Petition for Writ of Certiorari — Sulaiman Abu Ghayth, Petitioner v. United States

No.

IN THE SUPREME COURT OF THE UNITED STATES

SULAIMAN ABU GHAYTH. PETITIONER

- against UNITED STATES OF AMERICA, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Zoë Dolan

154 Grand Street

New York, NY 10013

(347) 301-5180

zdolan@gmail.com

Counsel for Petitioner

Question Presented

Whether, by disregarding the specific intent needed to sustain a conspiracy

conviction, the Second Circuit exacerbated a Circuit split on the requisite mes rea

for conspiracy to commit federal murder in violation of 18 U.S.C. § 1111(a)?

i

Table of Contents

Question Presented...………………………………………………………………..i

Table of Contents…………………………………………………………………..ii

Table of Authorities………………………………………………………………..iv

Statement of Jurisdiction…………………………………………………………...v

Opinions Below…………………………………………………………………….v

Parties to the Proceeding and Corporate Disclosure Statement…………………....v

Statement of the Case………………………………………………………………1

I.

Trial

A. The Story of Mr. Abu Ghayth………………………………………..2

B. Eyewitness Testimony Regarding Al Qaeda and Mr. Abu Ghayth…..6

C. Mr. Abu Ghayth’s Testimony Regarding Al Qaeda………………….8

D. Additional Evidence at Trial………………………………………...10

II.

Conviction and Sentencing……………………………………………..11

III.

Appeal

A. Mr. Abu Ghayth’s Challenges………………………………………11

B. The Second Circuit Decision………………………………………..13

ii

Reasons for Granting the Writ…………………………………………………….14

I.

To the Extent that Circuit Courts Have Considered the

Requisite Intent for a Murder Conspiracy Involving a

Second-Degree Option, There Appears to Be a Split…………………..14

II.

This Court Should Decide the Important Question of

Requisite Intent for Federal Murder………………………………….…16

III.

The Precedent Here Is All the More Insidious On the Facts……………17

Conclusion………………………………………………………………………...20

iii

Table of Authorities

Cases

Fish v. United States,

1991 U.S. App. LEXIS 6914 (7th Cir. Apr. 17, 1991) .........................................15

Ocasio v. United States,

136 S. Ct. 1423 (2016) ..........................................................................................15

Kane v. United States,

399 F.2d 730 (9th Cir. 1968) ................................................................................15

United States v. Chagra,

807 F.2d 398 (5th Cir. 1986) ................................................................................15

United States v. Croft,

124 F.3d 1109 (9th Cir. 1997) ..............................................................................15

United States v. Soundingsides,

820 F.2d 1232 (10th Cir. 1987) ............................................................................15

United States v. Wood,

207 F.3d 1222 (10th Cir. 2000) ............................................................................15

Statutes

18 U.S.C. § 2332(b) .............................................................................................1, 14

18 U.S.C. § 1111(a) ...................................................................................... 1, 14, 17

18 U.S.C. § 2332(A) ..................................................................................................1

iv

Statement of Jurisdiction

This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

Opinion Below and Judgement of Conviction

The Opinion below and Judgment of Conviction are included in the

Appendix (“A.”) annexed hereto.

Parties to the Proceeding and

Corporate Disclosure Statement

Pursuant to Rule 14.1, the following list identifies all the parties appearing

here and in the courts below:

The Petitioner is Sulaiman Abu Ghayth. The Respondent here and in all

prior proceedings is the United States of America.

Pursuant to Rule 29.6, Petitioner states that neither party is a corporation.

v

Statement of the Case

Sulaiman Abu Ghayth was charged in a three-count superseding Indictment

(the “Indictment”) with terrorism offenses stemming from an alleged conspiracy to

murder Americans. Count One charged an al Qaeda conspiracy to murder United

States nationals in violation of 18 U.S.C. § 2332(b), and the underlying federal

murder statute, 18 U.S.C. § 1111(a). Count Two charged a conspiracy to provide

material support and resources – that is, personnel – to terrorists in violation of 18

U.S.C. §§ 2332A(b), knowing and intending that the personnel were to be used to

carry out a violation of § 2332(b). Count Three charged the substantive material

support offense reflected in Count Two.

