United States v. Laith Alebbini ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0353p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 19-3647
v. │
│
│
LAITH WALEED ALEBBINI, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 3:17-cr-00071-1—Walter H. Rice, District Judge.
Argued: October 20, 2020
Decided and Filed: November 5, 2020
Before: McKEAGUE, GRIFFIN, and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio,
for Appellant. Vipal J. Patel, UNITED STATES ATTORNEY’S OFFICE, Dayton, Ohio, for
Appellee. ON BRIEF: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE,
Cincinnati, Ohio, for Appellant. Vipal J. Patel, Dominick S. Gerace II, UNITED STATES
ATTORNEY’S OFFICE, Dayton, Ohio, Justin Sher, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
_________________
OPINION
_________________
JOHN K. BUSH, Circuit Judge. On April 26, 2017, FBI agents arrested Laith Waleed
Alebbini at the Cincinnati-Northern Kentucky International Airport. They suspected that he was
No. 19-3647 United States v. Alebbini Page 2
attempting to travel to Turkey and then Syria to join the Islamic State of Iraq and Syria
(“ISIS”)—a designated foreign terrorist organization. A grand jury in the U.S. District Court for
the Southern District of Ohio returned an indictment charging Alebbini with attempting and
conspiring to provide material support and resources to ISIS. Soon thereafter, Alebbini waived
his right to trial by jury, and the case proceeded to a bench trial before the district court. After
hearing evidence and arguments for ten days, the district court found Alebbini guilty on both
counts.
On appeal, Alebbini challenges the sufficiency of the evidence for both of his
convictions. First, he argues that the proof was insufficient to convict him of conspiring to
provide material support to ISIS because it did not demonstrate that he entered into any kind of
agreement with his alleged co-conspirator and cousin, Raid Ababneh. Second, he argues that the
evidence was insufficient to convict him of attempting to provide material support to ISIS
because it did not demonstrate that he took a substantial step towards the crime charged, or that
he intended to work under the direction and control of ISIS. Viewing the evidence in the light
most favorable to the prosecution, a rational trier of fact could have found the elements of the
crimes charged beyond a reasonable doubt. We therefore AFFIRM the district court’s
judgment.
I. BACKGROUND
A. Alebbini’s Visit to the Turkish Embassy
Laith Alebbini is a Jordanian national who immigrated to the United States in 2009 and
became a permanent resident in 2014. On January 10, 2017, after years of researching ISIS and
the greater conflict in Syria, Alebbini drove from his home in Gordonsville, Virginia to the
Turkish embassy in Washington, D.C. He hoped to meet with the Turkish Ambassador to
discuss the Syrian conflict. Although it was illegal to enter the embassy compound in an
unauthorized vehicle, Alebbini drove in and parked. Predictably, law enforcement was notified,
and escorted Alebbini off embassy grounds. As he was escorted away, Alebbini reportedly
turned toward the Turkish embassy and shouted, “you are going to regret this!”
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B. The FBI’s Visit to Alebbini’s Residence
Two weeks later, on January 23, 2017, two federal agents showed up at Alebbini’s home
and asked to speak with him about the incident at the embassy. He obliged. The interview
began as a formality—the agents simply needed to get some information about why Alebbini had
gone to the Turkish embassy. It ended with the agents seeking to open an FBI investigation into
Alebbini’s conduct. During the interview, Alebbini told the agents that Facebook deactivated his
social media account because he had posted pro-ISIS videos. He mentioned that he agreed with
ISIS’s overall goals but not necessarily with their means of achieving those goals. He also told
the agents that he attempted to join the U.S. Military to fight against Syrian forces and that he
was not a terrorist, but that he “would be the perfect recruit for ISIS.” Alebbini further added, in
jest, that the Turkish embassy had such poor security that if he had a bomb that day, he could
have taken down three embassies.
The agents viewed Alebbini’s statements as red flags and inquired into his recent travels.
According to the agents, the only foreign destination Alebbini reported traveling to was Canada.
After some independent research, however, the agents discovered that Alebbini had in fact
traveled to Turkey with his cousin, Raid Ababneh, a week prior to the interview, allegedly to
fight Bashar al-Assad with the Syrian opposition forces. But Alebbini’s passport was expired, so
Turkish authorities denied him entrance into the country and sent him back to the United States.
According to Alebbini, Raid made it through, but he “got caught.” Based on that new
information, the interview at Alebbini’s home, and a formal background check, the FBI opened a
full investigation into Alebbini.
