United States v. Ibraheem Musaibli

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0168p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

UNITED STATES OF AMERICA,

│

Plaintiff-Appellant, │

> No. 22-1013

│

v. │

│

IBRAHEEM IZZY MUSAIBLI, │

Defendant-Appellee. │

┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

No. 2:18-cr-20495-1—David M. Lawson, District Judge.

Argued: June 9, 2022

Decided and Filed: August 2, 2022

Before: BOGGS, MOORE, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: Andrew Goetz, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for

Appellant. John A. Shea, Ann Arbor, Michigan, for Appellee. ON BRIEF: Daniel R. Hurley,

UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellant. John A. Shea,

Ann Arbor, Michigan, James R. Gerometta, Fabián Rentería Franco, OFFICE OF THE

FEDERAL COMMUNITY DEFENDER, Detroit, Michigan, for Appellee.

_________________

OPINION

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KAREN NELSON MOORE, Circuit Judge. International terrorism raises a host of

complex legal issues, not the least regarding the rule against hearsay. For example, if a criminal

defendant is alleged to have been part of a terrorist group, then do records documenting that

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group’s organizational structure, logistics, and activities qualify as statements of co-conspirators

under Federal Rule of Evidence 801(d)(2)(E)? This interlocutory appeal poses that question.

Because the district court answered incorrectly, we REVERSE its denial of the government’s

motion to admit the evidence at issue and REMAND with instructions that this evidence may be

admitted. Consequently, the government’s motion to expedite is DENIED as moot.

I. BACKGROUND

A. Facts

Amidst the fallout of the 2003 invasion of Iraq, the Arab Spring of 2011, and the ongoing

Syrian Civil War, a new terrorist group emerged near the Syrian-Iraqi border: the Islamic State

of Iraq and Syria (“ISIS”). Unlike other terrorist groups in the region, ISIS set as its goal the

conquest of territory that it would then administer as a state. R. 166 (06/28/2021 Evidentiary

Hr’g Tr. at 27:2–8) (Page ID #1764); R. 167 (06/29/2021 Evidentiary Hr’g Tr. at 274:22–275:6)

(Page ID #2011–12). ISIS made this aim clear in 2014 when it announced that it sought to create

a “Caliphate,” or a self-proclaimed “Islamic State.” R. 167 (06/29/2021 Evidentiary Hr’g Tr. at

326:17–327:5) (Page ID #2063–64). By this time, the group already controlled large swaths of

territory in both Syria and Iraq. Id.

Territorial expansion, however, required more than willpower. It took logistics.

In acquiring additional lands in Syria and Iraq, ISIS acquired additional resources, including oil

fields and millions of dollars from the region’s financial institutions. Id. at 304:20–22 (Page ID

#2041). The number of ISIS’s members also ballooned as the group’s influence over these lands

spread. Id. at 274:6–9 (Page ID #2011). This growth spurred the need for organization, and so

to administer its expansive domain, manage its troops, and allocate its resources, the terrorist

group became increasingly bureaucratic. Id. ISIS accordingly divided its operations into

ministries to manage its affairs. Id. at 283:19–22 (Page ID #2020). These included offices that

focused on matters such as finances and defense. Id.

As the existence of a ministry of defense connotes, ISIS applied this bureaucratic mindset

to how it structured and operated its military. Units were divided into divisions and then

subdivided into battalions. R. 166 (06/28/2021 Evidentiary Hr’g Tr. at 87:10–20) (Page ID

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#1824). Before being assigned to a battalion, fighters underwent religious, ideological, and

military training. Id. at 144:10–145:16 (Page ID #1881–82). For their services, fighters were

paid a monthly salary and their dependents received benefits if a fighter was killed in combat.

Id. at 145:22–25, 152:21–25 (Page ID #1182, 1889). ISIS maintained payroll records to help to

administer the salaries and keep track of its members. R. 167 (06/29/2021 Evidentiary Hr’g Tr.

at 285:18–286:2, 292:7–18) (Page ID #2022–23, 2029).

Given its complexity, the lifeblood of this bureaucracy was information and ISIS

accordingly kept detailed entries in databases about its fighters. These entries included the

names of fighters’ family members, their country of origin, their birthday, and their “kunya,” a

fighter’s internal military name. R. 166 (06/28/2021 Evidentiary Hr’g Tr. at 150:16–19, 162:12–

17) (Page ID #1887, 1899). In a similar vein, ISIS monitored and recorded the combat readiness

of its fighters. Id. at 150:20–23. Fighters were assigned unique ten-digit numbers akin to Social

Security numbers to facilitate administration. Id. at 77:19–21, 133–35 (Page ID #1814, 1870–

72). Only those who swore allegiance to ISIS received an identification number. R. 167

(06/29/2021 Evidentiary Hr’g Tr. at 337:23–338:11) (Page ID #2074–75).

Among those allegedly recruited to fight for ISIS was the defendant, Ibraheem Izzy

Musaibli. Originally from Dearborn, Michigan, Musaibli moved to Yemen in April 2015.

Appellee Br. at 4. He concedes that he then traveled from there to Syria in the fall of 2015. Id.

What happened in Syria, on the other hand, is a matter of dispute. Whereas Musaibli claims that

he was forced to join ISIS, the government claims that his allegiance was voluntary. Id.;

Appellant Br. at 5–6. In the government’s timeline, Musaibli freely attended an ISIS-run

religious training camp from October to November 2015 before undergoing military training

from December 2015 to January 2016. R. 185 (Bill of Particulars at 2) (Page ID #2243).

Regardless of why he was there, Musaibli traveled to Iraq and attended a military training

camp sometime after entering Syria. Approximately forty nascent fighters, including, as he later

admitted, Musaibli, were present at the training in the Iraqi city of Mosul, which lasted for

twenty days. Ex. E.1 (Gary Interview at 4, 7). There, Musaibli was instructed in matters such as

physical fitness, how to operate an assault rifle, and ways to conduct ambushes. Id. at 5, 7–11.

