finding that 2239B “does not prohibit simple membership in a terrorist organization. Rather, the statute prohibits the knowing provision of material support to a known terrorist organization. Proof of such provision (whether actual, attempted, or conspiratorial) together with the dual knowledge elements of the statute is sufficient to satisfy the personal guilt requirement of due process.”
How later courts described this case
- finding that 2239B “does not prohibit simple membership in a terrorist organization. Rather, the statute prohibits the knowing provision of material support to a known terrorist organization. Proof of such provision (whether actual, attempted, or conspiratorial) together with the dual knowledge elements of the statute is sufficient to satisfy the personal guilt requirement of due process.”
- explaining that a defendant seeking a new trial based on alleged prosecutorial misconduct in summation “must show that the [challenged] comment, when viewed against the entire argument to the jury, and in the context of the entire trial, was so severe and significant as to have substantially prejudiced him, depriving him of a fair trial” (internal quotation marks and citations omitted)
- recognizing that 18 U.S.C. § 2339B “prohibits the knowing provision of material support to a known terrorist organization,” and “[p]roof of such provision (whether actual, attempted, or conspiratorial),” combined with the requisite mens rea, “is sufficient to satisfy the personal guilt requirement of due process”
- holding that rationale for admitting expert testimony regarding organized crime families “[d]espite the prevalence of organized crime stories in the news and popular media” “applies with equal force to terrorist organizations, including al Qaeda” (alteration in original)
Written by the judges who cited it.
The opinion
REENA RAGGI, Circuit Judge,
concurring in part:
With respect to Part II.D.4 of the court’s opinion, I certainly agree with the conclusion that if there was any error in the district court’s failure to admit Sabir’s October 5, 2004 statements to federal authorities when entering the United States from Saudi Arabia, such error was harmless beyond a reasonable doubt. See ante at [164-65]. I would go further, however, and conclude that there was no error because Sabir’s October 5, 2004 statements did not, in fact, satisfy the requirements of Federal R. Evid. 803(3). To explain this conclusion, it is necessary to discuss those requirements in some detail.
Rule 803(3) recognizes a hearsay exception for
[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
All hearsay exceptions are rooted in one or more conditions thought to ensure sufficient reliability to permit a factfinder to forego the law’s preferred means for testing evidence: cross-examination. In the case of Rule 803(3), that condition is “contemporaneity,” ie., the statement must evidence the declarant’s “then existing state of mind,” a circumstance presumed to reduce a declarant’s chance for reflection and, therefore, misrepresentation. See United States v. Cardascia, 951 F.2d 474 , 487-88 (2d Cir.1991); see also 2 McCormick on Evidence § 274, at 267 (Kenneth S. Broun ed., 6th ed. 2006) (“[T]he special assurance of reliability for statements of present state of mind rests upon their spontaneity and resulting probable sincerity. The guarantee of reliability is assured principally by the requirement that the statements must relate to a condition of mind or emotion existing at the time of the statement.” (footnote omitted)).
Contemporaneity, of course, is not a foolproof safeguard of reliability. As commentators have observed, “few things are easier than to misrepresent one’s thoughts.” 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:70, at 596 (3d ed.2007) (observing that “state-of-mind exception offers less assurance against deception than some others that also require immediacy”). This has prompted a number of courts to condition Rule 803(3) admissibility on the presence of “no suspicious circumstances suggesting a motive for the declarant to fabricate or misrepresent his or her thoughts.” 5 Jack B. Weinstein & Margaret A. Berger, *172 Weinstein’s Federal Evidence § 803.05[2][a], at 803-31 & n.4 (Joseph M. McLaughlin ed., 2d ed. 2007) (collecting cases); see 4 Mueller & Kirkpatrick, supra, § 8:71, at 613-14 & n.30 (collecting cases); see also 6 John H. Wigmore, Evidence in Trials at Common Law § 1732, at 160 (James H. Chadbourn ed., rev. ed. 1976) (providing for statement of then existing state of mind to be excluded if “circumstances indicate plainly a motive to deceive”). This court, however, is not among them.
In United States v. DiMaria, 727 F.2d 265 (2d Cir.1984) (Friendly, J.), we observed that the Federal Rules of Evidence create hearsay exceptions by “categories,” id. at 272 . We thus concluded that if a statement fits an identified category, no further “finding of probable credibility by the judge” is generally required to apply the hearsay exception. Id. (recognizing that credibility of statement may be considered in connection with business record and residual hearsay exceptions). Thus, the self-serving nature of a statement expressing a state of mind does not automatically preclude application of Rule 803(3). That concern is properly considered by the jury in deciding what weight to accord the statement. See id. at 271 ; accord United States v. Cardascia, 951 F.2d at 487.
