Legal Case Summary

I'm happy to hear argument in United States versus Assam and just a boy. Thank you, Your Honours. Good morning. I'm May the police report. My name is Robert Boyle and I represent Ziyagi. There are several issues in both in the police department. Ziyagi around the repellent Ziyagi. There are several issues which we both joined and we have conferred so although there will be some overlap we are framed the argument so as not to be repetitive. We are in recognition of the fact that we have three defendants we can give a little extra time. Yes. Thank you, Your Honours. We appreciate that. With respect to Ziyagi I intend to address the issues in the following order. First the claim of sufficiency of the evidence followed by the failure of the district court to give a adequate charge on the applicability of the First Amendment and then the some evidentiary issues given time and of course subject to the court's questions. The first being the admissibility or lack the error of the testimony of the purported expert Evan Coleman. So as the evidence was legally insufficient to establish that Ziyagi agreed with at least one other person to provide material support to a terrorist organization or that he agreed which is count one all that he agreed with at least one other person to actually murder or maim an individual in a foreign country. In this case what is interesting is that the government star witnesses their cooperators Daniel Boyd, Dylan Boyd and Zachariah Boyd all flatly denied any such agreement. Nor was their evidence that Ziyagi stated to anyone else that he in fact agreed to commit the crimes alleged in counts one and two. No weapons were recovered from Ziyagi or from any location attributable to him. And indeed after June of 2007 he broke off all contact with Daniel Boyd and was not arrested until the rest of the people in this case in July 2009. Now of course the government submits that there were circumstantial evidence which showed the evidence of disagreement and I'd like to go through some of that particular evidence to show that why even when crediting it in the government's favor and crediting the government. Can I ask you about one piece of that? Sure you're on. What about the conversation about purchasing with Mr. Hassan about purchasing an AK-47 and then the participation in training with the Hassan's 22 rifle and Boyd testified I think that training for Ziyagi. Those were two pieces of evidence that struck me in this case. Yeah and I'd like to address those, Your Honor. The discussion concerning the purchase of the AK-47 while certainly admissible didn't establish an agreement to actually commit the crimes alleged in this indictment. And with respect to I believe Your Honor is referring to the conversation which was in the automobile concerning the peace shooter the 22 caliber rifle which was exhibited in the in the car. What we have here was a statement and I'm not sure whether I think it was confusing as to whether it was by Yagi Oha Hassan that it was going to be used for training. Daniel Boyd himself testified. The 22 was hidden down in the in a compartment in the car somewhere. According to the testimony it was it was in some kind of a box which was hidden in the in a secret compartment or some kind of in the car right

. It was it was it was inside a compartment to your honor and it was it was shown to Daniel Boyd but still I would submit it in of itself does not establish evidence of agreements. You have to look at all this stuff. Absolutely. Absolutely. I don't look at it in isolation. And the court and I struck me that that must have modified the automobile somewhere and others so they hide that entire weapon down in that compartment in between the seats. I don't think that that was the evidence the evidence of trial but I want to address the issue about being used for training which Daniel Boyd testified to. Boyd said he saw it. He saw it. There's no question in the car. Why would they hide that thing down in the in that spot? You're on this there's there's any that there's certainly any number of reasons and what what I submit to the court is that in and of itself hiding it in a compartment is not evidence of an agreement. Daniel Boyd also testified that the term training is one that's commonly used in the in the community. It doesn't necessarily mean training for the purposes of job. And certainly this didn't much of the case depend upon the jury's assessment of whether the trips of broad were for family purposes and for marriage or on the one hand or for engaging in illicit criminal acts on the other. I mean much of the much of the case hanged on whether the jury believed Mr. Boyd's testimony that the the trips to Jordan and the trips abroad were not for innocuous purposes. Well except that you're on a Mr. Boyd didn't testify to that. Mr. Boyd and his sons Zachariah and Dylan all testified that now addressing the 2007 trip and I'll get to the 2006 trip that they were in fact for a family thing. Now there was that they he brought his sons over to the Middle East because to help in the grief process because he had just lost one son Duquois. With the jury did not matter. This is the government's proof and there was no and this is the this is the government star witness who was saying this and there's and there's nothing else coming from the government to say that it was anything otherwise. Well on 612-07 Boyd and and his sons Zachariah departed the US Tel Aviv in the very next day on 613-07-Yagan has signed the party rally for Tel Aviv. That's right, that's right, Your Honor. And there's a real link time wise to what what seems to be going on. Oh no question but the key issue here what was it what was that? And Boyd made the reservations for him and Boyd and Boyd made the reservation travel reservations and they wrote they weren't the Jordan they were the Israel and they wouldn't let him in Israel and they sent him back somewhere I'd determined him somewhere and then they went some then they can't end it up and going to do it right and then it went over to get married and that was code for something. Well you're out of first there was no in in terms of the way Boyd and this is the government's proof now. Not the defenses proof describe the circumstances of Yagi and Hassan going to Jordan then was that Yagi found out he was going it's a G can I go to Boyd says you can go because you has has nothing to do with us but once you're over there you're on your own and Hassan says I want to go. The only other proof then and there's no evidence in the FBI agents who testified a trial stated they could find no proof that they engage in any nefarious activities in the Middle East and that's in terms of 06 and 07 but they went there for a purpose or purposes multiple purposes. I would see you describe trying to get to the battlefield

. I would say I would submit that there's no evidence of that your honor there was there was supposition of that but there was no there was no proof either in terms of Yagi statements or statements made by Yagi to Boyd that that was in fact the purpose. It was certainly it was circumstantial right but the conversation I thought that the that the use of the word marriage could be taken as a code for the battlefield. Boyd said I don't think it was Boyd it was where we one of his sons testified that that could be that could have happened and this was this was a person who had no direct contact with in terms of that terminology with with Mr. Yagi and the term and we have to look in in in 2006 Mr. Yagi says I'm one of the reasons he's going to Jordan is to get married Daniel Boyd testified. That's the understanding they understand everybody understood each other well we get talking about we understood we understood and and Boyd in terms of 2006 and the testimony regarding marriage actually provided Ziyad Yagi with the name of a potential marriage prospect and the only thing he testified about the 2007 conversation was that Mr. Yagi and Mr. Hassan looked at each other sheepishly when the word marriage was stated and he said there's nothing was nothing more to it than that. Can I ask you about it because the the evidence supporting the counts is an important part with this matter when Mr. Yagi returned he was he introduced Mr. Mohamed to Mr. Boyd and then the government says on page 91 of his brief that Mohamed subsequently engaged in a quest for Ziyad and that Yagi knew his interest in Ziyad when he introduced him to Mr. Boyd and then Yagi also after returning continued to train with Mr. Hassan in firearms and I'm just wondering after a certain point don't these pieces of evidence begin to add up to the point where jury can draw perfectly reasonable inference that we allow them to do all the time. A jury can can certainly draw inferences but I would like to address those evidence because the inferences of illegality there would not be reasonable. This is the actual question that was that was introduced at trial regarding Yagi and introduction of Jude Mohamed and was that page the appendix of 1797 question. This is by the government on redirect examination. Did Mr. Yagi in fact bring co-defend and Jude Mohamed to your store answer I mean comma they came together yeah the government asks for an inference with two people arriving at a store together that this is somehow presenting Jude Mohamed to the conspiracy. The evidence is irrefutable that after that day there was no meetings where Ziyad Yagi and Jude Mohamed attended at the same time. He did not miss the Yagi, did not participate in any training and Mr. Mohamed went out of it on his own. Thank you very much. Now also we appreciate your briefs and simply because we don't get around to every issue in the argument that you've raised in your brief you've not waived those issues at all and we appreciate that. I appreciate that, Your Honor, because I think that the other issues are reversal as well. We understand you have a way of the thing. Thank you. Let's hear from Mr. Boyce now. Good morning Your Honor. I am Dan Boyce and I'm here representing Omar Hassan

. I was both trial counsel for Mr. Hassan so I participated in trial and I'm still on here as a public counsel. Your Honor, I want an acquittal for your client. Yes, that is correct Your Honor, it's the only acquittal of any of the charges of any of the roughly six to eight code of evidence in the case. Your client was convicted on count one only the providing support to a terrorist organization. And there are essentially four trial errors that I'm ready to discuss and there are two synancing errors that I would also like to discuss if we have time. The first one is the insufficiency of evidence as to Omar Hassan. Mr. Boyce has already started into that so I may be brief on that. The second one is the admissibility of some evidence social media and opinion evidence and then the subsequent narrowing or inadmissibility of some of that evidence which we contend validity to rule of completeness. The third issue is the failure to properly instruct the jury on the first amendment. The fourth trial issue is the courts refusal to instruct the jury on the second amendment. And then there are two synancing issues first the application of the terrorism enhancement and secondly the courts refusal to apply a role in the offense reduction. With respect to the evidence and the insufficiency of evidence against Omar Hassan, the evidence could be really grouped into three categories. First, conversations about violent G-Hide and there were a number of people who talked about the young Muslim men and boys in that community and the rally community high school students and college students who were debating about violent G-Hide and what the obligations of a Muslim are. The second major piece of evidence specifically against Omar and the only over at act in the superseding indictment was the summer of 2007 trip over to Israel where they would deny entry and then Omar and his friends Ziyad Yagi then went to Jordan and hung out at the beach. He and Yagi went in 2007 together. Correct. And I asked the question I asked briefly on as far as count one is concerned the question it seemed to me was whether he went in Jordan to visit his family and find or meet a wife or whether he went to engage in spread terrorist propaganda and so one is a perfectly legitimate benign purpose but the other would be providing material support to terrorists and the question is don't wouldn't we leave that kind of credibility matter up to a jury. But there still has to be an agreement and I agree with Mr. Bull it was absolutely no evidence that Omar Hassan agreed to a provide personnel be to provide agreement. You know have these agreements all written up and notarized really. Certainly not. The jury could infer from the facts that the defendant and others conspired to agree. I would submit to Judge King that there was no evidence at all circumstantial or otherwise and so who Omar Hassan agreed with that's exactly the position you need to do a spouse but but the jury got her the evidence and we take the view most favorable to the prosecution in the context of look at these things right. Absolutely I think the standard is whether the evidence in light most favorable to the prosecution provides and here's the key substantial evidence of guilt. What do you do what counsel what do you do with the fact that Hassan was an active participant in conversations with Mr. Boyd and which Mr. Boyd emphasized the importance of violence and the best strategies for achieving that violence and Hassan was in regular contact with Mr. Boyd and that prior to the trip with Mr. Yagi Hassan actually purchased a 22 rifle from Mr

. Yagi. Aren't those pieces of evidence that that jurors could consider? Certainly they can consider it but it's got to all add up to show an agreement. First of all he did not have regular conduct with Mr. Hassan. Mr. Hassan testified that he spent less than an hour with him one time and it was a total of maybe two hours that he ever even taught with or saw Mr. Hassan. Is that a jury argument? No I would argue you've got to consider all the evidence and it is their substantial evidence that Mr. Hassan entered into an agreement with his. He purchased the tickets for him when he traveled to Israel. He used his own money to purchase the ticket but was Boyd involved in that? Boyd made Boyd bought Yagi's ticket. I'm not sure if he also bought Hassan's. Let's assume arguing because I don't I don't remember specifically how that came out but even if Mr. Boyd did there's no evidence just because he bought him a ticket to travel overseas. The point you were making before is there's very little contact with Mr. Hassan and Mr. Boyd. Right. If he's purchased tickets for him something's going on. The time they were over there was with Yagi Hassan was a friend of Yagi and Yagi had contact with Boyd. When they were over there in the Middle East they tried to contact Boyd several times unsuccessfully. They even contacted some of his family back in North Carolina trying to reach him. Right. And it is. And if you successfully. Right. And if you read the testimony of all three boys together they all basically said we didn't have an agreement with Omar Hassan to do anything that was not the purpose of the trip. They were going separately and the father Daniel Boyd even testified he had offered to show them the holy sites showing the boy son testified that Hassan and Yagi went on that trip to participate in violent G-haw. Here's what he said. Dylan Boyd said I honestly believe that G-hawd was the purpose of the 2007 Middle East trip but that was with the limited information I had and there was no evidence that Dylan Boyd ever talked to Omar Hassan about that trip. There was all this supposition and hearsay on hearsay as to what the boys might the boys meaning Omar Hassan and Yagi what they may have intended but if you read the three boys who testified none of them said there was any agreement before or during that trip to provide material support to a terrorist organization

. What if you agreement your man was into was only with Yagi he had still be guilty. There's no evidence that he did what he had. Hypothetically you might own that trip with him. I've drove there trying to get into Israel and bouncing around the Middle East and trying to contact Boyd unsuccessfully and all that stuff. There is no other. And what if the jury side well at least those two guys were conspiring with each other trying to reach the battlefield in the Middle East and they wouldn't even have to reach the question of whether Boyd was part of the conspiracy or not but them. Your hypothetical judge king is that if there was that agreement. No, but under law that would be a nut. No it would not. I would submit to you judge king that is killed by association. You need something more than just associating with Ziyah Yagi. Everybody that's named as a conspiracy has to be guilty. They could find something involved and something not involved. This got to find a couple of conspirators. There is no doubt that Umar Hassan didn't need to know every single code. They could have found him conspired with somebody who wasn't even named in the indictment. Could have but they didn't. They could have it. But if the evidence permits it that would just that would be enough to undercut your argument that the evidence not sufficient. But I would respectfully submit when you search through the record when you come through it and read all the testimony is just not there. But um we have mentioned the fact that the firearms training and as I understand it there was he posted a video about his training regimen and that ended with a troops support the troops emblem um which was interpreted as code for engaging in violent jihad I mean. It was a video available to the world. It was a workout video where he jumped up on a table, jumped down, jumped up, jumped down, pumped iron, did weights. And as Mr. Boyd testified Umar was a big goofy kid who was more interested in working out than he was talking about violent jihad or words to that effect. And that video was years after the 2007 trip. The evidence presented to the jury was Umar Hassan went on that summer of 2007 trip and then disassorted to see I did himself from the Boyd family and didn't even know any of the other conspirators. So they tried to bring in a 2009 video clip on his phone of him shooting a gun across a lake. They tried to use a workout video that was a year after 2007 trip. So there was no link. Did you have you had a chance to point out all of that at trial? We objected to it and that's that's part of it

