United States v. Ahmed ( 2022 )

Case: 20-40713 Document: 00516543192 Page: 1 Date Filed: 11/14/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
November 14, 2022
No. 20-40713 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Mohamed Ibrahim Ahmed,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:17-CR-151-1
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Mohamed Ibrahim Ahmed appeals his jury trial convictions and total
300-month sentence for attempting to provide material support or resources
to designated foreign terrorist organizations, in violation of 18 U.S.C.
§ 2339B(a)(1), and making false statements involving international terrorism
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-40713
to federal officers, in violation of 18 U.S.C. § 1001(a). Ahmed argues that the
district court erred in granting the Government’s motion in limine and
admitting evidence of (1) his prior 2012 terrorism convictions, (2) his prior
participation in a terrorist training camp, and (3) his prior criminal activity
for a terrorist network in Sweden, asserting that none of the evidence was
intrinsic or admissible as extrinsic evidence pursuant to Federal Rule of
Evidence 404(b).
Ahmed preserved his claims by objecting to admission of the evidence
before trial; accordingly review of the district court’s evidentiary rulings is
for an abuse of discretion. United States v. Smith, 804 F.3d 724, 735 (5th Cir.
2015). We apply an abuse of discretion standard when the district court
admits intrinsic evidence. United States v. Lucas, 849 F.3d 638, 642-643 (5th
Cir. 2017). However, we apply a “heightened” version of that standard when
the district court admits extrinsic evidence under Rule 404(b) because the
evidence in a criminal trial “must be strictly relevant to the particular offense
charged.” Smith, 804 F.3d at 735 (internal quotation marks and citation
omitted).
Ahmed specifically argues that evidence of his participation in a
terrorist training camp in 1997 was too remote in time to be intrinsic evidence
and was not admissible pursuant to Rule 404(b) because the evidence was too
remote and did not go to intent. Ahmed does not point out any case law citing
time as a relevant factor when considering whether evidence is intrinsic.
Moreover, the record reveals that the training camp evidence was intrinsic
because it was “necessary preliminary” evidence, United States v. Lugo-
Lopez, 833 F.3d 453, 460 (5th Cir. 2016) (internal quotation marks and
citation omitted), or “necessary to complete the story of” the charged
offenses, United States v. Gonzalez, 328 F.3d 755, 759 (5th Cir. 2003) (internal
quotation marks and citation omitted) (concluding that prior arrests were
admissible to show that a drug defendant made false exculpatory statements
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relevant to knowledge). Namely, the evidence demonstrated that Ahmed
was familiar with the ideological roots of ISIS, supported its objectives,
sought to further those objectives by attempting to train and recruit other
inmates, and had at least some knowledge of bomb-making.
In addition, the training camp evidence was relevant to establish that
Ahmed had knowledge which was essential to prove the elements of the
charged offenses. See FED. R. EVID. 404(b). The training camp evidence
tended to make Ahmed’s knowledge of terrorist activities and bomb-making
more probable. See United States v. Kinchen, 729 F.3d 466, 472 (5th Cir.
2013). Accordingly, the training camp evidence passes the first step of the
two-step test outlined in United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978)(en banc), which states that the evidence (1) must be relevant to a non-
character issue, and (2) “must possess probative value that is not
substantially outweighed by its undue prejudice” under Federal Rule of
Evidence 403.
As Ahmed asserts, under the second step of the Beechum analysis, the
remoteness of the evidence in time militates in favor of exclusion. See
Kinchen, 729 F.3d at 473. However, the other factors militate in favor of
inclusion. First, the evidence was consequential for the Government to
prove knowledge and corroborate the testimony of witnesses whose
credibility Ahmed challenged. See United States v. Juarez, 866 F.3d 622, 627
(5th Cir. 2017) (noting that extrinsic evidence was “highly persuasive in
corroborating” drug dealer’s testimony). Second, there were major
similarities between the skills learned at the training camp and the offenses
charged. See Kinchen, 729 F.3d at 473; Beechum, 582 F.2d at 915. Third, the
district court provided a sufficient limiting instruction. See Kinchen, 729 F.3d
at 473. Fourth, regarding the overall prejudice of the contested evidence, the
evidence (1) did not provide facts that were more gruesome than the facts of
the charged offenses; (2) was not “greater in magnitude” than the charged
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offenses; and (3) did not “occupy more of the jury’s time” than the other
evidence. Juarez, 866 F.3d at 629 (internal quotation marks and citation
omitted). Although the lengthy time gap is problematic, we have rejected
challenges to similarly dated evidence when the other factors supported
admission. See United States v. Hernandez-Guevara, 162 F.3d 863, 873 (5th
Cir. 1998) (noting that earlier conviction “was nearly eighteen years old”);
United States v. Chavez, 119 F.3d 342, 346 (5th Cir. 1997) (noting that
“temporal remoteness” is not a “per se bar” under Rule 404(b)).
