United States v. Mahamud Said Omar

Filing

OPINION FILED - THE COURT: Diana E. Murphy, Lavenski R. Smith and Raymond W. Gruender AUTHORING JUDGE:Raymond W. Gruender (PUBLISHED) [4278881] [13-2195]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2195
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Mahamud Said Omar, also known as Mohamud Said Omar, also known as Sharif Omar
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: January 14, 2015
Filed: May 27, 2015
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Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
After a jury trial, Mahamud Said Omar was convicted of several terrorismrelated offenses. The district court1 sentenced him to a total term of 240 months in
prison. Omar appeals, and we affirm.
1

The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.

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I.

Background

On August 20, 2009, a federal grand jury indicted Omar for (1) conspiracy to
provide material support to terrorists, 18 U.S.C. § 2339A(a); (2) providing material
support to terrorists, id.; (3) conspiracy to provide material support to a designated
foreign terrorist organization, 18 U.S.C. § 2339B(a)(1); (4) providing material support
to a designated foreign terrorist organization, id.; and (5) conspiracy to murder,
kidnap, and maim persons outside of the United States, 18 U.S.C. § 956(a)(1).
Before trial, Omar moved to suppress any identification evidence, claiming that
the pre-trial identification procedure by which witnesses identified him was
constitutionally flawed. A magistrate judge held a hearing on this motion and heard
the following evidence about three witnesses’ pre-trial identifications of Omar.
Before trial, Kamal Hassan identified Omar three times. On April 9, 2009, an
FBI agent showed Hassan eighty-five photographs one at a time. After displaying
each photograph, the agent asked Hassan whether he knew the person in the picture.
If Hassan said yes, the agent asked Hassan to describe what he knew about the person.
Omar’s picture was the eighty-third photograph shown to Hassan. Hassan identified
Omar as “Sharif.” According to the agent, Hassan made this identification without
hesitation. Hassan stated that he recognized Omar from a mosque and that Omar later
spent time at an al Shabaab safe house in Somalia. Omar’s photograph remained on
the table for a couple of minutes while the agent and Hassan discussed Omar. Hassan
identified Omar again on June 7, 2010. This time, an FBI agent showed Hassan
twenty-nine photographs, following the same procedure as before. When the agent
displayed Omar’s picture and asked whether Hassan knew the person in the picture,
Hassan identified Omar as “Sharif.” The agent testified that Hassan made this
identification without hesitation. Omar’s picture remained on the table for two or
three minutes while Hassan discussed Omar. During a third interview with an FBI
agent on November 15, 2011, Hassan mentioned someone named “Sharif.” The agent
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then displayed Omar’s photograph, and Hassan identified Omar as “Sharif” without
hesitation.
Abdifatah Isse also identified Omar three times before trial. On February 25,
2009, an FBI agent showed Isse three photographs one at a time. After displaying
each picture, the agent asked Isse whether he knew the person in the picture. When
Omar’s photograph was shown, Isse identified Omar as “Sharif” without hesitation.
The agent then asked Isse to describe what he knew about this person. Omar’s picture
remained in front of Isse for roughly ten minutes while he and the agent discussed
Omar. During a second interview on March 11, 2009, Isse mentioned someone named
“Sharif” as a person Isse knew from a local mosque who came to a house where he
was staying. At this point, an FBI agent showed Isse a photograph of Omar; Isse
again identified Omar as “Sharif” without hesitation. Omar’s photograph remained
in front of Isse for ten or fifteen minutes. An FBI agent interviewed Isse again at a
later date. This time, the agent showed Isse twenty photographs one at a time and
asked Isse whether he recognized the person in each picture. When Omar’s
photograph was shown, Isse identified Omar as “Sharif” without hesitation.
Salah Ahmed made one pre-trial identification of Omar. During an interview
on July 19, 2009, an FBI agent showed Ahmed 152 photographs one at a time and
asked whether he knew the person in each photograph. Omar’s picture was
approximately the fifteenth one shown. When the agent asked Ahmed whether he
recognized the person in the photograph, Ahmed identified Omar as “Sharif” without
any doubt.
After hearing this evidence, the magistrate judge recommended that Omar’s
motion to suppress be granted. The magistrate judge found that the pre-trial
identification technique used with Hassan, Isse, and Ahmed was impermissibly
suggestive because it amounted to a single-photograph identification. The magistrate
judge also concluded that the repeated displays of Omar’s picture “served to dispel
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any hesitation the witnesses may have had in their original identification[s].”
Moreover, because of the “absence of evidence establishing the reliability of these
identifications,” the magistrate judge reasoned that the identification procedure
“g[a]ve rise to a serious likelihood of irreparable misidentification.” The district court
rejected the magistrate judge’s recommendation and denied Omar’s motion to
suppress. In particular, the court found these witnesses “were sufficiently familiar
with the Defendant to provide an accurate identification.”
Also before trial, the Government notified Omar that it intended to present
evidence that was obtained from electronic surveillance conducted pursuant to the
Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801 et seq. In response,
Omar filed a motion requesting disclosure of the FISA materials and suppression of
all FISA-derived evidence. The Government then filed a declaration from the
Attorney General of the United States averring that “it would harm the national
security of the United States to disclose or hold an adversarial hearing with respect to
the FISA [m]aterials.” Under FISA, this declaration triggered an in camera, ex parte
review of the FISA materials by the district court. 50 U.S.C. § 1806(f). After
conducting this review, the district court denied Omar’s motion for disclosure and
suppression.
During Omar’s trial, the jury learned that in the fall of 2007, a group of men in
Minnesota developed a plan to travel to Somalia. Hassan, Isse, and Ahmed were
invited to join this trip. Isse was told that the purpose of traveling to Somalia was to
“[w]age jihad against the Ethiopian invaders.” During trial, Hassan, Isse, and Ahmed
identified Omar, whom they knew as “Sharif.” They testified that they saw Omar at
a mosque before they left for Somalia. Hassan also knew Omar from seeing him
while they lived in the same apartment complex. In addition, Isse and Ahmed Ali
Omar, another individual who planned to go to Somalia, met with Omar at a restaurant
in Minnesota. According to Isse, Omar gave Ahmed Ali Omar roughly $500 in cash,