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The training culminated in Musaibli and his fellow attendees swearing allegiance to ISIS. Id. at

15–16.

ISIS collected information from Musaibli, as it did from other fighters. Various entries in

the terrorist group’s databases included his birthday. See, e.g., R. 166 (06/28/2021 Evidentiary

Hr’g Tr. at 29:7–8, 84:15–16) (Page ID #1766, 1821). Likewise, Musaibli’s kunya, “Abu ‘abd

al-Rahman al-Yemeni,” appears throughout the databases next to his birthday. Id. at 28:23–29:1,

74:4–9, 83:25–84:18 (Page ID #1765–66, 1811, 1820–21). Musaibli corroborated that this was

his kunya. Ex. E.1 (Gary Interview at 19). As with other members of the battalion, Musaibli

also had an identification number—1200015723—and this, too, recurred next to his birthday and

kunya in different entries. R. 166 (06/28/2021 Evidentiary Hr’g Tr. at 83:16–24, 250:5–19)

(Page ID #1820, 1987). Numbers starting with 120 were associated in ISIS’s bureaucracy with

non-Iraqi and non-Syrian fighters, though not exclusively so. R. 167 (06/29/2021 Evidentiary

Hr’g Tr. at 336:12–337:1) (Page ID #2073–74).

These entries were not always perfect. Musaibli’s name was sometimes misspelled.

R. 166 (06/28/2021 Evidentiary Hr’g Tr. at 233:8–12, 236:2–15) (Page ID #1970, 1973). Other

mistakes with ISIS’s recordkeeping were more serious. Different fighters had incorrect

birthdates in their entries, were erroneously listed as either dead or alive, and had the number of

their dependents fraudulently altered to increase their monthly stipend. Id. at 236:16–237:20

(Page ID #1973–74). Although the database administrators failed to correct every mistake, such

issues did not escape Musaibli’s notice. On one occasion, he complained to an administrator,

Abdelhamid Al-Madioum, that despite his entries reporting otherwise, he was married and

should be receiving a marital stipend. Id. at 224:4–7, 251:16–252:15 (Page ID #1961, 1988–89).

Nor was Musaibli’s service in ISIS without blemish. Because of his nationality, Musaibli

was assigned to the Tariq Bin Ziyad battalion, which was composed mainly of non-Iraqi and

non-Syrian fighters and numbered between 100 and 150 members. Id. at 75:2–4, 145:18–19

(Page ID #1812, 1882). After training, Musaibli was sent with the battalion to Hit, Iraq, where

fighting was ongoing. Ex. E.1 (Gary Interview at 19); United States v. Musaibli, No. 18-20495,

2021 WL 6125849, at *1 (E.D. Mich. Dec. 28, 2021). His main duties appear to have been

conducting “Ribat,” which the government has explained is a form of armed guard duty near the

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frontline. Ex. E.1 (Gary Interview at 9–10); Musaibli, 2021 WL 6125849, at *1.

His performance of these responsibilities was tainted, however, as someone in ISIS documented

that Musaibli “left the frontline twice without permission.” Ex. 1. Musaibli later alleged that he

was a hostage of ISIS and imprisoned by the group ten times while he was in Syria and Iraq.

R. 163 (06/21/2021 Mot. to Suppress Hr’g Tr. at 279:2–3) (Page ID #1605).

During his tenure with ISIS, Musaibli also communicated with family members on

various occasions. Through messages sent on Facebook, for instance, Musaibli told family

members that he was with ISIS in Iraq and that he was fighting Americans and Shia Muslims

there. R. 163 (06/21/2021 Mot. to Suppress Hr’g Tr. at 265:23–266:9) (Page ID #1591–92);

Ex. L (Facebook R. at 114). On another occasion, Musaibli encouraged his family to travel to

ISIS territory. R. 163 (06/21/2021 Mot. to Suppress Hr’g Tr. at 270:1–21) (Page ID #1596). He

was apparently unsuccessful at that endeavor, and in August 2016 Musaibli’s cousin asked him

whether he wanted to leave ISIS. Musaibli responded to the effect that he was not ready to go

yet. Id. at 267:7–11 (Page ID #1593); Ex. L (Facebook R. at 270–71). Musaibli separately

relayed to his father the kunya that he used. R. 166 (06/28/2021 Evidentiary Hr’g Tr. at 84:4–

13) (Page ID #1821).

Musaibli departed from the region two years later. Over several weeks in April and early

June 2018, Musaibli exchanged messages with a federal agent about the possibility of leaving

Syria. United States v. Musaibli, No. 18-20495, 2021 WL 5879405, at *1 (E.D. Mich. Dec. 13,

2021). By June or July 2018, the possibility became a reality. During one of those months,

Musaibli was apprehended by Syrian Democratic Forces while, he alleges, trying to flee ISIS.

Id. at *1; Appellee Br. at 6. Soon after he was captured, federal law-enforcement agents took

Musaibli into custody in Syria and brought him back to the United States. Musaibli, 2021 WL

5879405, at *2. Enroute, Musaibli waived his Miranda rights and discussed his time in ISIS

with the federal agents. Id. at *2–3. As a result of these discussions and other evidence, the

government alleges that Musaibli was a member of ISIS from October 2015 until his capture in

either June or July 2018. R. 185 (Bill of Particulars at 1) (Page ID #2242).

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B. Procedural History

Back in the United States, Musaibli faced criminal charges for his ISIS-related activities.

A grand jury indicted him for “providing and attempting to provide material support to a

designated foreign terrorist organization” in violation of 18 U.S.C. § 2339B; “conspiracy to

provide material support to a foreign terrorist organization” also in violation of 18 U.S.C.

