United States v. Ahmed Mohammed El Gammal, Also Known as Jammie Gammal ( 2020 )

19-468-cr
United States v. Ahmed Mohammed El Gammal, also known as Jammie Gammal
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 26th day of October, two thousand twenty.
PRESENT: JOSÉ A. CABRANES,
RAYMOND J. LOHIER, JR.,
SUSAN L. CARNEY,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee, 19-468-cr
v.
AHMED MOHAMMED EL GAMMAL, ALSO KNOWN AS
JAMMIE GAMMAL,
Defendant-Appellant.
FOR APPELLEE: NEGAR TEKEEI, Assistant United States
Attorney (Andrew J. DeFilippis, Anna M.
Skotko, Assistant United States Attorneys,
on the brief), for Audrey Strauss, Acting
United States Attorney for the Southern
District of New York, New York, NY.
1
FOR DEFENDANT-APPELLANT: JEREMY GUTMAN (Peter Enrique Quijano,
on the brief), New York, NY.
Appeal from the judgment of the United States District Court for the Southern District of
New York (Edgardo Ramos, Judge) entered on February 7, 2019.
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.
After a 21-day trial, a jury convicted Defendant-Appellant Ahmed Mohammed El Gammal
(“El Gammal”) of providing material support or resources to a foreign terrorist organization and
conspiring to do the same, in violation of 18 U.S.C. § 2339B; aiding and abetting the receipt of
military-type training from a foreign terrorist organization, in violation of 18 U.S.C. §§ 2339D and 2;
and conspiring to have another person receive military-type training from a foreign terrorist
organization, in violation of 18 U.S.C. §§ 371 and 2339D. El Gammal was sentenced to 144 months’
imprisonment on the first two counts, 120 months’ imprisonment on the third count, and 60
months’ imprisonment on the fourth count, all to run concurrently. He now appeals his conviction.
We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal.
On appeal El Gammal argues that the District Court erred in admitting certain records
pertaining to his Facebook account, which were obtained pursuant to a warrant (“Facebook Warrant
I”) and marked as Government Exhibit (“GX”) 103 and GX 103-A. These records presented
information about El Gammal’s Facebook messages, such as metadata showing the sender,
recipient, and the time and date sent, as well as a data field with the notation “DELETED,” which
reflected whether a message had been marked for deletion. The information that was shown in GX
103 and GX 103-A was similar to what was presented in other Facebook records, which were
obtained pursuant to separate warrants (“Facebook Warrants II and III”) and which were admitted
as Facebook’s business records. These other records likewise showed information about El
Gammal’s Facebook messages, including a data field labeled “Deleted,” which had a notation of
“true” (indicating a message had been deleted) or “false.”
El Gammal first contends that the District Court erred in admitting GX 103 and GX 103-A
as properly authenticated under Federal Rule of Evidence 901. 1 We disagree. We have explained that
1
In its brief the government noted there were additional arguments at trial as to the
authenticity of GX 103 and GX 103-A, but that the transcripts were sealed and classified. We
subsequently ordered disclosure and supplemental briefing. Although we have reviewed the
classified material, we nevertheless find it unnecessary to rely on anything beyond the public record
to resolve the instant issue.
2
“[t]he bar for authentication of evidence is not particularly high.” 2 “Rule 901’s requirements are
satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor of
authenticity or identification.” 3 Authentication is essentially a question of conditional relevancy;
indeed, it is the jury that ultimately resolves whether evidence admitted for its consideration is that
which the proponent claims. 4 But “[t]he preliminary decision regarding authentication is committed
to the district court and we review that decision for abuse of discretion.” 5
The record shows that there was evidence presented at trial that was sufficient for a
reasonable jury to conclude that GX 103 and GX 103-A were authentic. The Facebook custodian
testified extensively about Facebook’s data collection and record-keeping practices, as well as the
company’s procedures in complying with legal process, which served to authenticate the other,
similar Facebook records. Testimony by Special Agent Collie and Supervisory Special Agent Mueller
was complementary: Collie testified specifically about GX 103 and GX 103-A, which he personally
had retrieved from the Federal Bureau of Investigation’s (“FBI’s”) data systems, and Mueller
discussed generally how the FBI receives, verifies, and maintains data obtained from Facebook. All
this testimony was sufficient for a reasonable jury to conclude that GX 103 and GX 103-A were
what they purported to be: Facebook’s records pertaining to El Gammal’s account. 6 Accordingly, we
conclude that the District Court did not abuse its discretion in admitting GX 103 and GX 103-A as
authentic.
2
United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007); see also, e.g., United States v.
Gasperini, 894 F.3d 482, 490 (2d Cir. 2018) (agreeing with the holding of United States v. Bansal, 663
F.3d 634, 667–68 (3d Cir. 2011) that website screenshots were sufficiently authenticated where a
witness testified “about how the Wayback Machine website works” and personally compared “the
screenshots with previously authenticated and admitted images from [the defendant’s] website”).
3
United States v. Tin Yat Chin, 371 F.3d 31, 38 (2d Cir. 2004) (internal quotations omitted).
4
FED. R. EVID. 901(a) Advisory Committee’s Note (explaining “[a]uthentication and
identification represent a special aspect of relevancy. . . . This requirement . . . falls in the category of
relevancy dependent upon fulfillment of a condition of fact and is governed by the procedure set
forth in Rule 104(b).”); see also United States v. Vayner, 769 F.3d 125, 130 (2d Cir. 2014) (“The ultimate
determination as to whether the evidence is, in fact, what its proponent claims is thereafter a matter
for the jury.”); United States v. Sliker, 751 F.2d 477, 499 (2d Cir. 1984).