Regarding his prior alleged criminal activity for a terrorist network in
Sweden, Ahmed argues that the evidence served only to scare the jury and
was highly prejudicial, asserting that the evidence was not intrinsic because
the alleged crimes were not clearly intertwined with the instant offenses of
conviction and was not admissible extrinsic evidence because it was not
relevant. Ahmed’s long association with the Swedish terror network and his
continued participation in the group’s criminal activities demonstrated that,
as the district court concluded, he had a “conduit” through which he could
funnel would-be recruits into terrorist organizations; thus, making the
evidence intrinsic because it “completes the story of the crime by providing
the context of events,” United States v. Walters, 351 F.3d 159, 166 n.2 (5th
Cir. 2003). See United States v. Coleman, 78 F.3d 154, 156 (5th Cir. 1996)
(noting that intrinsic evidence was “admissible to complete the story of the
crime by proving the immediate context of events in time and place”); United
States v. Royal, 972 F.2d 643, 647 (5th Cir. 1992) (noting that intrinsic
evidence is admissible to allow the jury to “evaluate all the circumstances
under which the defendant acted” (internal quotation marks and citation
omitted)).
The criminal activity evidence was also admissible under Rule 404(b)
because it was relevant to establish that Ahmed had the intent, knowledge,
and motive, among other things, to commit the offenses as charged. See FED.
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R. EVID. 404(b). The evidence tended to make Ahmed’s recruitment efforts
more plausible. See Kinchen, 729 F.3d at 472. Accordingly, the criminal
activity evidence passes the first step of the Beechum analysis. See id.
Regarding the second step of the Beechum analysis, the evidence was needed
for the Government to corroborate other testimony. See Juarez, 866 F.3d at
627. The Government acknowledges that the financial crimes were
dissimilar from the offenses charged. Where the extrinsic and charged
offenses are not similar, “except for the common element of intent, the
extrinsic offense may have little probative value to counterbalance the
inherent prejudice of this type of evidence.” Beechum, 582 F.2d at 915. Still,
although “the probative value of the extrinsic offense correlates positively
with its likeness to the offense charged,” elemental “equivalence” is “not
required.” Id. Moreover, it is within “the sound discretion” of the district
court to determine whether the probative value of evidence is substantially
outweighed by “its undue prejudice.” Id.The criminal activity evidence was not too remote in time, as the facts
predated the charged offenses by approximately six years. See United States
v. Dudley, 562 F.2d 965, 966 (5th Cir. 1977) (noting that six-year-old offense
was not too remote in time). In addition, the district court gave an
appropriate limiting instruction. Also, the evidence was not unduly
prejudicial to Ahmed because the extrinsic crimes were not more violent than
the charged offenses such that they would evoke juror emotion and the
evidence occupied a relatively miniscule amount of the jury’s time. See
Juarez, 866 F.3d at 629-30. The Beechum factors militate in favor of
inclusion.
Regarding evidence of his 2012 terrorism convictions, Ahmed asserts
that the evidence was not intrinsic because his prior convictions had nothing
to do with the instant offenses of conviction. He further asserts that the
evidence was not admissible pursuant to Rule 404(b) because there is no
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direct relationship between his prior convictions and the alleged criminal
conduct in the instant case. As the district court concluded, evidence of
Ahmed’s 2012 terrorism convictions was intrinsic because it was intertwined
with the instant terrorism charge and helped tell the story of why Ahmed was
imprisoned in the United States, why he wanted to bomb the Brooklyn
detention center, how he obtained a terrorism training manual, why he
wanted to help ISIS members travel to the United States, and why he
attempted to recruit and train new members of the terrorist organization. See
Gonzalez, 328 F.3d at 759.
In the alternative, the evidence was admissible as extrinsic evidence
because it provided knowledge, intent, and motive for Ahmed’s recruitment
efforts and his desire to bomb the detention center. See FED. R. EVID.
404(b)(2); Smith, 804 F.3d at 735. As to the second step of the Beechum
analysis, the Government had sufficient need of the evidence because it
corroborated contested testimony. See Juarez, 866 F.3d at 627. Also,
Ahmed’s prior conviction for conspiracy to provide material support to a
terrorist organization was similar to the charges as alleged in Count One. See
Kinchen, 729 F.3d at 473. Moreover, the prior convictions were not too
remote in time, as Ahmed committed the offenses in 2009. See id. In
addition, the district court gave a sufficient limiting instruction. See id. Also,
the evidence was not unduly prejudicial. See Juarez, 866 F.3d at 629-30.
Admitting the evidence did not reveal any facts that were more violent than
the facts of the offenses charged, nor was the evidence more likely to inflame
the jury. See Juarez, 866 F.3d at 629-30.
Ahmed has not demonstrated that the district court abused its
discretion in admitting any of the challenged evidence as intrinsic evidence.
See Lucas, 849 F.3d at 642-43. He also has not demonstrated that the district
court committed a prejudicial abuse of discretion in alternatively concluding
that the evidence also was admissible pursuant to Rule 404(b) as extrinsic
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evidence. See United States v. Williams, 620 F.3d 483, 491 (5th Cir. 2010).
Furthermore, even if the district court had committed error in admitting the
challenged evidence, because there is “ample other evidence” of guilt, any
error was harmless beyond a reasonable doubt, and Ahmed’s substantial
rights were not affected. United States v. McCall, 553 F.3d 821, 827, 829 (5th
Cir. 2008). Accordingly, the judgment of the district court is AFFIRMED.
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