United States v. Ramic

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UNITED STATES OF AMERICA PLAINTIFF v. MIRSAD RAMIC DEFENDANT

CRIMINAL ACTION No. 1:21-CR-00013-GNS-HBB

United States District Court, W.D. Kentucky, Bowling Green Division

May 20, 2024

MEMORANDUM OPINION AND ORDER

GREG N. STIVERS, CHIEF JUDGE

This matter is before the Court on Defendant's Motions in Limine (DN 155, 166, 167), Plaintiff's Motions in Limine (DN 168, 170, 171, 172, 173, 174), and Plaintiff's Motion for a Protective Order (DN 178). The motions are ripe for adjudication.

A. Defendant's Motion in Limine- Dr. Lorenzo Vidino (DN 155)

By letter dated October 24, 2023, the United States disclosed to counsel for Defendant Mirsad Ramic (“Ramic”) that it intended to call certain witnesses at trial, including Dr Lorenzo Vidino (“Dr. Vidino”). (Def.'s Mot Lim. Ex. A, at 9-13, DN 155-1). In Ramic's motion to exclude Dr. Vidino's testimony, he does not challenge Dr. Vidino's qualifications; rather, Ramic asserts that Dr. Vidino's testimony is inadmissible under Fed.R.Evid. 401, 402, 403, 702, and 704. (Def.'s Mot. Lim. 4-7, DN 155).

1. Fed. R. Evid. 702 & 704

Fed. R. Evid. 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and (d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

Fed. R. Evid. 702.

Dr. Vidino is the Director of the Program on Extremism at George Washington University. (Def.'s Mot. Lim. Ex. A, at 9, DN 155-1). The United States anticipates that Dr. Vidino will “testify regarding ISIS and its founding, history, structure, strategic goals, geographic location, recordskeeping [sic], training protocols, methods of recruitment, means and methods of operation, and jihadist terminology.” (Def.'s Mot. Lim. Ex. A, at 9, DN 155-1). While Ramic contends that this testimony will not aid the jury, Dr. Vidino's proposed testimony will assist the jury in understanding and evaluating the evidence, and determining factual issues in this case. (Def.'s Mot. Lim. 5-6, DN 155). Thus, this testimony is admissible under Fed.R.Evid. 702. See United States v. Saipov, No. 17-CR-722 (VSB), 2023 WL 4199415, at *6 (S.D.N.Y. June 27, 2023) (“Dr. Zelin will explain the means and method of ISIS, including the use of the internet and social media to disseminate its message, radicalize individuals, and communicate with individuals about committing acts of terror wherever necessary. He will also explain the words and phrases used by ISIS, including those used to entice individuals to become ‘lone wolves' and provide a guide for those individuals to commit violent acts on behalf of ISIS to gain entry into ISIS. This testimony will assist the Jury in understanding ‘ISIS's enterprise status, the defendant's motive for committing his attack, and whether he provided material support to ISIS.'” (internal citations omitted) (citation omitted)); United States v. Shafi, No. 1-CR-00582-WHO-1, 2018 WL 3159769, at *2-4 (N.D. Cal. June 28, 2018) (finding that Dr. Vidino's testimony would be helpful to the jury in accordance with Fed.R.Evid. 702).

Ramic also challenges Dr. Vidino's testimony based on Fed.R.Evid. 704. Fed.R.Evid. 704 provides:

(a) In General-Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.

(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Fed. R. Evid. 704. Ramic asserts that Dr. Vidino's “opinion that ISIS was designated as a foreign terrorist organization-an essential element of all three charges-is inadmissible as an opinion on an ultimate issue in violation of FRE 704.” (Def.'s Mot. Lim. 6, DN 155). As noted in other pending motions, the United States has designated ISIS a foreign terrorist organization. See 69 Fed.Reg. 61292 (Oct. 15, 2004); 79 Fed.Reg. 27972 (May 15, 2014); 80 Fed.Reg. 58804 (Sept. 30, 2015). Accordingly, this objection is not well-taken.

2. Fed. R. Evid. 401-403

“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401. Relevant evidence is generally admissible. See Fed.R.Evid. 402. Fed.R.Evid. 403, however, provides that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403.

