United States v. Jones

79 F.4th 844

UNITED STATES of America, Plaintiff-Appellee, v. Joseph D. JONES and Edward Schimenti, Defendants-Appellants.

No. 21-1482

No. 21-1672

United States Court of Appeals, Seventh Circuit

Argued November 1, 2022

Decided August 18, 2023

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:17-cr-236 — Andrea R. Wood, Judge.

Stuart D. Fullerton, Attorney, Barry Jonas, Assistant U.S. Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Joshua B. Adams, Attorney, Law Offices of Joshua B. Adams, P.C., Chicago, IL, for Defendant-Appellant Edward Schimenti.

Before Rovner, Brennan, and Scudder, Circuit Judges.

Scudder, Circuit Judge.

A jury convicted Joseph Jones and Edward Schimenti of providing material support to the terrorist organization ISIS. In returning guilty verdicts, the jury rejected an entrapment defense advanced by Jones. The district court, in denying a post-trial motion for acquittal, likewise rejected his contention that the evidence showed that the government overstepped and induced his commission of the offense. Because the district court properly instructed the jury on the elements of entrapment, we owe the jury's ultimate determination meaningful deference and in the end agree with the district court's denial of Jones's motion for acquittal.

We likewise agree with the district court's denial of Jones and Schimenti's motion for a new trial based on a revelation that emerged after trial regarding a substantial payment the government made to a confidential source shortly after the jury convicted both defendants. What happened raises many questions, but, like the district court, we cannot conclude an earlier disclosure of a planned or contemplated post-trial payment would have resulted in the jury acquitting Jones or Schimenti. All of this leads us to affirm.

I

A

The trial evidence supplies the operative facts, which we set forth (as we must) in the light most favorable to the government. See United States v. Leal, 72 F.4th 262, 267 (7th Cir. 2023).

Joseph Jones and Ed Schimenti are childhood friends who lived near Chicago. Both men are practicing Muslims and members of the same mosque. In early 2015 the FBI began surveilling Jones and Schimenti based on their pro-ISIS social media posts that praised the organization, threatened nonbelievers of Islam, and glorified violent recruitment videos. Jones interacted on Google Plus with videos depicting violent beheadings and fatal stabbings. On his personal page, he wrote the "Islamic State wants a world ruled by the law of Allah . . . . Jihad for the kufar [non-believers] with blind corrupt hearts." Schimenti, too, posted on Google Plus to convey his desire for Islamic rule, writing, "May Allah reward this fierce mujahideen [jihad fighter] who uses his life, body, and earthly might to make Allah's law govern all. May Allah reward him for striking fear in the hearts of the taghut [non-believers]."

After several months of physical and online surveillance, the FBI found no evidence of criminal activity but remained concerned about the pro-ISIS content in Jones's and Schimenti's ongoing posts. So in September 2015, the Bureau launched a full-scale investigation using undercover agents and a confidential human source.

The FBI began by initiating contact between Jones and an undercover agent going by the name "Omar." The contact arose in staged circumstances. The Bureau instructed local law enforcement to bring Jones to a police station under the guise of asking him questions about the recent death of his friend. Omar then initiated conversation with Jones in the station's waiting room by expressing his frustration at being profiled because he was a Black Muslim, an identity Jones shared. The FBI instructed Omar neither to discuss ISIS nor to ask for Jones's contact information, but only to open the door to a conversation to "identify [Jones's] true intent and understand what [he] truly want[s] to do." After discussing their shared identity, Jones asked Omar for his phone number and the two began a friendship.

B

Jones pursued a relationship with Omar and then with other undercover agents that unfolded over the next 18 months. Although the government kept in contact with Jones over that period using its multiple agents, it was Jones—and not the agents—who drove the relationship forward. Following the meeting at the police station in September 2015, Jones and Omar continued to communicate by text message. Their early conversations began with general discussions about Islam.

At Jones's initiation, the communications eventually turned to radical Islam. He shared ISIS propaganda videos with Omar, to which Omar responded by thanking him and asking if he had more. After establishing their mutual support for ISIS—and repeatedly referring to Omar as his "brother"—Jones continued sending videos, including the violent ISIS recruitment video "Flames of War," which he had previously watched with Ed Schimenti in 2014. Seeing an opportunity to get more information about Jones's intent to commit a material support offense, Omar asked Jones whether he ever thought about traveling to Syria. Jones texted back: "Every night and day."