. I mean you went after the video at trial Yes we did. We did. You know you met with some success. Um the um what what what what seems to me you have a trial that last almost one month um that in this seems that that's a long long trial and part and and it seems to me you have a lot of evidence about training regimens and travels abroad and recruitment of others. Now in Mr. Hassan's case that doesn't seem to I it was I was less clear about recruitment. I didn't see that. I did with Mr. Yagi but I didn't see it with Mr. Hassan but I certainly saw the training and the traveling abroad and is just came points out the constant contact with Mr. Boyd before and and um and and after um but anyway um when you have jurors that sit through a trial which lasts one month long um shouldn't we at the end of the day give some um a credit to the conclusions that they came up with. I mean sometimes we have trials that maybe lasts a half a day or a day but this one went on for a whole month right and the problem was they they heard over 40 witnesses who testified there were literally hundreds of pieces of evidence that were introduced throughout that trial and hardly in any only a minis fuel amount even related to Omar Hassan and again I think what we had here this case was tried on the 10th anniversary of 911. We vigorously opposed the date of the trial starting the the week of 911 and you may remember that we were bombarded with information about terrorism and the 911 and you remember it was a time of time. We raised we objected to it and we opposed to it but we didn't have space to make an impression. But my point is guilt by association and when you go back and you look at the record there is no agreement the trip is an innocuous trip there was no agreement as to going over there conspiring with anybody to provide material support to a terrorist organization. Making a very good jury argument. I think I'm making a very good a pellet argument because it's got to be evidence to support me. I thought you were making a wonderful closing. Well you made a good you made a good closing argument at the trial and you were successful and it mean which which also indicates the what it supports what Judge Wilkins was talking about the jury was conscientious it differentiated on your client substantially and only could make it even on one count. But when you look back again at the whole record there's no evidence to show that that training for instance was in order to provide material support to a terrorist organization. Who was he training for what group was he trained to provide training to what the financial they said he bought his own ticket and that's providing financial support. The trip again there's an innocuous trip what group who was he who was he providing material support to it's it's just lacking. The other problems you're on or was then we got the jury and we're giving you some extra time can you you've reserved some time for a rebuttal to get it okay yes sir thank you. Mr. Fisher like to hear from you. I'm sorry. May I please the court clerk Fisher on behalf of the appellant Heisen Shariffy in this case. I would certainly echo the arguments made by the other council regarding this efficiency of the evidence and I'd like to amplify on those a little bit as it pertains to Mr. Shariffy. Now we would certainly agree that when you read this very lengthy transcript the word jihad pops up over and over and over again I would tell the court reading this thing was incredibly tedious and I thought if I had to read jihad one more time I was going to pull my hair out. Heisen Shariffy had a religious political belief that it was his duty as a Muslim to engage in jihad somewhere

. But that's not a crime it's only a crime if that belief and I think that ties into the first amendment arguments that's for the court that we've all joined in evolves into some specific plan to commit some specific terrorist act in violation of the statutes in question. What about the June 7th 2008 it's alleged in the as a over enactment indictment where the board accepts $500 from your client to be used to help fund violence. Well I would contend your honor if you read the testimony it was given by Mr. Shariffy I think it's pretty close to a quote for the sake of all whatever that means and I think you can interpret that a variety of different ways. I don't believe boy it's testimony was this is for some particular action it was for the sake of Allah which again goes back I think to what Shariffy's religious belief or what he felt his duties as a Muslim one. Now there's one thing I wanted to ask you about on page 99 to 100 the government knows just one thing that Mr. Shariffy helped Miss Boyd build a bunker in which to hide weapons. I mean that doesn't connect with anybody's beliefs. You don't have a first amendment right to I mean because I take everybody in this country has a right to to their own beliefs and we take that very seriously but the building of bunker in which to have weapons and helping Mr. Boyd do so that that goes beyond just believing in something which we which we respect but but building a bunker is not tied for weapons isn't tied to somebody's beliefs that's that's conduct and furtherance of a criminal act isn't it? I would contend Mr. Shariff that is conduct and furtherance of what might be a political act or a criminal act excuse me if there is a plan to commit that specific criminal act otherwise it's building a basement you put some guns down there you need one additional step you need Shariffy and Boyd or at least one other of these people to agree we're going to build that bunker we're going to put those guns down there and we're going to use those guns to take out an NC State game or something like that as an act of terrorism. What about the recruitment of Mr. Weeks? to I mean the here all three prongs of present the the training the traveling of Brody went to those of those didn't they? Yes sir and the recruitment of others to engage in jihad what I want to emphasize to you is this is active conduct this is not simply speaking out about something this is active conduct in furtherance of as the jury found a conspiracy to kidnap murder made of persons outside the United States and no one has a right to do that. No one certainly does I could not agree more with that but again kind of following up on the last argument I made in response to the previous question yes indeed he talked to weeks weeks perceived that what his version of Islamic theology was I think the word was a weaponized form of Islam and then there were some what if discussions well we've got some American military base over here maybe it's the duty of us to attack that base maybe there was never any specific base name and most importantly just like with Pantico there was no specific plan to do anything. You talked to boy they planned to attack Pantico. Well if you take what Mr. Boyd said to the FBI I think the response when they asked him about Pantico was quote that is pure crap because there was no specific plan yes maybe if we wanted to we could do it I think boyd also said that well we talked about Pantico that we could do that if there was a factor if it was in furtherance of something and that runs through as recurring frame straying throughout this trial maybe we could do this perhaps we should do that but there was never that concrete evolution of these maybe plans into a concrete form of action I would submit or that it takes that level of concreteness before you have political or religious ramblings turning into a criminal conspiracy for any of these judges. Why can't it just be selection of alternative targets man you you you phrased it one way but why not it why isn't it just a selection of alternative targets maybe on the maybe maybe we can do this maybe we can do that but the point is is that that is that if there's evidence to support that that they're the notion that they would travel they would do all these various things and support of it you've got everything it seems to me you need as over an action furtherance of these things. You know I certainly understand the courts question but again I would come back to that I think you needed that one additional step beyond maybe we could attack Pantico okay this is how we're going to do it and let's start the plan in row I would continue what you have here is that most of encoling are perhaps a preliminary situation that never evolved into the full conspiracy and just yeah I know I'm over my time but I think the fact that there was this degree of incompleteness to the conspiracy. There's a judge gave instructions on all that they did they did no question about that but you know what I'm and the issue was resolved by the jury we're back again to in the light most favorable to the prosecution well in the light made did they carry the day on the points that you're far yeah yes sir I come and you argued to the jury a lot what well I wasn't there unlike this was I can't always have very yes lawyer did yes sir no no question about that but if I can expect one one final point I do think the incompleteness of the evidence the certain lack of specificity is what made the expert testimony of Mr. Coleman particularly his ultimate statement that this group had all of these characteristics that he named as indicating a homegrown terrorist organization so damning and I know we've all all briefed that thank you thank you very much Mr. Cal Hafer would be pleased to hear from you sir may I please support I Jason Cal Hafer and I along with Christine Fritz represent the United States the government's position is too full the appellance convictions and the court's evidentiary rulings were supported by credible evidence as well as sound legal reason and that's secondarily the jury instructions and the uh appellance sentences were appropriately based on the facts of this case and the charges at hand turning specifically to the sufficiency of the evidence argument that has been raised a few times here I take dispute uh or issue with a few of the terms utilized first of all that annual void was a star witness this case was a conspiracy case it dealt with bricks and a wall and often conspiracy is is not proven by showing a a notarized agreement as was mentioned by judge you telling us that Mr. Boyd was not a star witness I believe that this uh actually no yes you're on right I am saying that I think an awful lot of the briefs seem to concern what he said yes actually your own brief seemed to treat him as a star witness I mean whether he was or was not may not be here or there but I certainly read a great deal about Mr. Boyd in your brief he was a important witness he was not the star witness you honor you had other co-conspirators who testified both Dylan Boyd and Zach Rive Boyd you have two sources who interacted with the individuals well when you got to indictment you had to be prepared I supposed to try with try the case without any of the boys correct because you indicted them with these values absolutely right and they played guilty they you turned them as I say subsequently yes you're honored and we were absolutely prepared to move forward with the uh evidence at hand which included email evidence that had statements of Mr. Hassan and and Mr. Yogi as well as statements that had been given to other individuals so this case my point is you claim here the cross examination of the government's witnesses was cut short I apologize you honor could you repeat that is there any claim on the part of the appearance of cross examination of government witnesses was cut short I don't believe so this seemed to be you know the sufficiency arguments and instructional arguments and some evidentiary arguments but just in terms of the overall fairness of the trial I want to make sure that the defense had a chance to cross examine this was a lengthy trial your honor and it is is the general's position that the uh all the defense had the opportunity to cross examine all the witnesses I didn't see I didn't see a claim that we didn't have a chance to go with the government's witnesses that is correct they're complaining in the briefs and I'm saying much about this morning about y'all putting on that expert he that was pretty open ended that get into that but what mean you normally don't have a doberte expert in a in a criminal case I'm just taking seriously case yes your honor uh this was bring in an expert who's a professor or written books or something and he gets a print says well I've studied all this this is what I think happened well I think the the judge put it put it well I mean she she thoroughly vetted the issue both at the doberte hearing as well as through a written motion afterwards and she specifically noted that the evidence in this case was voluminous that it was complicated there was a wide variety of ideas terms people organizations locations theories various aspects of radical islam all of those were necessary for uh mr. Coleman the the expert to testify to provide a broader frame of reference and he did so in this case as I'm sure you're aware I'm looking at the record there are a lot of concepts that the the typical person just simply isn't aware of as well as locations geograff it mr. Coleman's been admitted as an expert in a number of other cases yes your honor did he tie this biology hot to getting married was that all rely on boys test no it was a conglomeration your honor testified to the terminology often used by these networks these geograff Islamic extremists networks um he did mention uh terms such as uh good brothers uh such as uh marriage or finding a way these rocks are a way was that finding a way to the battlefield yes you're on that was a concept it's talked about was that talked about by Coleman and boy does well or well it is the best of my recollection your honor yes it was a huge problem I was your honor yes um it certainly was uh was a concept he discussed um at length and then uh the application of that was discussed with Daniel Boyd as well as Dylan Boyd who who expressed that these statements that this terminology the verbiage that they were using was all intended to be covert which goes back to you you're not going to have this sit down agreement yes we agree to travel overseas to main murder or kidnapped individuals and to provide support towards that cause no you're not going to have that what you're going to have is a lot of bricks in the wall that display that and in this case you have that you have much much more than words as uh as the appellants would seem to imply you have uh purchase of of travel you have uh actual travel you have seeking out of specific locations as you will call while uh Ziad Yagi during 2006 was over in Jordan he was emailing Daniel Boyd saying is this the mosquit the one where we were talking about because he's talking about a conversation that previously had and Daniel Boyd testified that that was in reference to the best brothers and his understanding of what the best brothers meant was those that are like-minded those that are of the opinion of this ideology this ideology that that that requires violent acts up to and including killing individuals overseas you had other you had other actions taken um the recruitment efforts the transfer of propaganda itself not stating your opinion but rather providing propaganda documents whether it be written videos CDs you had physical training that took place uh mr. saun makes makes uh um the case that listen uh this was just a video of a kid jumping up and down put that in context again another brick in the wall put that in context with Daniel Boyd's statements that yeah they talked about the need for physical training the need for physical training for this cause this uh the war on horse training yes and firearms training they were physical training and there was firearms training absolutely the physical training in the ross video it's important because it shows him doing that but then it ends and it ends with a picture of a flag a black flag a black flag that has on it the shahada which which is which in and of itself the Shahadah is, it's a declaration of the Muslim faith. Simply that there is about one God and Muhammad is his messenger. However, superimposed on this was an outline of a firearm, an AK-47, not an US firearm, and a statement support the troops

. Mr. Coleman, again being necessary, testified about the black flag and that the black flag was commonly utilized within the Shahadah's network. The training, the firearm- The female address, a coalition to call 47. Do you all argue that that has had some relevance? Absolutely, all of the indications- Who got the email address? That belonged to Mr. Yogi, your owner, and all of the indications from their Facebook page, contrary to simply being- The collusion of the FBI's banter. That built the AK-47. I apologize, Your Honor. Collision to call for the designer of the weapon, the AK-47. Correct, Your Honor. Yes, commonly recognized as a weapon utilized by the Musjid-Din or the individuals that fight and cost for jihad overseas. The Facebook pages were rife with such evidence, Your Honor, indicating all an aggressiveness, and an aggressiveness towards US troops, and aggressiveness towards a certain class of individuals, and that class of individuals were non-Muslims. All in line with the propaganda that they possessed all in line with the statements by Daniel Boyd and Dylan Boyd as to what they were discussing in their beliefs. You know, in reference to Mr. Boyd, you certainly don't agree with everything you had said on the list. I would agree with that, Your Honor, and I said as much during closing that the jury was free to take, to choose and pick what they believed from that witness. I acknowledged this is a cooperating witness. Government often has difficulty with such witnesses. However, I would ask the jury to compare his evidence, the statements that he said on the stand with the evidence that was provided. What was cooperated with what he said? And it's my understanding that at the appellate level here any inconsistencies between witnesses or within witness testimony should be resolved in favor of the government. Well, they're all resolved in favor of the jury verdict. Yes, Your Honor, and as of the facts in a light most favor. Yes. Now, the weapons training is particularly valuable. The government took and went through great pains to lay out what type of ideology was being espoused by Daniel Boyd that Mr. Hassan and Mr. Yogi and Mr. Shreethi all participated in conversations and all expressed agreement towards that ideology. Now, that ideology, it is sort of the basis for things here because it is a little, first of all, they were not charged with conspiring to commit G.I. That's not a charge. And G