C. The FBI’s Investigation
After about a month of surveillance, the FBI learned that Alebbini had moved to Dayton,
Ohio with his wife, Destiney Eshelman, and his cousin, Raid. So FBI Special Agent Michael
Herwig reached out to the FBI’s Joint Terrorism Task Force in Dayton to continue their
surveillance of Alebbini. One of the task force agents had a confidential source who had worked
with the task force in the past and who happened to know Alebbini’s wife. From early March
No. 19-3647 United States v. Alebbini Page 4
2017 until Alebbini’s arrest in late April 2017, the informant had several recorded conversations
with Alebbini and Raid, most of which were in Arabic.
In one conversation, Alebbini justified ISIS burning a Royal Jordanian Air Force pilot
alive as payback for “help[ing] America against us.” He claimed that “the only one who shows
the truth is honestly the Islamic State Organization.” At various points, Alebbini also discussed
how he had watched pro-ISIS videos. For example, Alebbini recounted a time when he and Raid
were sitting in front of his laptop, watching ISIS videos, and Raid tossed the laptop and said,
“Man why are we waiting over here? Let’s act . . . . I want to go.” Alebbini further described his
hatred for Syrian President Bashar al-Assad and how he wanted to “fight alongside the Islamic
State.” When asked if he knew how to get to the Islamic State, Alebbini reported to the
informant that he would need to book a flight to Jordan, with a layover in Turkey, and that he
would need to purposefully miss his connecting flight to Jordan, and then make his way to the
Islamic State through Turkey. He told the informant that he was not concerned about being
caught: “Whoever wants to catch me . . . Jordan catches me, America, anywhere . . . let whoever
wants me catch me.” But he also cautioned that their conversations might be monitored, so they
should not use their phones to discuss ISIS. If asked, Alebbini noted, “We can say that we are
talking about opposition and a revolution.”
At some point, Alebbini began to backtrack from his expressed interest in ISIS. The
informant suspected that his cover had been blown and that Alebbini was testing him.
Nevertheless, at the end of March 2017, Alebbini commented to the informant that “the truth is
crystal clear,” and alluded to him and Raid reaching “the execution phase” of some unidentified
plan. He asserted: “our duty is to support the Islamic State. . . . What’s our duty? Jihad. So, a
person must be, I mean, must distance himself from the people of sin until it happens . . . and if it
happens and he is captured; then let them capture him[.]”
Alebbini further confided in the informant after his cousin Raid got into trouble overseas.
He told the informant that in March, Raid had gone to Jordan, where he was arrested by
counterterrorism forces who suspected him of traveling to join ISIS. Alebbini mentioned that
“someone reported us,” alluding to a suspicion that Raid’s name was provided to the authorities
No. 19-3647 United States v. Alebbini Page 5
based on the ISIS videos he and Raid watched, the conversations they had, and their “thinking.”
Alebbini also expressed his concern that Raid might implicate him while imprisoned in Jordan.
That information raised more red flags for the FBI, so their investigation continued. In
one surveilled conversation, Alebbini told his cousin, Mohammad Ababneh, that he and Raid
“pledged together.” He further explained that they “were supposed to leave together” to Jordan
but that Raid went ahead of him, that he “started asking and acting on his own,” and that he
“asked some people about the [Islamic] State,” which resulted in his capture. In a separate
conversation, another cousin of Alebbini’s, Qasim Ababneh, expressed fear that after being
captured by Jordan’s counterterrorism unit, Raid would confess to “everything you and he had
planned.” Alebbini replied, “By God I told him, not to call or ask and that I will.”
In late April, Alebbini’s brother Hossam reached out to one of Alebbini’s cousins,
Hussein Ababneh. He told Hussein that Alebbini was making plans to travel to Syria but that he
could not disclose more information over the phone. He asked Hussein to speak to Alebbini and
pleaded with him to refrain from giving Alebbini any money to buy a plane ticket. Hussein
thought Alebbini might be trying to join ISIS in Syria, so he immediately called Alebbini. A six-
hour conversation ensued.
During that conversation, Hussein tried to talk Alebbini out of traveling to the Middle
East to join ISIS, but Alebbini insisted, “I am going to join these people because they are
right. . . . I am 100 percent positive and I know, and I’ve seen through evidence and proof that
they are right.” Alebbini also defended ISIS’s leader at the time, Abu Bakr al-Baghdadi, and
spoke as if he had already joined ISIS, telling Hussein, “America will not let us be. . . . [T]he
solution . . . is to bear arms.” When asked whom he would fight with and against, Alebbini
responded, “the State Organization” and “any regime that follows the US government.” He
contemplated being a “martyrdom bomber,” and that “[t]o fight America” he would offer himself
up as “bait.” He reiterated, “I must fight. I am a soldier!” He also spoke of ISIS’s structure and
how it assigned members to specific posts, and he told Hussein that he had been closely
researching and studying the Islamic State for years. He believed it was his duty to go and fight.