§ 2339B; possessing and discharging a firearm (machine gun) in furtherance of a crime of

violence in violation of 18 U.S.C. § 924(c)(1)(A), (B)(ii); and “receipt of military-type training

from a foreign terrorist organization” in violation of 18 U.S.C. § 2339D(a). R. 48 (First

Superseding Indictment at 1–5) (Page ID #104–08); R. 185 (Bill of Particulars at 1–4) (Page ID

#2242–45).

In preparing for trial, the government identified the following exhibits that were

recovered from various ISIS facilities (collectively, the “ISIS documents”):

• Exhibit One: A roster of fighters assigned to the Tariq Bin Ziyad battalion,

which contained Musaibli’s kunya, census number, and other personal details.

R. 166 (06/28/2021 Evidentiary Hr’g Tr. at 26:1–29:17) (Page ID #1763–66).

• Exhibit Two: A biographical sheet for a member of the Tariq Bin Ziyad

battalion other than Musaibli who had gone missing and with whom Musaibli

had allegedly worked to recruit others to ISIS. Id. at 29:18–30:25, 75:8–77:3,

165:13–167:19 (Page ID #1766–67, 1812–14, 1902–04).

• Exhibit Three: Another roster of members of the Tariq Bin Ziyad battalion,

this one of battalion administrators, including Al-Madioum. Id. at 167:20–

170:16 (Page ID #1904–07).

• Exhibit Four: ISIS payroll records for fighters, administrators, and other

members of the terrorist group, including a fighter later identified as Musaibli.

Id. at 81:11–88:20 (Page ID #1818–25).

• Exhibit Five: A spreadsheet containing Musaibli’s kunya, census number, and

other personal details, and which appears to have been connected to a budget

prepared by ISIS’s Office of Treasury. Id. at 88:21–93:13 (Page ID #1825–

30).

• Exhibit Eight: Budget databases, which included reports from the “Soldier’s

Administration” of ISIS covering months in 2016 and recording payments to

fighters and administrators, including to a fighter later identified as Musaibli.

Id. at 184:17–203:8 (Page ID #1921–40).

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• Exhibit Nine: A roster of non-Iraqi and non-Syrian fighters in both the Tariq

Bin Ziyad battalion and other ISIS military units with their payments; one

fighter was later identified as Musaibli. Id. at 203:12–206:6 (Page ID #1940–

43).

• Exhibit Eleven: Musaibli’s marriage certificate that he sent his parents. Id. at

103:23–25 (Page ID #1840). The certificate bore ISIS’s stamp and apparently

was issued by the group. Id. at 104:1–15 (Page ID #1841).

Because many documents referenced Musaibli, the government believed that the ISIS

documents were vital to their case against Musaibli. To ensure that they could be used as

evidence, the government moved to admit the documents before trial, arguing that they were

relevant to establishing three facts: that a conspiracy existed between “Musaibli and others to

provide material support to ISIS”; that Musaibli “provided material support to ISIS in the form

of his own personal service, specifically, serving under the direction and control of ISIS as a

solider”; and that Musaibli “attended a training camp . . . because soldiers for ISIS received

military training from the group.” R. 102 (Mot. to Admit at 10) (Page ID #325).

Musaibli opposed the government’s motion. He countered that the documents could not

be properly authenticated and that, pertinent on appeal, they were hearsay. R. 153 (Resp. at 7–

14) (Page ID #1274–81). He separately moved to suppress the statements that he made to

federal agents both before and during his journey back to the United States. R. 106 (Mot. to

Suppress) (Page ID #381–400); R. 107 (Mot. to Suppress) (Page ID #401–26).

With the rule against hearsay in mind, the government offered three arguments for

admitting the ISIS documents. To start, the government argued that the documents were

statements of co-conspirators admissible under Federal Rule of Evidence 801(d)(2)(E), though

the government offered different theories about the conspiracy’s scope. R. 102 (Mot. to Admit at

24–30) (Page ID #339–45). At one point, the government defined the conspiracy in which

Musaibli was allegedly involved as aiming both to run “the Caliphate as a legitimate

government” and to engage “in repeated battles with Coalition Forces,” explaining that the

documents furthered these goals by helping the terrorist group to manage its resources. Id. at

27–28, 30 (Page ID #342–43, 345). At other points, the government hewed closer to the

indictment, noting that the United States had designated ISIS as a terrorist organization in May

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2014, and that fighters like Musaibli who pledged allegiance to the group and fought for it had

entered a conspiracy to provide material support to it. Id. at 25–26 (Page ID #340–41).

Should the co-conspirator-statements argument prove to be unconvincing, the

government had backups. The government pointed to Federal Rule of Evidence 803(6), which

provides an exception to the rule against hearsay for records of a regularly conducted activity.

Id. at 30–32 (Page ID #345–47). According to the government, “ISIS focused as much on its

bureaucracy as it did on its fight against Coalition Forces,” with several of the proffered

documents being part of the routine inner workings of the terrorist group, such as payroll records

and troop distribution sheets. Id. at 32 (Page ID #347). As a final argument, the government

maintained that the documents fell within the residual hearsay exception, Federal Rule of

Evidence 807. Id. at 33 (Page ID #348).

Four days of evidentiary hearings followed. During the first two days, the district court

heard testimony on Musaibli’s motion to suppress. R. 155 (06/03/2021 Mot. to Suppress Hr’g

Tr.) (Page ID #1319–1559); R. 163 (06/21/2021 Mot. to Suppress Hr’g Tr.) (Page ID #1568–

1730). The district court ultimately denied that motion, and that ruling is not at issue on appeal.

See United States v. Musaibli, No. 18-20495, 2021 WL 5879405, at *10 (E.D. Mich. Dec. 13,

2021). The next two days of hearings were devoted solely to the government’s motion to admit

the ISIS documents. R. 166 (06/28/2021 Evidentiary Hr’g Tr.) (Page ID #1738–1998); R. 167

(06/29/2021 Evidentiary Hr’g Tr.) (Page ID #1999–2117).