.H. and himself is an innocuous concept to some degree. It has many, many, many meanings. But what it meant to these individuals is what was most important. Under this ideology, they believe that any non-Muslim is known as a cougar. And it's somewhat of a derogatory term used by them. That the cougars are a hindrance to the further growth of Islam. That Muslims, therefore, should not be ruled by cougar. That Muslims should be ruled under Shreel law. And that any non-Muslim government is therefore a cougar government and one that is in effect precluding and stopping Shreel law from happening. Therefore, under their cultish belief, you are obligated as a Muslim to take an offensive attack so that you're not later put in a position of being defensive. And so if you are a non-Muslim and you are in a Muslim land, that's a problem. And ridding the world as much of this propaganda states, for example, the book of G-Hod provided by Ziad Yagi on a Facebook post, that this concept, these people who are non-Muslims, the cougar, are a cancer. That was the word utilized. And that it must be cut out. Now, understanding that was what they believed. The appellants would have you. It's similar to the appellant asking you to, well, yeah, they all believed that, you know, robbing a bank was appropriate. But, hey, nobody mentioned which bank, even though, yeah, they were all traveling to that bank, they were all going there. That it's just big talk. That's not what the evidence showed. This efficiency of the evidence is overwhelmed. And I apologize I'm getting sidetracked on the issue that I wanted to point out with the firearms. My point with this ideology is this is what they sat around discussing, as testified to by Daniel Boyd, all of them being participants and in agreement with. And then, later on, prior to the 2000 trend, they're in a car. And the reason they're in that car, according to Daniel Boyd, is that they had been at the mosque, at essentially a church. And, Yagi and Hassan came up and asked Daniel Boyd, we need to talk to you privately. So they went for a ride. During the ride, that's when they showed him the weapon. So first of all, it's we need to talk to you privately. There's a covert nature to this

. Secondarily, when they do provide it to him, it is, it was difficult to understand, granted from the record, but it was somewhat covertly in some kind of compartment between the seats. And when they show it to Daniel Boyd, not showing it to their father, whom they caught with, or something, hey, dad, I'm training with this, no, they're showing this to Daniel Boyd, advocate of these beliefs, who they sit around and discussing. And they say, we're training. That's action. And it is hard, hard to come to any other conclusion, but that they were training in order to affect, not maybe a specific plan as has been, or a concrete specific plan as has been stated was necessary. But rather, as under the law, they understood the own law from nature of a plan or scheme. That's what they were moving towards, and that they knowingly and intentionally joined that plan or scheme. So yes, I believe that there was far more than simply words in this case. And that, um, I'm going to try to put the categories that went beyond me awards. It was physical and firearms training. Yes, you're right. It was recruitment. Yes, sir. It was different forms of financial support. Not a huge amount, but $500, $8, $80 there. Yes, Your Honor. There was travel abroad, communication with Boyd before, and afterwards. So by missing any categories, it's not just an encode. Kind of conversation. It's a question of not a belief, but of deeds to put a violent plan into action. Yes, Your Honor. And specifically, for example, charge two required over that. That's the way that jury looked at it. Yes, Your Honor, I believe so. And they were instructed as such in that specifically charge two required over an axe. And these were all items presented to display them. With regard to the first amendment that has one mentioned, Your Honor, I think it important. The instructions weren't good enough. Right? On the first floor. Yes, Your Honor. Yes. And I think that ties into the, as I stated out, that the instructions were based off of the facts of this case and the charges of this case. And the district court went to great pains to review the instructions requested by a peasant and went to great pains to determine whether any of those would be appropriate. And she appropriately executed her duty. The government will argue that the district court has a duty to exclude argument regarding a legally insufficient defense. And there's a variety of reasons for that. I think it falls right in line with, for example, 403, irrelevant evidence that the procative value of an legally insufficient defense is simply irrelevant. It's a problem. And it's a problem because it has a danger of unfair prejudice to the government. It additionally confuses the issues and misleads the jury. And the fact of the matter is here, as Judge Wilkinson asked me, the defendants at trial had multiple opportunity to cross examine each one of these individuals at great length and to test it. And what they're confusing here is their ability to test the evidence and argue the evidence with the First Amendment. They were certainly free to argue, look, these guys said these things, but they didn't mean X, Y, Z. The district court instructed the jury that no conviction could be based on police align. The district court instructed the jury as to the statement that you have the right of association, you have the right freedom of religion. As to these charges, the First Amendment is not a defense. And that is an appropriate instruction because what the government, what the misleading here is that what the appellants are essentially getting at is if the government meets all of its elements for this burden, and the jury was appropriately instructed as to that heavy burden. In all the elements. It's to the elements of the crime. Correct. And they were instructed what the First Amendment defense argument would do is say, yes, they may have met that, but here's the First Amendment and you have a right to do these things. No, and that is a legally insufficient defense in this case. First Amendment simply isn't- They could have instructed that you not that ideas alone are not sufficient to no matter how they may disagree with it, ideas alone are insufficient and you didn't give possession instruction. That I'm sorry, I missed the first part of it. Ideas alone are not sufficient to found an addiction. Yes, she gave all the elements, but she didn't give an instruction to the essentially, to the effect that ideas alone are not enough. That would be a fair statement. She did not give that specific instruction. But she gave all of the elements. Correct. And I suppose- What you say is sufficient. Yes, Your Honor, and I think that going that additional step would only be inviting some type of argument that for some reason the jury would be likely to do that

. And I think that ties into the, as I stated out, that the instructions were based off of the facts of this case and the charges of this case. And the district court went to great pains to review the instructions requested by a peasant and went to great pains to determine whether any of those would be appropriate. And she appropriately executed her duty. The government will argue that the district court has a duty to exclude argument regarding a legally insufficient defense. And there's a variety of reasons for that. I think it falls right in line with, for example, 403, irrelevant evidence that the procative value of an legally insufficient defense is simply irrelevant. It's a problem. And it's a problem because it has a danger of unfair prejudice to the government. It additionally confuses the issues and misleads the jury. And the fact of the matter is here, as Judge Wilkinson asked me, the defendants at trial had multiple opportunity to cross examine each one of these individuals at great length and to test it. And what they're confusing here is their ability to test the evidence and argue the evidence with the First Amendment. They were certainly free to argue, look, these guys said these things, but they didn't mean X, Y, Z. The district court instructed the jury that no conviction could be based on police align. The district court instructed the jury as to the statement that you have the right of association, you have the right freedom of religion. As to these charges, the First Amendment is not a defense. And that is an appropriate instruction because what the government, what the misleading here is that what the appellants are essentially getting at is if the government meets all of its elements for this burden, and the jury was appropriately instructed as to that heavy burden. In all the elements. It's to the elements of the crime. Correct. And they were instructed what the First Amendment defense argument would do is say, yes, they may have met that, but here's the First Amendment and you have a right to do these things. No, and that is a legally insufficient defense in this case. First Amendment simply isn't- They could have instructed that you not that ideas alone are not sufficient to no matter how they may disagree with it, ideas alone are insufficient and you didn't give possession instruction. That I'm sorry, I missed the first part of it. Ideas alone are not sufficient to found an addiction. Yes, she gave all the elements, but she didn't give an instruction to the essentially, to the effect that ideas alone are not enough. That would be a fair statement. She did not give that specific instruction. But she gave all of the elements. Correct. And I suppose- What you say is sufficient. Yes, Your Honor, and I think that going that additional step would only be inviting some type of argument that for some reason the jury would be likely to do that. And in this case, they were instructed as to the elements that were necessary. Which of the elements involved over-adax and which of the counts involved over-adax required over-adax and which of the counts simply required in the greener? The easiest way to look at is the count one is the only count that did not require the over-adact when regarding a conspiracy. All right, the count one simply required an agreement. Correct, Your Honor. All right, how many counts were there? Believe 11, Your Honor. But there are only five that are pertinent here. Yeah, the ones pertinent to these individuals would be one and two. Count one was one that did not have an over-adact for- Correct, Your Honor. And as to that count, the construction was given about the necessity for an agreement. Correct, Your Honor. And count two required an over-adact. And there went beyond simply talking. And that instruction was properly here. Yes, Your Honor. Has been unlawful agreement. Yes. Right, the unlawful agreement. Correct, Your Honor. Yes. And as first amendment and defense to it would more be more like a legal issue than a jury issue. Yes, Your Honor. And I think the judge appropriately- The illegal attack on the statute. Yes, and the judge appropriately determined that you don't have a first amendment right or a defense against your words that are in agreement of a conspiracy. Yes, you don't have a first amendment right or a second amendment right to conduct illegal acts or to agree to commit illegal acts. I mean, you have a first amendment right to your beliefs without question. But you don't have a first amendment right to commit illegal acts or to launch a plan to commit illegal acts. I mean, but the point is the difference between belief and conduct and belief and planned action was clear. Yes, Your Honor. I believe that the government presented that evidence and argued it exactly in that manner. The, if the government is, or if the court is pleased the argument with regard to the first amendment, I'll address briefly the terrorism enhancement. The sentencing

. And in this case, they were instructed as to the elements that were necessary. Which of the elements involved over-adax and which of the counts involved over-adax required over-adax and which of the counts simply required in the greener? The easiest way to look at is the count one is the only count that did not require the over-adact when regarding a conspiracy. All right, the count one simply required an agreement. Correct, Your Honor. All right, how many counts were there? Believe 11, Your Honor. But there are only five that are pertinent here. Yeah, the ones pertinent to these individuals would be one and two. Count one was one that did not have an over-adact for- Correct, Your Honor. And as to that count, the construction was given about the necessity for an agreement. Correct, Your Honor. And count two required an over-adact. And there went beyond simply talking. And that instruction was properly here. Yes, Your Honor. Has been unlawful agreement. Yes. Right, the unlawful agreement. Correct, Your Honor. Yes. And as first amendment and defense to it would more be more like a legal issue than a jury issue. Yes, Your Honor. And I think the judge appropriately- The illegal attack on the statute. Yes, and the judge appropriately determined that you don't have a first amendment right or a defense against your words that are in agreement of a conspiracy. Yes, you don't have a first amendment right or a second amendment right to conduct illegal acts or to agree to commit illegal acts. I mean, you have a first amendment right to your beliefs without question. But you don't have a first amendment right to commit illegal acts or to launch a plan to commit illegal acts. I mean, but the point is the difference between belief and conduct and belief and planned action was clear. Yes, Your Honor. I believe that the government presented that evidence and argued it exactly in that manner. The, if the government is, or if the court is pleased the argument with regard to the first amendment, I'll address briefly the terrorism enhancement. The sentencing. Yes, the sentencing terrorism enhancement. Unless there are any further questions with regard to the first amendment issue. Thank you, Your Honor. Sir, I will point out with regard to the terrorism enhancement that has been an issue as briefed by the appellants. This very much goes hand in hand, I think, with the sufficiency of the evidence. Is that about everybody? Yes, Your Honor, it did. All up God. It's a huge up and huge up matter. Yes, Your Honor. And the support that was used for that is very much hand in hand with the factual sufficiency evidence that we brave as well that we've been talking about. That's really a factual finding, isn't it? It very much is, Your Honor. The one additional step that the terrorism enhancement sort of looks to, whether or not, has to be- It's a question of intent. Yes, has to each individual. And it's a question of, is there an intent to promote a crime of terrorism or to provide material supposed to terrorism? That is true. And then that goes back right back into the sufficiency of the evidence with respect to intent. Yes, Your Honor. Although the government will acknowledge that it additionally, along with that, it phrases it such that the specific intent must have been calculated to influence or affect government conduct by intimidation or coercion or to retaliate against government conduct. But that's a- found under a preponderant standard or as Shandia says under a clear and convincing evidence standard. Your point is it passes muster under a clear and convincing evidence standard. And I doubt that the standard of review is still one of clear air all on a factual finding. Yes, Your Honor. And as you noted notably that the district where at the time found it by a clear and convincing standard. Right. Which is a high-burned- At all those Shandia cases come out by the time you all find out- No, Your Honor. At the time the government had requested a preponderance of the evidence standard. And the court held us to a clear and convincing standard. So it's called Shandia came out. The evidence with regard to specific intent and just to highlight for Your Honor's individually a little bit. Because it is very easy to sort of look at the whole. But acknowledging when it comes to this particular element, its specific intent has each individual in it. And it is somewhat improper to attribute the conspirator intent