The general allegations and overt acts set forth in the Indictment revolved

around three speeches that Mr. Abu Ghayth delivered, and a video “discussion”

that included him and Usama bin Laden, following the September 11, 2001 airline

hijacking operations. The Indictment did not allege that Mr. Abu Ghayth

participated in any planning or acted in any operative capacity in connection with

any terrorist attack. Nor was there any allegation that he was involved in, or had

advance knowledge of, in any specific terrorist act.

A jury convicted on all counts and the Second Circuit affirmed in a holding

that vitiates the specific intent required for a murder conspiracy.

1

I.

Trial

A. The Story of Mr. Abu Ghayth

The following is a synthesis of testimony from Federal Bureau of

Investigation (“FBI”) Special Agent (“SA”) Michael Butsch – who conducted a

post-arrest interview of Mr. Abu Ghayth and testified at trial – and from testimony

before the jury by Mr. Abu Ghayth himself. With the exception of testimony going

to Mr. Abu Ghayth’s intent and the nature of his relationship to bin Laden and al

Qaeda, the facts have not ben materially in dispute.

Mr. Abu Ghayth was born and raised in Kuwait, where he obtained a

bachelor’s degree in sharia (Islamic law) and education from Kuwait University.

After completing his studies, he was granted a license as an imam and speaker, and

he subsequently taught at the Ministry of Education and eventually became the

head of the Islamic education division there.

In the summer of 2001, Mr. Abu Ghayth traveled to Afghanistan to pursue

an interest in jihad1 movements and Islamic governance by the Taliban. He

Mr. Abu Ghayth defined his understanding of “jihad” as follows: “Jihad in Islam

sharia has more than one -- I don't want to say more than one meaning, but has

more than one dimension. There is jihad in which you sacrifice yourself, which is

called fighting; and jihad that involves money, which means you donate money to

help the needy, and it has priority over the self jihad; and there is verbal jihad by

talking by words, by saying what's right; and there's jihad by writing to advocate or

the cause of anyone oppressed who needs advocacy. Under those three dimensions

1

2

explained: “My main goal was to see what it was that they could offer, such as

education and teaching, whether they needed such a thing. So it was a mission that

you may call humanitarian.”2 During an initial two-week trip, he “got to know the

most important places in Afghanistan, such as some schools and some relief

organizations, important mosques . . . in which you could lecture or offer some

education.”3

News that a “sheikh from Kuwait” had arrived in Kandahar apparently

reached Usama bin Laden, who was living in that city at the time. Bin Laden sent a

messenger to Mr. Abu Ghayth, and the two men subsequently met approximately

three times at bin Laden’s residence. During the second meeting, bin Laden asked

Mr. Abu Ghayth to give some lectures and speeches at a religious school in

Kandahar where Abu Hafs al-Mauritani served as director.4 Mr. Abu Ghayth had

an opportunity to familiarize himself with the school but did not end up speaking

of jihad, everything that can be offered to others any help that can be offered

depending on your ability.” Trial Transcript (“Tr.”) at 1153.

2

Id. at 1159.

3

Id. at 1161.

According to testimony from al Qaeda operative Saajid Badat, discussed infra, alMauritani ran this school on behalf of al Qaeda.

4

3

there – though he did deliver two lectures at “training camps” in Afghanistan at

one point.

Mr. Abu Ghayth subsequently traveled back to Kuwait and returned to

Afghanistan about two weeks later. Bin Laden sent another messenger, and, when

the two men met again, he asked Mr. Abu Ghayth to continue giving religious

lectures, which Mr. Abu Ghayth agreed to do as part of his obligations to the

Muslim community.

Bin Laden attempted to recruit Mr. Abu Ghayth as an al Qaeda member;

however, Mr. Abu Ghayth testified, he declined. As to the nature of their

relationship, the record reflects conflicting testimony from Mr. Abu Ghayth and

SA Butsch whether Mr. Abu Ghayth gave bin Laden a “mini” bayat (or, pledge of

allegiance) to assist al Qaeda and bin Laden as a religious scholar and orator.

