United States v. Elhuzayel

          ORDER DENYING MOTION FOR JUDGMENT OF ACQUITTAL AND/OR MOTION FOR A NEW TRIAL [177]

          DAVID O. CARTER UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Nader Salem Elhuzayel’s (“Elhuzayel” or “Defendant”) Motion for Judgment of Acquittal and/or Motion for a New Trial (“Motion”) (Dkt. 177). For the reasons stated below, the Court DENIES the Motion.

         I. Background

         On June 21, 2016, after a 10-day trial, a jury returned a verdict of guilty on all counts charged against Defendant Nader Salem Elhuzael (“Elhuzayel” or “Defendant”). See Jury Verdict Form (Dkt. 167). The jury specifically found Elhuzayel guilty of the following crimes: Conspiracy to Provide Material Support and Resources to a Designated Foreign Terrorist Organization, 18 U.S.C. § 2339B (Count One); Attempting to Provide Material Support and Resources to a Designated Foreign Terrorist Organization, 18 U.S.C. § 2339B (Count Two); and Bank Fraud, 18 U.S.C. §§ 1344, 2 (Counts Four through Twenty-Nine).

         On June 28, 2016, Elhuzayel filed the instant Motion. In the Motion, Elhuzayel seeks either a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, or a new trial pursuant to Federal Rule of Criminal Procedure 33. Mot. at 2. The United States of America opposed on July 18, 2016 (Dkt. 186), and Elhuzayel filed a reply on July 28, 2016 (Dkt. 190). The Court held a hearing on the Motion on August 1, 2016. See Minutes of Motion Hearing (Dkt. 191).

         II. Legal Standard

         A. Motion for a Judgment of Acquittal

         “A Rule 29 motion is basically a challenge to the sufficiency of the evidence.” United States v. Wong, No. CR-12-0483 EMC, 2014 WL 923347, at *5 (N.D. Cal. Mar. 5, 2014). “In ruling on a Rule 29 motion, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Alarcon-Simi, 300 F.3d 1172, 1176 (9th Cir. 2002). “[T]he government does not need to rebut all reasonable interpretations of the evidence that would establish the defendant’s innocence, or rule out every hypothesis except that of guilt beyond a reasonable doubt.” U.S. v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (citation and internal quotation marks omitted). However, “evidence is insufficient to support a verdict where mere speculation, rather than reasonable inference, supports the government’s case, or where there is a total failure of proof of a requisite element.” Id. at 1167.

         B. Motion for a New Trial

         Federal Rule of Criminal Procedure 33 authorizes the Court, on motion of a defendant, to “vacate any judgment and grant a new trial if the interest of justice so requires.” A “motion for a new trial is directed to the discretion of the district judge. It should be granted only in exceptional cases in which the evidence preponderates heavily against the verdict.” United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981). The defendant has the burden to justify the need for a new trial. United States v. Shaffer, 789 F.2d 682, 687 (9th Cir. 1986).

         III. Discussion

         Defendant Elhuzayel argues the evidence offered at trial was insufficient in a number of regards. With respect to Counts One and Two, Defendant Elhuzayel argues (1) the government presented insufficient evidence to show, beyond a reasonable doubt, the Islamic State was a designated foreign terrorist organization (“FTO”) at the time of his arrest, Mot. at 4-5; and (2) the government presented insufficient evidence that Elhuzayel was under the control of the Islamic State, id. at 5-7. With respect to Counts Four through Twenty-Nine - the bank fraud charges - Elhuzayel argues the government presented insufficient evidence that he possessed knowledge of the fraudulent scheme involving his bank accounts. Id. at 9-10.

         Elhuzayel separately argues the admission into evidence of certain images was both irrelevant and unduly prejudicial. Further, because they were found on the co-Defendant’s phone, he argues the Court should have granted a severance. Id. at 10.

         A. Rule 29 Motion

         The Court will address these arguments in turn, beginning with the sufficiency of evidence arguments brought pursuant to Rule 29.

         1. Islamic State as a Designated Foreign Terrorist Organization

         The Court will first consider Elhuzayel’s argument regarding the designation of the Islamic State as an FTO. Generally, Elhuzayel argues he could not be convicted of Counts One and Two because the State Department had not designated, under 8 U.S.C. § 1189(b) the English-language term “Islamic State” as an alias for the Islamic State of Iraq and the Levant (“ISIL”), also known as the Islamic State of Iraq and Syria (“ISIS”), at the time of his arrest. Id. Because the Islamic State was formally designated on September 21, 2015, four months after Defendant’s arrest, Elhuzayel contends the “act was not criminal at the time of its commission.” Mot. at 4 (citation omitted).

         The Court rejects this argument for several reasons. First, Defendant provides no legal authority suggesting the government must prove that every alias of an FTO has beenformally designated as an alias under 8 U.S.C. Section 1189(b). Indeed, the existing authority suggests otherwise. See National Council of Resistance of Iran v. Department of State, 251 F.3d 192, 200 (D.C. Cir. 2001). As the D.C. Circuit explained,

It would simply make no sense for us to hold that Congress empowered the Secretary to designate a terrorist organization-so as to . . . prevent anyone in the United States from providing material resources or support the organization-only for such periods of time as it took such organization to give itself a new name, and then let it happily resume the same status it would have enjoyed had it never been designated. If the Secretary has the power to work those dire consequences on the same entity calling itself “Organization A, ” the Secretary must be able to work the same consequences on the same entity while it calls itself “Organization B.”

Id. at 200; see also United States v. Sadequee, No. 1:06-cr-147-WSD, 2009 WL 3785566, at *4 (N.D.Ga. Nov. 10, 2009) (“Even if Defendant Ahmed did meet with ‘JUD representatives, ’ the evidence at trial was that JUD representatives and LeT representatives were one in the same.”). The Court agrees with this logic. If Defendant’s position were adopted, organizations would be incentivized to change their names on a regular basis, and individuals could escape liability far too easily. Thus, the Court finds the government did not need to prove the particular term “Islamic State” was included in the FTO designation at the time of defendant’s arrest; rather, the government ...