No. 19-3647 United States v. Alebbini Page 6
D. Alebbini’s Arrest
By April 25, 2017, Alebbini was set to travel overseas to Turkey. On that date, he
exchanged a series of WhatsApp messages with his family. He sent his father an ISIS-related
Youtube video accompanied by the following message: “Watch this video. So you know the
truth.” His father replied that Raid had confessed to everything and pleaded with Alebbini to
refrain from following through with whatever he was planning.
Alebbini did not listen. The following day, April 26, 2017, he left for the Cincinnati-
Northern Kentucky airport with his wife, a drive that would take them about an hour and a half.
Before arriving at the airport, however, he received a message from an old friend, pleading that
he not leave. Alebbini responded: “Do you think I am a criminal . . . I am a terrorist . . . I am
mujahid.” Shortly after sending that message, around 3:30 p.m., Alebbini arrived at the airport.
He went to the ticket counter, waited approximately 30 minutes, and obtained his and his wife’s
boarding passes. He then walked from the ticket counter and appeared to make his way toward
the TSA checkpoint. But before he made it to the airport’s security area, FBI agents
apprehended him.
Once in custody, Alebbini waived his Miranda rights and agreed to speak to the agents.
He told the agents he had a ticket to take him to Turkey and then to Jordan, but that he intended
not to take his connecting flight to Jordan because he was wanted by Jordanian authorities.
When asked about ISIS, Alebbini spoke positively, defended the organization, and referred to it
in the first-person plural, “we,” as if he had already joined. He told the FBI how he and his
cousin Raid developed the same beliefs about ISIS from watching Youtube videos online, and
that “the plan was that I go [to the Islamic State] first” and that Raid would follow. He said he
did not want to kill people, but he justified ISIS’s killings and noted that once he was released
from prison, his country was “going to be the Islamic State.” Finally, in response to questions
about his lack of contact with ISIS, he said he did not contact “people from there” because it
would raise suspicion. He did not want connections until he got to Turkey. Ultimately, the FBI
agents believed their suspicions had been confirmed, so they arrested Alebbini.
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E. Procedural History
On May 11, 2017, approximately two weeks after Alebbini’s initial arrest, a grand jury
indicted Alebbini for attempting to provide material support and resources to a foreign terrorist
organization (ISIS), in the form of personnel (namely, himself), in violation of 18 U.S.C.
§ 2339B(a)(1). A year later, on May 22, 2018, the Government filed a superseding indictment
against Alebbini, adding the charge of conspiracy to provide material support and resources to
ISIS, also in violation of 18 U.S.C. § 2339B(a)(1). Alebbini waived his right to a jury trial, and
District Judge Walter H. Rice held a ten-day bench trial. After hearing evidence and argument
from Alebbini and the Government over those ten days, the district court found Alebbini guilty
on both counts and sentenced him to 180 months imprisonment. Alebbini appealed, challenging
the sufficiency of the evidence for both of his convictions.
II. DISCUSSION
We review challenges to the sufficiency of evidence de novo. See United States v.
Collins, 799 F.3d 554, 589 (6th Cir. 2015). Still, the defendant “bears a very heavy burden.” Id.
(quoting United States v. Davis, 397 F.3d 340, 344 (6th Cir. 2005)). In evaluating a sufficiency
challenge, we must affirm a conviction if “after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the
original); see United States v. Miller, 696 F. App’x 696, 699–700 (6th Cir. 2017) (applying the
same standard where, as here, the trial judge was the trier of fact). “[W]e do not weigh the
evidence, assess the credibility of the witnesses, or substitute our judgment for that of the [trier
of fact], and [c]ircumstantial evidence alone is sufficient to sustain a conviction, even if it does
not remove every reasonable hypothesis except that of guilt . . . .” United States v. Hendricks,
950 F.3d 348, 352 (6th Cir. 2020) (first and third alteration in original) (internal quotation marks
and citations omitted). “This familiar standard gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319.
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On appeal, Alebbini contends that there was insufficient evidence to support his
conviction for conspiracy to provide material support to a terrorist organization (Count 2), and
attempting to do the same (Count 1). We address each contention in turn.