In any event, during the evening on September 11, 2001, again at the

invitation of a messenger, Mr. Abu Ghayth was taken to meet bin Laden inside a

cave in a mountain area some distance from Kabul.5 Bin Laden inquired about Mr.

Abu Ghayth’s impressions of the September 11th attacks and then insisted that Mr.

Mr. Abu Ghayth estimated that by then they had a met a total of approximately

six or seven times.

5

4

Abu Ghayth speak about “the religious aspect” based on “some points” that bin

Laden would provide. After some equivocation, Mr. Abu Ghayth testified:

I don’t want to hide that I had some convictions that the nature of any

conflict, whenever there is an oppression or injustice inflicted on someone

that there could be possible reactions. Those reactions could be

unpredictable. Under some of these convictions, I accepted to speak.6

Various video and audio recordings of Mr. Abu Ghayth came into evidence

at trial by stipulation. It is not disputed that Mr. Abu Ghayth spoke in videos that

were released by Al Qaeda over the months following September 11, 2001 – in one

instance seated with bin Laden and bin Laden’s then-deputy Ayman al-Zawahiri

and senior Al Qaeda leader Abu Hafs al-Masri – and unleashed a stream of very

incendiary language directed toward the United States and its allies. Among these

fiery speeches were pronouncements such as “[a] great army is gathering against

you,” and “the storms shall not stop, especially the Airplanes Storm.”7 It also not

disputed that Mr. Abu Ghayth appeared in a video with bin Laden and others

discussing the attacks of September 11, 2001 after they occurred. Nor is it disputed

that, after going to Iran in 2002, he gave a speech on an audio recording in which

6

Tr. at 1187.

7

See Indictment at 4.

5

he stated that “we” possessed the capacity to implement threats and “launch[]

terrorist attacks on America . . . at a time, place and a method of our choosing.”8

Nevertheless, it is likewise undisputed that Mr. Abu Ghayth was not

involved in planning or carrying out terrorist attacks, and that, of the recordings of

Mr. Abu Ghayth introduced against him at trial, none contained any reference to

any specific future act of terrorism.

B. Eyewitness Testimony Regarding Al Qaeda and Mr. Abu Ghayth

Eyewitness evidence at trial concerning al Qaeda and Mr. Abu Ghayth –

such as it was – comprised the testimony of Saajid Badat, a British national

convicted in 2005 of an airplane shoe bombing conspiracy on behalf of al Qaeda,

and Sahim Alwan, an American who pleaded guilty in 2003 to providing material

support to terrorists.

Badat, an al Qaeda operative, received training at al Qaeda-affilated camps

in Afghanistan beginning in 1999. During the three years he spent in the country,

he saw bin Laden somewhere between 20 and 50 times and met with him three to

five times. At one of those meetings, in September or October of 2001, the two

discussed Badat’s upcoming suicide shoe-bombing operation on behalf of al

Qaeda. Although it was not established how many people knew about the mission,

8

See id. at 4-5.

6

Badat testified that he spoke with only between five and ten people about it, and

Mr. Abu Ghayth was not among them.

This degree of compartmentalization appears to have typified al Qaeda

strategy. At one point, for example, Badat was directed – without having been

provided any specifics – to research potential Jewish targets for al Qaeda

operations in South Africa. Similarly, he was later reassigned to “a plot involving

explosives” in Belgium, and he traveled to there without knowing the full details of

the scheme.9

Notably, Badat interacted with the “hard core” leaders of al Qaeda –

including bin Laden, (alleged September 11 mastermind) Khalid Sheikh

Mohammed, al-Zawahiri and al-Masri – but he had only a limited general

recollection of Mr. Abu Ghayth. Indeed, Badat testified, “[W]hen I see this picture

[in evidence of Mr. Abu Ghayth], I do recall seeing him in various locations. But

no specific time or place.”10

For his part, Alwan faked an ankle injury to get out of the al Qaeda camp

where he had ended up in Afghanistan, after deciding he wanted to skip out and

return to the United States. During this process, he recalled at trial, he happened

9

Tr. at 520-21.

