speaker 01:
You concluded that you needed to get that, in fact, sent it back for a new trial on that issue, correct?

[00:18:43] Speaker 05:
Yes.

[00:18:44] Speaker 01:
All right.

[00:18:44] Speaker 01:
And then the government dismissed the charges after that.

[00:18:48] Speaker 05:
Charge of count two, yes.

[00:18:51] Speaker 05:
Yes.

[00:18:52] Speaker 05:
And so that's because she never considered those things.

[00:18:56] Speaker 05:
We do not have a fair ruling.

[00:18:59] Speaker 05:
And to be fair, she also never ruled on the substance of the Hendrix and Jane evidence.

[00:19:09] Speaker 05:
She simply, when the motion to compel the Hendrix and Jane evidence, which was document,

[00:19:23] Speaker 05:
8ER 1933, when that one was raised, she didn't rule on the substance.

[00:19:30] Speaker 05:
She simply said, well, you didn't tie it to the defenses.

[00:19:34] Speaker 05:
Of course, the defenses were raised in the other concurrent motion for new trial.

[00:19:40] Speaker 05:
And this was just asking for extra evidence.

[00:19:43] Speaker 05:
But she did not consider that then in the subsequent motion to compel.

[00:19:48] Speaker 05:
She never ruled.

[00:19:50] Speaker 05:
She never ruled on the subsequent motion to compel.

[00:19:53] Speaker 05:
And when during the hearing and just before the evidentiary hearing when they found out about the other very material information, which was the surveillance and investigation of Simpson for two months before that.

[00:20:08] Speaker 05:
And if that little minuscule bit of the pole cam was relevant because it didn't show Kareem there, surely two months of surveillance by many

[00:20:20] Speaker 05:
agents and an investigation trying to figure out who he hangs out with, who is he involved with.

[00:20:28] Speaker 05:
There was no evidence.

[00:20:30] Speaker 05:
They actually said his name never came up.

[00:20:33] Speaker 05:
Similarly, in James and Hendrix's discussions with Simpson, Kareem's name never came up.

[00:20:44] Speaker 05:
So we have

[00:20:48] Speaker 05:
She never ruled on that.

[00:20:49] Speaker 05:
And when we get into my 2023 motion that the court allowed me to go back into the district court on, when I moved to compel a number of issues, they were moved to compel.

[00:21:03] Speaker 05:
She again didn't rule.

[00:21:05] Speaker 05:
I had to ask for a ruling.

[00:21:06] Speaker 05:
She finally gave it.

[00:21:07] Speaker 05:
She never discussed materiality.

[00:21:10] Speaker 05:
She never discussed favorability.

[00:21:13] Speaker 05:
She simply said that the

[00:21:15] Speaker 05:
She lifted, I think, a phrase from the government's pleading.

[00:21:20] Speaker 05:
And she simply said that it was not, let's see if I can find it.

[00:21:34] Speaker 05:
Well, what she was saying is it had already been disclosed.

[00:21:40] Speaker 05:
It didn't exist or was not relevant.

[00:21:44] Speaker 05:
And the relevance I think is pretty well established for most of it.

[00:21:48] Speaker 05:
Some things during that eight months of litigation did fall out.

[00:21:53] Speaker 05:
Some things were shown to be that.

[00:21:55] Speaker 05:
However, at page 45 of the reply, I list the things that still were valid that had been established as the government had this evidence and refused to disclose it.

[00:22:11] Speaker 05:
Let me also talk about,

[00:22:14] Speaker 05:
nurse as the third participant.

[00:22:20] Speaker 05:
That evidence we of course don't have more on.

[00:22:23] Speaker 05:
It's one of the ones that I listed.

[00:22:27] Speaker 05:
Nurse also though, there were letters to nurse that were being requested as you know in the jury instructions.

[00:22:35] Speaker 05:
The letters to nurse that were being requested I think were obviously they would be interested in the indented letter, the one from Simpson.

[00:22:44] Speaker 05:
as argued.

[00:22:45] Speaker 05:
One of the other things the court might consider is the jury asked for letters to nurse.

[00:22:52] Speaker 05:
And the letters to nurse might suggest Abu Jihad was already explained as a previous convicted terrorist.

[00:23:03] Speaker 05:
He was writing letters to Simpson and to nurse.

[00:23:06] Speaker 05:
Now those letters didn't come in.

[00:23:08] Speaker 05:
She was technically correct on that.

[00:23:11] Speaker 05:
However,

[00:23:12] Speaker 05:
If you think about it.

[00:23:14] Speaker 02:
The envelopes came in.

[00:23:15] Speaker 02:
Pardon?

[00:23:15] Speaker 02:
The envelopes, but not the letters.

[00:23:18] Speaker 02:
Yes, sir.

[00:23:19] Speaker 02:
Yes.

[00:23:21] Speaker 02:
But there were notes.

[00:23:24] Speaker 02:
No.

[00:23:26] Speaker 02:
There were no other communications.

[00:23:32] Speaker 05:
Between Abu Jihad and the others?

[00:23:35] Speaker 05:
And nurse.

[00:23:37] Speaker 05:
No.

[00:23:39] Speaker 05:
There's no evidence of that.

[00:23:42] Speaker 05:
But if you think about it, if the jury was interested in the letters from Abu Jihad, letters from 2010 and 2012, and he's an al-Qaeda guy, not an ISIS guy.

[00:23:56] Speaker 05:
If they were looking at it, they were looking at it because they were wondering about Nurse.

[00:24:02] Speaker 05:
Was he already radicalized?

[00:24:04] Speaker 05:
And if that's the case, we clearly have serious problems with them not

[00:24:10] Speaker 05:
with them precluding the third party defense, all the information about nurse and the third party defense that we tried to raise.

[00:24:19] Speaker 05:
I'm well over.

[00:24:20] Speaker 05:
Do your honors have other questions I could address?

[00:24:26] Speaker 02:
All right.