. Yes, the sentencing terrorism enhancement. Unless there are any further questions with regard to the first amendment issue. Thank you, Your Honor. Sir, I will point out with regard to the terrorism enhancement that has been an issue as briefed by the appellants. This very much goes hand in hand, I think, with the sufficiency of the evidence. Is that about everybody? Yes, Your Honor, it did. All up God. It's a huge up and huge up matter. Yes, Your Honor. And the support that was used for that is very much hand in hand with the factual sufficiency evidence that we brave as well that we've been talking about. That's really a factual finding, isn't it? It very much is, Your Honor. The one additional step that the terrorism enhancement sort of looks to, whether or not, has to be- It's a question of intent. Yes, has to each individual. And it's a question of, is there an intent to promote a crime of terrorism or to provide material supposed to terrorism? That is true. And then that goes back right back into the sufficiency of the evidence with respect to intent. Yes, Your Honor. Although the government will acknowledge that it additionally, along with that, it phrases it such that the specific intent must have been calculated to influence or affect government conduct by intimidation or coercion or to retaliate against government conduct. But that's a- found under a preponderant standard or as Shandia says under a clear and convincing evidence standard. Your point is it passes muster under a clear and convincing evidence standard. And I doubt that the standard of review is still one of clear air all on a factual finding. Yes, Your Honor. And as you noted notably that the district where at the time found it by a clear and convincing standard. Right. Which is a high-burned- At all those Shandia cases come out by the time you all find out- No, Your Honor. At the time the government had requested a preponderance of the evidence standard. And the court held us to a clear and convincing standard. So it's called Shandia came out. The evidence with regard to specific intent and just to highlight for Your Honor's individually a little bit. Because it is very easy to sort of look at the whole. But acknowledging when it comes to this particular element, its specific intent has each individual in it. And it is somewhat improper to attribute the conspirator intent. Here Mr. Husson, there was testimony and evidence presented as to his clear distaste for Jews and those that were non-Muslims. And as Coleman testified, Israel is one of the top locations for these within this extremist movement to try and get to, to try and travel to for violent purposes. And that is precisely where these individuals attempted to go in 2007, though they returned around. There were Facebook posts, a number of them specifically- They got stopped at the airport in Tel Aviv and then put on planes and send somewhere else. Yeah, the reason they worked- Yes, Your Honor. Essentially at the border, Israel turned all four of these individuals around. Throughout his Facebook post, he makes mention of like smoking Jews like a cigarette. He makes mention of murking, or as was testified to, murk is short from mercenary or assassinating all Americanized Muslims. He praises the Taliban through his Facebook post. And he displays aggression against- Who's the he and this right? This is all with regard to his song, sir. And within all of these Facebook posts, there's between him and Yogi, there's an obvious aggression against law enforcement and the government constantly mentioning the feds. Jamar Carter was a friend of his who testified and said that he would show me these videos of car bombings and things of that nature in Iraq and Afghanistan. And then he prays for the individuals fighting war against people invading their country. He sent 44 ways to Dylan Boyd, 44 ways to commit jihad. According to agent Manila, when Hassan was arrested, he testified that he stated that the Mujahidin in Iraq were simply freedom fighters. The Ross training video that we mentioned of support our troops with a clear indication of it, not being US troops. And then he sent a video on his Facebook of, it was entitled, the message of the Mujahidin to the Americans. And as was stated, as was presented at trial, that was nothing short of war propaganda. It was displaying Mujahidin warriors, putting IEDs down and blowing up cars and whatnot. And then it was overlaid with words to the effect of the Bush regime and the criminal American democracy. All of this goes towards that specific intent element with regard to retaliation against government conduct or their efforts being to intimidate the government, with regard to Yogi shifting to him for a moment. The factual sufficiency evidence as we've laid out, again, the same thing with regard to his view of the Jewish people. He has a, on his Facebook, he has a link about the Palestinian or that praising an individual who basically stated that they would cut their flesh out then allow any of Palestine be cut from the Muslim lands. All of this goes towards aggression towards government conduct, a problem with governments. And under the enhancement, it need not be the US government. It could be any government. He comments about an article about Somali Islamist joining with Hezbollah in regard to retaining Palestine. And he states that the Muslims are uniting against the Kufr, being again, a government. He explained to me though, why are you not starting to kind of drift away from the message of being, why are you not kind of drifting into this thing and the first amendment problem? Well, this is all with regard to his intent, you know, we have his actions. And the question is, well, why did you do those things? Why did you train? Why did you go there? Why did you train? Yes

. Here Mr. Husson, there was testimony and evidence presented as to his clear distaste for Jews and those that were non-Muslims. And as Coleman testified, Israel is one of the top locations for these within this extremist movement to try and get to, to try and travel to for violent purposes. And that is precisely where these individuals attempted to go in 2007, though they returned around. There were Facebook posts, a number of them specifically- They got stopped at the airport in Tel Aviv and then put on planes and send somewhere else. Yeah, the reason they worked- Yes, Your Honor. Essentially at the border, Israel turned all four of these individuals around. Throughout his Facebook post, he makes mention of like smoking Jews like a cigarette. He makes mention of murking, or as was testified to, murk is short from mercenary or assassinating all Americanized Muslims. He praises the Taliban through his Facebook post. And he displays aggression against- Who's the he and this right? This is all with regard to his song, sir. And within all of these Facebook posts, there's between him and Yogi, there's an obvious aggression against law enforcement and the government constantly mentioning the feds. Jamar Carter was a friend of his who testified and said that he would show me these videos of car bombings and things of that nature in Iraq and Afghanistan. And then he prays for the individuals fighting war against people invading their country. He sent 44 ways to Dylan Boyd, 44 ways to commit jihad. According to agent Manila, when Hassan was arrested, he testified that he stated that the Mujahidin in Iraq were simply freedom fighters. The Ross training video that we mentioned of support our troops with a clear indication of it, not being US troops. And then he sent a video on his Facebook of, it was entitled, the message of the Mujahidin to the Americans. And as was stated, as was presented at trial, that was nothing short of war propaganda. It was displaying Mujahidin warriors, putting IEDs down and blowing up cars and whatnot. And then it was overlaid with words to the effect of the Bush regime and the criminal American democracy. All of this goes towards that specific intent element with regard to retaliation against government conduct or their efforts being to intimidate the government, with regard to Yogi shifting to him for a moment. The factual sufficiency evidence as we've laid out, again, the same thing with regard to his view of the Jewish people. He has a, on his Facebook, he has a link about the Palestinian or that praising an individual who basically stated that they would cut their flesh out then allow any of Palestine be cut from the Muslim lands. All of this goes towards aggression towards government conduct, a problem with governments. And under the enhancement, it need not be the US government. It could be any government. He comments about an article about Somali Islamist joining with Hezbollah in regard to retaining Palestine. And he states that the Muslims are uniting against the Kufr, being again, a government. He explained to me though, why are you not starting to kind of drift away from the message of being, why are you not kind of drifting into this thing and the first amendment problem? Well, this is all with regard to his intent, you know, we have his actions. And the question is, well, why did you do those things? Why did you train? Why did you go there? Why did you train? Yes. And so this is solely for intent. With regard to Mr. Shreve, I'll just briefly mention that the record is right with instances of his specific intent to the level of I'd be willing to fly a plane. The best place to go would be the White House or the parliament in terms of getting into a battle front. Clearly, he had an issue and an intent to retaliate against government conduct. I see that my time is about to expire. If there are no further questions. Oh, do you have any further questions? We have no further questions, sir. In consideration of the record, the government's written brief and my attempt here to clarify our position, the government requests this court denies, pellets, claims, and affirms the findings of the district court. Thank you, sir. Mr. Boy, you have some rebuttal time. Yes. Thank you, Your Honours. In his remarks, my adversary stated when addressing the sufficiency issue, quote, ideology is the basis of things. And we respectfully submit that that was argued to the jury and the quote is in our, and it is an art breed from the summation, that that really points out why it was really necessary for the court to instruct the jury adequately on the First Amendment. The court never told the jury here that it could not convict on the basis of beliefs alone. They would never told that. And so the elements of the crime were correctly submitted to the jury and the elements of the crimes of 10 of the 11 counts, some of which are not an issue here, required over at acts, and it required something more than compensation, went to the point of requiring an agreement to commit illegal acts. Without your honor, without the instruction, the jury was free here to decide that there was a conspiratorial agreement, an unlawful agreement, simply on the basis of the defendant's speech and their beliefs. Do you claim in any of the criminal statutes that were violated here are unconstitutional under the First or Second Amendment? No, your honor. We're not claiming that on this issue. That's what you have to do, I think. The issue here and was the gravamint of their defense, that while they may have embraced this radical form of Islam, that believed that it was a requirement at some point in the future to support or engage in jihad, that there was no unlawful agreement. And the government in their summation says, when you join those beliefs, when you sign up for that cause, you're saying I agree with that. And so the government was urging the jury in their summation to find the agreement just on the basis of their beliefs and on their speech. That seems to me to be a little simplified a little bit because every crime has to have a mens ready. And you need to understand part of the whole question here was the intent undertaking the travel of benign intent, always the intent to engage in violent jihad. And if it was a benign intent, that's perfectly fine. There's no criminal act. If there was an intention to engage in violent jihad, then that becomes different

. And so this is solely for intent. With regard to Mr. Shreve, I'll just briefly mention that the record is right with instances of his specific intent to the level of I'd be willing to fly a plane. The best place to go would be the White House or the parliament in terms of getting into a battle front. Clearly, he had an issue and an intent to retaliate against government conduct. I see that my time is about to expire. If there are no further questions. Oh, do you have any further questions? We have no further questions, sir. In consideration of the record, the government's written brief and my attempt here to clarify our position, the government requests this court denies, pellets, claims, and affirms the findings of the district court. Thank you, sir. Mr. Boy, you have some rebuttal time. Yes. Thank you, Your Honours. In his remarks, my adversary stated when addressing the sufficiency issue, quote, ideology is the basis of things. And we respectfully submit that that was argued to the jury and the quote is in our, and it is an art breed from the summation, that that really points out why it was really necessary for the court to instruct the jury adequately on the First Amendment. The court never told the jury here that it could not convict on the basis of beliefs alone. They would never told that. And so the elements of the crime were correctly submitted to the jury and the elements of the crimes of 10 of the 11 counts, some of which are not an issue here, required over at acts, and it required something more than compensation, went to the point of requiring an agreement to commit illegal acts. Without your honor, without the instruction, the jury was free here to decide that there was a conspiratorial agreement, an unlawful agreement, simply on the basis of the defendant's speech and their beliefs. Do you claim in any of the criminal statutes that were violated here are unconstitutional under the First or Second Amendment? No, your honor. We're not claiming that on this issue. That's what you have to do, I think. The issue here and was the gravamint of their defense, that while they may have embraced this radical form of Islam, that believed that it was a requirement at some point in the future to support or engage in jihad, that there was no unlawful agreement. And the government in their summation says, when you join those beliefs, when you sign up for that cause, you're saying I agree with that. And so the government was urging the jury in their summation to find the agreement just on the basis of their beliefs and on their speech. That seems to me to be a little simplified a little bit because every crime has to have a mens ready. And you need to understand part of the whole question here was the intent undertaking the travel of benign intent, always the intent to engage in violent jihad. And if it was a benign intent, that's perfectly fine. There's no criminal act. If there was an intention to engage in violent jihad, then that becomes different. But I don't see there was no conviction here on the basis of mere belief. But on the other hand, in order to sketch out the intent and in order to ascertain the mens right here, it's impossible not to get into why these trips were taken and why the training was undertaken. And in fact, you made that a central issue of the whole trial by saying that all of the trips abroad were perfectly innocent and benign. And I don't understand why the government isn't able to counter that by saying no, the intent in taking these trips was not a tall benign. It was to engage in count two to describe to kidnap murder, man, and injured individuals abroad. But that seems to me part of the issue on which the case is in joint, which the issue is joined. And I don't understand how you can introduce evidence of a benign intent. The government can't counter it. The issue, Your Honor, is not whether the evidence of their beliefs was inadmissible. That's not our claim on this appeal. The issue is that those beliefs cannot constitute the basis of the agreements. In other words, the only thing we asked for a trial court. That's fine. But if a constitutional statute is submitted to the jury and it corrects the Elements of the Crown, a constitutional statute is submitted to the jury, correctly recites the Elements of the Crown. I know of no law that would say that the district court committed reversible error in doing such a thing. I don't think I respectfully submitted that court wouldn't have to find the statute to be unconstitutional before there would be a jury instruction on really what was the defense theory. That's our kid. We're relying on Matthews and all those cases out of the Supreme Court, which said your entitled to an instruction on your defense theory. And he is a theory was that they may have had these beliefs, but it was not an unlawful agreement. And that's all the theory I was going to do. It was protected by the First and Second Amendment. I mean, you're arguing on this part, you're saying what you did was protected by the First Amendment, which is a backhanded way of saying that the statute's defective under the First Amendment. It's like it may be needed to follow what we used to call a demur or the indictment or something. You're on what we're saying here is that they couldn't be convicted only on that. The jury was free and I'm not going to get rid of you. While they have the elements of the offense, they can't convict solely on that. Without this instruction, I would submit, and I know my time is way over here. The jury was free to say, we're finding the agreement solely on their ideas and thoughts. No, even if they rejected everything about the trust. It wasn't free to bet. There was nothing in the instructions

. But I don't see there was no conviction here on the basis of mere belief. But on the other hand, in order to sketch out the intent and in order to ascertain the mens right here, it's impossible not to get into why these trips were taken and why the training was undertaken. And in fact, you made that a central issue of the whole trial by saying that all of the trips abroad were perfectly innocent and benign. And I don't understand why the government isn't able to counter that by saying no, the intent in taking these trips was not a tall benign. It was to engage in count two to describe to kidnap murder, man, and injured individuals abroad. But that seems to me part of the issue on which the case is in joint, which the issue is joined. And I don't understand how you can introduce evidence of a benign intent. The government can't counter it. The issue, Your Honor, is not whether the evidence of their beliefs was inadmissible. That's not our claim on this appeal. The issue is that those beliefs cannot constitute the basis of the agreements. In other words, the only thing we asked for a trial court. That's fine. But if a constitutional statute is submitted to the jury and it corrects the Elements of the Crown, a constitutional statute is submitted to the jury, correctly recites the Elements of the Crown. I know of no law that would say that the district court committed reversible error in doing such a thing. I don't think I respectfully submitted that court wouldn't have to find the statute to be unconstitutional before there would be a jury instruction on really what was the defense theory. That's our kid. We're relying on Matthews and all those cases out of the Supreme Court, which said your entitled to an instruction on your defense theory. And he is a theory was that they may have had these beliefs, but it was not an unlawful agreement. And that's all the theory I was going to do. It was protected by the First and Second Amendment. I mean, you're arguing on this part, you're saying what you did was protected by the First Amendment, which is a backhanded way of saying that the statute's defective under the First Amendment. It's like it may be needed to follow what we used to call a demur or the indictment or something. You're on what we're saying here is that they couldn't be convicted only on that. The jury was free and I'm not going to get rid of you. While they have the elements of the offense, they can't convict solely on that. Without this instruction, I would submit, and I know my time is way over here. The jury was free to say, we're finding the agreement solely on their ideas and thoughts. No, even if they rejected everything about the trust. It wasn't free to bet. There was nothing in the instructions. It said, jury can just find these people guilty of these various counts based on their ideas and thoughts. There was nothing that even hinted at that kind of fun. And the district judge is entitled to some discretion, of course, as to what instructions can be given and what instructions are not given. Look at these instructions. There is nothing that says. You, nothing that even comes close to set, that you can convict people on the basis of their ideas and beliefs. I would just respectfully, and then I'll sit down. On the facts of this case, with so much of the proof, with the defendant's conversations, the Facebook postings, the emails, all the things that counsel just in terms of the terrorism enhancement read from. We respectfully submit an abuse of discretion, not to at least tell the jury that that can't be the basis of the conviction. Essentially what you're arguing for is not something about the elements, but just kind of a cautionary instruction. An instruction on the defense, which would be more than just a cautionary. But it's very similar to a cautionary instruction. And also because it would never toll, it was only admissible on intent. All of that evidence. It came in without that. Thank you very much for your indulgence in time. Thank you, sir. Mr. Boyce. Thank you, Your Honours. One or two things about what the government said. First of all, you asked the prosecutor whether our cross examination was cut short. I respectfully disagree by the rulings of the court on some of the evidence. It cut our ability to cross examine significantly. And by some of the rulings, I would submit a gut error defense. gutted our defense. For example, in the wrongs training.com video, they used the hearsay statement, support our troops on that same bit. And in that blog, whatever you call it, Omar Hassan said, part of my religious faith is to become strong and in healthy shape. And then later on, he says, P.S