10

Id. at 676-77.

7

upon Mr. Abu Ghayth discussing bayat to a small group of people in the courtyard

of an al Qaeda guesthouse:

To the best of my recollection, it was basically if you gave bayat,

understanding that if you gave bayat to Bin Laden – pledge, I will use the

English term – if you gave pledge to Bin Laden, it also fell under the pledge

of Mullah Omar, because Bin Laden gave the pledge to Mullah Omar. By

giving the pledge basically to Bin Laden you are also giving it to Mullah

Omar . . . the leader of the Taliban.11

Alwan did not see Mr. Abu Ghayth in Afghanistan again.

C. Mr. Abu Ghayth’s Testimony Regarding al Qaeda

Mr. Abu Ghayth testified that he never joined al Qaeda (and never gave

bayat to Usama bin Laden). He did not back away from the content his speeches or

seek to minimize their rhetoric – and indeed he reaffirmed his underlying beliefs.

However, he explained at trial:

Q. In the videos you use the phrase we. We. What did you mean by we?

A. What I meant by we means Muslims, the nation of Islam.

Q. Did you mean Al Qaeda?

A. Al Qaeda does not represent Islam. When I say we, and by this way I

represent Al Qaeda for the Islam, I reduce Islam very much into a small

group, which is not true.12

11

Tr. at 273.

12

Tr. at 1195.

8

Regarding his decision to continue speaking on videos released by al Qaeda,

he testified:

A. The war has erupted at that time, and the condition was very tense and

very severe and Sheikh Usama Bin Laden requested for me to talk and try to

antagonize the propaganda of the other side to mitigate this propaganda

against us. He want to say, I have and I have and I have just for making a

propaganda to reduce the amount of attack on us at that time because the

amount of attack was huge.

And I found that is a suitable time for me to do that, by this way to reduce

the amount of attack on us, on me, on these poor people that they have no

way of defending themselves. I was hoping after all of these speeches and

the videos that the United States will say, let’s go and sit down and talk and

solve this problem. But America was going on, on what I was expecting

them to do.

…

Q. When you said us, what did you mean?

A. What I meant by we, we are the Muslims who were living in Afghanistan

at that time.

Q. When you said these poor people, what did you mean?

A. The people of Afghanistan.

Q. Were you talking about Al Qaeda when you used those terms?

A. I mentioned the word Al Qaeda, yes, but I wasn’t talking about Al Qaeda.

Q. What do you mean?

9

A. I said that Al Qaeda said, Al Qaeda said, Al Qaeda said, but I wasn’t

talking about behalf of Al Qaeda.13

He maintained his explanation on cross-examination:

Q. Sir, is it your testimony to this jury that when you say we and us in this

speech you are not referring to Al Qaeda?

A. When I said we, I meant we Muslims, we Muslim nation. I was not

speaking on behalf of Al Qaeda. I delivered my convictions through Al

Qaeda because to me I believed that was the only way available to me to

deliver those convictions.14

The government’s response to this explanation amounted to a matter of

interpreting the videos themselves – and here the prosecution relied, at most, on

slivers of circumstantial evidence.

D. Additional Evidence at Trial

In addition to the video and audio recordings and testimony by Mr. Abu

Ghayth, Alwan and Badat, there were also pink “brevity” cards that were

recovered through an American military raid conducted at the village of TakhtehPol in Afghanistan in late November 2001. The cards had numbers associated with

various individuals and locations, and the government’s theory was that these cards

linked Mr. Abu Ghayth with al Qaeda. To be sure, Badat testified that code

numbers were used to refer to people over walk-talkie communications. But it

13

Tr. at 1197-98.

14

Tr. at 1261.

10

bears noting that the cards were recovered among Taliban-related materials, and

distinctions between information on the cards in relation to al Qaeda and the

Taliban were not always clear.

Finally, the government called its regular terrorism expert Evan Kohlmann,

whose testimony added little, if anything, to the case.