[00:24:26] Speaker 02:
Thank you, counsel.

[00:24:27] Speaker 02:
Thank you.

[00:24:28] Speaker 02:
We'll hear now from Mr. Smith.

[00:24:49] Speaker 03:
Thank you, your honor, and may it please the court.

[00:24:52] Speaker 03:
The judgment in this case and the following decisions of the district court should be affirmed.

[00:24:58] Speaker 03:
I'd like to begin with the Flames of War video that counsel spoke about.

[00:25:02] Speaker 03:
The Flames of War video was Exhibit 471.

[00:25:08] Speaker 03:
Immediately before it was admitted, a witness testified as to what it was.

[00:25:13] Speaker 03:
He testified that it was a 55-minute video, the entire video, almost like two movies in once, and testified to some of the content of it.

[00:25:21] Speaker 03:
It was immediately after that that the government offered to admit it and that the district court ruled that it was admitted.

[00:25:26] Speaker 01:
Was that Mr. Coleman who testified to that?

[00:25:28] Speaker 03:
I believe it was I'm not there were more there's more than one witness on that.

[00:25:33] Speaker 03:
So I apologize, but but Mr. Coleman did testify about it.

[00:25:37] Speaker 00:
Can you can you provide the record site to the testimony that I think you're describing here that came in right right before the video is it?

[00:25:44] Speaker 00:
Yeah, it's in our brief.

[00:25:45] Speaker 00:
Do you want me to get it?

[00:25:47] Speaker 00:
If you have it, that would be helpful.

[00:25:49] Speaker 00:
Okay.

[00:25:56] Speaker 02:
I think the introduction of 471 came in during the testimony of Agent Whitson.

[00:26:02] Speaker 03:
Yes, that's correct.

[00:26:03] Speaker 03:
The introduction was Agent Whitson, who was the FBI agent.

[00:26:07] Speaker 02:
And then Coleman was on the stand the next day when the mix-up occurred.

[00:26:11] Speaker 03:
Yes.

[00:26:17] Speaker 03:
My colleague is saying that Whitson is 16ER4312 and Coleman is 17ER4510.

[00:26:26] Speaker 03:
But we had, it was a couple pages that we have described in our brief.

[00:26:35] Speaker 03:
The government did leave open the possibility for a 403 objection, but the defense never made an objection.

[00:26:42] Speaker 03:
The defense in their appellate brief are saying, well, but the whole film went to the jury, which is true because 470 was the whole, I believe it was true, which because 471 was the whole film,

[00:26:54] Speaker 03:
But at the time that the district court sent the exhibits to the jury, the district court made sure that the parties agreed that these were the exhibits that should go to the jury, and the defense agreed to that.

[00:27:07] Speaker 03:
And that's a 21ER5542.

[00:27:09] Speaker 03:
That, I apologize, was not in our brief.

[00:27:12] Speaker 03:
So at no point did the defense object, and not only that, but they affirmatively waived any objection.

[00:27:18] Speaker 03:
And I would submit that this is not merely forfeiture, but it's a waiver.

[00:27:24] Speaker 02:
Why is it waiver?

[00:27:26] Speaker 02:
I mean, it looks like the 403 point was reserved and then was

[00:27:31] Speaker 02:
was never renewed, that would be a forfeiture.

[00:27:33] Speaker 03:
Well, I don't think the 403, I mean, it was referred by the government, but the defense never made the objection and explicitly said no objection at multiple points, knowing of the 403 right.

[00:27:44] Speaker 03:
So waiver, as you know, is where you relinquish a known right.

[00:27:48] Speaker 03:
Forfeiture is where you don't realize you have a right and you

[00:27:52] Speaker 03:
fail to object.

[00:27:54] Speaker 03:
Here, the record is very clear that the defense was aware of its rights under 403.

[00:27:58] Speaker 03:
It made 403 objections in other contexts.

[00:28:02] Speaker 03:
And by not making the objection here, and not simply not making it, but affirmatively saying no objection at multiple points, including when the exhibit went to the jury, we submit that that is waiver and not merely forfeiture.

[00:28:16] Speaker 02:
Then it gets a little more complicated when the government lawyer is

[00:28:21] Speaker 02:
messing up the exhibit numbers and now you're saying failing to renew the objection is somehow a conscious waiver when everyone's confused about the number.

[00:28:30] Speaker 03:
That's a little strict.

[00:28:32] Speaker 03:
Well, respectfully, I don't think they were failing to renew the objection because they never made a 403 objection to exhibit 471.

[00:28:39] Speaker 03:
At no point did they make an objection.

[00:28:42] Speaker 02:
It was acknowledged when the government moves to admit it's subject to a later 403, everyone knows there's a 403 issue.

[00:28:49] Speaker 02:
The 403 issue has been identified

[00:28:51] Speaker 02:
and preserved on the record, everyone would recognize and counsel would rely on that as having preserved the issue.

[00:28:58] Speaker 02:
The problem is that it never gets, never gets re-raised.

[00:29:02] Speaker 03:
This court's ruling in Archdale makes it clear that for an appellant to reserve

[00:29:12] Speaker 03:
his objection to the admission of evidence, he must both make an objection and receive a ruling from the district court.

[00:29:20] Speaker 03:
So it's the objector's obligation to make clear his objection and to ask the district court to make a ruling on that.

[00:29:27] Speaker 01:
What do we do with the fact that the judge didn't review the exhibit?

[00:29:31] Speaker 03:
So the judge didn't review the exhibit because there was no objection.

[00:29:35] Speaker 03:
I would submit, first of all, the cases that they cite refer to upon objection by a defendant.

[00:29:43] Speaker 03:
And I submit that that is really the only reasonable way to interpret

[00:29:47] Speaker 03:
and apply curtain.

[00:29:48] Speaker 03:
The alternative would be that the district judge would be required to read every book, listen to every video, watch every video, even where the parties agree on the admissibility.