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wished him good luck on the trip, and stated, “[I]f you guys need anything, just call
me.”
Hassan, Isse, and Ahmed went to Somalia in late 2007. They eventually ended
up at what Ahmed described as a safe house. This safe house was operated by a
woman named Umma Shabaab, which translates to “the mother of the youth.” Omar
himself later stayed there, a fact confirmed by Ahmed and Isse. Ahmed testified that
he shared a room with Omar at the safe house for several days, and Isse talked with
Omar a couple of times and went to coffee shops with him. According to Ahmed,
only members of al Shabaab could enter the house where they stayed. Omar later
admitted to the FBI that he stayed at this house and knew it was operated by al
Shabaab. Ahmed testified that Omar told Umma Shabaab that he would give her
$1,000 to buy guns. Umma Shabaab confirmed to Ahmed that Omar gave her money
for the guns. Omar later told the FBI that he went to Somalia, in part, to join al
Shabaab.
Omar eventually returned to Minnesota, where he continued to help others
travel from Minnesota to Somalia. Indeed, Omar later described himself to the FBI
as an al Shabaab “team leader.” In August 2008, Omar went to the airport in
Minnesota with two men who were traveling to Somalia. Omar admitted to the FBI
that he knew these men were going to Somalia to join al Shabaab. Later in 2008,
Omar went with several more men to a travel agency to help them purchase airline
tickets to Somalia.
Matthew Bryden, an expert witness, also testified at trial. He explained that the
leaders of al Shabaab, which translates to “the youth,” intend “to establish their form
of Islamic law, of sharia law” as well as “align[] themselves with other foreign jihadist
groups,” including al Qaeda. On this latter topic, Bryden explained that al Shabaab
“has for a long time sought to identify itself with al Qaeda in various forms” and that
al Qaeda and Osama bin Laden also have made public statements about al Shabaab.
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Bryden also described al Shabaab’s use of suicide bombings and improvised explosive
devices. In particular, Bryden described a series of five suicide attacks in Somalia on
October 29, 2008. Although al Shabaab did not claim responsibility for these attacks,
Bryden testified that the type of vehicle used in most of these bombings was “a
signature of al Shabaab” and that only al Shabaab had the preexisting network to
support these attacks. The Government presented evidence indicating that Shirwa
Ahmed, one of the men whom Omar knew from the al Shabaab safe house in Somalia,
died in one of these explosions. Indeed, shortly after Shirwa Ahmed died, Omar told
Isse that Shirwa Ahmed had died in a “[s]uicide explosion.”
The jury found Omar guilty on all five counts. Omar now appeals.
II.

Discussion
A.