II.

Conviction and Sentencing

The jury convicted Mr. Abu Ghayth on all counts, and the District Court

sentenced him to life imprisonment on each one, with the terms on Counts Two

and Three running consecutively with one other and concurrently with the term on

Count One. Mr. Abu Ghayth is currently serving these sentences.

III.

Appeal

A. Mr. Abu Gayth’s Challenges

On appeal, Mr. Abu Ghyath argued that the district court’s instructions to

the jury vitiated the specific intent required to sustain a murder conspiracy

conviction. The problem with the instructions – viewed as a whole – stemmed

from general principles that hollowed out the requisite mens rea:

The second element [after the existence of an unlawful agreement] that the

government must prove in order to convict either on Count One [conspiracy

to kill American nationals] or on Count Two [conspiracy to provide material

support and resources to terrorists] is that the defendant unlawfully, willfully

and knowingly entered into the conspiracy with a criminal intent, that is to

11

say, with a purpose to violate the law, and agreed to take part in the

conspiracy to further promote and cooperate in its unlawful objective.

…

“Unlawfully” means simply contrary to law. The defendant need not have

known he was breaking any particular law or any particular rule. He need

only have been aware of the generally unlawful nature of his actions. 15

The problem was compounded, Mr. Abu Ghayth argued, when considered in

conjunction with the Court’s instruction on murder, which, especially when viewed

in light of the foregoing definition of unlawfulness, essentially removed the

requirement of specific intent altogether:

Murder is the unlawful killing of a human being with what is called malice

aforethought. To act with malice aforethought means to act willfully with

the intent to kill another person. Malice aforethought is a state of mind that

would cause a person to act without regard to the life of another. To act with

malice, one must have acted consciously with the intent to kill another

person. However, the government does not need to prove a subjective intent

to kill.16

With respect to the logical inconsistency between the specific intent required

for murder and the lesser intent involved in second-degree murder, Mr. Abu

Ghayth argued that the error inhered in either charge.

Mr. Abu Ghayth challenged his material support conviction under a similar

theory. He further argued that the evidence was insufficient insofar as the record

15

Tr. at 1500-01 (emphasis supplied).

16

Tr. at 1510 (emphasis supplied).

12

lacked any advance knowledge or specific intent as to any plot – and, in fact, the

evidence demonstrated that he had been excluded from conception and planning of

the charged conspiracy.

B. The Second Circuit’s Decision

The Second Circuit danced around the foregoing argument, declining to

address the issue and instead holding:

[Mr.] Abu Ghayth contends the[] instructions vitiated the “specific intent”

requirement for conspiracy and murder, but viewing the charge as a whole,

they explicitly and repeatedly stressed the government’s burden to prove

intent; for example, the court emphasized that the defendant “must

intentionally have engaged, advised, or assisted in the conspiracy for the

purpose of furthering any of its illegal objectives.” . . . The instructions did

not require the jury to find that Abu Ghayth intended to kill a specific person

or plan a specific plot, because the killing of Americans was the “essential

nature” of the illegal objective, and Abu Ghayth was charged only with

conspiracy to commit that act.17

This petition follows.

17

A. at 8.

13

Reasons for Granting the Writ

I. To the Extent that Circuit Courts Have Considered the Requisite Intent for a

Murder Conspiracy Involving a Second-Degree Option, There Appears to

Be a Split.

Title 18 U.S.C. § 2332(b) states:

(b) Attempt or conspiracy with respect to homicide. – Whoever outside the

United States attempts to kill, or engages in a conspiracy to kill, a national of

the United States shall –

(1) in the case of an attempt to commit a killing that is a murder as

defined in this chapter, be fined under this title or imprisoned not

more than 20 years, or both; and

(2) in the case of a conspiracy by two or more persons to commit a

killing that is a murder as defined in section 1111(a) of this title, if

one or more of such persons do any overt act to effect the object of the

conspiracy, be fined under this title or imprisoned for any term of

years or for life, or both so fined and so imprisoned.

