In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 21-1482 & 21-1672
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH D. JONES and EDWARD SCHIMENTI,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-cr-236 — Andrea R. Wood, Judge.
____________________
ARGUED NOVEMBER 1, 2022 — DECIDED AUGUST 18, 2023
____________________
Before ROVNER, BRENNAN, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. A jury convicted Joseph Jones and
Edward Schimenti of providing material support to the ter-
rorist organization ISIS. In returning guilty verdicts, the jury
rejected an entrapment defense advanced by Jones. The dis-
trict court, in denying a post-trial motion for acquittal, like-
wise rejected his contention that the evidence showed that the
government overstepped and induced his commission of the
2 Nos. 21-1482 & 21-1672
offense. Because the district court properly instructed the jury
on the elements of entrapment, we owe the jury’s ultimate de-
termination 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 pay-
ment 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 gov-
ernment. 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 sur-
veilling Jones and Schimenti based on their pro-ISIS social
media posts that praised the organization, threatened nonbe-
lievers 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 cor-
rupt hearts.” Schimenti, too, posted on Google Plus to convey
Nos. 21-1482 & 21-1672 3
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 re-
ward 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 sta-
tion’s waiting room by expressing his frustration at being pro-
filed 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
4 Nos. 21-1482 & 21-1672
not the agents—who drove the relationship forward. Follow-
ing 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 Is-
lam.
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 re-
cruitment 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 mate-
rial 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 under-
cover FBI agent posing as an ISIS travel facilitator. Omar in-
dicated 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.
Nos. 21-1482 & 21-1672 5
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 recog-
nized 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 re-
sponded “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 re-
sponded, “Brother, I wish I was going with you.” Omar asked
6 Nos. 21-1482 & 21-1672
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 sec-
ond 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 “trust-
worthy 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 con-
tact 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
Nos. 21-1482 & 21-1672 7
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 ma-
terial 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 prepare Muhamed for
battle in ISIS ranks. Muhamed also told Schimenti that he
could provide help by giving him cell phones, explaining that
ISIS used cell phones to create improvised explosive devices,
or IEDs, as weapons and, in some instances, as defense mech-
anisms to avoid drone strikes.
Early the next year, in February 2017, Schimenti intro-
duced Muhamed to Jones. Schimenti described Jones as a
“trusted brother” who had “helped two other brothers travel
overseas,” referring to Jones’s connection with Bilal, the FBI
agent posing as a travel facilitator, and Jones’s role in sending
Omar and Omar 2 to Syria. Muhamed responded to the intro-
duction by reiterating not only his desire to travel to Syria, but
also his need for cell phones, again offering an opportunity to
provide material support to ISIS based on the demonstrated
interest displayed by Jones and Schimenti.
Jones and Schimenti readily accepted that offer. In March
2017 Jones gave Muhamed three phones, and Schimenti gave
him six. Jones later testified before the grand jury that at the
time he gave the cell phones to Muhamed, he did so of his
own “free will” with the “hope it kills many of them” or
“eight people.” When Muhamed offered to reimburse the cost
of the phones, Jones declined, stating he was excited enough
8 Nos. 21-1482 & 21-1672
to receive the “ajr,” or heavenly reward in Islam, for his acts.
As part of his support for Muhamed’s travel, Jones intro-
duced him to Bilal, like he had previously done with Omar 2,
and the three worked together to coordinate his departure.
A month later, in April 2017, Jones, Schimenti, and Mu-
hamed met one last time. After sharing a meal, Jones and
Schimenti drove Muhamed to O’Hare airport, where they be-
lieved he would be traveling to Syria with the nine cell phones
they had given him to use as makeshift bombs in his role as
an ISIS fighter. Before saying goodbye, Schimenti asked Mu-
hamed to send a video of him killing someone when he ar-
rived in Syria.
The FBI arrested Jones and Schimenti five days later.
C
A federal indictment followed, focusing on the provision
of cell phones for use as IEDs by ISIS fighters and charging
Jones and Schimenti with providing material support to a ter-
rorist organization in violation of 18 U.S.C. § 2339B(a)(1). The
indictment also charged Schimenti with making materially
false statements to the FBI during his post-arrest interview in
violation of
18 U.S.C. § 1001(a)(2).
Jones and Schimenti moved before trial to introduce an en-
trapment defense against the terrorism charges, and the dis-
trict court allowed the defense to proceed to the jury. At trial,
then, it became the government’s burden to show beyond a
reasonable doubt that the elements of the defense were not
met. See United States v. Mayfield,
771 F.3d 417, 439 (7th Cir.
2014) (en banc) (explaining that once the defense of entrap-
ment is at issue, “established entrapment doctrine places the
Nos. 21-1482 & 21-1672 9
burden squarely on the government to disprove the defense
beyond a reasonable doubt”).