Identification Evidence

Omar first argues that the identifications of him by Hassan, Isse, and Ahmed
during trial violated the Due Process Clause because these identifications resulted
from constitutionally flawed pre-trial identifications. We review the district court’s
factual findings for clear error and its legal conclusions de novo. United States v.
Pickar, 616 F.3d 821, 827 (8th Cir. 2010).
“[C]onvictions based on eyewitness identification at trial following a pretrial
identification by photograph will be set aside on that ground only if the photographic
identification procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.” Simmons v. United States, 390
U.S. 377, 384 (1968). In considering such a claim, we initially analyze whether the
pre-trial identification procedure was suggestive and unnecessary. Perry v. New
Hampshire, 132 S. Ct. 716, 723-25 (2012). If it was, we examine whether the
identification technique created a “substantial likelihood of misidentification.” Id. at
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724 (quoting Neil v. Biggers, 409 U.S. 188, 201 (1972)). In particular, we consider
“the opportunity of the witness to view the criminal at the time of the crime, the
witness’ degree of attention, the accuracy of his prior description of the criminal, the
level of certainty demonstrated at the confrontation, and the time between the crime
and the confrontation.” Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
As detailed above, the initial pre-trial identifications of Omar occurred during
interviews in which Hassan, Isse, and Ahmed were shown a series of photographs by
FBI agents. These photographs were shown to them one at a time. After each
photograph was displayed, the agent asked the witness an open-ended question about
whether the witness knew the person in the picture. The agents followed this same
procedure when Omar’s photograph was shown during the initial interviews. This
identification procedure did not imply that Omar was the person in the picture. Nor
did it impermissibly suggest that Omar had engaged in wrongdoing. Omar’s picture
was simply one in a series of photographs about which the witnesses were asked a
non-suggestive question. Such an identification procedure is not impermissibly
suggestive. See United States v. Nunez-Guzman, 554 F. App’x 507, 511-13 (7th Cir.)
(order) (finding that showing a witness a series of photographs and asking him to
identify who he knows is not impermissibly suggestive), cert. denied, 574 U.S.---, 135
S. Ct. 284 (2014); United States v. Moore, 240 F. App’x 699, 705-06 (6th Cir. 2007)
(holding that showing a witness photographs and asking him to identify who he
recognizes is not impermissibly suggestive); cf. United States v. Triplett, 104 F.3d
1074, 1080 (8th Cir. 1997) (finding that an identification technique was not
impermissibly suggestive where “[t]he photographs [of six persons with similar
characteristics] were handed to [the witness] in a stack, and he was instructed to
examine each photograph and to advise the detectives if he recognized either of the
individuals he had seen in the alley”).
Omar likens the identification procedure used here to a single-photograph
display, in which a witness to a crime identifies the defendant as the culprit after
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seeing a single photograph of him. We have held that such an identification procedure
is impermissibly suggestive. United States v. Patterson, 20 F.3d 801, 806 (8th Cir.
1994). The identification procedure used here does not raise a comparable concern
about suggestiveness. Although Hassan, Isse, and Ahmed initially identified Omar
from a single picture, they saw his photograph as part of a series of photographs.
Consequently, unlike a single-photograph display in which an eyewitness is asked to
identify a single suspect, Hassan, Isse, and Ahmed were asked whether they could
identify between three and 152 individuals during their initial identification
interviews. Cf. Moore, 240 F. App’x at 706 (“Unlike the typical identification
situation in which an eyewitness is asked to identify a single person, [the witness] had
dozens of individuals to choose from in identifying the photographs given to him.”).
Omar’s attempt to analogize to an impermissibly suggestive single-photograph display
accordingly fails.
Omar also contends that the FBI’s actions after Hassan, Isse, and Ahmed made
their initial identifications render the procedure impermissibly suggestive. First, Omar
notes that his photograph was shown to Hassan and Isse three times and that during
Hassan’s third interview and Isse’s second interview, an FBI agent displayed Omar’s
picture after they mentioned someone named “Sharif.” But by this point, Hassan and
Isse already had identified Omar as “Sharif” without hesitation under circumstances
that were not unduly suggestive. This sequence of events undermines Omar’s
contention that the repeated displays of his photograph served to “dispel any
hesitation” that Hassan and Isse may have had in their original identifications. Cf. id.
(noting that showing photographs to a witness “many times[] mak[es] the procedure,
to some extent, the functional equivalent of a large photograph array”). Second,
without citing any case law, Omar argues that leaving his photograph in front of the
witnesses while they discussed “Sharif” was improper. This innocuous act is not
impermissibly suggestive, especially because Omar does not assert that the FBI treated
his photograph differently from the others that were shown to the witnesses.