. It said, jury can just find these people guilty of these various counts based on their ideas and thoughts. There was nothing that even hinted at that kind of fun. And the district judge is entitled to some discretion, of course, as to what instructions can be given and what instructions are not given. Look at these instructions. There is nothing that says. You, nothing that even comes close to set, that you can convict people on the basis of their ideas and beliefs. I would just respectfully, and then I'll sit down. On the facts of this case, with so much of the proof, with the defendant's conversations, the Facebook postings, the emails, all the things that counsel just in terms of the terrorism enhancement read from. We respectfully submit an abuse of discretion, not to at least tell the jury that that can't be the basis of the conviction. Essentially what you're arguing for is not something about the elements, but just kind of a cautionary instruction. An instruction on the defense, which would be more than just a cautionary. But it's very similar to a cautionary instruction. And also because it would never toll, it was only admissible on intent. All of that evidence. It came in without that. Thank you very much for your indulgence in time. Thank you, sir. Mr. Boyce. Thank you, Your Honours. One or two things about what the government said. First of all, you asked the prosecutor whether our cross examination was cut short. I respectfully disagree by the rulings of the court on some of the evidence. It cut our ability to cross examine significantly. And by some of the rulings, I would submit a gut error defense. gutted our defense. For example, in the wrongs training.com video, they used the hearsay statement, support our troops on that same bit. And in that blog, whatever you call it, Omar Hassan said, part of my religious faith is to become strong and in healthy shape. And then later on, he says, P.S., I do not support terrorists. The court refused to allow us to introduce that evidence. Where is the cross examination point, Ruth? Where is the one? Your brief? I can't, I couldn't point to it right now, but we quote that phrase. I do not support terrorists. Is there an assignment of error? Yes, yes, Your Honour. You say the ruling completeness was contravene. Our ability to cross examine was contravene by the courts ruling both on the opinion evidence as well as the testimony surrounding the YouTube video and then again, the Facebook. She allowed it all in in mass without having a witness lay the foundation forward. We did not have the ability to cross examination the Facebook witness as to how you put things on Facebook, whether it was Omar thoughts or whether it was somebody else thought we already crawled for B. Washington, that we have anybody that we could cross examine on our medication and how the Facebook postings occurred. And then she limited our ability to cross examine on parts of Facebook and parts of YouTube. I would say that was especially important in Omar Hassan's case because of the weakness of the government's case. There were a lot again on the trip. There was nothing, I don't think, on the trip. There might have been some pictures of the boys at the beach that were precluded. And the YouTube only had to do with training. And again, under the government's theory, training, Boy Scouts have a badge for gun training. You learn to shoot a gun and Boy Scouts should get a badge. Under their theory of the case, I would submit that a Boy Scout could be found guilty of providing material support to a terrorist if he had a Boy Scout badge for training and firearms and had some conversation on the Internet of Facebook about their belief whether they thought violent jihad was a good thing or bad thing. Putting it on together that way is what they were trying to do with respect to Omar Hassan. That's a different case. All right. The First Amendment argument, I would ask the court to look at the two cases that we cited on First Amendment jury instruction that gutted our case too. When the judge says the trial court instructed the First Amendment is not at offense and refused to give an explanation as to what type of speech or actions are constitutionally protected. Her statement just to the fact that the First Amendment is not at offense gutted our case. We're not saying that actions aren't prosecutable. What we were saying, the mere belief or expression of one's belief is not prosecutable. When the judge did not give that instruction, it gutted our case significantly. The other gutting of the case is her refusal to give any kind of statement to the jury about the Second Amendment. The fact that the mere possession of a gun shooting it across a site doesn't show providing conspiring with somebody to provide material support to a terrorist. Thank you, sir

., I do not support terrorists. The court refused to allow us to introduce that evidence. Where is the cross examination point, Ruth? Where is the one? Your brief? I can't, I couldn't point to it right now, but we quote that phrase. I do not support terrorists. Is there an assignment of error? Yes, yes, Your Honour. You say the ruling completeness was contravene. Our ability to cross examine was contravene by the courts ruling both on the opinion evidence as well as the testimony surrounding the YouTube video and then again, the Facebook. She allowed it all in in mass without having a witness lay the foundation forward. We did not have the ability to cross examination the Facebook witness as to how you put things on Facebook, whether it was Omar thoughts or whether it was somebody else thought we already crawled for B. Washington, that we have anybody that we could cross examine on our medication and how the Facebook postings occurred. And then she limited our ability to cross examine on parts of Facebook and parts of YouTube. I would say that was especially important in Omar Hassan's case because of the weakness of the government's case. There were a lot again on the trip. There was nothing, I don't think, on the trip. There might have been some pictures of the boys at the beach that were precluded. And the YouTube only had to do with training. And again, under the government's theory, training, Boy Scouts have a badge for gun training. You learn to shoot a gun and Boy Scouts should get a badge. Under their theory of the case, I would submit that a Boy Scout could be found guilty of providing material support to a terrorist if he had a Boy Scout badge for training and firearms and had some conversation on the Internet of Facebook about their belief whether they thought violent jihad was a good thing or bad thing. Putting it on together that way is what they were trying to do with respect to Omar Hassan. That's a different case. All right. The First Amendment argument, I would ask the court to look at the two cases that we cited on First Amendment jury instruction that gutted our case too. When the judge says the trial court instructed the First Amendment is not at offense and refused to give an explanation as to what type of speech or actions are constitutionally protected. Her statement just to the fact that the First Amendment is not at offense gutted our case. We're not saying that actions aren't prosecutable. What we were saying, the mere belief or expression of one's belief is not prosecutable. When the judge did not give that instruction, it gutted our case significantly. The other gutting of the case is her refusal to give any kind of statement to the jury about the Second Amendment. The fact that the mere possession of a gun shooting it across a site doesn't show providing conspiring with somebody to provide material support to a terrorist. Thank you, sir. Thank you. Mr. Fisher. I'll be brief. Appreciate the extra time you give Mrs. Mourning. Let's fast forward a few years. Let's suppose the government operation has not rounded up these gentlemen and Mr. Boy and Sharif B and everybody else is still out there. Let's suppose they are at Mr. Boy's market. Instead of talking generally about Jihad, they are expressing their outrage about how the Assad government in Syria is using chemical weapons against the rebels. They make a plan. We're going to train and we're going to go over there and we are going to fight the Assad government. That would be a specific act, that would be a specific plan, probably one that the government would hail them as he rose. But regardless, you know what the object of the action is. Here, because of the hundreds of thousands of pages of ideology without any framework, I would contend respectfully disagree with Mr. Calhover that there was no plan to be the object of the conspiracy. Thank you. Thank you. We will come down and greet council and then take a brief recess.

