United States v. Elsheikh

103 F.4th 1006

UNITED STATES of America, Plaintiff - Appellee, v. El Shafee ELSHEIKH, Defendant - Appellant.

No. 22-4496

United States Court of Appeals, Fourth Circuit

Argued: March 22, 2024

Decided: June 7, 2024

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:20-cr-00239-TSE-2)

ARGUED: Nicholas Joseph Compton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Aidan Taft Grano-Mickelsen, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Kristen M. Leddy, Assistant Federal Public Defender, Aaron D. Moss, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Alicia Cook, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Jessica D. Aber, United States Attorney, Richmond, Virginia, Raj Parekh, Assistant United States Attorney, John T. Gibbs, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before AGEE, QUATTLEBAUM, and HEYTENS, Circuit Judges.

Affirmed by published per curiam opinion.

PER CURIAM:

El Shafee Elsheikh appeals his convictions for offenses arising from his role in a terrorist hostage-taking scheme undertaken to support the Islamic State of Iraq and al-Sham (ISIS).¹ Each issue he raises on appeal challenges the admissibility of certain evidence against him at trial. For the reasons set forth below, we affirm Elsheikh's convictions and sentences.

I.

We will discuss the circumstances surrounding the specific categories of evidence Elsheikh challenges in the context of analyzing those issues, but begin with a brief overview of the evidence adduced at trial. In 2012, Elsheikh, who was then a citizen of the United Kingdom, traveled to Syria where he subsequently joined ISIS. Over a three-year period, Elsheikh and others—including co-defendant Alexanda Amon Kotey and Mohammad Emwazi (deceased)—captured and held hostage United States, United Kingdom, and other foreign nationals. Some hostages were released; others were summarily executed and their deaths subsequently featured in ISIS propaganda materials.

The hostages nicknamed their principal captors "the Beatles" because the men spoke English with British accents. Emwazi appeared to be the leader, with Elsheikh and Kotey assisting him. Throughout their scheme, the Beatles took measures to avoid being identified, such as by wearing balaclavas and gloves and ordering hostages to face or look away from their captors. The Beatles gained international notoriety for their brutal treatment of hostages, which included waterboarding, forced boxing matches between male hostages, and beatings. Their activities garnered significant international attention in 2014 when ISIS published propaganda videos depicting four separate occasions in which Emwazi castigates the United States and its allies before beheading a male hostage. In another video, Emwazi made similar comments while standing over a fifth male hostage who had already been decapitated. Throughout their endeavors, the Beatles used proof-of-life recordings and execution videos to exhort the hostages' family members and governments to meet certain demands such as paying ransom fees or undertaking certain foreign-policy actions.

The Beatles' hostages generally consisted of journalists and aid workers on assignment in the region. They were held at various locations in Syria. Four of the hostages were United States citizens. James Wright Foley, a journalist, was kidnapped in November 2012 and held hostage until his beheading in August 2014. Steven Joel Sotloff, a journalist, was kidnapped in August 2013 and beheaded around September 2014. Peter Edward Kassig, an aid worker, was kidnapped in October 2013 and beheaded in November 2014. Kaylan Jean Mueller, an aid worker, was kidnapped in August 2013 and was killed around February 2015, after the Beatles had transferred her to other ISIS members.

With time, ISIS began losing ground in Syria, and in January 2018, the Syrian Democratic Forces (SDF), a Kurdish militia, captured Elsheikh and Kotey as they were attempting to flee across the Syrian border into Turkey.²

The SDF relied on assistance from United States personnel in performing a biometric enrollment process for its detainees. As part of that process, Elsheikh and Kotey were asked several questions, photographed, and fingerprinted. At that time, both Elsheikh and Kotey provided false names and nationalities. But when their fingerprints were entered into a database, Elsheikh and Kotey's true identities became known. When confronted with those biometric matches, both men admitted who they really were.