In these hearings, the government called six witnesses to lay the foundation for admitting

the ISIS documents. Each testified to various aspects of the documents. Several of the witnesses

identified Musaibli’s information as belonging to him and including features of ISIS’s

organizational structure. See, e.g., R. 166 (06/28/2021 Evidentiary Hr’g Tr. at 29:7–8, 83:16–24,

84:15–16, 105:19–106:13, 250:5–19) (Page ID #1766, 1820, 1821, 1842–43, 1987). These

witnesses included Abdelhamid Al-Madioum, the administrator to whom Musaibli had

complained about not receiving a marital stipend. Al-Madioum had been taken into custody by

the United States, had pleaded guilty to providing material support to a foreign designated

terrorist organization, and had since agreed to cooperate with the government. Id. at 207:10–

209:1 (Page ID #1944–46).

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During his stint in ISIS, Al-Madioum served as a database administrator for the Tariq Bin

Ziyad battalion from around May 2016 to about November 2016. Id. at 149:6–11, 213:1–14,

214:8–215:9 (Page ID #1886, 1950, 1951–52). As part of his job, Al-Madioum helped to collect

and manage information about members of the battalion, including fighters’ names, families’

names, birthdates, ISIS-issued identification numbers, and the number of wives and children that

they had. Id. at 150:1–23 (Page ID #1887). In addition to the time that Musaibli spoke with him

about a faulty marital-status entry in his information, Al-Madioum observed Musaibli in areas

where ISIS operated on three other occasions while both were in the group. Id. at 147:9, 223:1–

224:17 (Page ID #1884, 1960–61). Al-Madioum identified various entries in the ISIS documents

as belonging to Musaibli. See, e.g., id. at 180:2–15, 187:1–189:2, 203:12–206:6 (Page ID #1917,

1924–26,1940–43).

On December 28, 2021, the district court issued its evidentiary ruling, which appeared to

agree with the government on several points. The district court agreed that the government had

laid a sufficient foundation at least to “suggest[]” that Musaibli had “enlisted as a foot soldier

with an ISIS military branch.” Musaibli, 2021 WL 6125849, at *13. The district court also

agreed that the government had provided evidence indicating that Musaibli had “received some

military training after recruitment” from ISIS. Id. The district court even agreed that the

government provided sufficient evidence to suggest that Musaibli had “provided support to ISIS

by participating in some fighting and other routine tasks like guard duty” based on the

government’s proffer. Id.

Where the district court and the government parted ways was in what conclusions could

be drawn from these facts. Analyzing whether the ISIS documents qualified as statements of co-

conspirators, the district court concluded that they did not, explaining that “the record does not

yet establish the scope of the conspiracy that the defendant allegedly joined with sufficient

precision to permit the statements in the exhibits to be considered his ‘vicarious admissions.’”

Id. The district court underscored its concern that “[t]here is a serious danger in this case of

conflating (or inflating) the defendant’s culpability based on the ISIS organization’s criminal and

terrorist activities generally.” Id.

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The government fared no better on its other two theories. For the purposes of Federal

Rule of Evidence 803(6), the district court determined that the government had failed to show

that the “documents were created either contemporaneously with the activities memorialized, or

by a person with personal knowledge of the information recorded,” which disqualified them

under this rule. Id. at *14. For the purposes of Federal Rule of Evidence 807, the district court

concluded that the ISIS documents were both too untrustworthy and too closely related to

existing hearsay exceptions and exemptions to qualify for the residual exception. Id. at *15–17.

Trial was set to start on January 11, 2022, two weeks after the district court issued its evidentiary

ruling. R. 180 (09/09/21 Dist. Ct. Order at 3) (Page ID #2212).

Facing the imminent prospect of going to trial without key evidence, the government

filed an interlocutory appeal under 18 U.S.C. § 3731 and an emergency motion with this court to

stay the district court proceedings. App. R. 11 (Emergency Mot. at 1). After some conferencing

below, the district court adjourned the trial pending appeal, thus mooting the government’s

emergency motion. R. 221 (01/07/2022 Dist. Ct. Order at 1–2) (Page ID #2530–31). This

appeal on the merits of the evidentiary issues followed.

II. ANALYSIS

A. Jurisdiction under 18 U.S.C. § 3731

Before addressing the evidentiary question of whether the ISIS documents are

inadmissible hearsay, we must resolve a threshold jurisdictional issue. Namely, Musaibli argues

that we do not have jurisdiction under 18 U.S.C. § 3731 to review the district court’s evidentiary

ruling. For the reasons that follow, we disagree and hold that our jurisdiction is proper.

The procedural posture of this case is unique to criminal law. Our jurisdiction to review

district-court decisions is normally limited to appeals brought once a final judgment has issued.

See 28 U.S.C. § 1291. When the government prosecutes a criminal case, this limitation poses a

dilemma. Waiting to file an appeal until after the district court issues a final judgment runs up

against the Fifth Amendment’s prohibition against putting a defendant in jeopardy of punishment

twice for the same offense. U.S. Const. amend V. Indeed, the Double Jeopardy Clause severely

constricts the timeline of when the government can seek appellate review during a jury trial

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because “jeopardy attaches when a jury is empaneled and sworn.” Serfass v. United States,

420 U.S. 377, 388 (1975). This means that whereas defendants may seek further review if they

are convicted, “[p]retrial review is usually the government’s only option to appeal erroneous

evidentiary rulings.” United States v. Williams, 30 F.4th 263, 265 (5th Cir. 2022).