Trial began in May 2019 and continued for almost three
weeks. The jury heard testimony from 15 witnesses, including
terrorism experts, the undercover agent Bilal, the confidential
human source Muhamed, FBI Agent Cassandra Carnright
(who coordinated Muhamed’s role), a member of Jones and
Schimenti’s mosque, and both their family and friends. Jones
also testified in his own defense to explain why he believed
the government had entrapped him. The jury received more
than 100 exhibits, which were primarily recorded conversa-
tions and text messages between the defendants and the gov-
ernment’s confidential informant, Muhamed, and the under-
cover agents Omar and Bilal.
The judge instructed the jury on the elements of the
charges and the entrapment defense. Two days later the jury
returned a guilty verdict on all counts.
D
A few pieces of evidence came to light after trial regarding
the FBI’s payments to Muhamed, the confidential human
source who befriended Schimenti and who Schimenti later in-
troduced to Jones. At trial Muhamed had testified to receiving
some reimbursements for living expenses. And he stated that
he did not expect to receive any additional compensation for
his work. But the government later disclosed that the FBI,
within approximately one month of the trial concluding, paid
Muhamed an extra $50,000—effectively a bonus—for his role
in the case. Jones and Schimenti reacted with alarm and sus-
picion to learning this information in the immediate wake of
trial. The district court reacted with similar surprise,
10 Nos. 21-1482 & 21-1672
promptly ordering discovery and an evidentiary hearing to
get to the bottom of what led to this post-trial payment.
The case agent, Cassandra Carnright, filed an affidavit and
testified at the hearing, with Jones and Schimenti cross-exam-
ining her. The FBI later supplied additional records showing
the breakdown of its living-expense payments to Muhamed
that revealed some discrepancies with the government’s pre-
vious disclosures about the payments.
Jones and Schimenti invoked Federal Rule of Criminal
Procedure 29 and sought a judgment of acquittal on the basis
that they were entrapped as a matter of law. In the alternative,
they moved for a new trial under Federal Rule of Criminal
Procedure 33 based on the newly discovered evidence related
to the FBI’s payments to Muhamed. They also argued that a
new trial was warranted because the district court limited the
cross examination of certain FBI witnesses.
The district court denied the motions and affirmed the
convictions of both defendants. Sentencing then followed,
with Jones receiving 144 months’ imprisonment and
Schimenti 162 months.
II
Jones challenges the district court’s denial of his Rule 29
motion for acquittal of his material support conviction under
18 U.S.C. § 2339B(a)(1). He contends that the government fell
short of proving beyond a reasonable doubt that it did not en-
trap him. Schimenti does not challenge his conviction on this
ground.
Nos. 21-1482 & 21-1672 11
A
“Entrapment is a defense to criminal liability when the de-
fendant was not predisposed to commit the charged crime be-
fore the intervention of the government’s agents and the gov-
ernment’s conduct induced him to commit it.” Mayfield,
771
F.3d at 420. These two elements of the entrapment defense—
predisposition and inducement—are “conceptually related
but formally and temporally distinct.”
Id. To meet its burden
of proving that the defendant was not entrapped, the govern-
ment must establish beyond a reasonable doubt “either that
the defendant was predisposed to commit the crime or that
there was no government inducement.”
Id. at 440 (emphasis
in original).
Inducement occurs when a government agent’s conduct
“creates a risk that a person who otherwise would not commit
the crime if left alone will do so in response to the govern-
ment’s persuasion.”
Id. at 434. This element entails more than
the government’s mere solicitation, suggestion, or offer of an
“ordinary” opportunity to commit the crime.
Id. Rather, “in-
ducement means government solicitation of the crime plus
some other government conduct.”
Id. (emphasis in original).
Such “plus” factors include “repeated attempts at persuasion,
fraudulent representations, threats, coercive tactics, harass-
ment, promises of reward beyond that inherent in the custom-
ary execution of the crime, [and] pleas based on need, sympa-
thy, or friendship.”
Id. at 435. The presence or absence of any
one factor is not conclusive. The proper inquiry requires con-
sideration of all facts and circumstances, with the ultimate
question being whether an “otherwise law-abiding person
would take the bait.”
Id. at 434.
12 Nos. 21-1482 & 21-1672
Predisposition “refers to the likelihood that the defendant
would have committed the crime without the government’s
intervention, or actively wanted to but hadn’t yet found the
means.”
Id. at 436. This element stems directly from the prin-
ciples animating the entrapment doctrine: “A legitimate sting
takes an actual criminal off the streets” rather than “de-
flect[ing] law enforcement into the sterile channel of causing
criminal activity and then prosecuting the same activity.”
Id.
(citation omitted).
By its very nature the predisposition inquiry “is chiefly
probabilistic, not psychological.”