I'm happy to hear argument in United States versus Assam and just a boy. Thank you, Your Honours. Good morning. I'm May the police report. My name is Robert Boyle and I represent Ziyagi. There are several issues in both in the police department. Ziyagi around the repellent Ziyagi. There are several issues which we both joined and we have conferred so although there will be some overlap we are framed the argument so as not to be repetitive. We are in recognition of the fact that we have three defendants we can give a little extra time. Yes. Thank you, Your Honours. We appreciate that. With respect to Ziyagi I intend to address the issues in the following order. First the claim of sufficiency of the evidence followed by the failure of the district court to give a adequate charge on the applicability of the First Amendment and then the some evidentiary issues given time and of course subject to the court's questions. The first being the admissibility or lack the error of the testimony of the purported expert Evan Coleman. So as the evidence was legally insufficient to establish that Ziyagi agreed with at least one other person to provide material support to a terrorist organization or that he agreed which is count one all that he agreed with at least one other person to actually murder or maim an individual in a foreign country. In this case what is interesting is that the government star witnesses their cooperators Daniel Boyd, Dylan Boyd and Zachariah Boyd all flatly denied any such agreement. Nor was their evidence that Ziyagi stated to anyone else that he in fact agreed to commit the crimes alleged in counts one and two. No weapons were recovered from Ziyagi or from any location attributable to him. And indeed after June of 2007 he broke off all contact with Daniel Boyd and was not arrested until the rest of the people in this case in July 2009. Now of course the government submits that there were circumstantial evidence which showed the evidence of disagreement and I'd like to go through some of that particular evidence to show that why even when crediting it in the government's favor and crediting the government. Can I ask you about one piece of that? Sure you're on. What about the conversation about purchasing with Mr. Hassan about purchasing an AK-47 and then the participation in training with the Hassan's 22 rifle and Boyd testified I think that training for Ziyagi. Those were two pieces of evidence that struck me in this case. Yeah and I'd like to address those, Your Honor. The discussion concerning the purchase of the AK-47 while certainly admissible didn't establish an agreement to actually commit the crimes alleged in this indictment. And with respect to I believe Your Honor is referring to the conversation which was in the automobile concerning the peace shooter the 22 caliber rifle which was exhibited in the in the car. What we have here was a statement and I'm not sure whether I think it was confusing as to whether it was by Yagi Oha Hassan that it was going to be used for training. Daniel Boyd himself testified. The 22 was hidden down in the in a compartment in the car somewhere. According to the testimony it was it was in some kind of a box which was hidden in the in a secret compartment or some kind of in the car right. It was it was it was inside a compartment to your honor and it was it was shown to Daniel Boyd but still I would submit it in of itself does not establish evidence of agreements. You have to look at all this stuff. Absolutely. Absolutely. I don't look at it in isolation. And the court and I struck me that that must have modified the automobile somewhere and others so they hide that entire weapon down in that compartment in between the seats. I don't think that that was the evidence the evidence of trial but I want to address the issue about being used for training which Daniel Boyd testified to. Boyd said he saw it. He saw it. There's no question in the car. Why would they hide that thing down in the in that spot? You're on this there's there's any that there's certainly any number of reasons and what what I submit to the court is that in and of itself hiding it in a compartment is not evidence of an agreement. Daniel Boyd also testified that the term training is one that's commonly used in the in the community. It doesn't necessarily mean training for the purposes of job. And certainly this didn't much of the case depend upon the jury's assessment of whether the trips of broad were for family purposes and for marriage or on the one hand or for engaging in illicit criminal acts on the other. I mean much of the much of the case hanged on whether the jury believed Mr. Boyd's testimony that the the trips to Jordan and the trips abroad were not for innocuous purposes. Well except that you're on a Mr. Boyd didn't testify to that. Mr. Boyd and his sons Zachariah and Dylan all testified that now addressing the 2007 trip and I'll get to the 2006 trip that they were in fact for a family thing. Now there was that they he brought his sons over to the Middle East because to help in the grief process because he had just lost one son Duquois. With the jury did not matter. This is the government's proof and there was no and this is the this is the government star witness who was saying this and there's and there's nothing else coming from the government to say that it was anything otherwise. Well on 612-07 Boyd and and his sons Zachariah departed the US Tel Aviv in the very next day on 613-07-Yagan has signed the party rally for Tel Aviv. That's right, that's right, Your Honor. And there's a real link time wise to what what seems to be going on. Oh no question but the key issue here what was it what was that? And Boyd made the reservations for him and Boyd and Boyd made the reservation travel reservations and they wrote they weren't the Jordan they were the Israel and they wouldn't let him in Israel and they sent him back somewhere I'd determined him somewhere and then they went some then they can't end it up and going to do it right and then it went over to get married and that was code for something. Well you're out of first there was no in in terms of the way Boyd and this is the government's proof now. Not the defenses proof describe the circumstances of Yagi and Hassan going to Jordan then was that Yagi found out he was going it's a G can I go to Boyd says you can go because you has has nothing to do with us but once you're over there you're on your own and Hassan says I want to go. The only other proof then and there's no evidence in the FBI agents who testified a trial stated they could find no proof that they engage in any nefarious activities in the Middle East and that's in terms of 06 and 07 but they went there for a purpose or purposes multiple purposes. I would see you describe trying to get to the battlefield. I would say I would submit that there's no evidence of that your honor there was there was supposition of that but there was no there was no proof either in terms of Yagi statements or statements made by Yagi to Boyd that that was in fact the purpose. It was certainly it was circumstantial right but the conversation I thought that the that the use of the word marriage could be taken as a code for the battlefield. Boyd said I don't think it was Boyd it was where we one of his sons testified that that could be that could have happened and this was this was a person who had no direct contact with in terms of that terminology with with Mr. Yagi and the term and we have to look in in in 2006 Mr. Yagi says I'm one of the reasons he's going to Jordan is to get married Daniel Boyd testified. That's the understanding they understand everybody understood each other well we get talking about we understood we understood and and Boyd in terms of 2006 and the testimony regarding marriage actually provided Ziyad Yagi with the name of a potential marriage prospect and the only thing he testified about the 2007 conversation was that Mr. Yagi and Mr. Hassan looked at each other sheepishly when the word marriage was stated and he said there's nothing was nothing more to it than that. Can I ask you about it because the the evidence supporting the counts is an important part with this matter when Mr. Yagi returned he was he introduced Mr. Mohamed to Mr. Boyd and then the government says on page 91 of his brief that Mohamed subsequently engaged in a quest for Ziyad and that Yagi knew his interest in Ziyad when he introduced him to Mr. Boyd and then Yagi also after returning continued to train with Mr. Hassan in firearms and I'm just wondering after a certain point don't these pieces of evidence begin to add up to the point where jury can draw perfectly reasonable inference that we allow them to do all the time. A jury can can certainly draw inferences but I would like to address those evidence because the inferences of illegality there would not be reasonable. This is the actual question that was that was introduced at trial regarding Yagi and introduction of Jude Mohamed and was that page the appendix of 1797 question. This is by the government on redirect examination. Did Mr. Yagi in fact bring co-defend and Jude Mohamed to your store answer I mean comma they came together yeah the government asks for an inference with two people arriving at a store together that this is somehow presenting Jude Mohamed to the conspiracy. The evidence is irrefutable that after that day there was no meetings where Ziyad Yagi and Jude Mohamed attended at the same time. He did not miss the Yagi, did not participate in any training and Mr. Mohamed went out of it on his own. Thank you very much. Now also we appreciate your briefs and simply because we don't get around to every issue in the argument that you've raised in your brief you've not waived those issues at all and we appreciate that. I appreciate that, Your Honor, because I think that the other issues are reversal as well. We understand you have a way of the thing. Thank you. Let's hear from Mr. Boyce now. Good morning Your Honor. I am Dan Boyce and I'm here representing Omar Hassan. I was both trial counsel for Mr. Hassan so I participated in trial and I'm still on here as a public counsel. Your Honor, I want an acquittal for your client. Yes, that is correct Your Honor, it's the only acquittal of any of the charges of any of the roughly six to eight code of evidence in the case. Your client was convicted on count one only the providing support to a terrorist organization. And there are essentially four trial errors that I'm ready to discuss and there are two synancing errors that I would also like to discuss if we have time. The first one is the insufficiency of evidence as to Omar Hassan. Mr. Boyce has already started into that so I may be brief on that. The second one is the admissibility of some evidence social media and opinion evidence and then the subsequent narrowing or inadmissibility of some of that evidence which we contend validity to rule of completeness. The third issue is the failure to properly instruct the jury on the first amendment. The fourth trial issue is the courts refusal to instruct the jury on the second amendment. And then there are two synancing issues first the application of the terrorism enhancement and secondly the courts refusal to apply a role in the offense reduction. With respect to the evidence and the insufficiency of evidence against Omar Hassan, the evidence could be really grouped into three categories. First, conversations about violent G-Hide and there were a number of people who talked about the young Muslim men and boys in that community and the rally community high school students and college students who were debating about violent G-Hide and what the obligations of a Muslim are. The second major piece of evidence specifically against Omar and the only over at act in the superseding indictment was the summer of 2007 trip over to Israel where they would deny entry and then Omar and his friends Ziyad Yagi then went to Jordan and hung out at the beach. He and Yagi went in 2007 together. Correct. And I asked the question I asked briefly on as far as count one is concerned the question it seemed to me was whether he went in Jordan to visit his family and find or meet a wife or whether he went to engage in spread terrorist propaganda and so one is a perfectly legitimate benign purpose but the other would be providing material support to terrorists and the question is don't wouldn't we leave that kind of credibility matter up to a jury. But there still has to be an agreement and I agree with Mr. Bull it was absolutely no evidence that Omar Hassan agreed to a provide personnel be to provide agreement. You know have these agreements all written up and notarized really. Certainly not. The jury could infer from the facts that the defendant and others conspired to agree. I would submit to Judge King that there was no evidence at all circumstantial or otherwise and so who Omar Hassan agreed with that's exactly the position you need to do a spouse but but the jury got her the evidence and we take the view most favorable to the prosecution in the context of look at these things right. Absolutely I think the standard is whether the evidence in light most favorable to the prosecution provides and here's the key substantial evidence of guilt. What do you do what counsel what do you do with the fact that Hassan was an active participant in conversations with Mr. Boyd and which Mr. Boyd emphasized the importance of violence and the best strategies for achieving that violence and Hassan was in regular contact with Mr. Boyd and that prior to the trip with Mr. Yagi Hassan actually purchased a 22 rifle from Mr. Yagi. Aren't those pieces of evidence that that jurors could consider? Certainly they can consider it but it's got to all add up to show an agreement. First of all he did not have regular conduct with Mr. Hassan. Mr. Hassan testified that he spent less than an hour with him one time and it was a total of maybe two hours that he ever even taught with or saw Mr. Hassan. Is that a jury argument? No I would argue you've got to consider all the evidence and it is their substantial evidence that Mr. Hassan entered into an agreement with his. He purchased the tickets for him when he traveled to Israel. He used his own money to purchase the ticket but was Boyd involved in that? Boyd made Boyd bought Yagi's ticket. I'm not sure if he also bought Hassan's. Let's assume arguing because I don't I don't remember specifically how that came out but even if Mr. Boyd did there's no evidence just because he bought him a ticket to travel overseas. The point you were making before is there's very little contact with Mr. Hassan and Mr. Boyd. Right. If he's purchased tickets for him something's going on. The time they were over there was with Yagi Hassan was a friend of Yagi and Yagi had contact with Boyd. When they were over there in the Middle East they tried to contact Boyd several times unsuccessfully. They even contacted some of his family back in North Carolina trying to reach him. Right. And it is. And if you successfully. Right. And if you read the testimony of all three boys together they all basically said we didn't have an agreement with Omar Hassan to do anything that was not the purpose of the trip. They were going separately and the father Daniel Boyd even testified he had offered to show them the holy sites showing the boy son testified that Hassan and Yagi went on that trip to participate in violent G-haw. Here's what he said. Dylan Boyd said I honestly believe that G-hawd was the purpose of the 2007 Middle East trip but that was with the limited information I had and there was no evidence that Dylan Boyd ever talked to Omar Hassan about that trip. There was all this supposition and hearsay on hearsay as to what the boys might the boys meaning Omar Hassan and Yagi what they may have intended but if you read the three boys who testified none of them said there was any agreement before or during that trip to provide material support to a terrorist organization. What if you agreement your man was into was only with Yagi he had still be guilty. There's no evidence that he did what he had. Hypothetically you might own that trip with him. I've drove there trying to get into Israel and bouncing around the Middle East and trying to contact Boyd unsuccessfully and all that stuff. There is no other. And what if the jury side well at least those two guys were conspiring with each other trying to reach the battlefield in the Middle East and they wouldn't even have to reach the question of whether Boyd was part of the conspiracy or not but them. Your hypothetical judge king is that if there was that agreement. No, but under law that would be a nut. No it would not. I would submit to you judge king that is killed by association. You need something more than just associating with Ziyah Yagi. Everybody that's named as a conspiracy has to be guilty. They could find something involved and something not involved. This got to find a couple of conspirators. There is no doubt that Umar Hassan didn't need to know every single code. They could have found him conspired with somebody who wasn't even named in the indictment. Could have but they didn't. They could have it. But if the evidence permits it that would just that would be enough to undercut your argument that the evidence not sufficient. But I would respectfully submit when you search through the record when you come through it and read all the testimony is just not there. But um we have mentioned the fact that the firearms training and as I understand it there was he posted a video about his training regimen and that ended with a troops support the troops emblem um which was interpreted as code for engaging in violent jihad I mean. It was a video available to the world. It was a workout video where he jumped up on a table, jumped down, jumped up, jumped down, pumped iron, did weights. And as Mr. Boyd testified Umar was a big goofy kid who was more interested in working out than he was talking about violent jihad or words to that effect. And that video was years after the 2007 trip. The evidence presented to the jury was Umar Hassan went on that summer of 2007 trip and then disassorted to see I did himself from the Boyd family and didn't even know any of the other conspirators. So they tried to bring in a 2009 video clip on his phone of him shooting a gun across a lake. They tried to use a workout video that was a year after 2007 trip. So there was no link. Did you have you had a chance to point out all of that at trial? We objected to it and that's that's part of it. I mean you went after the video at trial Yes we did. We did. You know you met with some success. Um the um what what what what seems to me you have a trial that last almost one month um that in this seems that that's a long long trial and part and and it seems to me you have a lot of evidence about training regimens and travels abroad and recruitment of others. Now in Mr. Hassan's case that doesn't seem to I it was I was less clear about recruitment. I didn't see that. I did with Mr. Yagi but I didn't see it with Mr. Hassan but I certainly saw the training and the traveling abroad and is just came points out the constant contact with Mr. Boyd before and and um and and after um but anyway um when you have jurors that sit through a trial which lasts one month long um shouldn't we at the end of the day give some um a credit to the conclusions that they came up with. I mean sometimes we have trials that maybe lasts a half a day or a day but this one went on for a whole month right and the problem was they they heard over 40 witnesses who testified there were literally hundreds of pieces of evidence that were introduced throughout that trial and hardly in any only a minis fuel amount even related to Omar Hassan and again I think what we had here this case was tried on the 10th anniversary of 911. We vigorously opposed the date of the trial starting the the week of 911 and you may remember that we were bombarded with information about terrorism and the 911 and you remember it was a time of time. We raised we objected to it and we opposed to it but we didn't have space to make an impression. But my point is guilt by association and when you go back and you look at the record there is no agreement the trip is an innocuous trip there was no agreement as to going over there conspiring with anybody to provide material support to a terrorist organization. Making a very good jury argument. I think I'm making a very good a pellet argument because it's got to be evidence to support me. I thought you were making a wonderful closing. Well you made a good you made a good closing argument at the trial and you were successful and it mean which which also indicates the what it supports what Judge Wilkins was talking about the jury was conscientious it differentiated on your client substantially and only could make it even on one count. But when you look back again at the whole record there's no evidence to show that that training for instance was in order to provide material support to a terrorist organization. Who was he training for what group was he trained to provide training to what the financial they said he bought his own ticket and that's providing financial