Jury Instructions/Terrorism Offenses – In a prosecution brought under 18 U.S.C. § 2339B, showing that the defendant utilized “strategy” or “tactics” used by a terrorist organization, even when those tactics or strategies are published by the organization in a call to action, is not sufficient to prove that the defendant acted in “coordination” with that organization in providing material support or resources to them.
David Wright was convicted of several terrorism offenses, including conspiracy to provide material support or resources to a designated foreign terrorist organization under 18 U.S.C. § 2339B. Specifically, the Government alleged that Wright and others conspired to provide material support to ISIS by forming a plot to kill police officers in the United States.
On appeal, the Court first held that there was sufficient evidence that Wright acted “in coordination with” ISIS, primarily based on Wright’s phone calls with an individual in the Middle East who was allegedly a member of ISIS. Wright also argued that the district court erred in its jury instructions, however, and the Court agreed and reversed his conviction.
The district court had instructed the jury that, in defining “conduct done in coordination with or at the direction of the foreign terrorist organization,” the conspirator has to be acting “in coordination with the strategy, the tactics of the foreign terrorist organization.” Wright argued that this language allowed the jury to convict him for conduct that was beyond the scope of the statute—namely that the prohibition on providing “material support or resources to ISIS” does not apply to a defendant who merely adopts the strategy and tactics made publicly available by ISIS.
The Court agreed that the judge’s instructions misstated the law. The Court examined the language of the instruction and concluded that allowing the jury to define “coordination” with ISIS as acting “with the strategy, the tactics” that ISIS publishes and promotes online would allow a jury to convict a defendant “based merely on a finding that the defendant had operated in parallel to that organization.”
The Court also concluded that this was reversible error under harmless error review, noting that the error was particularly harmful based on underlying constitutional concerns. The erroneous instruction reduced the government’s burden to prove one of the two theories it advanced at trial, that Wright had acted at the “direction” of ISIS members or had acted “in coordination” with ISIS. While the jury may have chosen to convict Wright based on the “direction” theory,” the evidence supporting this theory was not “overwhelming,” especially since that theory was solely supported by the government cooperator’s testimony, “which is a type of evidence that is rarely deemed to be overwhelming on its own.” Conversely, Wright had testified that he had been acting out “role-playing” and “trash-talking” regarding his apparent support for ISIS, a defense that the constitutionally flawed jury instructions undermined.
Appeal from the District of Massachusetts
Opinion by Barron, joined by Howard and Kayatta