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Even if it could be said that the identification technique used here was unduly
suggestive, we have reasoned that “when someone already familiar with a suspect is
asked to comment on whether a recorded voice or image portrays the
suspect . . . concerns [about the prejudicial effect of undue suggestiveness] are
absent.” United States v. Dobbs, 449 F.3d 904, 909-10 (8th Cir. 2006) (explaining
that the witnesses “were not eyewitnesses being asked to recall their impression of a
stranger during a short encounter in the emotionally charged context of an armed
robbery”). These circumstances existed here.2 To begin with, Hassan, Isse, and
Ahmed identified Omar before trial without hesitation or doubt. They had seen Omar
at a mosque before they left Minnesota. Hassan also knew Omar from living in the
same apartment complex as him, and Isse met with Omar at a restaurant in Minnesota.
In addition, Ahmed and Isse saw Omar at the safe house in Somalia. Ahmed shared
a room there with Omar for several days, and Isse talked with Omar and went to
coffee shops with him. Because witnesses who were already familiar with Omar were
simply asked an open-ended question about whether they knew him, the identification
technique used here did not create a substantial likelihood of misidentification. See
id.; Perry, 132 S. Ct. at 724.

2

Omar argues that we must make our decision about the reliability of the pretrial identifications based solely upon the pre-trial record. However, “in reviewing the
denial of a motion to suppress, we must examine the entire record, not merely the
evidence adduced at the suppression hearing.” United States v. Martin, 982 F.2d
1236, 1240 n.2 (8th Cir. 1993). Martin was a Fourth Amendment case, id. at 1239,
but we apply an analogous rule in a due-process challenge such as this. See Pickar,
616 F.3d at 827-28 (considering the totality of the circumstances in making a
reliability determination and stating that we will consider the “entire record” to
determine whether “we are left with a firm and definite conviction that a mistake has
been made” (quoting United States v. Hines, 387 F.3d 690, 694 (8th Cir. 2004));
United States v. Bangert, 645 F.2d 1297, 1303-04 (8th Cir. 1981) (determining that
identifications were reliable, in part, because the witnesses’ in-court identifications
were made “with certainty”).
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For these reasons, the district court did not err in denying Omar’s motion to
suppress Hassan’s, Isse’s, and Ahmed’s identifications of him during trial.
B.