[00:29:59] Speaker 03:
I mean, in this case alone, I count more than a dozen, I believe, CDs, for example, that were admitted in this case, including lectures by Anwar al-Awlaki, for example.

[00:30:10] Speaker 03:
I mean, I don't think it's reasonable that the district court should have had to listen to all of those CDs and, you know, if there's a, you know, manual found in a defendant's... When there's no objection.

[00:30:20] Speaker 03:
When there's no objection.

[00:30:21] Speaker 03:
I absolutely agree that where there's an objection, the district court needs to fully understand the objection and the material underlying it, and that's curtain.

[00:30:31] Speaker 03:
But where there's no objection, there's no precedent for it, and it's simply not reasonable to require the judge to become an expert in the evidence that... What about the argument that it was not admitted, so there's nothing really to object to?

[00:30:44] Speaker 01:
I mean, there was no... They argued that, so I guess I wanted to give you an opportunity to address that.

[00:30:50] Speaker 03:
Well, I disagree with that.

[00:30:51] Speaker 03:
The district court's ruling was 471 is admitted.

[00:30:54] Speaker 03:
I think that's the exact quote.

[00:30:56] Speaker 03:
And then again, before it went to the jury, the district court gave both sides an opportunity to object to anything or otherwise, and asked for their affirmative concurrence that this was what was supposed to go to the jury, and both sides concurred.

[00:31:14] Speaker 03:
So now I'm forgetting your question, but I hope I've answered it.

[00:31:18] Speaker 01:
You have.

[00:31:18] Speaker 03:
Thank you.

[00:31:21] Speaker 03:
The Flames of War video is particularly relevant.

[00:31:24] Speaker 03:
It's an ISIS propaganda video that came out around September of 2014.

[00:31:29] Speaker 03:
And there were two experts, one a defense expert and one a prosecution expert, that testified on this based on Kareem's computer that was found in his apartment and that it was shown through evidence that he was the user of this computer.

[00:31:45] Speaker 03:
This computer was used in October of 2014 to access the Flames of War video.

[00:31:54] Speaker 03:
The user clicked through at least two warning boxes, one about age and one about the type of content, in order to get to it.

[00:32:03] Speaker 03:
It was also accessed from the Git PC account, GIT-PC.

[00:32:08] Speaker 03:
Kareem's business was called Git Her Done, spelled G-I-T-R-D-O-N-E.

[00:32:16] Speaker 02:
And then on April 21st.

[00:32:18] Speaker 02:
And so in your view, there was a factual basis by which you could infer that he had watched the Flames of War video.

[00:32:25] Speaker 03:
Yes, Your Honor.

[00:32:26] Speaker 03:
There's actually a very strong factual basis for the jury to draw that inference.

[00:32:31] Speaker 03:
And then on April 21st, the evidence showed that he deleted evidence from his computer, including attempting to delete the evidence that showed access to Flames of War that could only be restored using forensic techniques.

[00:32:46] Speaker 03:
So Council pointed to it being prejudicial because of the message, because of its propaganda.

[00:32:53] Speaker 03:
It says, join us.

[00:32:54] Speaker 03:
It invites attacks.

[00:32:56] Speaker 03:
All of these themes were in the testimony itself.

[00:33:00] Speaker 03:
You don't have to watch the video to know that.

[00:33:02] Speaker 03:
And they're not prejudicial in an unfair way.

[00:33:05] Speaker 03:
They're the exact reason why it is relevant.

[00:33:09] Speaker 03:
Because the issue here is Kareem's intent, his connection to ISIS, his intent to

[00:33:16] Speaker 03:
perform an act that would materially support ISIS.

[00:33:21] Speaker 01:
Can I ask you to sort of switch gears a little bit and address the sufficiency argument asked to count five?

[00:33:30] Speaker 01:
And can you address to me or can you point me to any evidence in the record that was presented that indicated the defendant received actual direction

[00:33:45] Speaker 01:
or were in contact with ISIS?

[00:33:48] Speaker 03:
No, we don't have evidence that Kareem was in contact with ISIS, but that's not required for a conspiracy to provide material support.

[00:33:55] Speaker 01:
First of all... Or either Simpson or Sofi.

[00:34:00] Speaker 03:
There is some evidence that Simpson may have been in contact with overseas terrorists, but I'm not claiming that he was receiving instructions from ISIS.

[00:34:07] Speaker 03:
It is not necessary for a 2339B that

[00:34:11] Speaker 03:
a person who wants to commit an attack in ISIS's name has to have received individualized instruction.

[00:34:17] Speaker 02:
ISIS has made it clear that it— Do you read the statute as reaching a copycat freelancer?

[00:34:24] Speaker 02:
So if someone who is just sympathetic to ISIS and said, I'm going to strike a blow for them, watches a lot of ISIS stuff, doesn't have any contact with ISIS, goes out

[00:34:35] Speaker 02:
and does something and does that with some other people who also have no contact with that, is that covered by the statute in your view?

[00:34:42] Speaker 03:
It is if they do it in the name of ISIS because ISIS is inviting individuals to do attacks in its name.

[00:34:49] Speaker 03:
And so if somebody does that or even just attempts to do that, they are attempting to provide material support to ISIS.

[00:34:55] Speaker 03:
That's what ISIS wants.

[00:34:56] Speaker 03:
It wants attacks done in its name.

[00:34:57] Speaker 03:
It's not a sort of a membership organization with a role of members.

[00:35:02] Speaker 02:
How is that consistent with humanitarian law project which seems to read the service provision and service to in paramateria with the very specific definition of personnel which

[00:35:19] Speaker 02:
doesn't cover freelancers.

[00:35:22] Speaker 03:
So I don't think that HLP reads it necessarily in Paris.

[00:35:27] Speaker 03:
What HLP says is that independent advocacy is not banned by the statute.

[00:35:33] Speaker 02:
But how they got there was by putting load-bearing weight on providing a service to a foreign terrorist organization.