Elsheikh and Kotey remained in SDF custody for about a year. Early in that detention, United States Department of Defense (DOD) investigators conducted "intelligence gathering" interviews with Elsheikh and Kotey, all without the benefit of Miranda³ warnings. Several weeks after the DOD interviews ended, two individuals identifying themselves as special agents with the United States Federal Bureau of Investigation (FBI) informed Elsheikh and Kotey that they wanted to interrogate them for law-enforcement purposes and that, unlike any statements the men had previously made, these statements could be used against them in a future criminal prosecution. Kotey refused to answer any questions, but Elsheikh selectively answered questions. During their SDF detention, Elsheikh and Kotey also participated in multiple media interviews, sometimes together and sometimes separately.

In October 2019, Elsheikh and Kotey were transferred to the custody of the United States (the Government), and they were held abroad for approximately one more year. During that time, the Government negotiated with the United Kingdom over the terms of its turning over evidence to assist with prosecuting the men in the United States and, specifically, whether they might face a sentence of death.⁴ Those diplomatic negotiations resolved after the Government promised not to seek the death penalty.

In October 2020, a federal grand jury indicted Elsheikh and Kotey on eight counts: conspiracy to commit hostage taking, resulting in death, in violation of 18 U.S.C. § 1203; four counts of hostage taking resulting in death, in violation of 18 U.S.C. §§ 1203 and 2, for the deaths of Foley, Sotloff, Kassig, and Mueller; conspiracy to murder United States citizens outside of the United States (the same four named citizens), in violation of 18 U.S.C. § 2332(b)(2); conspiracy to provide material support or resources to terrorists, namely, to carry out the hostage taking and murders of the four named United States citizens as well as "British and Japanese nationals," in violation of 18 U.S.C. § 2339A; and conspiracy to provide material support or resources to a designated terrorist organization (ISIS), resulting in death, in violation of 18 U.S.C. § 2339B.

Kotey pleaded guilty, but Elsheikh exercised his right to a jury trial. The Government's case against Elsheikh is the sole focus of this appeal. During the two-week trial, the Government presented extensive evidence proving that Elsheikh was one of the Beatles and, more to the point, that he had participated in the charged conspiracies and hostage-taking-and-killing endeavors in support of ISIS. Elsheikh's defense did not contest the underlying criminal conduct of the Beatles, but rather challenged the Government's proof identifying him as a participant in it.

The jury found Elsheikh guilty on all counts, and the district court sentenced him to eight terms of life imprisonment.

Elsheikh noted a timely appeal, and this Court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

II.

On appeal, Elsheikh argues the district court committed reversible error in permitting the Government to introduce evidence related to five categories of evidence. First, he contends un-Mirandized false identity statements that he made upon his capture in Syria were inadmissible. Second, Elsheikh asserts that even though he had been provided with a Miranda-style Advice of Rights form before making certain statements to FBI agents while in SDF custody, those statements were nonetheless inadmissible because they were tainted by earlier, un-Mirandized intelligence-gathering interviews conducted by the DOD. Third, he maintains that 2019 media interviews were improperly admitted following the district court's clearly erroneous factual finding that those statements were not the product of abuse and coercion by SDF guards. Fourth, Elsheikh asserts the district court should not have permitted the Government to introduce hearsay statements made by "unavailable" hostages under the forfeiture-by-wrongdoing exception. Lastly, he claims the district court should have limited one witness's testimony to the time in which that witness and Mueller were held captive together.⁵

The Government responds in several ways. On the merits, it asserts that each category of evidence was properly admitted. For some of the challenged evidence, the Government also asserts that Elsheikh has failed to properly preserve the challenge by either failing to object to its admission in the district court or not adequately developing his argument in his opening brief. And for much of the challenged evidence, the Government posits that any error was ultimately harmless and thus would not warrant reversal.

Our standard of review is generally consistent across the various types of challenges that Elsheikh lodges here. "When reviewing the denial of a motion to suppress, [the Court] review[s] the factual findings for clear error and the district court's legal determinations de novo." United States v. Khweis, 971 F.3d 453, 459 (4th Cir. 2020) (cleaned up). Similarly, we review a district court's evidentiary rulings for abuse of discretion and a court abuses its discretion when it is either "guided by...