support. The trip again there's an innocuous trip what group who was he who was he providing material support to it's it's just lacking. The other problems you're on or was then we got the jury and we're giving you some extra time can you you've reserved some time for a rebuttal to get it okay yes sir thank you. Mr. Fisher like to hear from you. I'm sorry. May I please the court clerk Fisher on behalf of the appellant Heisen Shariffy in this case. I would certainly echo the arguments made by the other council regarding this efficiency of the evidence and I'd like to amplify on those a little bit as it pertains to Mr. Shariffy. Now we would certainly agree that when you read this very lengthy transcript the word jihad pops up over and over and over again I would tell the court reading this thing was incredibly tedious and I thought if I had to read jihad one more time I was going to pull my hair out. Heisen Shariffy had a religious political belief that it was his duty as a Muslim to engage in jihad somewhere. But that's not a crime it's only a crime if that belief and I think that ties into the first amendment arguments that's for the court that we've all joined in evolves into some specific plan to commit some specific terrorist act in violation of the statutes in question. What about the June 7th 2008 it's alleged in the as a over enactment indictment where the board accepts $500 from your client to be used to help fund violence. Well I would contend your honor if you read the testimony it was given by Mr. Shariffy I think it's pretty close to a quote for the sake of all whatever that means and I think you can interpret that a variety of different ways. I don't believe boy it's testimony was this is for some particular action it was for the sake of Allah which again goes back I think to what Shariffy's religious belief or what he felt his duties as a Muslim one. Now there's one thing I wanted to ask you about on page 99 to 100 the government knows just one thing that Mr. Shariffy helped Miss Boyd build a bunker in which to hide weapons. I mean that doesn't connect with anybody's beliefs. You don't have a first amendment right to I mean because I take everybody in this country has a right to to their own beliefs and we take that very seriously but the building of bunker in which to have weapons and helping Mr. Boyd do so that that goes beyond just believing in something which we which we respect but but building a bunker is not tied for weapons isn't tied to somebody's beliefs that's that's conduct and furtherance of a criminal act isn't it? I would contend Mr. Shariff that is conduct and furtherance of what might be a political act or a criminal act excuse me if there is a plan to commit that specific criminal act otherwise it's building a basement you put some guns down there you need one additional step you need Shariffy and Boyd or at least one other of these people to agree we're going to build that bunker we're going to put those guns down there and we're going to use those guns to take out an NC State game or something like that as an act of terrorism. What about the recruitment of Mr. Weeks? to I mean the here all three prongs of present the the training the traveling of Brody went to those of those didn't they? Yes sir and the recruitment of others to engage in jihad what I want to emphasize to you is this is active conduct this is not simply speaking out about something this is active conduct in furtherance of as the jury found a conspiracy to kidnap murder made of persons outside the United States and no one has a right to do that. No one certainly does I could not agree more with that but again kind of following up on the last argument I made in response to the previous question yes indeed he talked to weeks weeks perceived that what his version of Islamic theology was I think the word was a weaponized form of Islam and then there were some what if discussions well we've got some American military base over here maybe it's the duty of us to attack that base maybe there was never any specific base name and most importantly just like with Pantico there was no specific plan to do anything. You talked to boy they planned to attack Pantico. Well if you take what Mr. Boyd said to the FBI I think the response when they asked him about Pantico was quote that is pure crap because there was no specific plan yes maybe if we wanted to we could do it I think boyd also said that well we talked about Pantico that we could do that if there was a factor if it was in furtherance of something and that runs through as recurring frame straying throughout this trial maybe we could do this perhaps we should do that but there was never that concrete evolution of these maybe plans into a concrete form of action I would submit or that it takes that level of concreteness before you have political or religious ramblings turning into a criminal conspiracy for any of these judges. Why can't it just be selection of alternative targets man you you you phrased it one way but why not it why isn't it just a selection of alternative targets maybe on the maybe maybe we can do this maybe we can do that but the point is is that that is that if there's evidence to support that that they're the notion that they would travel they would do all these various things and support of it you've got everything it seems to me you need as over an action furtherance of these things. You know I certainly understand the courts question but again I would come back to that I think you needed that one additional step beyond maybe we could attack Pantico okay this is how we're going to do it and let's start the plan in row I would continue what you have here is that most of encoling are perhaps a preliminary situation that never evolved into the full conspiracy and just yeah I know I'm over my time but I think the fact that there was this degree of incompleteness to the conspiracy. There's a judge gave instructions on all that they did they did no question about that but you know what I'm and the issue was resolved by the jury we're back again to in the light most favorable to the prosecution well in the light made did they carry the day on the points that you're far yeah yes sir I come and you argued to the jury a lot what well I wasn't there unlike this was I can't always have very yes lawyer did yes sir no no question about that but if I can expect one one final point I do think the incompleteness of the evidence the certain lack of specificity is what made the expert testimony of Mr. Coleman particularly his ultimate statement that this group had all of these characteristics that he named as indicating a homegrown terrorist organization so damning and I know we've all all briefed that thank you thank you very much Mr. Cal Hafer would be pleased to hear from you sir may I please support I Jason Cal Hafer and I along with Christine Fritz represent the United States the government's position is too full the appellance convictions and the court's evidentiary rulings were supported by credible evidence as well as sound legal reason and that's secondarily the jury instructions and the uh appellance sentences were appropriately based on the facts of this case and the charges at hand turning specifically to the sufficiency of the evidence argument that has been raised a few times here I take dispute uh or issue with a few of the terms utilized first of all that annual void was a star witness this case was a conspiracy case it dealt with bricks and a wall and often conspiracy is is not proven by showing a a notarized agreement as was mentioned by judge you telling us that Mr. Boyd was not a star witness I believe that this uh actually no yes you're on right I am saying that I think an awful lot of the briefs seem to concern what he said yes actually your own brief seemed to treat him as a star witness I mean whether he was or was not may not be here or there but I certainly read a great deal about Mr. Boyd in your brief he was a important witness he was not the star witness you honor you had other co-conspirators who testified both Dylan Boyd and Zach Rive Boyd you have two sources who interacted with the individuals well when you got to indictment you had to be prepared I supposed to try with try the case without any of the boys correct because you indicted them with these values absolutely right and they played guilty they you turned them as I say subsequently yes you're honored and we were absolutely prepared to move forward with the uh evidence at hand which included email evidence that had statements of Mr. Hassan and and Mr. Yogi as well as statements that had been given to other individuals so this case my point is you claim here the cross examination of the government's witnesses was cut short I apologize you honor could you repeat that is there any claim on the part of the appearance of cross examination of government witnesses was cut short I don't believe so this seemed to be you know the sufficiency arguments and instructional arguments and some evidentiary arguments but just in terms of the overall fairness of the trial I want to make sure that the defense had a chance to cross examine this was a lengthy trial your honor and it is is the general's position that the uh all the defense had the opportunity to cross examine all the witnesses I didn't see I didn't see a claim that we didn't have a chance to go with the government's witnesses that is correct they're complaining in the briefs and I'm saying much about this morning about y'all putting on that expert he that was pretty open ended that get into that but what mean you normally don't have a doberte expert in a in a criminal case I'm just taking seriously case yes your honor uh this was bring in an expert who's a professor or written books or something and he gets a print says well I've studied all this this is what I think happened well I think the the judge put it put it well I mean she she thoroughly vetted the issue both at the doberte hearing as well as through a written motion afterwards and she specifically noted that the evidence in this case was voluminous that it was complicated there was a wide variety of ideas terms people organizations locations theories various aspects of radical islam all of those were necessary for uh mr. Coleman the the expert to testify to provide a broader frame of reference and he did so in this case as I'm sure you're aware I'm looking at the record there are a lot of concepts that the the typical person just simply isn't aware of as well as locations geograff it mr. Coleman's been admitted as an expert in a number of other cases yes your honor did he tie this biology hot to getting married was that all rely on boys test no it was a conglomeration your honor testified to the terminology often used by these networks these geograff Islamic extremists networks um he did mention uh terms such as uh good brothers uh such as uh marriage or finding a way these rocks are a way was that finding a way to the battlefield yes you're on that was a concept it's talked about was that talked about by Coleman and boy does well or well it is the best of my recollection your honor yes it was a huge problem I was your honor yes um it certainly was uh was a concept he discussed um at length and then uh the application of that was discussed with Daniel Boyd as well as Dylan Boyd who who expressed that these statements that this terminology the verbiage that they were using was all intended to be covert which goes back to you you're not going to have this sit down agreement yes we agree to travel overseas to main murder or kidnapped individuals and to provide support towards that cause no you're not going to have that what you're going to have is a lot of bricks in the wall that display that and in this case you have that you have much much more than words as uh as the appellants would seem to imply you have uh purchase of of travel you have uh actual travel you have seeking out of specific locations as you will call while uh Ziad Yagi during 2006 was over in Jordan he was emailing Daniel Boyd saying is this the mosquit the one where we were talking about because he's talking about a conversation that previously had and Daniel Boyd testified that that was in reference to the best brothers and his understanding of what the best brothers meant was those that are like-minded those that are of the opinion of this ideology this ideology that that that requires violent acts up to and including killing individuals overseas you had other you had other actions taken um the recruitment efforts the transfer of propaganda itself not stating your opinion but rather providing propaganda documents whether it be written videos CDs you had physical training that took place uh mr. saun makes makes uh um the case that listen uh this was just a video of a kid jumping up and down put that in context again another brick in the wall put that in context with Daniel Boyd's statements that yeah they talked about the need for physical training the need for physical training for this cause this uh the war on horse training yes and firearms training they were physical training and there was firearms training absolutely the physical training in the ross video it's important because it shows him doing that but then it ends and it ends with a picture of a flag a black flag a black flag that has on it the shahada which which is which in and of itself the Shahadah is, it's a declaration of the Muslim faith. Simply that there is about one God and Muhammad is his messenger. However, superimposed on this was an outline of a firearm, an AK-47, not an US firearm, and a statement support the troops. Mr. Coleman, again being necessary, testified about the black flag and that the black flag was commonly utilized within the Shahadah's network. The training, the firearm- The female address, a coalition to call 47. Do you all argue that that has had some relevance? Absolutely, all of the indications- Who got the email address? That belonged to Mr. Yogi, your owner, and all of the indications from their Facebook page, contrary to simply being- The collusion of the FBI's banter. That built the AK-47. I apologize, Your Honor. Collision to call for the designer of the weapon, the AK-47. Correct, Your Honor. Yes, commonly recognized as a weapon utilized by the Musjid-Din or the individuals that fight and cost for jihad overseas. The Facebook pages were rife with such evidence, Your Honor, indicating all an aggressiveness, and an aggressiveness towards US troops, and aggressiveness towards a certain class of individuals, and that class of individuals were non-Muslims. All in line with the propaganda that they possessed all in line with the statements by Daniel Boyd and Dylan Boyd as to what they were discussing in their beliefs. You know, in reference to Mr. Boyd, you certainly don't agree with everything you had said on the list. I would agree with that, Your Honor, and I said as much during closing that the jury was free to take, to choose and pick what they believed from that witness. I acknowledged this is a cooperating witness. Government often has difficulty with such witnesses. However, I would ask the jury to compare his evidence, the statements that he said on the stand with the evidence that was provided. What was cooperated with what he said? And it's my understanding that at the appellate level here any inconsistencies between witnesses or within witness testimony should be resolved in favor of the government. Well, they're all resolved in favor of the jury verdict. Yes, Your Honor, and as of the facts in a light most favor. Yes. Now, the weapons training is particularly valuable. The government took and went through great pains to lay out what type of ideology was being espoused by Daniel Boyd that Mr. Hassan and Mr. Yogi and Mr. Shreethi all participated in conversations and all expressed agreement towards that ideology. Now, that ideology, it is sort of the basis for things here because it is a little, first of all, they were not charged with conspiring to commit G.I. That's not a charge. And G.H. and himself is an innocuous concept to some degree. It has many, many, many meanings. But what it meant to these individuals is what was most important. Under this ideology, they believe that any non-Muslim is known as a cougar. And it's somewhat of a derogatory term used by them. That the cougars are a hindrance to the further growth of Islam. That Muslims, therefore, should not be ruled by cougar. That Muslims should be ruled under Shreel law. And that any non-Muslim government is therefore a cougar government and one that is in effect precluding and stopping Shreel law from happening. Therefore, under their cultish belief, you are obligated as a Muslim to take an offensive attack so that you're not later put in a position of being defensive. And so if you are a non-Muslim and you are in a Muslim land, that's a problem. And ridding the world as much of this propaganda states, for example, the book of G-Hod provided by Ziad Yagi on a Facebook post, that this concept, these people who are non-Muslims, the cougar, are a cancer. That was the word utilized. And that it must be cut out. Now, understanding that was what they believed. The appellants would have you. It's similar to the appellant asking you to, well, yeah, they all believed that, you know, robbing a bank was appropriate. But, hey, nobody mentioned which bank, even though, yeah, they were all traveling to that bank, they were all going there. That it's just big talk. That's not what the evidence showed. This efficiency of the evidence is overwhelmed. And I apologize I'm getting sidetracked on the issue that I wanted to point out with the firearms. My point with this ideology is this is what they sat around discussing, as testified to by Daniel Boyd, all of them being participants and in agreement with. And then, later on, prior to the 2000 trend, they're in a car. And the reason they're in that car, according to Daniel Boyd, is that they had been at the mosque, at essentially a church. And, Yagi and Hassan came up and asked Daniel Boyd, we need to talk to you privately. So they went for a ride. During the ride, that's when they showed him the weapon. So first of all, it's we need to talk to you privately. There's a covert nature to this. Secondarily, when they do provide it to him, it is, it was difficult to understand, granted from the record, but it was somewhat covertly in some kind of compartment between the seats. And when they show it to Daniel Boyd, not showing it to their father, whom they caught with, or something, hey, dad, I'm training with this, no, they're showing this to Daniel Boyd, advocate of these beliefs, who they sit around and discussing. And they say, we're training. That's action. And it is hard, hard to come to any other conclusion, but that they were training in order to affect, not maybe a specific plan as has been, or a concrete specific plan as has been stated was necessary. But rather, as under the law, they understood the own law from nature of a plan or scheme. That's what they were moving towards, and that they knowingly and intentionally joined that plan or scheme. So yes, I believe that there was far more than simply words in this case. And that, um, I'm going to try to put the categories that went beyond me awards. It was physical and firearms training. Yes, you're right. It was recruitment. Yes, sir. It was different forms of financial support. Not a huge amount, but $500, $8, $80 there. Yes, Your Honor. There was travel abroad, communication with Boyd before, and afterwards. So by missing any categories, it's not just an encode. Kind of conversation. It's a question of not a belief, but of deeds to put a violent plan into action. Yes, Your Honor. And specifically, for example, charge two required over that. That's the way that jury looked at it. Yes, Your Honor, I believe so. And they were instructed as such in that specifically charge two required over an axe. And these were all items presented to display them. With regard to the first amendment that has one mentioned, Your Honor, I think it important. The instructions weren't good enough. Right? On the first floor. Yes, Your Honor. Yes. And I think that ties into the, as I stated out, that the instructions were based off of the facts of this case and the charges of this case. And the district court went to great pains to review the instructions requested by a peasant and went to great pains to determine whether any of those would be appropriate. And she appropriately executed her duty. The government will argue that the district court has a duty to exclude argument regarding a legally insufficient defense. And there's a variety of reasons for that. I think it falls right in line with, for example, 403, irrelevant evidence that the procative value of an legally insufficient defense is simply irrelevant. It's a problem. And it's a problem because it has a danger of unfair prejudice to the government. It additionally confuses the issues and misleads the jury. And the fact of the matter is here, as Judge Wilkinson asked me, the defendants at trial had multiple opportunity to cross examine each one of these individuals at great length and to test it. And what they're confusing here is their