Id. at 428. Several factors in-
form a defendant’s likelihood of committing the charged of-
fense:
• the defendant’s character or reputation;
• whether the government initially suggested the crimi-
nal activity;
• whether the defendant engaged in the criminal activity
for profit;
• the nature of the inducement or persuasion by the gov-
ernment; and
• whether the defendant evidenced a reluctance to com-
mit the offense that was overcome by government per-
suasion.
United States v. Anderson,
55 F.4th 545, 552 (7th Cir. 2022) (cit-
ing Mayfield,
771 F.3d at 435). A defendant’s reluctance to
commit the offense is the most important consideration. See
Mayfield,
771 F.3d at 437. Notice the relationship of this factor
to the element of inducement: “Reluctance can prompt further
Nos. 21-1482 & 21-1672 13
efforts at government persuasion that can rise to the level of
inducement.” Anderson, 55 F.4th at 553.
Predisposition also has a temporal dimension. “The de-
fendant’s predisposition is measured at the time the govern-
ment first proposed the crime.” Mayfield,
771 F.3d at 438. But
that limitation does not mean that evidence arising after a de-
fendant meets a government agent cannot be considered.
“Other evidence of the defendant’s conduct after the initial
contact by the government’s agents,” we have explained,
“may be relevant to the determination of predisposition,”
particularly because law enforcement often has little evidence
predating contact.
Id. at 437. Given the relationship between
predisposition and inducement, we have cautioned that such
“evidence must be considered with care” because “the de-
fendant’s later actions may have been shaped by the govern-
ment’s conduct.”
Id. But where the government has proven
that a defendant’s “predisposition was independent and not
the product of the attention that the Government had di-
rected” toward him, post-contact evidence can support a con-
clusion that the defendant would have likely committed the
crime on his own and was therefore predisposed. Jacobson v.
United States,
503 U.S. 540, 550 (1992).
B
Entrapment was Jones’s primary defense from the begin-
ning. He raised it early in the case, and the district court
agreed to instruct the jury on the elements of the defense at
trial. Neither Jones nor Schimenti challenge any aspect of that
instruction on appeal. The issue before us is whether the dis-
trict court committed legal error in denying Jones’s post-trial
motion for acquittal under Rule 29.
14 Nos. 21-1482 & 21-1672
In doing so, the district court emphasized the heavy bur-
den Jones faced in overturning the jury’s verdict. From there
the district court took great care reviewing the trial evidence,
determining that, while some evidence supported Jones’s po-
sition, a reasonable jury could have found both that he was
predisposed to support ISIS and not induced by the govern-
ment to commit the material support offense. The court
pointed to evidence on which the jury could have relied to
find that Jones voluntarily—without undue pressure from the
government—bought and gave the cell phones to Muhamed
intending them to be used as IEDs to further ISIS’s ongoing
fighting in Syria. The district court therefore concluded that
Jones had not been entrapped as a matter of law and denied
his motion for acquittal.
C
Federal Rule of Criminal Procedure 29 requires a district
court, on a defendant’s motion, to “enter a judgment of ac-
quittal of any offense for which the evidence is insufficient to
sustain a conviction.” While we owe no deference to the dis-
trict court’s assessment of the trial evidence, we do owe def-
erence to the jury’s verdict. See United States v. Foy,
50 F.4th
616, 622 (7th Cir. 2022); United States v. Garcia,
37 F.4th 1294,
1302 (7th Cir. 2022).
Indeed, our review proceeds as it would in an appeal in
which a criminal defendant challenges the sufficiency of the
government’s trial evidence. See Leal, 72 F.4th at 267. We must
“evaluate whether, when viewed in the light most favorable
to the Government, the record evidence is ‘sufficient ... to per-
mit a jury to determine beyond a reasonable doubt that the
defendant was not entrapped.’” Garcia, 37 F.4th at 1302 (alter-
ation in original) (quoting United States v. Barta,
776 F.3d 931,
Nos. 21-1482 & 21-1672 15
936–37 (7th Cir. 2015)). We will set aside Jones’s conviction
“only where the record is devoid of evidence from which a
reasonable jury could find guilt beyond a reasonable doubt,”
a standard we have described as “nearly insurmountable.”
Leal, 72 F.4th at 267 (citations omitted).
Having taken our own fresh look at the trial evidence, we
conclude that the district court was right to reject Jones’s mo-
tion for acquittal.
1
We begin with inducement. Some evidence introduced at
trial supports Jones’s argument that he was induced—but it
is not our role to reweigh the evidence. See Garcia, 37 F.4th at
1302. When viewed in the light most favorable to the govern-
ment, we see a sufficient basis to support the jury’s finding
that the government agents did not induce Jones to provide
material support to Muhamed on behalf of ISIS.