Although this court does not superimpose any credibility condition on Rule 803(3), we have in no way relaxed the rule’s stated requirement for assuring reliability: contemporaneity. Nor have we absolved statements satisfying Rule 803(3) from the relevancy requirements of Fed. R.Evid. 401 and 403. See generally 2 McCormick on Evidence, supra, § 274, at 267-69 n.8 (observing that contemporaneity requirement of Rule 803(3) works together with relevance rules in determining admissibility of statement).
United States v. DiMaria presented no contemporaneity or relevance concerns. The defendant’s spontaneous utterance to approaching FBI agents — “I only came here to get some cigarettes real cheap”— easily satisfied Rule 803(3)’s contemporaneity requirement in that it purported to reveal the declarant’s then existing state of mind with respect to the very conduct in which he was engaged. 272 F.2d at 270-71. Such a statement was relevant because defendant’s mens rea at the precise moment of his utterance was an element of the charged crime. See id. at 271. Further, we assigned a high probative value to the statement because the government was relying on a presumption to carry its mens rea burden. See id. at 272 (observing that admission of statement was particularly warranted because “the Government is relying on the presumption of guilty knowledge arising from a defendant’s possession of the fruits of a crime recently after its commission”).
DiMaria , however, had no occasion to consider contemporaneity and relevance in the circumstances presented here: a statement of state of mind made on one occasion offered as evidence of state of mind on another occasion. The proffered statement may express the declarant’s state of mind at the time made, but that does not make it relevant to mens rea at a different time. The law nevertheless recognizes the possibility that an expression of state of mind on one occasion may be relevant to state of mind at a later time where the statement reflects “a continuous mental process.” United States v. Cardascia, 951 F.2d at 488. Such continuity effectively extends the “contemporaneity” of the statement beyond the moment of pronouncement. Cf. id. (recognizing possibility of continuity extending contemporaneity required by Rule 803(3) but not finding principle applicable to statement offered to *173 support backward inference 1 ). For example, experience and common sense indicate that someone who professes to be a baseball fan on Monday is likely to be of the same state of mind on Tuesday. Statements of intent also may reflect a continuing mental process. See 2 McCormick on Evidence, supra, § 274, at 270 (observing that assertion of then-existing intent to go on business trip next day “will be evidence not only of the intention at the time of the statement, but also of the same purpose the next day when the declarant is on the road”).
Not all statements describing a declarant’s mental state, however, warrant an inference of continuity. Some expressions of emotion last a lifetime, while others may be unlikely to persist long after their triggering events. Some professions of state of mind may be too vague or tenuous to support an inference of continuity, particularly where there is a significant lapse of time between the declaration and the mens rea at issue. Intervening events may also signal a possible change in the declarant’s state of mind. This court has thus held that “[wjhether a statement is part of a continuous mental process and therefore admissible under the present state of mind exception” is “a question for the trial court.” United States v. Cardascia, 951 F.2d at 488. As with any determination of fact, we will not disturb a trial court’s finding as to likely continuity in the absence of clear error. Cf. United States v. Monteleone, 257 F.3d 210, 221 (2d Cir. 2001) (applying clear error review to factual finding underlying trial court’s decision to admit statement under Fed.R.Evid. 801(d)(2)(E)); United States v. Gigante, 166 F.3d 75, 82 (2d Cir.1999) (same).
Precisely because a finding of continuity effectively extends the contemporaneity of a statement beyond common understanding — and, therefore, expands the application of Rule 803(3) — the question merits careful judicial attention. Commentators have appropriately suggested that district courts should consider “all the factors on both sides of the equation” in determining the likely continuity of a proffered statement of state of mind, including “the possibility of bad faith” by the declarant. 5 Weinstein & Berger, supra, § 803.05[2][c][i], at 803-36. This is not contrary to DiMaria , which precludes judicial inquiry into the credibility of the expressed state of mind when contemporaneity is not at issue. But where contemporaneity is in question, depending on whether a state of mind expressed on one occasion is likely to have continued through to another time relevant to the case, a district court’s consideration of the totality of the circumstances properly includes any indications as to whether the proffered statement was made in good or bad faith. Other factors that may also inform the inquiry include, but are not limited to, what the statement itself actually says about the declarant’s state of mind and how clearly, the lapse of time between the statement and the conduct for which mens rea is at issue in the case, and any intervening life events or statements by the declarant signaling a possible break in mental process or change of mind. See generally 4 Mueller & Kirkpatrick, supra, § 8:71, at 604.