Seeking to rebalance this asymmetry, Congress enacted 18 U.S.C. § 3731 to “remove all

statutory barriers to Government appeals and to allow appeals whenever the Constitution would

permit.” United States v. Wilson, 420 U.S. 332, 337 (1975). To this end, § 3731 provides the

government with “a one-party path for interlocutory review” of orders excluding evidence in

criminal cases. United States v. Clariot, 655 F.3d 550, 552 (6th Cir. 2011). To proceed down

this avenue, five criteria must be met. First, there must be “a decision or order of a district court

suppressing or excluding evidence” from which the government is appealing. 18 U.S.C. § 3731

(emphasis added). Second, the defendant cannot have already been put in jeopardy. Id. Third,

the “United States attorney [must] certif[y] to the district court that the appeal is not taken for

purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.”

Id. Fourth, the government must appeal “within thirty days after the decision . . . or order has

been rendered.” Id. Fifth, the government must “diligently prosecute[]” the appeal. Id.

Musaibli does not contest that the government has satisfied the second through the fifth

criteria. This choice is understandable. Because the district court adjourned trial during the

pendency of this appeal, no jury has been empaneled and jeopardy has not attached. R. 221

(01/07/2022 Dist. Ct. Order at 2) (Page ID #2531). The United States Attorney for the Eastern

District of Michigan also certified that the appeal “in this case is not taken for purpose of delay

and that the evidence is a substantial proof of a fact material in this proceeding.” R. 212-1

(Certification) (Page ID #2426). The district court issued its order on December 28, 2021, and

the government filed its notice of appeal on January 5, 2022, making the notice timely. R. 212

(Notice of Appeal) (Page ID #2425). Finally, the government has diligently prosecuted this

appeal; for one thing, it sought expedited briefing. App. R. 26 (Mot. to Expedite). In short, the

undisputed criteria are clearly satisfied.

Musaibli focuses instead on the first criterion: whether the government is appealing a

decision that suppresses or excludes evidence. His argument can be summarized syllogistically.

No. 22-1013 United States v. Musaibli Page 12

According to Musaibli, we cannot exercise appellate jurisdiction under § 3731 unless the district

court either suppressed or excluded evidence. But here, “no potential document evidence has

been excluded or suppressed from the criminal trial”; the district court simply failed to admit

evidence. Appellee Br. at 20. Therefore, he argues, § 3731 cannot provide us with jurisdiction

over the government’s appeal. We are not convinced.

Although it is true that the district court’s order denied the government’s motion to admit

the ISIS documents, rather than granted a motion by Musaibli to exclude them, that distinction is

semantic in this case. Section 3731 must be interpreted by its own terms, which include the

mandate that the statute’s text “be liberally construed to effectuate its purposes.” 18 U.S.C.

§ 3731. As the Supreme Court has repeatedly observed of § 3731, Congress’s aim in enacting

the law was the removal of “all statutory barriers to Government appeals and to allow appeals

whenever the Constitution would permit” of adverse evidentiary rulings. United States v.

Helstoski, 442 U.S. 477, 487 n.6 (1979) (quoting Wilson, 420 U.S. at 337).

These textual indications have led courts to eschew formalistic analysis, with the

Supreme Court concluding that the inquiry under § 3731 “must be guided in determining the

question of appealability of [a] trial court’s action not by the name the court gave [its decision]

but by what in legal effect it actually was.” United States v. Sisson, 399 U.S. 267, 279 n.7 (1970)

(quoting United States v. Waters, 175 F.2d 340, 341 (D.C. Cir. 1948)) (second alteration in

original); see also United States v. Siegel, 536 F.3d 306, 314–15 (4th Cir. 2008); United States v.

Horwitz, 622 F.2d 1101, 1104–05 (2d Cir. 1980). That § 3731 favors appellate jurisdiction is

further driven home by the fact that Congress added the command of liberality to curb stingier

interpretations of the section. See United States v. Watson, 386 F.3d 304, 309 (1st Cir. 2004). In

other words, determining whether we have jurisdiction “requires us to apply section 3731 in a

pragmatic, common-sense manner,” with an eye on the problems and purposes animating the

law. United States v. Flemmi, 225 F.3d 78, 84 (1st Cir. 2000).

Such pragmatic considerations settle jurisdictional concerns in this appeal. Once the

government moved to admit the ISIS documents, Musaibli filed a response in opposition. R. 102

(Mot. to Admit) (Page ID #316–49); R. 111 (Resp.) (Page ID #681–86). The district court

subsequently held evidentiary hearings on two separate days related to the government’s motion.

No. 22-1013 United States v. Musaibli Page 13

R. 166 (06/28/2021 Evidentiary Hr’g Tr.) (Page ID #1738–1998); R. 167 (06/29/2021

Evidentiary Hr’g Tr.) (Page ID #1999–2117). During those hearings, the government offered

testimony from six witnesses to support the documents’ admissibility, one of whom both helped

to create some of the documents and met with Musaibli about the documents’ contents while the

two were in ISIS. The district court also had before it Musaibli’s confession regarding his

involvement in the group and his messages with his family about that involvement. Musaibli,

2021 WL 5879405, at *10. Having received all this evidence, the district court then closely

considered all the government’s arguments for admission of the ISIS documents, rejecting each

in its ruling. Musaibli, 2021 WL 6125849, at *12–17. This rejection included the district court’s

indication that the ISIS documents were inadmissible hearsay. Id. at *17.

Put differently, the government has proffered what is likely the best foundation that can

be expected prior to trial, leaving the issue of admissibility thoroughly ventilated below and

nothing but a set of legal questions—namely, whether the government’s foundation is sufficient

for any hearsay exemption or exception to apply—for us to consider. The district court has also

provided every indication that it believes the documents to be hearsay, and we have every reason

to conclude that this qualifies as a de facto exclusion of the ISIS documents. The fact that the

district court might change its mind does not alter the analysis under 18 U.S.C. § 3731.

Indeed, if the mere possibility of reconsideration foreclosed our review, then no

evidentiary ruling would ever be the basis for appellate jurisdiction because “evidentiary rulings

are by their very nature nonfinal.” United States v. Decinces, 808 F.3d 785, 789 (9th Cir. 2015).