Start with the evidence of the FBI agents’ interactions with
Jones. Several of the government’s witnesses testified to tak-
ing care to maintain a responsive, and not affirmative, stance
in their interactions with Jones. Agent Carnright used the
term “mirroring” in her testimony to describe this behavior.
The approach, as the term mirroring implies, allowed Jones to
shape and advance his relationships and next steps with the
government agents—all to make it less likely that their inter-
actions amounted to repeated persuasion or undue pressure.
The jury’s ability to see the recorded conversations and text
messages further enabled them to determine whether the
agents’ accounts were, in fact, credible.
We can put the point in more concrete terms. A reasonable
jury could have interpreted the dynamic between Omar and
16 Nos. 21-1482 & 21-1672
Jones, for instance, as one where Omar followed Jones’s lead
and not the other way around. Omar let Jones bring up ISIS
in their early text conversations, asking Jones for more violent
videos only after Jones sent the first pro-ISIS link. Similarly,
Omar introduced Jones to a new undercover agent, Bilal, only
after Jones asked Omar if he could meet other “brothers” to
“learn and build with”—a clear request to meet other ISIS
sympathizers. Omar also offered to give Jones an ISIS flag in
response to Jones’s demonstrated interest in Omar’s travel
abroad, an offer Jones readily accepted.
Muhamed likewise testified that he followed the FBI’s in-
struction not to directly ask Jones to do anything, but instead
to more passively offer the opportunity to provide support if
Jones seemed receptive. Indeed, the FBI did not even intro-
duce Muhamed to Jones—Schimenti did. And Schimenti, as
Jones’s close friend, took this step because he knew that Mu-
hamed wanted to travel to Syria and that Jones, through Bilal,
would be willing and able to help him do so. That is exactly
what Jones did, and a reasonable jury could have relied on
this evidence to conclude Jones had a desire to materially sup-
port ISIS that arose untainted by the government’s involve-
ment.
The trial evidence also permitted a finding that Jones took
many acts on his own, without undue influence or pressure
from government agents. Consider foremost his testimony to
the grand jury. Jones told the grand jury under oath that he
gave Muhamed the cell phones of his own “free will” in hopes
that “it kills many of them” or “eight people.” In no way did
he suggest during his grand jury testimony that he did so to
submit to pressure exacted by Muhamed or anyone else. The
trial evidence also showed that Jones, of his own volition,
Nos. 21-1482 & 21-1672 17
contacted his former girlfriend with a request to supply the
cell phones after receiving the initial invitation from Mu-
hamed to procure them for ISIS. The jury had ample evidence
showing that the government agents did not do anything
other than offer Jones a chance to provide support to ISIS in
response to Jones’s own representations to that effect.
Jones urges a different analysis by focusing on the dura-
tion of the government’s investigation, seeing it as an 18-
month campaign designed to wear him down by persistently
nudging him toward the commission of a crime. By Jones’s
account, the FBI was not willing to stop pressing him until he
relented and took a step to provide material support to ISIS.
He views the government’s conduct as analogous to the en-
trapment the Supreme Court determined occurred in Jacobson
v. United States,
503 U.S. 540 (1992). While Jones’s counsel has
advanced these arguments with great clarity and rigor, we see
no infirmity in the jury’s rejection of the entrapment defense.
Yes, the FBI pursued Jones and Schimenti for a meaningful
length of time. But the length of the investigation does not, on
its own, lead to the conclusion that no reasonable jury could
have rejected Jones’s entrapment defense. “[T]here is no per
se rule regarding the number of contacts or length of relation-
ship it takes to constitute inducement. Each case, and each en-
trapment defense, must be judged on its own facts.” Barta,
776
F.3d at 937–38. This is why “entrapment is a question for the
jury, not the court”—because the jury is best suited to make
such findings of fact. Mayfield,
771 F.3d at 439.
The jury here could have found that the FBI’s investigation
took substantial time for good reason. Agent Carnright testi-
fied that the Bureau opened its investigation upon seeing
clear indicators on social media sites that Jones and Schimenti
18 Nos. 21-1482 & 21-1672
were avid ISIS sympathizers—with both defendants express-
ing approval of the violence the terrorist organization em-
ployed to advance its mission. The FBI reasonably wanted to
know more about Jones and Schimenti: Did their sympathies
with ISIS extend beyond a personal viewpoint and evince any
present intent or risk of them supporting the group, either by
providing resources or traveling to Syria to join the fight? The
only way to glean that answer was to take proactive steps to
discern Jones and Schimenti’s intentions, hence the Bureau’s
use of informants to befriend and communicate with both de-
fendants. The trial evidence showed—and a reasonable jury
could have found—that all of this occurred in steps that took
time, with the FBI taking sufficient care all along the way to
ensure their informants were acquiring information, not ag-
gressively pressing either defendant to commit a crime.