With these principles in mind, I identify no error in the exclusion of Sabir’s October 5, 2004 statements. As the district court *174 correctly recognized, the vast majority of those statements recounted “things that happened in the past,” Trial Tr. at 1343, ie., “fact[s] remembered,” Fed.R.Evid. 803(3), and, thus, fall outside the rule’s exception. As for the few statements purporting to express Sabir’s then existing state of mind — i.e., his professed appreciation for life in the United States compared to Saudi Arabia, his stated intent to return to live in the United States and to “make things better” in this country, and his observation that he did not condone suicide bombing — I note that Sabir’s state of mind on October 5, 2004, the date of declaration, was not really at issue in the case. To be sure, that date fell within the time frame of the charged conspiracy. But conspirators, like other persons, do not pursue their objectives at all times. Certainly, the government did not contend that any of Sabir’s actions on October 5, 2004, were in furtherance of the conspiracy. Much less did it rely on those actions in attempting to prove a mens rea element of the crime. Rather, it focused on Sabir’s words and actions at the May 20, 2005 meeting with the undercover agent to prove a mens rea intent on supporting terrorism. To the extent Sabir offered his October 5, 2004 statements as evidence of a state of mind not disposed to support al Qaeda, the requirements of contemporaneity and relevance required the district court to decide whether Sabir likely maintained that state of mind through that date.
This conclusion is not at odds with our holding today on Sabir’s Rule 801(d)(2)(E) challenge because a trial court’s focus in deciding what evidence to admit is different from a jury’s focus in deciding the question of guilt. While the trial court was required to find the existence of a conspiracy throughout the period 2003-05 to admit Shah’s recorded statements against Sabir under Rule 802(d)(2)(E), it was required to make that finding only by a preponderance. Meanwhile, the jury could not convict Sabir of conspiracy except upon proof beyond a reasonable doubt, but it could make that finding with respect to any time within the charged period. See United States v. Heimann, 705 F.2d 662, 666 (2d Cir.1983) (upholding conviction where conspiracy proved some time within charged period). Thus, where, as in this case, all parties focused on May 20, 2005, as the critical date for determining Sabir’s participation in the charged conspiracy and related attempt offense, the trial judge could appropriately consider whether Sabir’s earlier professed state of mind likely continued to that date in deciding whether the statement was admissible under Rules 401, 403, and 803(3).
The record not only fails to support such a finding of continuity; it compels a contrary conclusion. As the district court observed, Sabir’s October 5, 2004 statements were vague and self-serving, raising legitimate concerns about the likelihood of his maintaining the state of mind they purportedly described into the next year. 2 [T 1118] Quite apart from these concerns, however, the record provides conclusive proof that Sabir’s purported state of mind *175 on October 5, 2004, was not his state of mind on May 20, 2005. That proof is, of course, the tape recording of the May 20 meeting. Far from indicating that Sabir was not inclined to support al Qaeda, the recording showed him swearing fealty to this terrorist organization and promising to support it by serving as an on-call doctor for its wounded combatants in Saudi Arabia. On this record, I think it would be impossible to find that the October 5, 2004 statements expressed a then-existing state of mind that continued through May 20, 2005. In the absence of such continuity, the October 5, 2004 statements failed to satisfy both the contemporaneity requirement of Rule 803(3) and the relevancy requirements of Rules 401 and 403. For these reasons, I think the district court properly excluded the statements from evidence, and I would reject Sabir’s Rule 803(3) challenge as without merit.
. The district court alluded to the self-serving nature of Sabir's October 5, 2004 statements not only in refusing to admit those statements under Rule 803(3), but also in rejecting Sabir’s argument that the statements were admissible under Rule 801(d)(1)(B) to rebut a charge of recent fabrication in his trial testimony. [T 1630-35] See United States v. Al-Moayad, 545 F.3d at 167 (explaining that "Rule 801(d)(1)(B) ... includes a fundamental temporal requirement: 'The statement must have been made before the declarant developed [an] alleged motive to fabricate.' ” (quoting United States v. Forrester, 60 F.3d 52, 64 (2d Cir. 1995))). I note that Sabir does not challenge the district court's 801(d)(1) ruling on appeal.