In terms of relevance, Dr. Vidino's proposed testimony-at least in part-appears to be relevant to the charges in this case under 18 U.S.C. §§ 2339B(a)(1) and 2339D(a). See United States v. Almadaoji, No. 3:18-CR-158, 2021 WL 5002373, at *2-4 (S.D. Ohio Oct. 27, 2021) (noting that Dr. Vidino's testimony was relevant to the charges under 18 U.S.C. § 2339B(a)(1)) The Court, however, agrees in general with Ramic's contention that it may be necessary to limit Dr. Vidino's testimony depending on other evidence introduced-especially to the extent the testimony is related to terrorist attacks or attempted attacks outside of Syria and Iraq. (Def.'s Mot. Lim. 7, DN 155). The motion is denied at this time, and if necessary, the Court will address this issue at trial.^[1]

B. Defendant's Motion in Limine & Objection - Fed.R.Evid. 404(b) Evidence (DN 166, 167)

In two identical motions, Ramic moves to exclude certain evidence from trial pursuant to Fed.R.Evid. 404(b). (Def.'s Mot. Lim., DN 166).^[2] According to Ramic, the United States intends to offer evidence at trial that:

Ramic “traveled or attempted to travel to engage in radicalization and jihad by plans to travel (sic) Yemen in 2010 and Saudi Arabia in 2011/2012.” The purpose of the proffered evidence is to “show that Ramic held longstanding intent to radicalize, engage in jihad, and further education consistent with his belief in radical jihad.” Through this evidence, the United States openly admits that it hopes to show the jury defendant's “determination and persistence to engage in radicalization and violent jihad.”

(Def.'s Mot. Lim. 1, DN 166 (internal citations omitted) (citation omitted)). In its response, the United States contends Ramic is misstating the purpose for introducing such evidence, which the United States asserts is direct evidence of the res gestae. (Pl.'s Resp. Def.'s Mot. Lim. 2, DN 180). Alternatively, the United States argues that such evidence would be admissible to “show[] motive, opportunity, intent, preparation, and plan and notice.” (Pl.'s Resp. Def.'s Mot. Lim. 2, DN 180).

1. Res Gestae

One proposed use of this evidence is as res gestae. The Sixth Circuit “has previously recognized the propriety of introducing ‘background' evidence. Such evidence, often referred to as ‘res gestae,' does not implicate Rule 404(b).” United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000) (internal citations omitted) (citation omitted). It further explained:

Proper background evidence has a causal, temporal or spatial connection with the charged offense. Typically, such evidence is a prelude to the charged offense, is directly probative of the charged offense, arises from the same events as the charged offense, forms an integral part of a witness's testimony, or completes the story of the charged offense.

Id. (citation omitted).

In this instance, this background evidence proposed by the United States would provide the jury with relevant explanatory information, without which the jury may be left with questions as to why and how Ramic became involved with ISIS. Therefore, this background information may facilitate the jury's understanding of the facts and events that led to the criminal charges in this matter. This evidence is admissible as res gestae.

2. Fed. R. Evid. 404(b)

Ramic also opposes the introduction of this evidence pursuant to Fed.R.Evid. 404(b). As the Sixth Circuit has noted, this rule “is a rule of inclusion, not exclusion ....” United States v. Myers, 102 F.3d 227, 234 (citing United States v. Bakke, 942 F.2d 977, 981 (6th Cir. 1991); United States v. Vance, 871 F.2d 572, 575 (6th Cir. 1989)). Generally, “[e]vidence of a crime wrong, or other act is not admissible to prove” that a person has a propensity to act in a certain manner; but under Rule 404(b)(2), such “evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). Sixth Circuit precedent holds that courts may admit prior act evidence under Rule 404(b)(2) if: (1) there is sufficient evidence that the prior act occurred, (2) the proponent of the evidence offers it for a permissible purpose, and (3) the prejudicial effect of the evidence is not substantially outweighed by its probative value. See United States v. Joseph, 270 Fed.Appx. 399, 404 (6th Cir. 2008) (citation omitted); United States v. Gessa, 971 F.2d 1257, 1261 (6th Cir. 1992); see also United States v. Sumlin, 956 F.3d 879, 889 (6th Cir. 2020) (“Such probative proof includes ‘intrinsic acts' evidence that relates...