[00:35:45] Speaker 02:
And in that

[00:35:48] Speaker 02:
The analysis where they did that, they started with personnel, noted that there was a limiting definition, and then said service similarly refers to concerted activity, not independent

[00:36:02] Speaker 02:
advocacy and they get that from the word too.

[00:36:05] Speaker 02:
You don't have concerted activity with ISIS here.

[00:36:09] Speaker 03:
So I disagree to some degree.

[00:36:13] Speaker 03:
For example, if somebody sends a check for $10,000 to ISIS, even though ISIS didn't ask for it, that would be providing material support to ISIS.

[00:36:21] Speaker 03:
And if ISIS doesn't get it, it's attempted material support for ISIS.

[00:36:25] Speaker 03:
And here, this is what ISIS is asking for.

[00:36:27] Speaker 03:
They're asking for people to do attacks in their name.

[00:36:29] Speaker 03:
And this was publicly done in ISIS's name.

[00:36:32] Speaker 03:
The independent advocacy issue is that you're not doing it to the group or for the group.

[00:36:40] Speaker 03:
You're doing it for your or the person is doing it for himself.

[00:36:44] Speaker 03:
He's saying what he believes that happens to incidentally benefit the group.

[00:36:48] Speaker 03:
That's this is not an incidental benefit to ISIS.

[00:36:51] Speaker 03:
This is exactly what they want.

[00:36:52] Speaker 03:
This is what they're calling for.

[00:36:53] Speaker 03:
This is what the flames of war calls for.

[00:36:56] Speaker 02:
So if a terrorist organization asks for freelance activity and you do the freelance activity, that's therefore services to the activity?

[00:37:08] Speaker 03:
If you're doing the thing that they asked you to do, in this case, I mean.

[00:37:12] Speaker 02:
But do you agree that Simpson doesn't qualify as personnel under the personnel definition?

[00:37:19] Speaker 03:
I don't know that.

[00:37:19] Speaker 03:
Simpson?

[00:37:21] Speaker 03:
Yes.

[00:37:21] Speaker 03:
I don't know that I would agree with that.

[00:37:22] Speaker 03:
I think by making himself a terrorist in ISIS's service, he is providing himself as personnel.

[00:37:29] Speaker 03:
But I don't know that you necessarily need to go that far.

[00:37:33] Speaker 03:
I mean, you could just go with the services.

[00:37:40] Speaker 02:
Should I move on to a different topic?

[00:37:42] Speaker 02:
I want to pause at that point about personnel, because what it says is

[00:37:50] Speaker 02:
is no person may be prosecuted under this section in connection with the term personnel unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with one or more individuals to work under that terrorist organization's direction or control

[00:38:12] Speaker 02:
or to organize, manage, supervise, or otherwise direct the operation of the organization.

[00:38:18] Speaker 02:
Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction and control.

[00:38:31] Speaker 02:
So it seems clear under that definition that even if ISIS says we want freelancers to go out and do terrorist acts on our behalf,

[00:38:42] Speaker 02:
that someone who goes out and then takes them up on that and does it, does not qualify as personnel within that definition.

[00:38:50] Speaker 03:
Well, I disagree because I think what you're describing is acting at the direction of ISIS.

[00:38:54] Speaker 03:
I don't think the direction has to be specific to an individual.

[00:38:58] Speaker 03:
But I also don't think you need to get here because I think the service of committing it

[00:39:03] Speaker 03:
terrorist attack in ISIS's name, this is like the core thing that ISIS does is terrorism, or at least a core thing, is sufficient here.

[00:39:11] Speaker 03:
I also would note this hasn't been raised, so to the extent the court is thinking of ruling on it, I would be happy to submit additional briefing.

[00:39:21] Speaker 03:
I think this would affect a great many cases.

[00:39:24] Speaker 03:
around the country.

[00:39:25] Speaker 03:
The idea that you can commit a terrorist attack in ISIS's name, but if you didn't talk to ISIS ahead of time that you're innocent would be, I think, a very novel rule in your honor.

[00:39:36] Speaker 01:
Well, how does that square then with the way that HLP was dealing with it?

[00:39:42] Speaker 01:
Because in that case, it's squarely looking at what the definition of personnel is and in service of is.

[00:39:52] Speaker 03:
In HLP, it's saying you have to be providing either in conjunction with or to.

[00:40:00] Speaker 03:
I feel like I'm repeating myself and I apologize.

[00:40:09] Speaker 03:
When ISIS asks for people to commit terrorist attacks in their name and somebody takes them up on that and does that, that is providing a service to ISIS.

[00:40:18] Speaker 03:
That is different than independent advocacy, which is providing a service basically to yourself, saying the thing that you want to say.

[00:40:25] Speaker 03:
You might have an independent terrorist attack.

[00:40:27] Speaker 03:
We say, well, I'm not ISIS, but I like what ISIS does, and I'm going to do something different.

[00:40:32] Speaker 03:
But I'm going to do a similar thing, but I'm going to do it in my own name.

[00:40:34] Speaker 03:
Then maybe that's independent terrorism.

[00:40:36] Speaker 03:
But here, where you are at, this is how ISIS operates, basically.

[00:40:39] Speaker 03:
They recruit people through social media and through other means.

[00:40:45] Speaker 03:
They aren't in a position where they're necessarily able to talk to everybody here.

[00:40:49] Speaker 03:
They're recruiting people for attacks like this.

[00:40:52] Speaker 03:
And that was the theory that I think was never challenged in this case as to Count 5.

[00:41:04] Speaker 02:
But you would understand that the freelancer who responds to the request to perform

[00:41:12] Speaker 02:
terrorist acts and ISIS's name is thereby under the direction of ISIS?

[00:41:19] Speaker 03:
Well, I would argue that, but I don't think it's necessary.

[00:41:22] Speaker 03:
I think it's enough to say that the person is providing or attempting to provide a service to ISIS.

[00:41:27] Speaker 03:
I think that's probably the easier way to do it.

[00:41:34] Speaker 03:
Council mentioned the poll camera evidence.