A. Sufficiency of the Evidence for Count 2: Conspiracy
Alebbini was convicted of conspiring to provide material support to ISIS, in violation of
18 U.S.C. § 2339B(a)(1). To establish a violation of § 2339B(a)(1), the government had to
demonstrate that Alebbini knowingly provided or attempted or conspired to provide material
support to a foreign terrorist organization that he knew had been designated a foreign terrorist
organization or had engaged in terrorism. See Holder v. Humanitarian Law Project, 561 U.S. 1,
16 (2010) (citing 18 U.S.C. § 2339B(a)(1)). To establish a conspiracy under § 2339B(a)(1), the
government had to prove (1) the existence of an agreement between two or more persons to
violate the law, and (2) that defendant knowingly and voluntarily joined the conspiracy.1 See
Sixth Circuit Pattern Jury Instruction 3.01A; see also United States v. Rogers, 769 F.3d 372, 377
(6th Cir. 2014). Alebbini challenges the sufficiency of the evidence as to the first element—the
existence of an agreement.
“A finding of conspiracy does not require proof of formal agreement; a mere tacit
understanding among the participants is sufficient.” United States v. Harrison, 663 F. App’x
460, 464 (6th Cir. 2016). That tacit understanding need not be proven by direct evidence; it
“may be proven by circumstantial evidence, including by the defendant’s participation in a
common plan.” United States v. Lang, 717 F. App’x 523, 545 (6th Cir. 2017). Alebbini
contends that there is a lack of evidence in the record that his co-conspirator and cousin, Raid,
knew of or agreed to join in a conspiracy. We disagree.
1
Alebbini mentions in his opening brief that a third element is required to prove conspiracy under
§ 2339B(a)(1): “an overt act constituting actual participation in the conspiracy.” He does not, however, discuss that
over act requirement, nor does he respond to the Government’s warranted objection. In drafting section § 2339B,
Congress omitted any language requiring an overt act. See 18 U.S.C. § 2339B(a)(1). We will not read an overt act
requirement into the statute. See Whitfield v. United States, 543 U.S. 209, 213 (2005) (“[W]here Congress had
omitted from the relevant conspiracy provision any language expressly requiring an overt act, the Court would not
read such a requirement into the statute.”); United States v. Moalin, 973 F.3d 977, 1006–07 (9th Cir. 2020) (holding
that § 2339B(a)(1) does not require proof of an overt act); United States v. Abdi, 498 F. Supp. 2d 1048, 1064 (S.D.
Ohio 2007) (same).
No. 19-3647 United States v. Alebbini Page 9
There was sufficient evidence from which a rational trial judge could find an agreement
to substantiate Alebbini’s conviction for conspiracy under § 2339B(a)(1). As the Government
describes, the bulk of the evidence was presented in three categories: (1) recorded conversations
between Alebbini and the Government’s informant, (2) recorded conversations between Alebbini
and his friends and family, and (3) Alebbini’s post-arrest interview.
In his conversations with the Government’s informant, Alebbini alluded to him and “Raid
. . . reach[ing] the execution phase” of some unidentified plan. And after discovering that Raid
was arrested in Jordan for intending to join ISIS, Alebbini told the informant that Raid was
arrested because “someone reported us,” alluding to a suspicion that Raid’s name was provided
to Jordanian authorities based on the ISIS videos he and Raid watched, the conversations they
had, and their “thinking.” He recollected one episode where, after watching a particular ISIS
video, Raid “tossed the laptop” and said, “Man, why are we waiting over here? Let’s act . . . . I
want to go.” And he conveyed to the informant his concern that Raid might implicate him while
imprisoned in Jordan.
The Government also produced evidence from Alebbini’s conversations with certain
relatives. In one conversation, Alebbini’s cousin Qasim told Alebbini that after being captured
by Jordan’s counterterrorism unit, Raid would confess to “everything you and he had planned.”
Out of apparent frustration, Alebbini replied, “by God I told him, not to call or ask and that I
will”—referring to Raid’s asking around for information about ISIS and signaling the pair’s
common plan to contact the organization.
In another conversation, Alebbini told his cousin Mohammad that he got into an
argument with Raid’s father when he and Raid “pledged together.” Alebbini also provided
context to that pledge, noting that he and Raid “were supposed to leave together” to Jordan but
that Raid went ahead of him, that he “started asking and acting on his own,” and that he “asked
some people about the [Islamic] State,” which resulted in his arrest.
That information was also corroborated in Alebbini’s post-arrest interview. Alebbini told
the FBI how he and Raid developed the same beliefs about ISIS from watching Youtube videos.