5
Vayner, 769 F.3d at 129 (2d Cir. 2014) (internal citations omitted).
6
Insofar as the District Court relied on non-public information to make its preliminary
determination, it did not err because it did not do so in lieu of the presentation of sufficient
authenticating public evidence later at trial. See United States v. Branch, 970 F.2d 1368, 1371 (4th Cir.
1992) (“An in camera hearing addressing authenticity does not replace the presentation of
authenticating evidence before the jury; the district court must revisit this issue at trial.”).
3
El Gammal next contends that the District Court erred in admitting GX 103 and GX 103-A
under the business records exception to the rule against hearsay. 7 We disagree. For business records
to be admissible under Rule 803(6), “a custodian or other qualified witness must testify that the
document was kept in the course of a regularly conducted business activity and also that it was the
regular practice of that business activity to make the [record].” 8 We review any such admission of
business records for abuse of discretion. 9
As an initial matter, El Gammal’s contention that no witness was capable of laying the
foundation to qualify GX 103 and GX 103-A as business records is without merit. “The term
‘custodian or other qualified witness’ in [Rule 803(6)] is generally given a very broad
interpretation.” 10 A witness need not be a custodian or have personal knowledge of the actual
creation of the document to be “qualified” within the meaning of Rule 803(6). 11 Here, the Facebook
custodian testified about the other records showing information similar to what was shown in GX
103 and GX 103-A. This testimony amply established that she was knowledgeable about Facebook’s
data collection and record-keeping processes. She was plainly a “qualified witness” to testify about
GX 103 and GX 103-A.
7
El Gammal’s argument assumes that GX 103 and GX 103-A were hearsay; specifically, that
the “DELETED” fields constituted out-of-court “statements by Facebook that [El Gammal]
deleted messages at certain days and times.” A.51–52. We assume arguendo they were hearsay. But we
note that the relevant assertion—the “DELETED” data field—is not made by a person; rather it is
generated by Facebook. It may thus be more akin to a machine-generated record, which is unlikely
to be considered hearsay. See, e.g., United States v. Channon, 881 F.3d 806, 811 (10th Cir. 2018)
(machine-generated transaction records in Excel spreadsheets not hearsay); United States v. Lizarraga-
Tirado, 789 F.3d 1107, 1109–10 (9th Cir. 2015) (a Google Earth “tack” placed at labeled GPS
coordinates not hearsay); United States v. Lamons, 532 F.3d 1251, 1263–64 (11th Cir. 2008) (machine-
generated data collected from calls made at airline’s corporate toll-free number not hearsay
statement, for Confrontation Clause purposes); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir.
2003) (header information generated by fax machine not a hearsay statement because it is not
“uttered by ‘a person’ [and] nothing ‘said’ by a machine . . . is hearsay”).
8
United States v. Komasa, 767 F.3d 151, 156 (2d Cir. 2014) (internal quotations omitted).
9
See United States v. Ford, 435 F.3d 204, 214 (2d Cir. 2006).
10
United States v. Lauersen, 348 F.3d 329, 342 (2d Cir. 2003), judgment vacated on other grounds,
543 U.S. 1097 (2005) (internal quotations omitted).
11
Komasa, 767 F.3d at 156 (explaining that a witness “need not have personal knowledge of
the actual creation of the document”); see also, e.g., United States v. Jenkins, 345 F.3d 928, 936 (6th Cir.
2003) (“In order to be considered to be an ‘otherwise qualified witness’ under Rule 803(6), ‘[a]ll that
is required of the witness is that he or she is familiar with the record keeping procedures of the
organization.’” (internal citations omitted)); United States v. Console, 13 F.3d 641, 657 (3d Cir. 1993),
(“[A] qualified witness ‘need not be an employee of the [record-keeping] entity so long as he
understands the system.’” (internal quotations omitted)).
4
In the circumstances presented here, the Facebook custodian’s testimony was sufficient to
qualify GX 103 and GX 103-A as business records. The custodian laid the Rule 803(6) foundation
for the other, similar records obtained pursuant to Facebook Warrants II and III. As part of that
testimony, the Facebook custodian explained how the company routinely collects and maintains
message-related records, including Facebook’s standard practice of deleting or marking for deletion
the message at or near the time of the deletion request. The output from this practice was presented
in the records obtained pursuant to Facebook Warrants II and III, in the form of the data field in
the message logs labeled “Deleted,” with a notation of either “true” or “false.” The Facebook
message logs shown in GX 103 and GX 103-A similarly indicated whether a message had been
marked for deletion, in the form of the “DELETED” field. Given the similarity of the data in GX
103 and GX 103-A with the data in other records obtained pursuant to Facebook Warrants II and
III, it was neither irrational nor arbitrary for the District Court to conclude that GX 103 and GX
103-A were created and kept according to the same record-keeping processes about which the
Facebook custodian testified. 12 Accordingly, we conclude that the District Court did not abuse its
discretion in concluding that her testimony could likewise serve to qualify GX 103 and GX 103-A as
Facebook’s business records.
CONCLUSION
We have reviewed the other challenges that El Gammal raises on appeal and we find them to
be without merit. For the foregoing reasons, we AFFIRM the District Court’s judgment.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
12
United States v. Abu-Jihaad, 630 F.3d 102, 131 (2d Cir. 2010) (“We will reverse an evidentiary
ruling only for abuse of discretion, which we will identify only if the ruling is arbitrary and
irrational.” (internal citations and quotations omitted)).
5