[00:41:37] Speaker 03:
The district court analyzed the pole camera with some specificity and explained how the pole camera, which is basically one day of evidence that occurred about a month after Kareem told Stefan Verdugo, his longtime close friend, that he was not going to personally participate in the attack.

[00:41:58] Speaker 03:
that that did not undermine all of the direct evidence of Kareem's participation in the conspiracy.

[00:42:03] Speaker 03:
And that includes at least five recipient witnesses who testified that Kareem discussed attacks with Simpson, including the Garland context, provided money to both Simpson and Sufi to buy expensive firearms, gave an additional gun to Simpson, acquired ammunition together with Simpson,

[00:42:22] Speaker 03:
taught Simpson and Sufi how to dismantle, clean and lubricate their weapons to prevent jamming and doing so was like a mentor that's direct quote from eyewitness testimony.

[00:42:32] Speaker 03:
He took them shooting on multiple occasions, three different witnesses at least testified to that.

[00:42:38] Speaker 03:
Kareem told Stefan Verdugo that he was part of ISIS.

[00:42:43] Speaker 03:
And after the attack, he came to Sergio Martinez, another longtime friend, in the middle of the night and demanded that he not tell people that they had gone shooting.

[00:42:53] Speaker 03:
That testimony by Martinez is corroborated both by his wife and by the FBI, which was tailing Kareem, which was monitoring Kareem at that time.

[00:43:03] Speaker 03:
And they noticed that he went to Martinez's house at midnight on May 14 of 2015.

[00:43:10] Speaker 03:
That's how they found Martinez to begin with.

[00:43:12] Speaker 03:
So the pole camera doesn't undermine any of that evidence.

[00:43:16] Speaker 03:
And it does corroborate the testimony of Ali Sufi, who testified a trial before the pole camera footage was known, that he went to the apartment on May 1st in order to get his exercise equipment.

[00:43:31] Speaker 03:
He testified that he had moved out all his other material out weeks earlier, but he couldn't move the exercise equipment without renting a van.

[00:43:39] Speaker 03:
And he did that on May 1st.

[00:43:41] Speaker 03:
He testified that his brother insisted that he come on that day.

[00:43:43] Speaker 03:
And the pole camera, in fact, shows him moving, shows him there for about 34 minutes moving exercise equipment out of the apartment.

[00:43:53] Speaker 03:
Defense counsel said that the district court didn't rule on the Hendricks-Jane discovery matter, but that's not true.

[00:43:59] Speaker 03:
The district court said in denying the second motion for a new trial, said that it was merely speculative and that there was no basis for further discovery.

[00:44:14] Speaker 03:
And that's also the ruling in 2024, which we submit is not before this court, but I will say the court found not that the evidence wasn't material, but that there was no additional evidence to be produced, that everything that the defense was arguing was based on speculation, and that there was no basis for believing that the U.S.

[00:44:34] Speaker 03:
Attorney's Office was derelict in any way in their

[00:44:38] Speaker 03:
discovery obligations.

[00:44:39] Speaker 01:
Hold on, counsel.

[00:44:41] Speaker 01:
With going then based on that statement in your previous argument, the case ultimately was remanded as to count two for a new trial, correct?

[00:44:49] Speaker 01:
Yes.

[00:44:50] Speaker 01:
And why was that?

[00:44:52] Speaker 03:
That was, so I do want to clarify because I understand why I cause confusion.

[00:44:58] Speaker 03:
The district court's ruling in 2024 was that as of this point, there is no reason to believe that the US Serenity Office has not

[00:45:06] Speaker 01:
But the district court didn't know about the poll camera.

[00:45:11] Speaker 03:
The poll camera came out because the U.S.

[00:45:12] Speaker 03:
Attorney's Office produced it.

[00:45:14] Speaker 03:
The U.S.

[00:45:14] Speaker 03:
Attorney's Office did not know about it, and the district court held a three-day hearing on this.

[00:45:19] Speaker 03:
And the district court concluded that it was an oversight by the FBI.

[00:45:23] Speaker 03:
And essentially what happened was the poll camera was part of an earlier investigation of Simpson, which was not about Garland.

[00:45:29] Speaker 03:
The FBI affirmatively did not believe that he was likely to go to Garland.

[00:45:36] Speaker 03:
The pole camera went up on May 1st by coincidence.

[00:45:40] Speaker 03:
The application had been put in on April 9th.

[00:45:42] Speaker 03:
And if I could just give a little bit of background.

[00:45:44] Speaker 03:
The investigation was opened on March 2nd.

[00:45:47] Speaker 03:
There was virtually no surveillance of Simpson during March other than the spot checks of the parking lot.

[00:45:56] Speaker 03:
In early to mid-April, there's an occasional surveillance for maybe a few hours at a time.

[00:46:01] Speaker 03:
The only time there was round-the-clock surveillance was April 24th and 25th.

[00:46:05] Speaker 03:
That was because the Pat Tillman run was April 25th here in Phoenix, and they were concerned that Simpson might see that as a target of opportunity.

[00:46:14] Speaker 03:
They were not generally concerned of him traveling to commit terrorism, obviously, hindsight being 20-20.

[00:46:21] Speaker 03:
So the pole camera, so and then after the 25th, there's sporadic surveillance on the 26th, 27th and then no further surveillance.

[00:46:28] Speaker 01:
The bottom line was that the pole camera information was not provided after the hearing.

[00:46:33] Speaker 01:
The court ultimately indicated that it should have been provided and that was a result of sending it back and then ultimately the government decided not to have it.

[00:46:42] Speaker 03:
That's correct.

[00:46:43] Speaker 03:
And I agree, I mean I agree it should have been provided.

[00:46:46] Speaker 03:
It was an oversight by the FBI.

[00:46:47] Speaker 03:
Essentially it was a totally new investigation that was done with regard to Garland that didn't target Simpson obviously because he was dead.