A more distinct disconnect warrants emphasis. Jones sees
the trial evidence as showing a campaign of persistent pres-
sure being imposed by the FBI to commit a crime. It is possible
to read aspects of the evidence that way. For example, Jones
repeatedly expressed his reluctance to travel to Syria himself,
and he declined to join Omar and Bilal in “rock[ing] it out” in
a violent attack on behalf of ISIS. And at trial Jones testified
that he supplied the cell phones because “there had been four
or five people that came into [his] life trying to get [him] to
provide some form of material support to ISIS,” so that when
Muhamed finally asked him for cell phones in March 2017, he
delivered them because he believed “God has got to be put-
ting all these people in [his] life for a reason.”
But it is equally possible to view the trial evidence another
way—that Jones voluntarily made his own choice to move be-
yond sympathy and agreement with ISIS to affirmatively
Nos. 21-1482 & 21-1672 19
supporting the organization by supplying cell phones for use
as IEDs in Syria, all despite some episodic pressure imposed
by the FBI. And that evidentiary reality—of the trial evidence
being amenable to different findings—is what precludes us
from being persuaded that the government failed to prove
that Jones was not induced to provide material support to
ISIS.
Nor do we see Jacobson as lending much support to Jones.
Though the government conceded inducement in Jacobson,
the facts provide important instruction. Keith Jacobson re-
ceived persistent mailings from six fake entities, almost all of
which expressly encouraged him to engage in illegal conduct.
When he finally accepted an offer to buy illicit child pornog-
raphy two and a half years after the government started its
campaign, he was arrested. See
503 U.S. at 543–47. The Su-
preme Court observed that Jacobson’s predisposition to com-
mit the crime was not independent from the government’s in-
ducement, and so concluded that he had been entrapped. See
id. at 550.
The FBI’s conduct here is much less intrusive than that in
Jacobson, or at least the jury could have so concluded. The gov-
ernment provided sufficient evidence illustrating a patient
and prolonged investigation. A jury could conclude that Jones
made willing and voluntary decisions to accept the govern-
ment’s overtures, though they occurred over a long period of
time. So we cannot conclude that Jones was induced as a mat-
ter of law.
2
That brings us to predisposition. Much like inducement, it
is not enough for Jones to argue that his version of events is
20 Nos. 21-1482 & 21-1672
possible. That is the central teaching of Mayfield. See
771 F.3d
at 439 (“[T]he subjective basis of the defense makes entrap-
ment a fact question for the jury to decide ‘as part of its func-
tion of determining the guilt or innocence of the accused.’”
(quoting Sherman v. United States,
356 U.S. 369, 377 (1958))). To
be acquitted of his material support conviction, Jones must
show no rational jury could have concluded that the govern-
ment carried its burden. See Leal, 72 F.4th at 267. We cannot
get there.
Return to the beginning—to Jones’s pro-ISIS social media
posts that led to the government’s investigation in the first
place. Jones regularly shared ISIS propaganda, including the
violent Flames of War recruitment video. Jones and Schimenti
watched this video together well before any contact by gov-
ernment informants. Jones also made comments praising ISIS,
speculating about ISIS’s plans to attack different cities, and
expressing distrust of any nonbelievers in Islam. The jury did
not have to reach far to view Jones’s statements as supporting
a finding that he was likely to take affirmative steps to sup-
port ISIS if given the opportunity.
Jones urges us to see his social media posts as speech pro-
tected by the First Amendment and thus beyond any consid-
eration in a criminal prosecution. Not so. That the First
Amendment allowed Jones to express agreement with ISIS’s
messaging, mission, and means of accomplishing its objec-
tives does not mean the speech was off limits for what it re-
veals about his predisposition to commit crime. In Jacobson,
the Supreme Court held that “[e]vidence of predisposition to
do what once was lawful is not, by itself, sufficient to show
predisposition to do what is now illegal.”
503 U.S. at 551 (em-
phasis added). That observation explains why Keith
Nos. 21-1482 & 21-1672 21
Jacobson’s legal purchase of child pornography before Con-
gress made the acquisition of such material a crime did not,
alone, prove that he was predisposed to later buy it illegally.
But we know of no authority—and Jones has identified
none—supporting Jones’s view that the First Amendment
shields from consideration statements he made that shine
substantial light on his intent and predisposition to commit
the crime, especially given the other evidence giving import
to that intent.
Indeed, evidence arising after Jones’s initial government
contact with Omar at the police station in September 2015 is
consistent with Jones’s views before that date, thereby further
allowing a jury to find predisposition. As a legal matter, we
have clarified that, while predisposition is measured at the
time the government first offers the opportunity to commit
the offense, “evidence of the defendant’s conduct after the in-
itial contact by the government’s agents … may be relevant to
the determination of predisposition” so long as that evidence
is “considered with care” given the risk that “the defendant’s
later actions may have been shaped by the government’s con-
duct.” Mayfield,
771 F.3d at 437. The consistency we see in the
evidence is important to that care we must take in our assess-
ment. Jones’s consistent statements and actions across time
make the case for predisposition, untainted by government
involvement, much stronger.
