United States v. Alebbini

979 F.3d 537

UNITED STATES of America, Plaintiff-Appellee,

v.Laith Waleed ALEBBINI, Defendant-Appellant.

No. 19-3647

United States Court of Appeals, Sixth Circuit.

Argued: October 20, 2020

Decided and Filed: November 5, 2020

ARGUED: Kevin M. Schad, FEDERAL PUBLIC DEFENDER'S OFFICE, Cincinnati, Ohio, for Appellant. Vipal J. Patel, UNITED STATES ATTORNEY'S OFFICE, Dayton, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, FEDERAL PUBLIC DEFENDER'S OFFICE, Cincinnati, Ohio, for Appellant. Vipal J. Patel, Dominick S. Gerace II, UNITED STATES ATTORNEY'S OFFICE, Dayton, Ohio, Justin Sher, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Before: McKEAGUE, GRIFFIN, and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge.

On April 26, 2017, FBI agents arrested Laith Waleed Alebbini at the Cincinnati-Northern Kentucky International Airport. They suspected that he was attempting to travel to Turkey and then Syria to join the Islamic State of Iraq and Syria ("ISIS")—a designated foreign terrorist organization. A grand jury in the U.S. District Court for the Southern District of Ohio returned an indictment charging Alebbini with attempting and conspiring to provide material support and resources to ISIS. Soon thereafter, Alebbini waived his right to trial by jury, and the case proceeded to a bench trial before the district court. After hearing evidence and arguments for ten days, the district court found Alebbini guilty on both counts.

On appeal, Alebbini challenges the sufficiency of the evidence for both of his convictions. First, he argues that the proof was insufficient to convict him of conspiring to provide material support to ISIS because it did not demonstrate that he entered into any kind of agreement with his alleged co-conspirator and cousin, Raid Ababneh. Second, he argues that the evidence was insufficient to convict him of attempting to provide material support to ISIS because it did not demonstrate that he took a substantial step towards the crime charged, or that he intended to work under the direction and control of ISIS. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the elements of the crimes charged beyond a reasonable doubt. We therefore AFFIRM the district court's judgment.

I. BACKGROUND

A. Alebbini's Visit to the Turkish Embassy

Laith Alebbini is a Jordanian national who immigrated to the United States in 2009 and became a permanent resident in 2014. On January 10, 2017, after years of researching ISIS and the greater conflict in Syria, Alebbini drove from his home in Gordonsville, Virginia to the Turkish embassy in Washington, D.C. He hoped to meet with the Turkish Ambassador to discuss the Syrian conflict. Although it was illegal to enter the embassy compound in an unauthorized vehicle, Alebbini drove in and parked. Predictably, law enforcement was notified, and escorted Alebbini off embassy grounds. As he was escorted away, Alebbini reportedly turned toward the Turkish embassy and shouted, "you are going to regret this!"

B. The FBI's Visit to Alebbini's Residence

Two weeks later, on January 23, 2017, two federal agents showed up at Alebbini's home and asked to speak with him about the incident at the embassy. He obliged. The interview began as a formality—the agents simply needed to get some information about why Alebbini had gone to the Turkish embassy. It ended with the agents seeking to open an FBI investigation into Alebbini's conduct. During the interview, Alebbini told the agents that Facebook deactivated his social media account because he had posted pro-ISIS videos. He mentioned that he agreed with ISIS's overall goals but not necessarily with their means of achieving those goals. He also told the agents that he attempted to join the U.S. Military to fight against Syrian forces and that he was not a terrorist, but that he "would be the perfect recruit for ISIS." Alebbini further added, in jest, that the Turkish embassy had such poor security that if he had a bomb that day, he could have taken down three embassies.

The agents viewed Alebbini's statements as red flags and inquired into his recent travels. According to the agents, the only foreign destination Alebbini reported traveling to was Canada. After some independent research, however, the agents discovered that Alebbini had in fact traveled to Turkey with his cousin, Raid Ababneh, a week prior to the interview, allegedly to fight Bashar al-Assad with the Syrian opposition forces. But Alebbini's passport was expired, so Turkish authorities denied him entrance into the country and sent him back to the United States. According to Alebbini, Raid made it through, but he "got caught." Based on that new information, the interview at Alebbini's home, and a formal background check, the FBI opened a full investigation into Alebbini.