[00:46:54] Speaker 03:
The Simpson investigation didn't target

[00:46:56] Speaker 03:
wasn't involved with Garland.

[00:46:58] Speaker 03:
The agent on that Simpson investigation reviewed the pole camera footage after the Garland attack, determined that it wasn't of any investigatory value, and essentially never told the agent on this investigation, on that Garland investigation.

[00:47:14] Speaker 03:
And that's not to be an excuse.

[00:47:16] Speaker 03:
It's just an explanation.

[00:47:17] Speaker 03:
But the fact is the district court found that it was an oversight, that there was no bad faith, and that the US Attorney's Office specifically didn't err at all.

[00:47:26] Speaker 03:
fully recognize that the government is responsible for the FBI.

[00:47:31] Speaker 01:
And yes, so the district court found that... I guess, you know, the problem I'm having is that, you know, that the failure to disclose, you can't just, you know, raise your hands and say, oh, I'm sorry, we missed this.

[00:47:43] Speaker 01:
This was a critical piece of information that should have been provided to the defense.

[00:47:47] Speaker 01:
And it was not.

[00:47:48] Speaker 01:
And just to call it an oversight seems, I'm not sure I would characterize it as that.

[00:47:54] Speaker 03:
OK, well, I'm going with the district court's findings.

[00:47:57] Speaker 03:
But I understand that you're taking this seriously, and you should.

[00:48:00] Speaker 03:
We take the Brady obligations very seriously.

[00:48:03] Speaker 03:
It's something, but there is a three part.

[00:48:07] Speaker 03:
test for determining whether something is Brady and requires a new trial.

[00:48:14] Speaker 03:
And here the district court applied that test correctly, found that this was arguably material, or maybe perhaps material, to count two and ordered a new trial on that count, and found and explained in some detail why it was not material to the other four counts, and not even relevant to counts three and four.

[00:48:31] Speaker 03:
And I think I've already pretty much described that.

[00:48:35] Speaker 03:
So if there's no further

[00:48:37] Speaker 03:
I just wanted to address one more thing that the Defense Council addressed, which is the issue of severe nurse.

[00:48:45] Speaker 03:
Much of what

[00:48:50] Speaker 03:
The defense has argued about severe nurse was not timely presented to the district court.

[00:48:55] Speaker 03:
And so the district court didn't rule on the merits.

[00:48:57] Speaker 03:
Rather, the district court found that the 2023 motion was out of time, because it was more than three years after the verdict.

[00:49:06] Speaker 03:
The district court found that equitable tolling was not, or sorry, that there was no excusable neglect.

[00:49:13] Speaker 03:
And that's something that is a discretionary determination by the district court.

[00:49:16] Speaker 03:
And so the district court didn't rule on that, on the merits.

[00:49:18] Speaker 03:
And this court shouldn't either.

[00:49:20] Speaker 03:
As for the letters to nurse, there was some discussion of the letters from Abu Jihad.

[00:49:26] Speaker 03:
So just to try to be complete, there were three letters from Abu Jihad that were found in the Simpson Sufi apartment.

[00:49:34] Speaker 03:
Two of them were addressed to nurse, and one was addressed to Simpson.

[00:49:39] Speaker 03:
And they're in the record.

[00:49:40] Speaker 03:
The defense admitted the

[00:49:45] Speaker 03:
outside of the envelopes of the two that were addressed to Nurse and I believe also the one that was addressed to Simpson.

[00:49:51] Speaker 03:
The government admitted the contents of the letter to Simpson, which was a letter, which basically was Abu Jihad, this was, the letter to Simpson came after the declaration of the ISIS Caliphate and Abu Jihad was basically saying the ISIS Caliphate is bogus, Al-Qaeda is the real thing, you shouldn't follow ISIS.

[00:50:11] Speaker 03:
The letters to nurse were not admitted.

[00:50:15] Speaker 03:
The defense counsel admitted only the envelopes and not the letters.

[00:50:19] Speaker 03:
The jury question, sorry, the jury asked a question which was, are there letter slash S to slash, or from slash to sub-year nurse?

[00:50:36] Speaker 03:
So it's rather clear that they were talking about these letters.

[00:50:41] Speaker 03:
As the district court immediately concluded and the council for both parties who had attended the trial both concluded that they were talking about these letters, the discussion immediately was that only the envelopes were admitted, the letters were not admitted, the district court correctly said the letters were not admitted.

[00:50:58] Speaker 03:
And that's just the answer to the jury.

[00:51:03] Speaker 03:
If there are no further questions, Your Honor, we would request that the court affirm the district court.

[00:51:12] Speaker 02:
All right.

[00:51:13] Speaker 02:
Thank you, counsel.

[00:51:14] Speaker 02:
Thank you.

[00:51:15] Speaker 02:
All right.

[00:51:15] Speaker 02:
We'll hear rebuttal now.

[00:51:22] Speaker 04:
May it please the court.

[00:51:24] Speaker 04:
Good morning, still.

[00:51:25] Speaker 04:
I'm Kathleen Bliss on behalf of Abdul Karim.

[00:51:29] Speaker 04:
Your honor, first I want to go back to Curtin and make a few clarifications on the Curtin issue that we've raised with respect to 471 and 187.

[00:51:39] Speaker 04:
And remember,

[00:51:42] Speaker 04:
471 was only conditionally admitted.

[00:51:46] Speaker 04:
It wasn't fully admitted through Whitson.

[00:51:49] Speaker 04:
And I'd refer the court to 16ER, 4311 through 13.

[00:51:55] Speaker 02:
But the condition was 403.

[00:51:58] Speaker 02:
And there was never a 403 objection then later raised and renewed.

[00:52:06] Speaker 02:
And so it came in then because the objection was never made.

[00:52:12] Speaker 04:
Well, you have to look at that in context with what happened later, because it was not published through Whitsun.

[00:52:19] Speaker 04:
There's no doubt about that.

[00:52:20] Speaker 04:
It was identified as the full video, Flames of War, through Whitsun.