To them, he said, ISIS is not made up of “a bunch of killers . . . the wide majority . . . [are]
No. 19-3647 United States v. Alebbini Page 10
regular people who want[] peace and justice.” Alebbini also told the FBI that “the plan was that
I go [to the Islamic State] first” and that Raid would follow.
From that evidence, a rational factfinder could conclude beyond a reasonable doubt that
there was an agreement between Alebbini and Raid to provide material support to ISIS. To the
extent there was evidence to the contrary, the district court was under no duty to credit that
evidence. And we will not substitute our judgment for the district court’s to decide the issue.
See Hendricks, 950 F.3d at 352.
Alebbini does not assert that the evidence identified above is insufficient because of its
quantity, or because it was somehow taken out of context. Rather, he argues that the evidence
was insufficient to prove Raid’s agreement to join the conspiracy because he, Alebbini, was the
exclusive source of the evidence. Put differently, he argues that the intent or state of mind of one
alleged co-conspirator—here, Raid—cannot be demonstrated through the statements of another.
We find Alebbini’s argument unpersuasive.
First, the district court did not exclusively rely on Alebbini’s statements to find an
agreement between Alebbini and Raid. It found that “Mr. Alebbini’s coconspirator was Raid
Ababneh” and that the “agreement between them is proved by Mr. Alebbini’s words and frankly
by the actions of Raid and by the consequences that occurred to Raid.” Specifically, the court
cited Alebbini’s statements concerning Raid’s state of mind, Raid’s travel to the Middle East, his
inquiry into ISIS’s location, and Raid’s eventual imprisonment by Jordanian counterterrorism
authorities.2
There is sufficient evidence in the record to support those findings, even without relying
exclusively on statements from Alebbini. For example, in one recorded conversation, Alebbini’s
cousin, Qasim Ababneh, confirmed that Raid had traveled to the Middle East, asked around
about ISIS’s location, and had been arrested in Jordan by a Jordanian counterterrorism unit for
2
The district court also cited statements that Raid allegedly made to the FBI. However, there is nothing in
the record indicating that Raid was ever interviewed by the FBI. Raid appeared to be in a Jordanian prison during
the relevant time period. The discussion the district court cited was likely a reference to an interview that Alebbini
had with the FBI after his arrest. Counsel for Alebbini confirmed this at oral argument and does not allege that the
district court’s apparent misstatement plays any role in this appeal.
No. 19-3647 United States v. Alebbini Page 11
attempting to join ISIS. As mentioned previously, Qasim also expressed fear to Alebbini that
after being captured, Raid would confess to “everything you [(Alebbini)] and he [(Raid)] had
planned.” The Government also introduced video evidence at trial showing Alebbini, Raid, and
the Government’s informant watching an online video titled, “[T]he Islamic State From A to Z.”
And the informant testified that both Alebbini and Raid exhibited strong support for ISIS during
that screening.
Second, even if the district court had exclusively relied on Alebbini’s statements,
Alebbini cites no authority to support his argument that a defendant charged with conspiracy
cannot be the exclusive source of evidence showing his co-conspirator’s agreement. There
appears to be no such rule in this or any other circuit. And we decline to fashion such a rule in
this case. Alebbini relayed consistent information about Raid’s intentions and actions to multiple
individuals. And the district court was within its authority to infer from that evidence that an
agreement between Alebbini and Raid to provide material support to ISIS had been formed. See,
e.g., United States v. Ellzey, 874 F.2d 324, 328 (6th Cir. 1989) (“[A] conspiracy may be inferred
from circumstantial evidence that can reasonably be interpreted as participation in the common
plan.” (quoting United States v. Bavers, 787 F.2d 1022, 1026 (6th Cir. 1985))).
Alternatively, Alebbini claims that if his statements are to be the exclusive source of
evidence, the Court should vacate his conviction because he disavowed Raid’s involvement in
lending material support to ISIS when speaking with the Government’s informant. After
reviewing the portions of the record cited by Alebbini, we find no such disavowal. Even if
Alebbini’s disavowal is somewhere in the record, the district court was under no duty to credit it,
given the other, contradictory evidence produced at trial.