FISA

Omar also challenges the district court’s decisions not to disclose the FISA
materials to him and not to suppress the FISA-derived evidence that was admitted at
trial.
We begin with the district court’s ruling that Omar was not entitled to review
the FISA materials. In FISA, Congress provided that where, as here, the Attorney
General certifies under oath that “disclosure [of FISA materials] or an adversary
hearing would harm the national security of the United States,” a district court should
“review in camera and ex parte the [FISA] application, order, and such other materials
relating to the surveillance as may be necessary to determine whether the surveillance
of the aggrieved person was lawfully authorized and conducted.” 50 U.S.C. § 1806(f).
While the district court may order the disclosure of FISA materials “under appropriate
security procedures and protective orders,” the court may do so “only where such
disclosure is necessary to make an accurate determination of the legality of the
surveillance.” Id. If the district court “determines that the surveillance was lawfully
authorized and conducted, it shall deny the motion of the aggrieved person except to
the extent that due process requires discovery or disclosure.” Id. § 1806(g). With
respect to this in camera, ex parte procedure, we have emphasized that “[d]isclosure
and an adversary hearing are the exception occurring only when necessary.” United
States v. Isa, 923 F.2d 1300, 1306 (8th Cir. 1991) (quoting United States v. Belfield,
692 F.2d 141, 147 (D.C. Cir. 1982)).
The parties disagree about the applicable standard for reviewing the district
court’s decision not to disclose the FISA materials to Omar. Omar contends that de
novo review is appropriate; the Government advocates for abuse-of-discretion review.
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This court has not expressly decided this issue, but our Isa decision hinted at its
resolution. In Isa, we agreed with the district court’s ruling that the appellant was not
entitled to disclosure of the FISA materials. 923 F.2d at 1306. In so doing, we
primarily relied on three out-of-circuit decisions, id., two of which reviewed a district
court’s disclosure decision under 50 U.S.C. § 1806(f) for abuse of discretion. United
States v. Badia, 827 F.2d 1458, 1464 (11th Cir. 1987); Belfield, 692 F.2d at 146-47.
The third decision cited in Isa did not expressly address this issue. United States v.
Sarkissian, 841 F.2d 959, 964-65 (9th Cir. 1988). And since Isa, two other circuits
have reviewed a district court’s disclosure decision under FISA for abuse of
discretion. United States v. El-Mezain, 664 F.3d 467, 567 (5th Cir. 2011); United
States v. Damrah, 412 F.3d 618, 624 (6th Cir. 2005). Abuse-of-discretion review also
accords with our general practice of leaving discovery-related decisions similar to this
one to the sound discretion of the trial court. See, e.g., United States v. Roach, 28 F.3d
729, 734 (8th Cir. 1994) (“We review the denial of [the defendant’s] motion for
discovery under Rule 16 for abuse of discretion.”). For these reasons, we now make
explicit what Isa left unsaid: We review a district court’s disclosure decision under
50 U.S.C. § 1806(f) for abuse of discretion.
Consistent with our practice in Isa, we have studied the FISA materials on our
own. See 923 F.2d at 1306. Mindful of the directive that “[d]isclosure and an
adversary hearing are the exception occurring only when necessary,” id. (quoting
Belfield, 692 F.2d at 147), we find no abuse of discretion in the district court’s
conclusion that disclosing the FISA materials to Omar was not necessary to make an
accurate determination of the legality of the FISA surveillance.
Omar next contends that the district court should have suppressed the FISAderived evidence admitted during trial because the Government failed to meet the
probable-cause standard from FISA. To obtain approval for FISA surveillance, the
Government must show probable cause to believe that “the target of the electronic
surveillance is a foreign power or an agent of a foreign power” and that “each of the
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facilities or places at which the electronic surveillance is directed is being used, or is
about to be used, by a foreign power or an agent of a foreign power.”
50 U.S.C. § 1805(a)(2)(A)-(B). This probable-cause showing differs in focus from
the standard in a typical criminal case. “[R]ather than focusing on probable cause to
believe that a person has committed a crime, the FISA standard focuses on the status
of the target as a foreign power or an agent of a foreign power.” El-Mezain, 664 F.3d
at 564. A “foreign power” includes “a group engaged in international terrorism or
activities in preparation therefor.” 50 U.S.C. § 1801(a)(4). And an “agent of a foreign
power” includes any person who “knowingly engages in sabotage or international
terrorism, or activities that are in preparation therefor, for or on behalf of a foreign
power.” Id. § 1801(b)(2)(C). Moreover, “anyone who knowingly aids, abets, or
conspires with an agent in furtherance of such activities is also deemed an agent of a
foreign power.” United States v. Daoud, 761 F.3d 678, 681 (7th Cir. 2014) (citing 50
U.S.C. § 1801(b)(2)(E)).
The parties dispute the standard for reviewing a probable-cause determination
under FISA. Because Omar has not seen the FISA materials and therefore cannot
raise any specific arguments about them, he urges us to undertake de novo review.
The Government, by contrast, argues for more deferential review. Courts have
reached different conclusions about this issue. See United States v. Hassan, 742 F.3d
104, 139 n.29 (4th Cir.) (describing the different standards of review), cert. denied,
574 U.S. ---, 135 S. Ct. 192 (2014). This case does not require us to take a firm stance
on the applicable standard of review. After thoroughly reviewing the FISA materials,
we have no hesitation concluding that probable cause under FISA existed under any
standard of review.

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C.