Consider the post-2015 evidence of Jones’s character and
reputation. At trial Jones chose to take the witness stand and
testify in his own defense. He told the jury that he had
thought about moving to Syria to live under the Islamic state
before he met any government informants. In response to
Omar’s offer of the ISIS flag, Jones testified that he “willingly
22 Nos. 21-1482 & 21-1672
took the ISIS flag,” “was excited to have the flag,” and shared
photos of himself with it on social media because he wanted
“other people to see [him] with the flag” as a show of support
for ISIS. Jones’s ex-girlfriend and a member of his mosque tes-
tified that he shared pro-ISIS materials with them separately
from any interactions with Omar, Bilal, or Muhamed.
Evidence of Jones’s motivations to commit the offense fur-
ther show his pro-ISIS enthusiasm. No better example than
the sworn, counseled testimony Jones conveyed to the grand
jury. In no uncertain terms, he told the grand jurors that he
gave Muhamed the cell phones of his own “free will” in hopes
that “it kills many of them” or “eight people.” Jones also de-
clined reimbursement for the phones when Muhamed offered
it because he was instead excited to receive the “ajr,” or heav-
enly reward in Islam, for his acts. The jury reasonably could
have viewed these statements as evidence of Jones’s inde-
pendent predisposition to commit the material offense.
Notice, too, that the trial evidence shows no meaningful
reluctance by Jones to support ISIS. See Garcia, 37 F.4th at 1304
(explaining that prior reluctance to engage in the offense of
conviction heavily informs the predisposition inquiry). To the
contrary, Jones consistently demonstrated his independent
interest in ISIS, including the violent means employed by the
organization to advance its mission. Jones never cut off com-
munication with Omar and Bilal or affirmatively disavowed
support for ISIS. When Jones did decline to respond to Bilal’s
invitation to formally pledge allegiance to ISIS in December
2015, he nevertheless made plain his support of the organiza-
tion’s mission and told Omar and Bilal that he wanted to keep
in touch. He followed through with that promise by
Nos. 21-1482 & 21-1672 23
continuing to communicate with them despite Schimenti’s
(correct) instincts that they were government agents.
In no way did Jones’s views of ISIS change at the end of
2015. He maintained an active social media presence, includ-
ing by affirmatively seeking interactions with members of the
ISIS community online. This is exactly how he found and be-
friended the undercover agent Omar 2. When Omar 2 ex-
pressed an interest in traveling to Syria, Jones not only con-
nected him with Bilal, but vouched for him as a “trustworthy
brother” that Bilal should help. And Bilal did facilitate Omar
2’s travel, as far as Jones knew, after Jones arranged for them
to meet in person and create a plan. Jones’s later decision to
connect Muhamed with Bilal, after supplying him with cell
phones, further reinforces Jones’s ongoing commitment to ad-
vancing ISIS’s mission.
Considered collectively and viewed in the light most fa-
vorable to the government, the evidence before and during
the investigation was sufficient for a jury to conclude that
Jones was independently predisposed to provide material
support to ISIS.
* * *
What makes a case like this challenging is that it is easy to
see a jury going either way on entrapment. But that reality is
precisely why the law empowers the jury to decide, placing
the burden on the government to prove beyond a reasonable
doubt that it did not entrap Jones. Our role on appeal is to ask
whether any rational jury could have found that the govern-
ment carried this burden. Like the district court, we believe
the answer is yes: evidence in the record supports the jury’s
24 Nos. 21-1482 & 21-1672
conclusion that Jones was not entrapped, so his material-sup-
port conviction stands.
III
Jones and Schimenti both appeal the district court’s denial
of their motion for a new trial under Rule 33 in light of the
government’s post-trial disclosures that, within three weeks
of the trial concluding, the FBI paid Muhamed a $50,000 cash
bonus for his assistance as a confidential informant.
A
Here is what happened. At trial the government called
Muhamed to testify about his interactions with Jones and
Schimenti. He began with some personal background, ex-
plaining that he was born in Iraq and moved to the United
States in 2014 after working five years for the United States
Department of Defense in Iraq. Muhamed stated that his first
contact with the FBI came in 2016, when agents interviewed
him after learning that he displayed an ISIS flag on his car.
That encounter led in time to Muhamed agreeing to assist the
FBI’s counterterrorism efforts by serving as an informant on
national security matters.