[00:52:25] Speaker 04:
He had looked at it.

[00:52:26] Speaker 04:
And then when you go to the next day, when you have Sageman describing Flames of War and what it is,

[00:52:36] Speaker 04:
it's the 187 was admitted in its entirety.

[00:52:40] Speaker 04:
Now maybe that was a misstatement by the prosecutor, but they should have at least fixed it, because then... But it's clear from the context, even though it's called one is, it's clear from the context that it means the whole video came in.

[00:52:52] Speaker 02:
I don't know that, Your Honor, because she identifies 471 as a... But this is why we have contemporaneous objection rules, because if you raise the issues in the district court,

[00:53:01] Speaker 02:
they can get sorted out.

[00:53:03] Speaker 02:
And at no point was the 403 objection ever asserted.

[00:53:09] Speaker 04:
Because there was never a motion to fully admit 471.

[00:53:15] Speaker 04:
And I would go back, step back a little bit about 471 flames of war.

[00:53:19] Speaker 04:
There was never any direct evidence whatsoever by any witness, primarily the government's witness Vaughn, that Kareem

[00:53:31] Speaker 04:
ever accessed or watched flames of war.

[00:53:35] Speaker 04:
So we're on shaky grounds anyway with respect to 471.

[00:53:39] Speaker 04:
Look at the Vaughn testimony, that's 14ER 3660 through 61, 14ER 3694.

[00:53:48] Speaker 01:
I thought that there was evidence presented that he had it on his computer.

[00:53:57] Speaker 04:
No, Your Honor, there wasn't.

[00:53:59] Speaker 04:
With all due respect, I must correct the court's understanding of that.

[00:54:03] Speaker 04:
Only a fragment of a URL was on that computer.

[00:54:07] Speaker 04:
And that's 187.

[00:54:08] Speaker 04:
I'm sorry.

[00:54:09] Speaker 04:
That's 187.

[00:54:11] Speaker 04:
There was never a video on his device.

[00:54:16] Speaker 04:
Never.

[00:54:16] Speaker 04:
And there was no proof whatsoever that he had ever watched it.

[00:54:20] Speaker 04:
And there was an advertisement

[00:54:24] Speaker 04:
on Simpsons of Flames of War, but there was no proof that even Simpson watched it.

[00:54:30] Speaker 04:
So I would say we're on shaky grounds even talking about Flames of War and assuming under the worst case scenario for Abdul Karim, who remember is serving 30 years because of a mistake, a misidentification by the government that

[00:54:50] Speaker 04:
probably caused his counsel to not then revisit the 403 objection, that goes to an entire collapse of due process.

[00:55:06] Speaker 04:
And even if you're going to look at it under plain review, Your Honor, under the fourth prong, you've got to look at the damage

[00:55:18] Speaker 04:
to the integrity of the judicial process.

[00:55:22] Speaker 04:
Curtin makes very clear, a judge is not a moderator.

[00:55:28] Speaker 04:
A judge is the governor of the court.

[00:55:31] Speaker 04:
A judge has supervisory authority over the court process.

[00:55:36] Speaker 04:
And I would submit to you, had Judge Bolton seen that video, Flames of War, she would have never allowed it.

[00:55:43] Speaker 04:
The government can say how relevant it is as to ISIS,

[00:55:48] Speaker 04:
But lest there be any question whatsoever, your honors, ISIS was on trial.

[00:55:56] Speaker 04:
And Kareem, with no connection to ISIS whatsoever, go back and look at Vaughn's testimony.

[00:56:03] Speaker 04:
There was nothing on his computer with B headings.

[00:56:07] Speaker 04:
There was a pixelated, hard to read, perhaps flag of ISIS.

[00:56:14] Speaker 04:
That's the only thing that was found on any of his devices.

[00:56:17] Speaker 04:
And so you can go through the entirety of her testimony and understand that there was no connection of Abdul Karim to ISIS.

[00:56:31] Speaker 04:
So the other reason I think it's important to look at the court's decisions, she did try to fuzz out or modify

[00:56:46] Speaker 04:
certain exhibits.

[00:56:48] Speaker 04:
I identified those from the 171 series, the execution of the pilot, the Jordanian pilot that Mr. Sageman even testifies about as being so extreme that that streaming on Fox News, they were shamed into withdrawing it because it was so horrifying.

[00:57:12] Speaker 04:
And yet she allowed four of those photos in.

[00:57:15] Speaker 04:
So now we're into abuse of discretion.

[00:57:20] Speaker 04:
And then you couple that, you connect it with flames of war, something she never reviewed.

[00:57:25] Speaker 04:
And frankly, I don't think she would have allowed.

[00:57:31] Speaker 04:
The due process collapses in this case.

[00:57:34] Speaker 04:
He did not get a fair trial.

[00:57:35] Speaker 04:
He didn't even get a notion of fair trial.

[00:57:37] Speaker 04:
Now you fold in the Brady violations.

[00:57:42] Speaker 04:
The court said in her ruling, the indicative ruling, the docket number is 640, that it was a shaky case.

[00:57:54] Speaker 04:
So we're not dealing with a case where there's overwhelming evidence.

[00:57:58] Speaker 04:
We're dealing with a shaky case.

[00:58:00] Speaker 04:
She said that desert stuff was vague.

[00:58:02] Speaker 04:
She said those juveniles couldn't even tether their testimony to a timeline.

[00:58:10] Speaker 04:
She had specific findings.

[00:58:12] Speaker 04:
that it was a shaky case, there were jury questions about it.

[00:58:18] Speaker 04:
No, Flames of War put it over the top.

[00:58:22] Speaker 04:
And even if you look at it under plenty of error, you can't say that it was a fair trial.

[00:58:30] Speaker 02:
Can you address counsel's

[00:58:35] Speaker 02:
point when we were, you heard the colloquy we had concerning what the standards are for count five and raised some legal questions about how humanitarian law projects should be construed.