ability to test the evidence and argue the evidence with the First Amendment. They were certainly free to argue, look, these guys said these things, but they didn't mean X, Y, Z. The district court instructed the jury that no conviction could be based on police align. The district court instructed the jury as to the statement that you have the right of association, you have the right freedom of religion. As to these charges, the First Amendment is not a defense. And that is an appropriate instruction because what the government, what the misleading here is that what the appellants are essentially getting at is if the government meets all of its elements for this burden, and the jury was appropriately instructed as to that heavy burden. In all the elements. It's to the elements of the crime. Correct. And they were instructed what the First Amendment defense argument would do is say, yes, they may have met that, but here's the First Amendment and you have a right to do these things. No, and that is a legally insufficient defense in this case. First Amendment simply isn't- They could have instructed that you not that ideas alone are not sufficient to no matter how they may disagree with it, ideas alone are insufficient and you didn't give possession instruction. That I'm sorry, I missed the first part of it. Ideas alone are not sufficient to found an addiction. Yes, she gave all the elements, but she didn't give an instruction to the essentially, to the effect that ideas alone are not enough. That would be a fair statement. She did not give that specific instruction. But she gave all of the elements. Correct. And I suppose- What you say is sufficient. Yes, Your Honor, and I think that going that additional step would only be inviting some type of argument that for some reason the jury would be likely to do that. And in this case, they were instructed as to the elements that were necessary. Which of the elements involved over-adax and which of the counts involved over-adax required over-adax and which of the counts simply required in the greener? The easiest way to look at is the count one is the only count that did not require the over-adact when regarding a conspiracy. All right, the count one simply required an agreement. Correct, Your Honor. All right, how many counts were there? Believe 11, Your Honor. But there are only five that are pertinent here. Yeah, the ones pertinent to these individuals would be one and two. Count one was one that did not have an over-adact for- Correct, Your Honor. And as to that count, the construction was given about the necessity for an agreement. Correct, Your Honor. And count two required an over-adact. And there went beyond simply talking. And that instruction was properly here. Yes, Your Honor. Has been unlawful agreement. Yes. Right, the unlawful agreement. Correct, Your Honor. Yes. And as first amendment and defense to it would more be more like a legal issue than a jury issue. Yes, Your Honor. And I think the judge appropriately- The illegal attack on the statute. Yes, and the judge appropriately determined that you don't have a first amendment right or a defense against your words that are in agreement of a conspiracy. Yes, you don't have a first amendment right or a second amendment right to conduct illegal acts or to agree to commit illegal acts. I mean, you have a first amendment right to your beliefs without question. But you don't have a first amendment right to commit illegal acts or to launch a plan to commit illegal acts. I mean, but the point is the difference between belief and conduct and belief and planned action was clear. Yes, Your Honor. I believe that the government presented that evidence and argued it exactly in that manner. The, if the government is, or if the court is pleased the argument with regard to the first amendment, I'll address briefly the terrorism enhancement. The sentencing. Yes, the sentencing terrorism enhancement. Unless there are any further questions with regard to the first amendment issue. Thank you, Your Honor. Sir, I will point out with regard to the terrorism enhancement that has been an issue as briefed by the appellants. This very much goes hand in hand, I think, with the sufficiency of the evidence. Is that about everybody? Yes, Your Honor, it did. All up God. It's a huge up and huge up matter. Yes, Your Honor. And the support that was used for that is very much hand in hand with the factual sufficiency evidence that we brave as well that we've been talking about. That's really a factual finding, isn't it? It very much is, Your Honor. The one additional step that the terrorism enhancement sort of looks to, whether or not, has to be- It's a question of intent. Yes, has to each individual. And it's a question of, is there an intent to promote a crime of terrorism or to provide material supposed to terrorism? That is true. And then that goes back right back into the sufficiency of the evidence with respect to intent. Yes, Your Honor. Although the government will acknowledge that it additionally, along with that, it phrases it such that the specific intent must have been calculated to influence or affect government conduct by intimidation or coercion or to retaliate against government conduct. But that's a- found under a preponderant standard or as Shandia says under a clear and convincing evidence standard. Your point is it passes muster under a clear and convincing evidence standard. And I doubt that the standard of review is still one of clear air all on a factual finding. Yes, Your Honor. And as you noted notably that the district where at the time found it by a clear and convincing standard. Right. Which is a high-burned- At all those Shandia cases come out by the time you all find out- No, Your Honor. At the time the government had requested a preponderance of the evidence standard. And the court held us to a clear and convincing standard. So it's called Shandia came out. The evidence with regard to specific intent and just to highlight for Your Honor's individually a little bit. Because it is very easy to sort of look at the whole. But acknowledging when it comes to this particular element, its specific intent has each individual in it. And it is somewhat improper to attribute the conspirator intent. Here Mr. Husson, there was testimony and evidence presented as to his clear distaste for Jews and those that were non-Muslims. And as Coleman testified, Israel is one of the top locations for these within this extremist movement to try and get to, to try and travel to for violent purposes. And that is precisely where these individuals attempted to go in 2007, though they returned around. There were Facebook posts, a number of them specifically- They got stopped at the airport in Tel Aviv and then put on planes and send somewhere else. Yeah, the reason they worked- Yes, Your Honor. Essentially at the border, Israel turned all four of these individuals around. Throughout his Facebook post, he makes mention of like smoking Jews like a cigarette. He makes mention of murking, or as was testified to, murk is short from mercenary or assassinating all Americanized Muslims. He praises the Taliban through his Facebook post. And he displays aggression against- Who's the he and this right? This is all with regard to his song, sir. And within all of these Facebook posts, there's between him and Yogi, there's an obvious aggression against law enforcement and the government constantly mentioning the feds. Jamar Carter was a friend of his who testified and said that he would show me these videos of car bombings and things of that nature in Iraq and Afghanistan. And then he prays for the individuals fighting war against people invading their country. He sent 44 ways to Dylan Boyd, 44 ways to commit jihad. According to agent Manila, when Hassan was arrested, he testified that he stated that the Mujahidin in Iraq were simply freedom fighters. The Ross training video that we mentioned of support our troops with a clear indication of it, not being US troops. And then he sent a video on his Facebook of, it was entitled, the message of the Mujahidin to the Americans. And as was stated, as was presented at trial, that was nothing short of war propaganda. It was displaying Mujahidin warriors, putting IEDs down and blowing up cars and whatnot. And then it was overlaid with words to the effect of the Bush regime and the criminal American democracy. All of this goes towards that specific intent element with regard to retaliation against government conduct or their efforts being to intimidate the government, with regard to Yogi shifting to him for a moment. The factual sufficiency evidence as we've laid out, again, the same thing with regard to his view of the Jewish people. He has a, on his Facebook, he has a link about the Palestinian or that praising an individual who basically stated that they would cut their flesh out then allow any of Palestine be cut from the Muslim lands. All of this goes towards aggression towards government conduct, a problem with governments. And under the enhancement, it need not be the US government. It could be any government. He comments about an article about Somali Islamist joining with Hezbollah in regard to retaining Palestine. And he states that the Muslims are uniting against the Kufr, being again, a government. He explained to me though, why are you not starting to kind of drift away from the message of being, why are you not kind of drifting into this thing and the first amendment problem? Well, this is all with regard to his intent, you know, we have his actions. And the question is, well, why did you do those things? Why did you train? Why did you go there? Why did you train? Yes. And so this is solely for intent. With regard to Mr. Shreve, I'll just briefly mention that the record is right with instances of his specific intent to the level of I'd be willing to fly a plane. The best place to go would be the White House or the parliament in terms of getting into a battle front. Clearly, he had an issue and an intent to retaliate against government conduct. I see that my time is about to expire. If there are no further questions. Oh, do you have any further questions? We have no further questions, sir. In consideration of the record, the government's written brief and my attempt here to clarify our position, the government requests this court denies, pellets, claims, and affirms the findings of the district court. Thank you, sir. Mr. Boy, you have some rebuttal time. Yes. Thank you, Your Honours. In his remarks, my adversary stated when addressing the sufficiency issue, quote, ideology is the basis of things. And we respectfully submit that that was argued to the jury and the quote is in our, and it is an art breed from the summation, that that really points out why it was really necessary for the court to instruct the jury adequately on the First Amendment. The court never told the jury here that it could not convict on the basis of beliefs alone. They would never told that. And so the elements of the crime were correctly submitted to the jury and the elements of the crimes of 10 of the 11 counts, some of which are not an issue here, required over at acts, and it required something more than compensation, went to the point of requiring an agreement to commit illegal acts. Without your honor, without the instruction, the jury was free here to decide that there was a conspiratorial agreement, an unlawful agreement, simply on the basis of the defendant's speech and their beliefs. Do you claim in any of the criminal statutes that were violated here are unconstitutional under the First or Second Amendment? No, your honor. We're not claiming that on this issue. That's what you have to do, I think. The issue here and was the gravamint of their defense, that while they may have embraced this radical form of Islam, that believed that it was a requirement at some point in the future to support or engage in jihad, that there was no unlawful agreement. And the government in their summation says, when you join those beliefs, when you sign up for that cause, you're saying I agree with that. And so the government was urging the jury in their summation to find the agreement just on the basis of their beliefs and on their speech. That seems to me to be a little simplified a little bit because every crime has to have a mens ready. And you need to understand part of the whole question here was the intent undertaking the travel of benign intent, always the intent to engage in violent jihad. And if it was a benign intent, that's perfectly fine. There's no criminal act. If there was an intention to engage in violent jihad, then that becomes different. But I don't see there was no conviction here on the basis of mere belief. But on the other hand, in order to sketch out the intent and in order to ascertain the mens right here, it's impossible not to get into why these trips were taken and why the training was undertaken. And in fact, you made that a central issue of the whole trial by saying that all of the trips abroad were perfectly innocent and benign. And I don't understand why the government isn't able to counter that by saying no, the intent in taking these trips was not a tall benign. It was to engage in count two to describe to kidnap murder, man, and injured individuals abroad. But that seems to me part of the issue on which the case is in joint, which the issue is joined. And I don't understand how you can introduce evidence of a benign intent. The government can't counter it. The issue, Your Honor, is not whether the evidence of their beliefs was inadmissible. That's not our claim on this appeal. The issue is that those beliefs cannot constitute the basis of the agreements. In other words, the only thing we asked for a trial court. That's fine. But if a constitutional statute is submitted to the jury and it corrects the Elements of the Crown, a constitutional statute is submitted to the jury, correctly recites the Elements of the Crown. I know of no law that would say that the district court committed reversible error in doing such a thing. I don't think I respectfully submitted that court wouldn't have to find the statute to be unconstitutional before there would be a jury instruction on really what was the defense theory. That's our kid. We're relying on Matthews and all those cases out of the Supreme Court, which said your entitled to an instruction on your defense theory. And he is a theory was that they may have had these beliefs, but it was not an unlawful agreement. And that's all the theory I was going to do. It was protected by the First and Second Amendment. I mean, you're arguing on this part, you're saying what you did was protected by the First Amendment, which is a backhanded way of saying that the statute's defective under the First Amendment. It's like it may be needed to follow what we used to call a demur or the indictment or something. You're on what we're saying here is that they couldn't be convicted only on that. The jury was free and I'm not going to get rid of you. While they have the elements of the offense, they can't convict solely on that. Without this instruction, I would submit, and I know my time is way over here. The jury was free to say, we're finding the agreement solely on their ideas and thoughts. No, even if they rejected everything about the trust. It wasn't free to bet. There was nothing in the instructions. It said, jury can just find these people guilty of these various counts based on their ideas and thoughts. There was nothing that even hinted at that kind of fun. And the district judge is entitled to some discretion, of course, as to what instructions can be given and what instructions are not given. Look at these instructions. There is nothing that says. You, nothing that even comes close to set, that you can convict people on the basis of their ideas and beliefs. I would just respectfully, and then I'll sit down. On the facts of this case, with so much of the proof, with the defendant's conversations, the Facebook postings, the emails, all the things that counsel just in terms of the terrorism enhancement read from. We respectfully submit an abuse of discretion, not to at least tell the jury that that can't be the basis of the conviction. Essentially what you're arguing for is not something about the elements, but just kind of a cautionary instruction. An instruction on the defense, which would be more than just a cautionary. But it's very similar to a cautionary instruction. And also because it would never toll, it was only admissible on intent. All of that evidence. It came in without that. Thank you very much for your indulgence in time. Thank you, sir. Mr. Boyce. Thank you, Your Honours. One or two things about what the government said. First of all, you asked the prosecutor whether our cross examination was cut short. I respectfully disagree by the rulings of the court on some of the evidence. It cut our ability to cross examine significantly. And by some of the rulings, I would submit a gut error defense. gutted our defense. For example, in the wrongs training.com video, they used the hearsay statement, support our troops on that same bit. And in that blog, whatever you call it, Omar Hassan said, part of my religious faith is to become strong and in healthy shape. And then later on, he says, P.S., I do not support terrorists. The court refused to allow us to introduce that evidence. Where is the cross examination point, Ruth? Where is the one? Your brief? I can't, I couldn't point to it right now, but we quote that phrase. I do not support terrorists. Is there an assignment of error? Yes, yes, Your Honour. You say the ruling completeness was contravene. Our ability to cross examine was contravene by the courts ruling both on the opinion evidence as well as the testimony surrounding the YouTube video and then again, the Facebook. She allowed it all in in mass without having a witness lay the foundation forward. We did not have the ability to cross examination the Facebook witness as to how you put things on Facebook, whether it was Omar thoughts or whether it was somebody else thought we already crawled for B. Washington, that we have anybody that we could cross examine on our medication and how the Facebook postings occurred. And then she limited our ability to cross examine on parts of Facebook and parts of YouTube. I would say that was especially important in Omar Hassan's case because of the weakness of the government's case. There were a lot again on the trip. There was nothing, I don't think, on the trip. There might have been some pictures of the boys at the beach that were precluded. And the YouTube only had to do with training. And again, under the government's theory, training, Boy Scouts have a badge for gun training. You learn to shoot a gun and Boy Scouts should get a badge. Under their theory of the case, I would submit that a Boy Scout could be found guilty of providing material support to a terrorist if he had a Boy Scout badge for training and firearms and had some conversation on the Internet of Facebook about their belief whether they thought violent jihad was a good thing or bad thing. Putting it on together that way is what they were trying to do with respect to Omar Hassan. That's a different case. All right. The First Amendment argument, I would ask the court to look at the two cases that we cited on First Amendment jury instruction that gutted our case too. When the judge says the trial court instructed the First Amendment is not at offense and refused to give an explanation as to what type of speech or actions are constitutionally protected. Her statement just to the fact that the First Amendment is not at offense gutted our case. We're not saying that actions aren't prosecutable. What we were saying, the mere belief or expression of one's belief is not prosecutable. When the judge did not give that instruction, it gutted our case significantly. The other gutting of the case is her refusal to give any kind of statement to the jury about the Second Amendment. The fact that the mere possession of a gun shooting it across a site doesn't show providing conspiring with somebody to provide material support to a terrorist. Thank you, sir. Thank you. Mr. Fisher. I'll be brief. Appreciate the extra time you give Mrs. Mourning. Let's fast forward a few years. Let's suppose the government operation has not rounded up these gentlemen and Mr. Boy and Sharif B and everybody else is still out there. Let's suppose they are at Mr. Boy's market. Instead of talking generally about Jihad, they are expressing their outrage about how the Assad government in Syria is using chemical weapons against the rebels. They make a plan. We're going to train and we're going to go over there and we are going to fight the Assad government. That would be a specific act, that would be a specific plan, probably one that the government would hail them as he rose. But regardless, you know what the object of the action is. Here, because of the hundreds of thousands of pages of ideology without any framework, I would contend respectfully disagree with Mr. Calhover that there was no plan to be the object of the conspiracy. Thank you. Thank you. We will come down and greet council and then take a brief recess