In turn, 18 U.S.C. § 1111(a) provides:

(a) Murder is the unlawful killing of a human being with malice

aforethought. Every murder perpetrated by poison, lying in wait, or any

other kind of willful, deliberate, malicious, and premeditated killing; or

committed in the perpetration of, or attempt to perpetrate, any arson, escape,

murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse

or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a

pattern or practice of assault or torture against a child or children; or

perpetrated from a premeditated design unlawfully and maliciously to effect

the death of any human being other than him who is killed, is murder in the

first degree.

Any other murder is murder in the second degree.

14

With regard to conspiracy law in general, this Court has observed that “the

fundamental characteristic of a conspiracy is a joint commitment to an endeavor

which, if completed, would satisfy all of the elements of the underlying substantive

criminal offense.” Ocasio v. United States, 136 S. Ct. 1423, 1429 (2016) (internal

quotation marks and brackets omitted). Acknowledging that “conspirators must

pursue the same criminal objective,” even if “a conspirator need not agree to

commit or facilitate each and every part of the substantive offense,” the Court has

nevertheless recognized that a conviction requires reaching “an agreement with the

specific intent that the underlying crime be committed by some member of the

conspiracy.” Id. (internal quotation marks and citations omitted) (italicized

emphasis in original; underlined emphasis supplied).

There is a dearth of jurisprudence on intent in the context of murder

conspiracy, and most courts appear to eschew the issue – if they acknowledge it at

all – as the Second Circuit attempted to do here. To the extent any law has

congealed, the Fifth and Seventh Circuits seem to favor a specific intent

requirement for conspiracy to commit either first- or second-degree murder. See

United States v. Chagra, 807 F.2d 398, 403 (5th Cir. 1986); Fish v. United States,

1991 U.S. App. LEXIS 6914, at *4-5 (7th Cir. Apr. 17, 1991). The Ninth and

Tenth Circuits seem satisfied with general intent for second-degree murder. See

Kane v. United States, 399 F.2d 730, 736 (9th Cir. 1968); United States v. Wood,

15

207 F.3d 1222, 1228 (10th Cir. 2000); United States v. Soundingsides, 820 F.2d

1232, 1242 (10th Cir. 1987). True to form, however, in at least one case, the Ninth

Circuit has also fostered the notion that specific intent is inherent in a murder

conspiracy. United States v. Croft, 124 F.3d 1109, 1121-23 (9th Cir. 1997).

Troublingly, the Second Circuit’s analysis goes even further than either the

Ninth or Tenth Circuits – and indeed widens the divide by creating precedent out

of thin air that “intent” alone suffices. On this basis, the court was able to

conclude, an individual may be convicted of murder that is not directed at anyone

in particular and involves no identifiable plot.

II.

This Court Should Decide the Important Question of Requisite Intent for

Federal Murder.

To exacerbate this circuit split, the Second Circuit’s holding eviscerates the

specific intent requirement that a conspiracy conviction requires to survive. By

subsuming the intent for second-degree murder into a conspiracy, and then

lowering the denominator to that standard, the court’s decision stands for the

proposition that murder itself need not be specifically intended for a murder

conspiracy conviction to stand. Such a slippery slope is not only problematic in

this case; even more importantly, it calls out for this Court to restore mens rea to

the federal murder statute before any further erosion occurs.

16

III.

The Precedent Here Is All the More Insidious On the Facts.

The judicial laxity that has imbued this cobwebbed corner of the law

becomes apparent upon examination of what happened here. The record simply

contains no evidence to support a factual finding that Mr. Abu Ghayth had the

“heightened degree” of mens rea required by even the lowest standard under §

1111(a). While there is no question that he delivered fiery speeches full of vitriol,

and even arguably hate, there was nothing at trial to indicate that he was privy to al

Qaeda operations conceived to achieve murder as charged. Indeed – as the

Government has conceded – there was not a scintilla of evidence to establish that

he knew about any specific act of terrorism in advance.

Moreover, when examined through the lens of the Court’s instructions, the

Indictment provided alternative bases for the “unlawful nature of the conspiracy”

and “any of its illegal objectives” that are insufficient to sustain the convictions.