[00:58:52] Speaker 02:
And one of council's responses was that this was the particular tenor of the points that were being raised were not ones that had been

[00:59:03] Speaker 02:
raised in your opening brief.

[00:59:07] Speaker 02:
Is he correct that you did not raise those points?

[00:59:13] Speaker 02:
I would disagree with that representation, but I would focus more on under... Because I understood that prompted me to go back and look at the relevant section of your brief and what it does is it

[00:59:32] Speaker 02:
says that what the government needed to prove is that he had the specific intent to advance the conspiracy's object, knowing and intending to advance ISIS's goals and that he intended to support ISIS in doing so.

[00:59:50] Speaker 02:
And that Simpson and Sufi, it was inadequate evidence that Simpson and Sufi entered into an agreement to support ISIS.

[00:59:59] Speaker 02:
But it seems to me that none of that suggests that Simpson and Sufi had to be under ISIS's direction and control in order to fit within count five.

[01:00:13] Speaker 02:
So it doesn't seem, in fact, you've made that argument.

[01:00:17] Speaker 02:
But I wanted to give you the opportunity to respond to that.

[01:00:20] Speaker 02:
It does seem that that's not in your brief.

[01:00:22] Speaker 04:
And perhaps I'd say, Your Honor, I would submit that

[01:00:28] Speaker 04:
in the sufficiency argument we were making, and I would cling to this fact, is conspiracy is a specific intent crime.

[01:00:39] Speaker 04:
And there had to be proof that Kareem was not merely a bystander.

[01:00:43] Speaker 02:
Correct.

[01:00:44] Speaker 02:
But what was the object that's required by the statute?

[01:00:50] Speaker 02:
What does it mean to provide support to ISIS?

[01:00:54] Speaker 02:
And it seemed to me, going back to your brief, that what you were saying is that

[01:00:58] Speaker 02:
furthering ISIS's goals in response to its recruiting efforts would count as providing material support to terrorists, but that there wasn't here sufficient proof that there was an agreement to further ISIS's goals.

[01:01:16] Speaker 04:
I, with respect to Kareem, that's right.

[01:01:18] Speaker 04:
Okay.

[01:01:19] Speaker 04:
That's what, that's what I, that's all I can rely on is there was not sufficient evidence as to him as to count five.

[01:01:28] Speaker 04:
Perhaps with Simpson, but not with Abdul Karim.

[01:01:32] Speaker 04:
There just wasn't the evidence for that.

[01:01:39] Speaker 04:
Let's see, on the Brady, again, I emphasize that this court has to look at it cumulative.

[01:01:46] Speaker 04:
And so, counsel brought up the equitable tolling issue.

[01:01:50] Speaker 04:
No, we're talking about Brady.

[01:01:52] Speaker 04:
Equitable tolling doesn't apply to Brady.

[01:01:55] Speaker 04:
And so all of the evidence that was developed after the trial, including the discussions between the undercover and Simpson, that was critical evidence because it put the FBI in the mix.

[01:02:19] Speaker 04:
It put them in Garland.

[01:02:21] Speaker 04:
They knew about it.

[01:02:21] Speaker 04:
They were there.

[01:02:23] Speaker 04:
And then you go into the surveillance that happened months before the Tillman run, things like that of Simpson.

[01:02:30] Speaker 04:
That was critical evidence that Kareem could have shown that there was nothing about him whatsoever.

[01:02:36] Speaker 04:
You go into the phone records of Nurse that the court said, no,

[01:02:43] Speaker 04:
defense had Kareem's phone records.

[01:02:45] Speaker 04:
No, defense needed nurse's phone records because that would have shown all of the interactions between Simpson and nurse.

[01:02:54] Speaker 04:
And then with respect to the insurance, the money, that's what counsel for the government argued in their closing is about this insurance scam that Kareem supposedly had.

[01:03:06] Speaker 04:
Nurse was.

[01:03:08] Speaker 04:
He owed $33,000.

[01:03:10] Speaker 04:
That's how much he raised in restitution from his insurance scam.

[01:03:14] Speaker 04:
And the government can't just say, oh, it was a state case, because FBI agents were on the witness list in that case.

[01:03:22] Speaker 04:
So when you look at all of it, cumulative, and you, this court, you apply de novo review, then you have to ask yourself, does this call into question?

[01:03:36] Speaker 04:
that jury's verdict, would this have been helpful to Corrine?

[01:03:41] Speaker 04:
Could this have changed the outcome?

[01:03:44] Speaker 04:
It doesn't mean that defense has to show he would have been acquitted.

[01:03:49] Speaker 04:
But I would submit in a case of this week, relying on evidence that should have never been allowed in the first place, flames of war.

[01:04:00] Speaker 04:
Your Honor, I hate to ask you to look at that.

[01:04:06] Speaker 04:
exhibit 471.

[01:04:07] Speaker 04:
But when you do, you'll know there's no way Judge Bolton would have allowed that in.

[01:04:11] Speaker 04:
And it's disingenuous for the government to say that Kareem waived an objection.

[01:04:20] Speaker 02:
All right.

[01:04:21] Speaker 02:
Thank you, counsel.

[01:04:22] Speaker 02:
I'd like to thank counsel on both sides for the very helpful arguments in this case.

[01:04:28] Speaker 02:
As we indicated in the previous order that we issued on Friday, we will have a

[01:04:36] Speaker 02:
With respect to the ex parte issues, we'll have a further ex parte session with government counsel.

[01:04:44] Speaker 02:
Yes.

[01:04:49] Speaker 02:
No, you cannot participate in it.

[01:04:55] Speaker 02:
No, no.

[01:04:57] Speaker 02:
After that session, I'm not going to submit the case at this time.

[01:05:01] Speaker 02:
But after that session is concluded, the case will then be submitted to us for decision.

[01:05:08] Speaker 02:
You can be excused, yes.

[01:05:10] Speaker 02:
Thank you.

[01:05:10] Speaker 02:
Thank you, Counsel.