United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
has filed four post-trial motions. The first motion seeks
dismissal of the indictment or a new trial based on a variety
of grounds, such as the jury instructions allegedly not
including an essential element and Judge Wake allegedly
disclosing Defendant's theory of defense. The second
motion argues there is “newly discovered
evidence” that merits a new trial. (Doc. 958). The
third motion renews a previous motion requesting the Court
“suppress all e-mail content and derivative
evidence.” (Doc. 985). And the fourth motion seeks a
Second Superseding Indictment contained six counts concerning
Defendant conspiring with others to use a weapon of mass
destruction. On March 16, 2018, Defendant was convicted on
the following four counts:
1. Conspiring to Use a Weapon of Mass. Destruction, 18 U.S.C.
2. Conspiring to Maliciously Damage or Destroy United States
Government Property by Means of an Explosive, 18 U.S.C.
§ 844(f)(1), (2) and (n);
3. Aiding and Abetting Other Persons to Possess a Destructive
Device in Furtherance of a Crime of Violence, 18 U.S.C.
§ 924(c); and
4. Conspiring to Possess a Destructive Device in Furtherance
of a Crime of Violence, 18 U.S.C. § 924(o).
was found not guilty of:
1. Conspiring to Commit Extraterritorial Murder of a National
of the United States, 18 U.S.C. § 2332(b)(2); and
2. Providing Material Support to Terrorists, 18 U.S.C. 2339A.
weeks and months following the verdict, Defendant filed a
variety of motions. First, on April 13, 2018, Defendant filed
a “Motion for Judgment of Acquittal, to Dismiss for
Lack of Jurisdiction, or, alternatively, for a New
Trial.” (Doc. 975). Then, on April 19, 2018, Defendant
filed a “Motion for New Trial Based on Newly Discovered
Evidence.” (Doc. 958). Before the Court could rule on
those motions, Defendant filed two more motions: a
“Renewed Motion to Suppress E-Mail Content and
Derivative Evidence” and a “Motion for a Downward
Variance Pursuant to the Factors Listed in 18 U.S.C. §
3553(a) and in the Interests of Justice.” (Doc. 984,
985). The government opposed all four of these motions but
Defendant did not file a reply in support of most of them.
Defendant's sentencing is set for November 7, 2018.
Motion for Judgment of Acquittal, to Dismiss for Lack of
Jurisdiction, or New Trial
first motion presents a wide variety of arguments in support
of a request for acquittal, a dismissal based on lack of
jurisdiction, or a new trial.
Different Theory of the Case
Defendant argues he “was convicted on a theory the
government never charged and did not prove.” (Doc. 975
at 5). Defendant points out the indictment accused him of
“manufacturing, designing, and supplying certain items
used in specific IEDs that were actually
employed against U.S. troops and vehicles,
including in two specific events in 2007.” (Doc. 975 at
6). Despite the specific language in the indictment regarding
actual use, the government failed to produce at trial any
evidence that an “item with which [Defendant] allegedly
came in contact was ever actually employed against any U.S.
person or property.” (Doc. 975 at 6). Defendant
believes the difference between what was alleged in the
indictment and what was proven at trial constituted a
constructive amendment of the indictment or a fatal variance.
And even if not cognizable under one of those doctrines, the
government's actions allegedly deprived Defendant of his
“Fifth and Sixth Amendment rights to notice and the
effective assistance of counsel.” (Doc. 975 at 11).
“A constructive amendment occurs when the defendant is
charged with one crime but, in effect, is tried for another
crime.” United States v. Pang, 362 F.3d 1187,
1194 (9th Cir. 2004). The “seminal case”
addressing constructive amendment involved a defendant who
“was indicted for extortion relating to interference
with interstate shipments of sand.” United States
v. Ward, 747 F.3d 1184, 1190 (9th Cir. 2014) (citing
Stirone v. United States, 361 U.S. 212 (1960)). At
trial, the government introduced evidence the defendant had
interfered with both steel-related and sand-related
shipments. The jury was then instructed that it could convict
based “on either the sand- or steel-related
conduct.” Id. The jury convicted but the
Supreme Court reversed, concluding that allowing evidence of
the uncharged steel-related shipments meant “the
district court had constructively amended the indictment by
expanding the conduct for which the defendant could be found
guilty beyond its bounds.” Id.
on the Supreme Court's guidance, the Ninth Circuit has
formulated the constructive amendment test as requiring a
fact-intensive inquiry into the indictment, “the jury
instructions as a reflection of the indictment, ” and
“the nature of the proof offered at trial.”
Id. at 1191. “[W]hen conduct necessary to
satisfy an element of the offense is charged in the
indictment and the government's proof at trial includes
uncharged conduct that would satisfy the same element,
” a court must assess other facts, such as the jury
instructions, to ensure the defendant was convicted
“solely on the conduct actually charged in the
indictment.” Id. The constructive amendment
doctrine, however, does not apply merely because the
indictment contains specific allegations that are not proven
constructive amendment doctrine does not prohibit an
indictment from containing “superfluously specific
language describing alleged conduct irrelevant to the
defendant's culpability under the applicable
statute.” Ward, 747 F.3d at 1191. This means
the government is not required to “prove all facts
charged in an indictment.” United States v.
Jenkins, 785 F.2d 1387, 1392 (9th Cir. 1986). Instead,
the government must prove only “the essential elements
of the crime.” Id. And “[i]nsofar as the
language of an indictment goes beyond alleging elements of
the crime, it is mere surplusage that need not be
proved.” Id. In other words, the constructive
amendment doctrine “only applies to the broadening,
rather than the narrowing, of indictments.” United
States v. Wilbur, 674 F.3d 1160, 1178 (9th Cir. 2012).
constructive amendment argument is that the indictment
contained allegations that Defendant was involved in the
manufacture and design of parts that were “actually
employed against U.S. troops and vehicles” but the
government did not prove any actual use at trial. The problem
with this argument is that the language in the indictment
regarding Defendant's connection to parts actually used
in bombings was unnecessary under the particular crimes
charged. The government did not have to prove such a
connection to secure convictions and, to the extent the
indictment contained such specifics, it was mere surplusage.
No constructive amendment occurred.
next argument is that the failure to prove his connection
with parts actually used constituted a variance. “A
variance occurs when the charging terms of the indictment are
left unaltered, but the evidence offered at trial proves
facts materially different from those alleged in the
indictment.” United States v. Ward, 747 F.3d
1184, 1189 (9th Cir. 2014). To be entitled to relief under
this doctrine, a defendant must prove the divergence between
the facts alleged in the indictment and those proven at trial
resulted in prejudice. Id. at 1190.
Defendant claims the differences between the indictment and
proof at trial meant he did not have “the notice
necessary to enable him to prepare his defense.”
Defendant does not explain how the government's decision
not to prove a direct connection between him and parts
actually used prevented him from preparing his defense.
Proving a connection between Defendant and actual use was not
an element of any of the offenses and Defendant's
preparation for trial was not changed because of the
connection alleged in the indictment. In the context of this
case, the allegations in the indictment simply could not
“have misled the defendant at the trial.”
Berger v. United States, 295 U.S. 78, 83 (1935).
Therefore, even assuming there was a variance between
indictment and proof, Defendant was not prejudiced.
Fifth and Sixth ...