B. Sufficiency of the Evidence for Count 1: Attempt
Alebbini was also convicted of attempting to provide material support to ISIS, again in
violation of 18 U.S.C. § 2339B(a)(1). To establish attempt under § 2339B(a)(1), the
Government had to prove four elements: (1) that Alebbini intended to commit the crime of
providing material support or resources to ISIS; (2) that he intended to provide himself to ISIS to
work under its direction and control; (3) that he knew ISIS was a designated foreign terrorist
No. 19-3647 United States v. Alebbini Page 12
organization or had engaged in terrorist activity; and (4) that he did some overt act which was a
substantial step toward committing the crime. Transcript of Verdict Proceedings, R. 112,
PageID 2453; see United States v. Wesley, 417 F.3d 612, 618 (6th Cir. 2005).
Alebbini challenges the sufficiency of the evidence as to elements two and four. He
primarily argues that he had not taken a “substantial step” towards the commission of the crime
at the time of his arrest. Secondarily, he argues that he did not intend to provide himself to ISIS
to work under its direction and control. We address each argument in the order raised by
Alebbini.
1. Element 4: Substantial Step
A substantial step must consist of “objective acts that mark the defendant’s conduct as
criminal in nature.” Wesley, 417 F.3d at 618–19. Under this analysis, we evaluate “whether any
reasonable person could find that the acts committed would corroborate the firmness of a
defendant’s criminal intent.” Id. at 619 (quoting United States v. Bilderbeck, 163 F.3d 971, 975
(6th Cir. 1999)). “A substantial step must be something more than mere preparation.” United
States v. Bailey, 228 F.3d 637, 640 (6th Cir. 2000) (internal quotation marks and citation
omitted). “Evidence is sufficient to sustain a conviction for criminal attempt, if it shows that the
defendant’s conduct goes beyond ‘preliminary activities,’ and a ‘fragment of the crime [was]
essentially . . . in progress.’” United States v. Price, 134 F.3d 340, 351 (6th Cir. 1998)
(alteration in original) (quoting United States v. Dolt, 27 F.3d 235, 239 (6th Cir. 1994)).
After recounting the evidence supporting Alebbini’s intent to provide material support to
ISIS, which Alebbini does not contest, the district court found that Alebbini took a substantial
step toward the crime when he “left the ticket area at the Greater Cincinnati International Airport
and headed toward the security area on his way to the gate . . . in order to board the plane that
would take him to Turkey . . . .” Viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that those
actions constituted a substantial step, beyond mere preparation, towards the commission of the
crime charged.
No. 19-3647 United States v. Alebbini Page 13
Our precedent supports that conclusion. For example, in United States v. Wesley, we held
that the defendant—convicted for attempted armed robbery—had taken a substantial step even
though he was arrested at his home, an hour away from the bank, by himself, and without a
weapon or disguise. 417 F.3d at 619–20. His overt acts consisted of his discussing the bank
robbery with his co-conspirators, checking out the bank, and picking the getaway route. Id. at
620. As discussed above, there was evidence at trial that Alebbini similarly discussed plans to
join ISIS with his co-conspirator, Raid. There was also evidence that he had discovered a viable
route to ISIS. And more than the defendant in Wesley, on the day of his arrest, Alebbini actually
started on his route. He left his home in Dayton, Ohio, drove over an hour away to the
Cincinnati-Northern Kentucky International Airport, obtained a boarding pass, and made his way
towards the security checkpoint to then board a flight to Turkey. In Wesley, the court held that
the defendant’s conduct corroborated his subjective intent to commit the crime charged. Id. So
too here. Alebbini’s conduct sufficiently corroborates his subjective intent to attempt to provide
material support to ISIS.
Alebbini’s arguments to the contrary are unpersuasive. He contends that a rational trier
of fact would have no way of knowing whether he was headed towards the security area, and his
gate, simply because he was walking in that direction. He asserts that he could have been
walking towards the bathroom, or perhaps the Starbucks located near the TSA checkpoint. That
argument has no merit. First, Alebbini points to nothing in the record indicating that his alleged
alternative rationale for being at the airport was raised to the district court. Second, as
highlighted above, the evidence demonstrates that Alebbini traveled over an hour away from his
home in Dayton to the airport, obtained a boarding pass, and made his way to the security
checkpoint. There was even evidence that Alebbini communicated his farewells, as well as his
support for ISIS, to family and friends before leaving for the airport. It was entirely appropriate
for the district court to infer from that evidence that Alebbini was heading to board a plane to
Turkey or Jordan. To suggest, as Alebbini does, that the evidence is more consistent with a trip
to the bathroom or for a cup of coffee—or even insufficient to establish the district court’s
conclusion—is folly.