Congress recognized this feature of evidentiary rulings when it crafted 18 U.S.C. § 3731 “to

create exceptions to the finality requirement of [28 U.S.C.] § 1291,” United States v. Rodriguez,

975 F.2d 404, 408 (7th Cir. 1992), and we have been loath to overlook that recognition based on

speculations of what might happen below, see United States v. Presser, 844 F.2d 1275, 1279–80

(6th Cir. 1988) (expressing similar concern with reference to a conditionally phrased order). For

these reasons, we hold that the district court’s ruling is an order excluding evidence within the

scope of 18 U.S.C. § 3731.

No. 22-1013 United States v. Musaibli Page 14

B. Co-conspirator Statements

On the merits, this appeal centers on whether the ISIS documents are hearsay. Under

Federal Rule of Evidence 802, hearsay testimony—that is, “a statement that . . . the declarant

does not make while testifying at the current trial or hearing; and . . . a party offers in evidence to

prove the truth of the matter asserted in the statement,” FED. R. EVID. 801(c)—is inadmissible.

This leaves the proponent of possible hearsay evidence with a couple of options for gaining its

admission. The proponent could show that the evidence is not hearsay, as the government

attempted to do by invoking Federal Rule of Evidence 801(d)(2)(E). See United States v.

Damra, 621 F.3d 474, 492 (6th Cir. 2010) (noting that statements admitted under this exemption

are “explicitly not hearsay”). Failing that, the proponent could identify an applicable exception

to the rule against hearsay, as the government tried to do when it relied on Federal Rules of

Evidence 803(6) and 807.

Although the district court de facto excluded the ISIS documents on all three grounds,

our analysis begins and ends with Federal Rule of Evidence 801(d)(2)(E). Under that rule, a

statement is not hearsay if it “was made by the party’s coconspirator during and in furtherance of

the conspiracy.” FED. R. EVID. 801(d)(2)(E). “To invoke this hearsay exclusion, the government

must demonstrate by a preponderance of the evidence that (1) a conspiracy existed, (2) the

defendant was a member of the conspiracy, and (3) the co-conspirator’s statement was made in

furtherance of the conspiracy.” United States v. Bailey, 973 F.3d 548, 560 (6th Cir. 2020). The

government may rely on the contents of the co-conspirator statements to demonstrate each of

these elements, but must also offer independent, corroborating evidence to that effect. United

States v. Payne, 437 F.3d 540, 544 (6th Cir. 2006). On appeal, we review for clear error the

three predicate factual determinations of whether a conspiracy existed, whether the defendant

was a member of that conspiracy, and whether the statement in question was made in furtherance

of it. Damra, 621 F.3d at 492; United States v. Gessa, 971 F.2d 1257, 1260–61 (6th Cir. 1992)

(en banc). We then review de novo the legal conclusions drawn from these factual

determinations. Damra, 621 F.3d at 492; Gessa, 971 F.2d at 1261.

No. 22-1013 United States v. Musaibli Page 15

Because both the district court below and Musaibli on appeal have focused on the first

element of Rule 801(d)(2)(E), particularly whether the government adequately defined the scope

of the conspiracy that it claimed existed, so do we. When determining whether a conspiracy

existed under Rule 801(d)(2)(E), “[t]he key is coordinated action.” 30B CHARLES ALAN WRIGHT

& ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 6778 (2022 ed.). For this reason,

we have repeatedly stressed that the alleged conspiracy need not be the same as the one charged.

See, e.g., United States v. Maliszewski, 161 F.3d 992, 1008–09 (6th Cir. 1998); United States v.

Bonds, 12 F.3d 540, 573 (6th Cir. 1993). In fact, there need not even be a conspiracy charge in

the case for Rule 801(d)(2)(E) to apply. See, e.g., United States v. Horton, 847 F.2d 313, 323–24

(6th Cir. 1988); United States v. McCullah, 745 F.2d 350, 358 (6th Cir. 1984); United States v.

Kendricks, 623 F.2d 1165, 1168 n.5 (6th Cir. 1980).

Nevertheless, an indictment can be instructive to the analysis under Rule 801(d)(2)(E).

Musaibli was charged with conspiring “with others to provide material support and resources in

the form of personnel and services” to ISIS in violation of 18 U.S.C. § 2339B and the

government identified this as the conspiracy that existed for purposes of Rule 801(d)(2)(E) to the

district court. R. 48 (First Superseding Indictment at 3) (Page ID #106); R. 102 (Mot. to Admit

at 25–26) (Page ID #340–41). We have previously upheld a criminal conviction for a similarly

defined conspiracy. See United States v. Alebbini, 979 F.3d 537, 543–46 (6th Cir. 2020). Given

that the standard of proof for determining whether a conspiracy existed under Rule 801(d)(2)(E)

is the less onerous preponderance-of-the-evidence standard, Musaibli’s indictment provides an

intuitive set of boundaries defining the conspiracy’s scope. Cf. United States v. Squillacote,

221 F.3d 542, 563 (4th Cir. 2000) (using an indictment analogously in case involving

international espionage). What remains to be seen is whether the government carried its burden

in demonstrating the existence of a conspiracy to provide ISIS with the alleged material support.

After reviewing the record, we hold that the government carried its burden and that the

district court clearly erred in ruling otherwise. Beginning with the ISIS documents that directly

implicate Musaibli, we consider witness testimony offered by the government that establishes

that Exhibits One, Four, Five, Eight, and Nine all identify Musaibli and others as providing

services to ISIS, specifically as members of the Tariq Bin Ziyad battalion. See, e.g., R. 166

No. 22-1013 United States v. Musaibli Page 16

(06/28/2021 Evidentiary Hr’g Tr. at 26:1–29:17, 81:11–88:20, 88:21–93:13, 184:17–203:8,

203:12–206:6) (Page ID #1763–66, 1818–25, 1825–30, 1921–40, 1940–43). Exhibit Eleven

meanwhile appears to be a marriage certificate issued by ISIS, which is indicative not only of

Musaibli’s involvement in the terrorist group, but also, considering his conversation with

Al-Madioum concerning his marital status and the benefits that should have attended it, of how

the group incentivized people to provide their services. Id. at 103:23–25, 104:1–15 (Page ID

#1840, 1841). These documents alone are probative of both a coordinated effort to provide ISIS

with material support and of Musaibli’s involvement in those efforts.