As their relationship progressed, Jones asked Omar whether he knew other "brothers" that he could "learn and build with"—a request to meet other ISIS supporters. Omar responded by introducing Jones to "Bilal," another undercover FBI agent posing as an ISIS travel facilitator. Omar indicated that Bilal could help people travel to Syria, something Omar said he planned to do. Bilal told Jones that he could help fund Jones's trip to Syria to support ISIS, but Jones never took him up on that offer.

Jones continued his friendships with the undercover agents, and on October 30, 2015, Omar and Bilal met Jones in person at a restaurant in Waukegan. Jones invited his close friend Schimenti to join them, and the four shared a meal.

Communications continued and two months later Omar, Bilal, Jones, and Schimenti met again in a hotel room in Gurnee, near Chicago. During that meeting Bilal showed Jones and Schimenti a video of Omar completing firearms training in a desert. Bilal then offered to help Jones and Schimenti perform a violent act, ostensibly on behalf of ISIS, telling them: "If you want to rock out right now, we gonna rock out right now." Neither of them accepted the offer, but Jones expressed his interest in the training video and recognized that Omar was actively preparing to become an ISIS fighter.

At that same December 2015 hotel meeting, Bilal put a question to Jones and Schimenti: "When we say who you with, you guys are on the same page right?" The two responded "alhumdulillah," meaning "all praises to Allah"—an enthusiastically strong "yes" indicating their support of ISIS's mission. But the meeting soured when Bilal followed up by asking Jones and Schimenti whether they had pledged "bay'ah," or allegiance to ISIS. Schimenti was upset by the question and left the room without responding, prompting Jones to explain that Schimenti worried that Bilal and Omar were federal agents. For his part, Jones did not answer Omar's question about swearing loyalty to ISIS, but more generally told Omar and Bilal that he wanted to keep in touch.

While Schimenti discontinued his relationship with Omar and Bilal following this meeting at the hotel, Jones kept his word and stayed in touch. Indeed, Jones continued to initiate communications and exchange pro-ISIS messages with both Omar and Bilal. In February 2016 Omar told Jones that he planned with Bilal's help to travel to Syria, to which Jones responded, "Brother, I wish I was going with you." Omar asked Jones whether he wanted an ISIS flag to show his support. Jones readily accepted the flag and displayed it within his home while also sharing photos of himself with the flag on social media. After Omar departed, Jones contacted Bilal to ask for updates and pictures of Omar in Syria. He thanked Bilal for his help, writing, "May Allah reward you also."

During this time Jones additionally continued to seek and build ISIS connections on his own, independent of Omar and Bilal. In August 2016 Jones met a person on a pro-ISIS website also using the name "Omar." Unbeknownst to Jones, this second Omar, who we will call Omar 2, was an undercover FBI agent. During their online chat, Jones told Omar 2 that there was a "ferry getting brothers to the land of truth near us" and that "[s]ome brothers made hijra in May," referring to Bilal's facilitation of Omar's travel. In response to Omar 2's interest in traveling to Syria, Jones then took the step of introducing him to Bilal. When Bilal asked Jones for more information about Omar 2, Jones assured Bilal that Omar 2 was a "trustworthy brother" who "understands the religion the way we do." Jones eventually organized an in-person meeting in Gurnee between himself, Bilal, and Omar 2, after which Omar 2 purportedly traveled to Syria with Bilal's help.

In the ensuing months Jones and Schimenti continued to publicly and privately express pro-ISIS sentiments, including to peers at their mosque, that concerned the FBI. Given Schimenti's distrust of Bilal and Omar, the FBI devised a plan to introduce yet another player into the mix to reestablish contact with Schimenti through a new, more trusted source. The Bureau did so by introducing a confidential informant named "Muhamed" to Schimenti. In November 2016 Muhamed, a native of Iraq, started working at the same company as Schimenti, and he and Schimenti soon became friends.

A few weeks into their friendship, Muhamed told Schimenti that he had a brother who lived in Syria and fought for ISIS. To assess Schimenti's own interest in providing material support, Muhamed expressed his desire to one day join his brother in the ISIS army. Schimenti responded positively and offered to help Muhamed, and the two began lifting weights together at Schimenti's gym to...