For example, the “Background to the Conspiracy” section contained reference to al

Qaeda “opposing non-Islamic governments with force and violence” and

“support[ing] violent attacks against property and nationals, both military and

civilian…”18 It remains uncertain which of the possible conspiracies inferable from

the evidence at trial that the jury convicted Mr. Abu Ghayth for participating in, as

18

Indictment at 1.

17

the Court denied a request from the defense to specific question to ascertain this

determination.

Setting aside for the purpose of argument Mr. Abu Ghayth’s own testimony,

the evidence at trial concerning intent was largely circumstantial – as perhaps it

would be, ultimately, in any question of mens rea. But even crediting all inferences

to the government, there remains no basis to conclude that the segmentation and

compartmentalization of al Qaeda was any different with regard to Mr. Abu

Ghayth than it was as to terrorist operative Badat.

Taking the Belgium plot in particular, for example, even Badat was kept

unaware of details concerning his mission and the overall operation of which he

may have been a part. Al Qaeda was in this respect structured on a need-to-know

basis: As the government conceded, Mr. Abu Ghayth played no role in planning or

carrying out terrorist attacks. Assuming that he was in fact a “member” of al

Qaeda, there is still no evidence – circumstantial or otherwise – that he shared the

mental state necessary for murder.

This point bears emphasis. Even if a trier of fact were to accept the

government’s theory that Mr. Abu Ghayth foreshadowed the airplane/shoe bomb

plot in which Badat participated, neither Mr. Abu Ghayth’s speeches nor any other

aspect of the evidence indicates that he had specific advance knowledge of this

scheme or any other. The link from words to conviction is missing.

18

If anything, the government’s case-in-chief established that Mr. Abu Ghayth

lacked the requisite knowledge – and corresponding intent – for four reasons. First,

his speeches themselves constitute a rallying call for Muslims worldwide in what

may be characterized as an ideological war against oppression and evil by the West

– but not a specific call to follow, for instance, the 1998 fatwa issued by bin Laden

reflecting a “judgment” incumbent upon Muslims “to kill Americans and their

allies.”19 And, to be certain, it is the latter upon which the government argued to

the jury that a conviction could alone be based.

Second, Mr. Abu Ghayth’s allegiance to al Qaeda, to the extent it existed in

practice, was limited. Even if pertinent testimony from SA Butsch is credited over

Mr. Abu Ghayth’s, then Mr. Abu Ghayth at most “made a mini bayat or a promise

to Bin Laden that he would assist Al Qaeda and Bin Laden as a religious scholar

and an orator.”20

Third, as already noted above, Badat maintained familiarity with the “hard

core” leaders of al Qaeda – but not Mr. Abu Ghayth. Here it bears noting that

Badat worked, and for a period even lived, in the “Media Center” in the months

19

See Tr. at 50-51 and 60-62.

Tr. at 713 (emphasis supplied). That circumscription is consistent with Alwan’s

recollection, assuming its accuracy, with regard to Mr. Abu Ghayth and bayat. See

Tr. at 272-73 (witness’s recollection of Mr. Abu Ghayth speaking about how bayat

to bin Laden comprised bayat to Mullah Omar as leader of Taliban).

20

19

leading up to Mr. Abu Ghayth’s initial video speeches, and that the airline plot in

which Badat was involved coincided with those videos – yet Badat testified that he

knew Mr. Abu Ghayth only generally. In one of the more curious aspects of the

trial, Badat also testified that he would not have known who Mr. Abu Ghayth was

– at least by name – prior to the trial in this case.

Finally, assuming that the pink “brevity” cards connected Mr. Abu Ghayth

to al Qaeda as the government argued, he was not listed by cunya (or, nickname)

like other al Qaeda “members,” and his name was spelled incorrectly.

Conclusion

The foregoing establishes that the circuit split on the requisite intent skewed

the case against Mr. Abu Ghayth and resulted in more bad law. This Court should

grant certiorari to the United States Court of Appeals for the Second Circuit.

February 24, 2018

__s/ Zoë Dolan______

20