Other exhibits further bolster the existence of that conspiracy. Exhibit Two provides

biographical details of a different fighter from the battalion who had become missing and with

whom Musaibli had allegedly worked to recruit new members to ISIS. Id. at 29:18–30:25, 75:8–

77:3, 165:13–167:19 (Page ID #1766–67, 1812–14, 1902–04). Exhibit Three identifies

administrators of the battalion including Al-Madioum, whose testimony provides some of the

foundation for the ISIS documents. Id. at 167:20–170:16 (Page ID #1904–07). Although neither

of these exhibits identify Musaibli, they do identify others with whom he served in the Tariq Bin

Ziyad battalion, the roles that they played in the unit, and how the organization operated. If, as

we note again later, “statements which identify the participants and their roles in the conspiracy

are made ‘in furtherance’ of a conspiracy,” then such statements once paired with corroborating

evidence are also a good indication that a highly organized and bureaucratic conspiracy to

provide a group with personnel and services existed. United States v. Clark, 18 F.3d 1337, 1342

(6th Cir. 1994) (emphasis added); see also Payne, 437 F.3d at 544 (corroboration requirement).

Separate evidence offered by the government provides the required corroborating

evidence. Musaibli’s own words supported the existence of a conspiracy to provide ISIS with

personnel and services. His confession detailed how he and others went through training and

swore allegiance to ISIS as part of their enrollment in the unit. Ex. E.1 (Gary Interview at 4, 7,

15–16). Even before making this confession, the messages that Musaibli sent via social media

informed his family that he was aiding in the terrorist group’s broader fight against Americans

and Shia Muslims and encouraged family members to join him. R. 163 (06/21/2021 Mot. to

Suppress Hr’g Tr. at 265:23–266:9, 270:1–21) (Page ID #1591–92, 1596); Ex. L (Facebook R. at

No. 22-1013 United States v. Musaibli Page 17

114). In terms of identifying Musaibli in the ISIS documents, Musaibli corroborated his kunya

both in communications with his father and in his confession. R. 166 (06/28/2021 Evidentiary

Hr’g Tr. at 84:4–13) (Page ID #1821); Ex. E.1 (Gary Interview at 19).

All of this led the district court to conclude that the government’s proffer was sufficient

to “suggest[]” that Musaibli enlisted in, was trained by, and fought for ISIS and Musaibli does

not appear to challenge these conclusions on appeal. Musaibli, 2021 WL 6125849, at *13. This

evidence, however, does more than merely suggest these facts; it establishes them by a

preponderance of the evidence. By the same standard, the repeated references to other fighters

and description of the training that Musaibli underwent and the oath he took also establish that he

did not engage in the described conduct alone or absent coordination. Rather, that conduct was

clearly undertaken with compatriots to provide ISIS with personnel and services.

Any lingering doubts about whether the district court erred are dispelled by the testimony

of the government’s most unique—perhaps even extraordinary—witness, Al-Madioum.

A database administrator for the Tariq Bin Ziyad battalion during part of Musaibli’s time in the

unit, Al-Madioum had personal knowledge of the battalion’s operations and its members.

Salient here, Al-Madioum recognized Musaibli’s entries in the database and testified to seeing

Musaibli on several occasions around areas where ISIS operated. R. 166 (06/28/2021

Evidentiary Hr’g Tr. at 147:9, 180:2–15, 187:1–189:2, 203:12–206:6, 223:1–224:17) (Page ID

#1884, 1917, 1924–26,1940–43, 1960–61).

Al-Madioum then went beyond testifying merely to recognizing Musaibli’s database

entries and having seen him around while both were members of ISIS. He also testified that

Musaibli approached him at one point about correcting information in his record so that Musaibli

could receive additional benefits. Id. at 224:4–7, 251:16–252:15 (Page ID #1961, 1988–89).

Al-Madioum provided similar testimony regarding the person detailed in Exhibit Two who, like

Musaibli, also requested that some of his information be changed in the database. Id. at 165:13–

166:18 (Page ID #1902–03). When paired with the other evidence in the record, Al-Madioum’s

testimony clearly establishes by a preponderance that an intricate conspiracy to provide ISIS

with personnel and services existed, that this conspiracy was supported by a sophisticated

No. 22-1013 United States v. Musaibli Page 18

bureaucratic apparatus that kept track of its members and incentivized their service through

salaries and other benefits, and that Musaibli was one such member.

In defense of the district court’s ruling, Musaibli echoes its concern. Specifically, he

cautions that allowing the co-conspirator-statement exemption to include the conspiracy at issue

would allow the government to enter any statement made by any participant in ISIS’s sizeable

membership, regardless both of how tangentially connected this was to his conduct, which he

characterizes as being a “mere solider” who fought for the group “in a discrete place at a discrete

point in time.” Appellee Br. at 30. For this reason, he argues, we should affirm the district

court’s de facto exclusion of the ISIS documents.

Framed generally, Musaibli’s concern has merit. Admitting statements of co-conspirators

into evidence has long been based on principles that have the potential to exempt large categories

of statements from the rule against hearsay. As the Supreme Court explained, the rule’s

common-law origins are rooted in

the principle that when any number of persons associate themselves together in

the prosecution of a common plan or enterprise, lawful or unlawful, from the very

act of association there arises a kind of partnership, each member being

constituted the agent of all, so that the act or declaration of one, in furtherance of

the common object, is the act of all, and is admissible as primary and original

evidence against them.

Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 249 (1917). Rule 801(d)(2)(E) continues

to embody these agency principles, predicating admission of co-conspirator statements on a tacit

understanding that conspiracies are forms of principal-agent relationships. See FED. R. EVID. 801

Adv. Comm. Note; see also United States v. El-Mezain, 664 F. 3d 467, 503 (5th Cir. 2011)

(collecting cases from different circuits discussing agency principles underpinning Rule

801(d)(2)(E)).

Due to the breadth with which Rule 801(d)(2)(E) can sweep statements into evidence, the

requirement that an agreement existed to achieve some end provides an important limiting

principle. To take one prominent example from the cases cited by the parties, membership in

one Mafia family without more is insufficient to have statements made by members of other

families be admissible under Rule 801(d)(2)(E). United States v. Gigante, 166 F.3d 75, 83 (2d

No. 22-1013 United States v. Musaibli Page 19

Cir. 1999). There must be a “unity of interests,” not just analogous identities, before statements

of alleged co-conspirators can speak in one’s name. Id. Otherwise, a conspiracy could be

defined at such a general level—“organized crime” or “terrorism” or just “breaking the law”—to

include statements that shared no other purpose than the one superimposed on them after the fact

by prosecutors. The agency theory of co-conspirator statements demands more agreement in

advance than that.

But there is no magic number of co-conspirators past which unity unravels. Statements

made in furtherance of a large conspiracy are no more outside the bounds of Rule 801(d)(2)(E)

than ones made in service of a small conspiracy. As commentators and courts alike have noted,

large conspiracies will necessarily encompass a greater number of statements under Rule

801(d)(2)(E). See Gigante, 166 F.3d at 82 (“The conspiratorial ingenuity of La Cosa Nostra

expands the normal boundaries of a criminal enterprise, and Rule 801(d)(2)(E) must expand

accordingly to encompass the full extent of the conspiracy.”); WRIGHT & MILLER, FEDERAL

PRACTICE AND PROCEDURE § 6778 (“The rule is flexible enough to capture conspiracies ranging

from a two-person robbery team to a hundred-person crime family.”). Instead of altering the

rules of evidence, cases that involve wide-reaching conspiracies simply underscore the

importance of the proponent of the evidence demonstrating that a common objective bound the

conspiracy together, that the defendant agreed to this goal, and that the statements at issue were

made in furtherance of it. See, e.g., United States v. Russo, 302 F.3d 37, 46 (2d Cir. 2002)

(stressing that in large conspiracies, admissibility under Rule 801(d)(2)(E) “depends on the

nature of the statement offered—in particular what objective it sought to advance—and whether

the defendant was jointly engaged with the declarant in a conspiracy seeking that objective.”).

As the records from ISIS’s databases attest, the conspiracy at issue was large. It was not,

however, boundless. The alleged conspiracy of which Musaibli was a part was providing ISIS

with material support and resources in the form of personnel and services. Those goals set a

clear boundary to the plot. For example, statements made by those offering services and

personnel to other terrorist groups are outside the limits of this conspiracy. Cf. Gigante,

166 F.3d at 83. Nor could a statement that a member of ISIS made after withdrawing from the

conspiracy or after the conspiracy had terminated fall within the conspiracy’s ambit.

No. 22-1013 United States v. Musaibli Page 20

See United States v. Conrad, 507 F.3d 424, 430 (6th Cir. 2007) (“[O]ut-of-court statements made

after the conclusion of the conspiracy are not made ‘in furtherance of the conspiracy.’”);

WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 6779 (“[A] statement cannot be

offered under Rule 801(d)(2)(E) if it was made after the party against whom it is offered has

withdrawn from the conspiracy.”). But statements generated by ISIS’s bureaucratic apparatus to

support the mission of providing the terrorist group with personnel and services are different.

Those statements fit comfortably within the alleged conspiracy’s scope.

The ISIS documents are also in furtherance of the alleged conspiracy. “A statement is ‘in

furtherance of’ a conspiracy if it is intended to promote the objectives of the conspiracy. The

statement need not actually advance the conspiracy to be admissible. Additionally, statements

which identify the participants and their roles in the conspiracy are made ‘in furtherance’ of a

conspiracy.” Conrad, 507 F.3d at 430 (quoting Clark, 18 F.3d at 1342). For example, because

statements identifying Musaibli as an ISIS fighter attest both to the services that Musaibli agreed

with others to render to the terrorist group and to how the group managed its personnel, they

further the conspiracy with which he is charged. Likewise, statements identifying the

administrators who managed information about alleged fighters like Musaibli—one of whom he

met and directed to alter parts of his entry—are not “idle chatter,” but rather clearly indicative

and in furtherance of a conspiracy to provide services and personnel to ISIS. United States v.

Wright, 343 F.3d 849, 867 (6th Cir. 2003). The sinews of shared purpose tether these statements

to one another and back to Musaibli.

Finally, Musaibli’s attempt to break this chain by suggesting that he might show that he

withdrew from the conspiracy does not merit de facto exclusion of the ISIS documents.

Appellee Br. at 5–6. Although we have noted that the lower a person’s position in a conspiracy

is, the weaker the presumption that the person continues to belong to the conspiracy becomes,

see United States v. Brown, 332 F.3d 363, 374 (6th Cir. 2003), Musaibli has yet to offer

sufficient evidence indicating that he withdrew from the conspiracy before the statements at

issue were made. In sum, we conclude that the district court erred.

No. 22-1013 United States v. Musaibli Page 21

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court and REMAND for further

proceedings with instructions that the ISIS documents may be admitted as statement of co-

conspirators pursuant to Federal Rule of Evidence 801(d)(2)(E). Furthermore, the government’s

motion to expedite is DENIED as moot.