Evidentiary Issues

Omar last argues that the district court should not have admitted certain
testimony of Matthew Bryden. We review evidentiary issues for clear abuse of
discretion and will reverse the district court’s judgment “only when an improper
evidentiary ruling affected the defendant’s substantial rights or had more than a slight
influence on the verdict.” United States v. Anderson, 783 F.3d 727, 745 (8th Cir.
2015) (quoting United States v. Henley, 766 F.3d 893, 914 (8th Cir. 2014)).
Omar objects to the portions of Bryden’s testimony that concerned al Qaeda,
Osama bin Laden, and global jihad. Bryden testified that, in public statements, al
Shabaab’s leaders “supported internationalist jihadist goals” and “aligned themselves
with other foreign jihadist groups who shared those goals.” Bryden recounted that
after a bombing in April 2008 for which al Shabaab claimed responsibility, al Shabaab
made a public statement that referenced al Qaeda and Osama bin Laden. Bryden also
testified that al Qaeda has made numerous statements about al Shabaab, including a
statement by Osama bin Laden that became known as “Fight on You Lions of
Somalia.” Bryden also stated that some of al-Shabaab’s leaders had ties to al Qaeda
and had been involved in non-al Shabaab attacks, including an attack on a hotel, an
attempted takedown of an Israeli airplane, and embassy bombings. This testimony
was part of Bryden’s explanation that some of al Shabaab’s members “identify with
foreign jihadist movements with other objectives and other causes.”
Omar offers two reasons why this testimony should not have been admitted.
First, Omar claims that the above-described testimony was irrelevant under Federal
Rule of Evidence 401. Evidence is relevant if “it has any tendency to make a fact
more or less probable than it would be without the evidence” and “the fact is of
consequence in determining the action.” Fed. R. Evid. 401; see also Fed. R. Evid.
702(a) (providing that expert testimony is admissible if, among other things, it “will
help the trier of fact to understand the evidence or to determine a fact in issue”). The
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threshold for evidence to be relevant is “quite minimal.” Anderson, 783 F.3d at 745
(quoting United States v. Guerrero-Cortez, 110 F.3d 647, 652 (8th Cir. 1997)).
Bryden’s testimony about al Shabaab’s connections to al Qaeda, Osama bin
Laden, and global jihad helped to establish the open and notorious nature of al
Shabaab’s activities. This fact is of consequence because the Government had to
prove certain aspects of Omar’s knowledge. For instance, to prove Omar guilty of
providing material support to terrorists, the Government had to establish that Omar
provided material support or resources “knowing or intending” that this support would
be used in preparation for or in carrying out a conspiracy to murder or maim persons
in a foreign country. See 18 U.S.C. § 2339A(a); 18 U.S.C. § 956(a)(1). Furthermore,
in order to convict Omar of providing material support to a designated foreign terrorist
organization, the Government had to prove, among other things, that Omar knew that
al Shabaab was a designated terrorist organization, knew that al Shabaab has engaged
or engages in terrorist activity, or knew that al Shabaab has engaged or engages in
terrorism. See 18 U.S.C. § 2339B(a)(1). In light of the Government’s burden of proof
with respect to Omar’s knowledge, Bryden’s testimony about the public ties between
al Shabaab, on the one hand, and al Qaeda, Osama bin Laden, and global jihad, on the
other hand, was relevant. This testimony made it more likely that Omar knew about
the nature of al Shabaab’s activities.
Second, Omar asserts that even if Bryden’s testimony was relevant, it
nonetheless was inadmissible under Federal Rule of Evidence 403. Under this rule,
relevant evidence may be excluded “if its probative value is substantially outweighed
by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. Unfair prejudice “means an
undue tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.” Anderson, 783 F.3d at 745 (quoting United States v.
Bell, 761 F.3d 900, 912 (8th Cir. 2014)). “When determining whether the probative
value of evidence is substantially outweighed by [a danger of unfair prejudice], we
accord great deference to the district court’s ruling.” Id.
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By connecting al Shabaab to al Qaeda, Osama bin Laden, and global jihad,
Omar contends that Bryden’s testimony had an undue tendency to suggest an
emotional basis for convicting him. The district court did not abuse its discretion by
concluding otherwise. In a matter involving terrorism-related offenses, the Second
Circuit found that an expert’s testimony was not unfairly prejudicial because it was
“dry and academic” and “devoid of vivid imagery that might excite the jury.” United
States v. Ibrahim, 529 F. App’x 59, 63 (2d Cir. 2013) (summary order) (quoting
United States v. Kadir, 718 F.3d 115, 121 (2d Cir. 2013)), cert. denied, 571 U.S. ---,
134 S. Ct. 1321 (2014). The same can be said of Bryden’s matter-of-fact testimony.
Furthermore, Bryden’s testimony about this topic was relatively brief. The statements
to which Omar objects are dispersed among twelve or so pages of a trial transcript that
spans roughly 1,800 pages. And Bryden’s testimony about al Shabaab’s public ties
to al Qaeda, Osama bin Laden, and global jihad was not a point of emphasis during
trial. Indeed, the Government mentioned it only once during closing argument.
Furthermore, the same qualities that made Bryden’s testimony relevant gave it a
probative value that the trial judge could fairly think was not substantially outweighed
by a risk of unfair prejudice. For these reasons, the district court’s decision to admit
Bryden’s testimony was not a clear abuse of discretion.
III.

Conclusion
The judgment of the district court is affirmed.
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