Turning to the events that culminated in Jones’s and
Schimenti’s arrests in April 2017, Muhamed testified that he
pressured neither defendant to buy cell phones for use as
IEDs by ISIS in Syria. To the contrary, Muhamed emphasized
that he sought only to adhere to the FBI’s direction to limit his
interactions to what the Bureau calls “mirroring”—the prac-
tice of echoing messaging advanced in the first instance by
Jones and Schimenti, avoiding any affirmative steering, and
thereby allowing each defendant to make his own choices
about any next steps in the relationship. By Muhamed’s
Nos. 21-1482 & 21-1672 25
account, this approach culminated in both defendants affirm-
atively choosing to supply cell phones for use as IEDs.
On direct and cross examination, Muhamed acknowl-
edged his potential biases, testifying that the FBI paid him liv-
ing expenses for fuel, a cheap car, parking, and moving costs,
with the Bureau also assisting him with his green card appli-
cation. He insisted that he neither expected nor sought further
compensation from the FBI for his cooperation, however.
Agent Carnright offered consistent testimony and estimated
these expense payments to Muhamed totaled $16,000.
What transpired after trial is what most concerns Jones
and Schimenti. About one month after the jury returned
guilty verdicts, the FBI paid Muhamed a $50,000 bonus. More
than three months later, in October 2019, the government dis-
closed this payment to Jones and Schimenti—a revelation that
took them, and the district court, by surprise.
Recognizing the gravity of the government’s post-trial dis-
closure, the district court granted Jones and Schimenti’s mo-
tion for an evidentiary hearing and ordered discovery. Agent
Carnright supplied an affidavit and testified at the hearing.
She stated that the FBI had contemplated making a bonus
payment before the arrests in 2017 but decided based upon a
pretrial discussion she had with an Assistant United States
Attorney to postpone any payment until after trial. Agent
Carnright insisted that she shared none of this information,
including the prospect of a future payment, with Muhamed.
Following the hearing, the FBI also supplied defense coun-
sel new records showing a more detailed breakdown of the
$16,000 in payments it made before trial to Muhamed. These
itemized records revealed that the government’s pretrial
26 Nos. 21-1482 & 21-1672
disclosures were neither complete nor accurate. Recall that
Agent Carnright testified at trial that the FBI paid Muhamed
$16,000 to cover “any costs incurred to him throughout the
course of the investigation.” Muhamed testified similarly at
trial, stating that the FBI reimbursed him “only for fuel, car—
I mean, not fancy car, just cheap car—for parking, for moving
out from my old apartment after the case.” But the new report
showed that the $16,000 stipend included, among other
things, a $1,200 down payment on a car, three car payments
of $400 each, a $925 security deposit, payments for three
months of rent totaling $2,775, and nonspecific “per diem” ex-
penses totaling $2,130. And perhaps most concerning to Jones
and Schimenti, the FBI’s post-trial report also showed $5,575
paid for what it called an “amount service”—an undefined
description connoting some sort of bonus, as the Bureau used
the same words to describe the $50,000 post-trial payment to
Muhamed.
At no point has the government explained why it did not
take more care before trial to ensure a complete and accurate
disclosure of the financial support provided to Muhamed.
The best explanation, though hardly acceptable, seems to be
oversight and sloppiness.
B
Invoking Rule 33, Jones and Schimenti requested a new
trial, arguing that the government’s failure to fully and accu-
rately disclose these actual and planned payments limited
and impaired their defense efforts at trial. They contended the
jury may have reached a different outcome had they known
the government had already paid Muhamed one bonus of
$5,575 and had plans to pay him another bonus ten times
larger in the immediate wake of trial. Both defendants
Nos. 21-1482 & 21-1672 27
believed they could have used this information to undermine
Muhamed’s and the government’s credibility and thereby ad-
vance their entrapment defense by exposing everyone’s true
incentive of doing everything possible to coerce them into
committing a material support offense.
The district court did not mince its words in describing its
reaction to learning of these post-trial developments, making
plain that it found “the Government’s belated and at times
contradictory disclosures regarding the FBI’s payments to
Muhamed troubling.” In the end, however, the district court
determined that any disclosure shortcomings did not rise to
the level of meeting Rule 33’s demanding standard for a new
trial. What mattered most to the district court was the
strength of the government’s case against Jones and
Schimenti. Seeing no likelihood of acquittal, the district court
denied the motion for a new trial.
C
Rule 33 authorizes district courts to “vacate any judgment
and grant a new trial if the interest of justice so requires.” Our
review is limited to assessing whether the district court’s rul-
ing reflected an abuse of discretion. See Foy, 50 F.4th at 622.
To receive a new trial based on newly discovered evi-
dence, Jones and Schimenti must show “that the evidence
‘came to their knowledge only after trial; could not have been
discovered sooner had due diligence been exercised; is mate-
rial and not merely impeaching or cumulative; and would
probably lead to an acquittal in the event of a retrial.’” United
States v. Eads,
729 F.3d 769, 780 (7th Cir. 2013) (quoting United
States v. Ryan,
213 F.3d 347, 351 (7th Cir. 2000)).
28 Nos. 21-1482 & 21-1672
Recognize at the outset, just as the district court did, that
“the $50,000 payment itself does not constitute newly discov-
ered evidence because it had not occurred at the time of trial.”