C. The FBI's Investigation

After about a month of surveillance, the FBI learned that Alebbini had moved to Dayton, Ohio with his wife, Destiney Eshelman, and his cousin, Raid. So FBI Special Agent Michael Herwig reached out to the FBI's Joint Terrorism Task Force in Dayton to continue their surveillance of Alebbini. One of the task force agents had a confidential source who had worked with the task force in the past and who happened to know Alebbini's wife. From early March 2017 until Alebbini's arrest in late April 2017, the informant had several recorded conversations with Alebbini and Raid, most of which were in Arabic.

In one conversation, Alebbini justified ISIS burning a Royal Jordanian Air Force pilot alive as payback for "help[ing] America against us." He claimed that "the only one who shows the truth is honestly the Islamic State Organization." At various points, Alebbini also discussed how he had watched pro-ISIS videos. For example, Alebbini recounted a time when he and Raid were sitting in front of his laptop, watching ISIS videos, and Raid tossed the laptop and said, "Man why are we waiting over here? Let's act .... I want to go." Alebbini further described his hatred for Syrian President Bashar al-Assad and how he wanted to "fight alongside the Islamic State." When asked if he knew how to get to the Islamic State, Alebbini reported to the informant that he would need to book a flight to Jordan, with a layover in Turkey, and that he would need to purposefully miss his connecting flight to Jordan, and then make his way to the Islamic State through Turkey. He told the informant that he was not concerned about being caught: "Whoever wants to catch me ... Jordan catches me, America, anywhere ... let whoever wants me catch me." But he also cautioned that their conversations might be monitored, so they should not use their phones to discuss ISIS. If asked, Alebbini noted, "We can say that we are talking about opposition and a revolution."

At some point, Alebbini began to backtrack from his expressed interest in ISIS. The informant suspected that his cover had been blown and that Alebbini was testing him. Nevertheless, at the end of March 2017, Alebbini commented to the informant that "the truth is crystal clear," and alluded to him and Raid reaching "the execution phase" of some unidentified plan. He asserted: "our duty is to support the Islamic State. ... What's our duty? Jihad. So, a person must be, I mean, must distance himself from the people of sin until it happens ... and if it happens and he is captured; then let them capture him[.]"

Alebbini further confided in the informant after his cousin Raid got into trouble overseas. He told the informant that in March, Raid had gone to Jordan, where he was arrested by counterterrorism forces who suspected him of traveling to join ISIS. Alebbini mentioned that "someone reported us," alluding to a suspicion that Raid's name was provided to the authorities based on the ISIS videos he and Raid watched, the conversations they had, and their "thinking." Alebbini also expressed his concern that Raid might implicate him while imprisoned in Jordan.

That information raised more red flags for the FBI, so their investigation continued. In one surveilled conversation, Alebbini told his cousin, Mohammad Ababneh, that he and Raid "pledged together." He further explained that they "were supposed to leave together" to Jordan but that Raid went ahead of him, that he "started asking and acting on his own," and that he "asked some people about the [Islamic] State," which resulted in his capture.

In a separate conversation, another cousin of Alebbini's, Qasim Ababneh, expressed fear that after being captured by Jordan's counterterrorism unit, Raid would confess to "everything you and he had planned." Alebbini replied, "By God I told him, not to call or ask and that I will."

In late April, Alebbini's brother Hossam reached out to one of Alebbini's cousins, Hussein Ababneh. He told Hussein that Alebbini was making plans to travel to Syria but that he could not disclose more information over the phone. He asked Hussein to speak to Alebbini and pleaded with him to refrain from giving Alebbini any money to buy a plane ticket. Hussein thought Alebbini might be trying to join ISIS in Syria, so he immediately called Alebbini. A six-hour conversation ensued.

During that conversation, Hussein tried to talk Alebbini out of traveling to the Middle East to join ISIS, but Alebbini insisted, "I am going to join these people because they are right. ... I am 100 percent positive and I know, and I've seen through evidence and proof that they are right." Alebbini also defended ISIS's leader at the time, Abu Bakr al-Baghdadi, and spoke as if he had already joined ISIS, telling Hussein, "America will not let us be. ... [T]he solution ... is to bear arms." When asked whom he would fight with and against, Alebbini responded, "the State Organization" and "any regime that follows the US government." He contemplated being a "martyrdom bomber," and that "[t]o fight America" he would offer himself up as "bait." He reiterated, "I must fight. I am a...