No. 19-3647 United States v. Alebbini Page 14
Alebbini also claims that he could have reconsidered his actions before getting in line to
board his flight. That argument, too, is without merit. Alebbini points to nothing in the record
indicating that the district court heard evidence that Alebbini was reconsidering his actions while
at the airport.3 Moreover, if “withdrawal, abandonment and renunciation, however
characterized, do not provide a defense to an attempt crime,” United States v. Shelton, 30 F.3d
702, 706 (6th Cir. 1994), then the possibility of withdrawal, abandonment, or renunciation does
not either.
Finally, Alebbini argues that two cases from the Second Circuit require the Court to
vacate the district court’s judgment. We disagree. Those out-of-circuit cases, of course, are not
binding, but in any event they are distinguishable. In the first case, United States v. Farhane,
634 F.3d 127 (2d Cir. 2011), the defendant, Sabir, met with an undercover officer in the Bronx
who purported to be an al Qaeda member, swore an oath of allegiance to al Qaeda, promised to
be on call to treat wounded al Qaeda members, and provided contact numbers for al Qaeda
members to reach him. Id. at 149. The Second Circuit held those actions to be a substantial step
toward providing material support to al Qaeda. Id. But that does not mean that Alebbini’s
actions do not constitute a substantial step. To be sure, Alebbini did not meet with a fake ISIS
member. But he did drive approximately 75 miles from his house to an airport and obtain a
boarding pass to travel to Turkey. There was no indication that Sabir even attempted to leave the
Bronx, let alone travel to Saudi Arabia. Id.; see also id. at 179 (Dearie, C.J., dissenting) (noting
that the location in question was almost 7,000 miles away). And although Alebbini did not
swear an oath like Sabir, there was evidence that he pledged with Raid to join ISIS’s cause.
Finally, although Alebbini did not provide his contact information to any purported ISIS
members, not doing so appeared to be a strategic decision to avoid suspicion. He told the FBI in
his post-arrest interview that he did not make contact with “people from there” because it
3
In his reply brief, Alebbini points to evidence that he at some point doubted ISIS, and that he was
interested in fighting the President of Syria, Bashar al-Assad, not joining ISIS. But that evidence is not relevant as it
does not involve Alebbini’s objective actions while at the airport. Even if it were relevant, the district court was
under no obligation to credit it. In fact, there was other evidence that disputed the validity of the evidence Alebbini
points to. That other proof indicated that Alebbini was perhaps lying about not wanting to join ISIS and only
wanting to fight Assad—it was alleged to have been a cover story concocted so as not to raise further suspicion.
Our role is not to weigh any of this evidence. See Jackson, 443 U.S. at 319. The district court already did.
No. 19-3647 United States v. Alebbini Page 15
wouldn’t be safe: “they will say that [I] got connections with them.” He admitted that he “didn’t
want connections” until he got to his destination.
Alebbini’s actions are thus also not far afield from the defendant’s actions in the second
case Alebbini cites, United States v. Pugh, 945 F.3d 9 (2d Cir. 2019). There, the Second Circuit
held that the defendant, Pugh, took a substantial step towards attempting to provide material
support to ISIS even though he, like Alebbini, made no ISIS connections. Id. at 20–21. Further
like Alebbini, Pugh had not sworn a formal oath to ISIS. Id. The Second Circuit found it
significant, however, that Pugh flew to Turkey, was denied access into the country, and
eventually was sent to the U.S. for questioning. Id. It was also deemed significant that when he
was arrested, Pugh was wearing a tactical backpack and was carrying maps with directions to
ISIS camps in addition to electronic devices—some of which he attempted to destroy—
containing ISIS propaganda and materials. Id. Similarly, Alebbini had previously flown to
Turkey, but had been denied access to the country, and he had more recently attempted to fly
back to Turkey before being arrested by authorities.4 And although Alebbini did not have a
tactical backpack or maps when he was arrested, his phone—which he attempted to wipe so
authorities would not be able to see his search history—did contain evidence of ISIS propaganda
materials.5
Nevertheless, our decision would remain the same even if the evidence in Farhane or
Pugh could be construed as more extensive than the evidence produced in this case. Lesser
4
If Alebbini is correct in suggesting that his first trip to Turkey is not relevant conduct for purposes of the
substantial step analysis, it does not follow that Pugh’s actual travel to Turkey, compared to Alebbini’s trip to the
airport, provides a floor for what can be considered a substantial step, thus distinguishing his case from Pugh’s such
that his conviction should be vacated. As Alebbini recognizes, the Government does not have to prove that the
Defendant did everything except the last act necessary to complete the crime of attempt. That makes sense. “[I]f
the law punished only the very last act necessary to accomplish the criminal result, legal intervention would be
delayed to a point at which it may well be too late to prevent harm.” United States v. Crowley, 318 F.3d 401, 408
(2d Cir. 2003). As in United States v. LaPointe, 690 F.3d 434, 444 (6th Cir. 2012), where “[t]he police did not need
to wait until [the defendant] left his house before arresting him,” here, the FBI did not need to wait until Alebbini
got on the plane to Turkey, or arrived in Turkey, before arresting him.