So we could not order a new trial based on the bonus payment
alone. The primary hurdle for Jones and Schimenti, then, is
showing that they likely would have been acquitted had they
known about the potential for Muhamed’s post-trial bonus
and had they received a more complete and accurate account-
ing of the $16,000 living-expense payments. See
id.
We have a difficult time seeing how a pretrial disclosure
from the government that the FBI planned to pay Muhamed
a $50,000 bonus after trial would have created a likelihood of
a different outcome. Foremost, the district court found no ev-
idence in the government’s post-trial disclosures of “an ex-
press agreement between Muhamed and the FBI that he
would be paid.” Even more, the district court found “the most
likely scenario to have been that Agent Carnright intention-
ally avoided any mention of a potential post-trial payment to
Muhamed so that it would not have to be disclosed to defense
counsel.” Nothing Jones and Schimenti have presented on ap-
peal calls these findings into question.
On this record, and in full alignment with the district
court, we find it unlikely that any pretrial disclosure about a
planned or contemplated payment of a $50,000 bonus to Mu-
hamed would have changed the jury’s ultimate guilt determi-
nations.
The post-trial disclosure of the itemized expense report
falls short for similar reasons. No doubt the evidence is im-
peaching, at least to some degree. But, as the district court ob-
served, this was not a case hinging on credibility determina-
tions, as much of the evidence presented to the jury consisted
Nos. 21-1482 & 21-1672 29
of recorded conversations and statements Jones and
Schimenti posted online. The single unrecorded conversation
that Jones and Schimenti raise, where they contend that Mu-
hamed appealed to Schimenti’s emotions to encourage him to
help Muhamed travel to Syria, is not enough on its own to
show that acquittal would have been likely had the disclo-
sures been made earlier. And Jones and Schimenti had a full
and fair opportunity to, and did, cross-examine Muhamed
about this conversation at trial.
To the extent Muhamed’s credibility was at issue, we
agree with the district court that the itemized report is cumu-
lative. The government had already disclosed that Muhamed
received $16,000 for his services, a total that is not called into
question by the new report disclosed after trial. And the jury
heard Agent Carnright’s testimony that Muhamed received
immigration assistance in exchange for his work, including
substantial help with his green card application. In our view,
it is unlikely that the new, more detailed evidence of the FBI’s
payments to Muhamed would have tipped the scales in favor
of acquittal. The jury already considered substantial evidence
tending to impeach Muhamed’s motives in returning the
guilty verdicts. We agree with the district court’s denial of the
Rule 33 motion.
IV
One brief issue remains. Jones contends that the district
court improperly entered a protective order restricting his
cross-examination of government witnesses while also
wrongly denying his Rule 33 motion challenging that deci-
sion. We see no abuse of discretion.
30 Nos. 21-1482 & 21-1672
At trial the government moved for a protective order to
prevent the disclosure of certain witnesses’ true identities—
all to protect the witnesses and their families and to preserve
the integrity of the FBI’s ongoing counterterrorism efforts.
The district court entered the requested order, explaining that
given the protected information’s low probative value, the
FBI’s national security concerns justified the restriction.
The district court denied Jones’s later Rule 33 motion chal-
lenging the protective order, explaining that the information
was not material to Jones’s case and that he was therefore not
prejudiced by its exclusion. On appeal Jones insists that the
suppressed information is material to his entrapment defense
because the agent he wanted to question had expressed in an
email that the lengthy investigation into Jones was like “beat-
ing a dead horse” given the many months that passed without
evidence of a crime. Jones would have liked to cross-examine
this witness to learn more about the witness’s view of the in-
vestigation and any persuasive tactics the FBI may have used.
We review the decision for an abuse of discretion. See Foy,
50 F.4th at 622. The law affords district courts broad authority
to impose reasonable limits on cross-examination to prevent
“harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally
relevant.” Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986). The
FBI sought to protect its witnesses and the integrity of its in-
vestigative processes in a widely publicized terrorism trial.
Jones has failed to show that, contrary to the district court’s
finding, cross-examination would have yielded material evi-
dence or that the evidence was otherwise unavailable to him
from other witnesses. Indeed, a centerpiece of Jones’s entrap-
ment defense was that the FBI persisted in its investigation for
Nos. 21-1482 & 21-1672 31
18 months and that he did not relent until it succeeded in
pushing him into the commission of a crime. With that posi-
tion already presented to the jury, we cannot conclude the dis-
trict court’s ruling had any impact on the trial’s outcome.
For these reasons we AFFIRM.
