US v. Tarek Mehanna (Court of Appeals for 1st Circuit, Case no. 12-1461), Opinion of the Circuit Judges, 13 November 2013:
Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat. Predictably, then, the government’s efforts to combat terrorism through the enforcement of the criminal laws will be fierce. Sometimes, those efforts require a court to patrol the fine line between vital national security concerns and forbidden encroachments on constitutionally protected freedoms of speech and association. This is such a case.
We turn to the defendant’s asseveration that the district court committed legal error in charging the jury with respect to his translations. At first blush, this asseveration is counter-intuitive because the court below evinced a keen awareness of the First Amendment issues implicated here. Pertinently, the court instructed:
Now, this is important. Persons who act independently of a foreign terrorist organization to advance its goals or objectives are not considered to be working under the organization’s direction or control. A person cannot be convicted under this statute when he’s acting entirely independently of a foreign terrorist organization. That is true even if the person is advancing the organization’s goals or objectives. Rather, for a person to be guilty under this count, a person must be acting in coordination with or at the direction of a designated foreign terrorist organization, here, as alleged in Count 1, al Qa’ida.
You need not worry about the scope or effect of the guarantee of free speech contained in the First Amendment to our Constitution. According to the Supreme Court, this statute already accommodates that guarantee by punishing only conduct that is done in coordination with or at the direction of a foreign terrorist organization. Advocacy that is done independently of the terrorist organization and not at its direction or in coordination with it does not violate the statute.
Put another way, activity that is proven to be the furnishing of material support or resources to a designated foreign terrorist organization under the statute is not activity that is protected by the First Amendment; on the other hand, as I’ve said, independent advocacy on behalf of the organization, not done at its direction or in coordination with it, is not a violation of the statute.
The defendant assigns error to these instructions in three respects. He says that they (i) fail to define the term “coordination”; (ii) incorrectly direct the jury not to consider the First Amendment; and (iii) should have been replaced by a set of instructions that he unsuccessfully proffered to the district court.
None of the defendant’s three claims of instructional error survives this review.
Although we agree that coordination can be a critical integer in the calculus of material support, the defendant’s first assignment of instructional error is simply wrong. While the district court did not use the phrase “is defined as,” it nonetheless defined the term “coordination” functionally. It explained to the jury in no fewer than three different ways that independent advocacy for either an FTO [Foreign Terrorist Organization] or an FTO’s goals does not amount to coordination. This distinction, which the court accurately characterized as “important,” went to the heart of the matter.
Moreover, the district court’s instructions harmonize with the text of the material support statute, which reads: “Individuals who act entirely independently of the [FTO] to advance its goals or objectives shall not be considered to be working under the [FTO]’s direction and control.” 18 U.S.C. § 2339B(h). The context made clear that the government’s “translations-as-material-support” theory was premised on the concept that the translations comprised a “service,” which is a form of material support within the purview of the statute. See id. §§ 2339A(b)(1), 2339B(g)(4). The HLP Court explained that “service,” as material support, “refers to concerted activity, not independent advocacy.” 130 S. Ct. at 2721. The instructions given to the jury embraced this construct.
In sum, the district court’s instructions captured the essence of the controlling decision in HLP, where the Court determined that otherwise-protected speech rises to the level of criminal material support only if it is “in coordination with foreign groups that the speaker knows to be terrorist organizations.” Id. at 2723. If speech fits within this taxonomy, it is not protected. See id. at 2722-26. This means that “advocacy performed in coordination with, or at the direction of,” an FTO is not shielded by the First Amendment. Id. at 2722. The district court’s instructions tracked the contours of this legal framework. The court appropriately treated the question of whether enough coordination existed to criminalize the defendant’s translations as factbound and left that question to the jury. See, e.g., Jones v. United States, 526 U.S. 227, 247 n.8 (1999). We discern no error.
The defendant’s third assignment of instructional error calumnizes the district court for failing to give his proffered instructions on the interaction of the material support statutes and the prophylaxis afforded by the First Amendment. We will reverse a trial court’s refusal to give a proffered jury instruction only if the proffered instruction is substantively correct, not otherwise covered in substance in the court’s charge, and of sufficient import that its omission seriously affects the defendant’s ability to present his defense. See Chiaradio, 684 F.3d at 281; United States v. Prigmore, 243 F.3d 1, 17 (1st Cir. 2001); United States v. McGill, 953 F.2d 10, 13 (1st Cir. 1992).
In the case at hand, the defendant’s proffered instructions were not substantively correct but, rather, contained legally flawed propositions. There is nothing to be gained by citing book and verse. A single illustration suffices.
The proffered instruction stated: “the person [providing the alleged support] must have a direct connection to the group [FTO] and be working directly with the group [FTO] for it to be a violation of the statute.” Contrary to the tenor of this statement, a direct link is neither required by statute nor mandated by HLP.
I feel my earlier concerns continue to have grounding:
In this case, the government has declared the act of translating Islamist militant propaganda to be a form of criminal “material support” if done in “coordination” with designated foreign terrorist groups. Thanks to the Supreme Court’s refusal to define the level of coordination needed before speech can be criminalized in the HLP ruling, the government is now embracing one of the broadest definitions possible, one that doesn’t even require direct contact or a mutually recognized relationship.
It is increasingly unclear how one could engage in “independent advocacy” on behalf of an FTO without being seen as “coordinating” with the FTO in the US government’s eyes. The reason is obvious enough: militant groups with political goals tend to request all the advocacy they can get. If someone in the US without any connections to Hamas were to start a website offering verbal support for Hamas and translating Hamas propaganda, it would be almost almost impossible to conclude that the individual was not “coordinating” its activities with Hamas using the US government’s definition of the term. This is because Hamas would most likely welcome and encourage verbal support from anyone in any part of the world, just as any other group would.