5
The Government was ultimately able to introduce evidence showing that the day before leaving for the
airport, Alebbini messaged his father and mother an ISIS-related Youtube video from his phone and said, “Watch
this video. So you know the truth.” The Government also recovered some information from his phone indicating
that he had checked out the video multiple times before and that he watched several other ISIS propaganda videos
around that same time.
No. 19-3647 United States v. Alebbini Page 16
conduct is not precluded from being considered a substantial step because there exist cases
involving more extreme conduct. United States v. Vaught, 133 F. App’x 229, 234 (6th Cir.
2005).
2. Element 2: Direction and Control
As to the second element of attempt, the Government had to prove that Alebbini intended
to provide himself to ISIS to work under its direction and control. According to § 2339B,
“[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its
goals or objectives shall not be considered to be working under the foreign terrorist
organization’s direction and control.” 18 U.S.C. 2339B(h); see Humanitarian Law Project,
561 U.S. at 36 (emphasizing that the statute “avoid[s] any restriction on independent advocacy,
or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist
groups”). On appeal, Alebbini does not raise this type of argument. Instead, he simply argues
there was no evidence at trial supporting the district court’s judgment that he intended to place
himself under the direction and control of ISIS.
Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact
could find that Alebbini intended to provide himself to work under the direction and control of
ISIS. That evidence included statements by Alebbini to his cousin, Hussein, six days before
heading to the airport, suggesting Alebbini intended to submit to ISIS’s command structure:
The Islamic State is fighting a survival war. They asked people to migrate to the
State. When migrants get there they ask them what they learnt, what they studied
and they will assign them accordingly to a diwan or a district or they will recruit
them as inghimasi. I, cousin, want to go be an inghimasi soldier!
This process that Alebbini identified was part of ISIS’s administration, according to expert
testimony from Dr. Lorenzo Vidino, the Director of the Program on Extremism at the George
Washington University. Alebbini also told the FBI in his post-arrest interview that once he was
released from prison, “my country is going to be the Islamic State.” And as discussed with
No. 19-3647 United States v. Alebbini Page 17
regard to Count 2, there was evidence that Alebbini may have informally pledged allegiance to
the Islamic State with his cousin Raid.6
Alebbini claims that he had not yet ultimately decided whether he would work under the
direction and control of ISIS, arguing that at best, he was traveling to the area to determine if
ISIS was truly what he was seeing in the propaganda videos. He argues further that his main
goal was to fight the Syrian president, Bashar al-Assad. Id. Alebbini does not, however, direct
the Court to anything in the record substantiating either contention. Even if there was proof to
support both contentions, there was sufficient contradictory evidence at trial that Alebbini had
already made up his mind about becoming a soldier for the Islamic State at least six days before
heading to the airport. Moreover, there was additional evidence suggesting that any
apprehension Alebbini displayed was a ruse.
Alebbini’s final argument, that his main goal was not to further ISIS, but to fight against
the al-Assad regime, is not relevant to the issue of his intent to provide himself to work under the
direction and control of ISIS. To prove attempt under § 2339B(a)(1), the Government did not
have to establish that Alebbini’s main goal was to provide material support to ISIS. So even if
that was true, it does not alter our decision. Section 2339B(a)(1) prohibits the attempted
provision of material support to terrorist organizations, regardless of Alebbini’s primary goal.
See 18 U.S.C. § 2339B(a)(1).
III. CONCLUSION
Viewing the evidence in the light most favorable to the prosecution, we hold that a
rational trier of fact could have found the essential elements of the crimes beyond a reasonable
doubt. We therefore AFFIRM the district court’s judgment.
6
In his reply brief, Alebbini disputes that he pledged allegiance to ISIS with his cousin Raid. He points the
Court to trial testimony indicating that the alleged pledge of allegiance to ISIS was in fact a more general pledge to
defend “Syrian blood.” There was trial testimony to that effect, but the same witness also testified that Alebbini and
Raid had, on another occasion, “sworn allegiance to the Islamic State.” As noted above, our role is not to reweigh
this evidence. See Jackson, 443 U.S. at 319.