United States v. Wright

United States Court of Appeals For the First Circuit

No. 18-1039

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID WRIGHT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Howard, Chief Judge, Kayatta and Barron, Circuit Judges.

Michael Tumposky, with whom Jessica Hedges, James Haynes, Forest O'Neill-Greenberg, and Hedges & Tumposky, LLP were on brief, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, and Pamela Gaulin, Harvard Law School, were on brief, for appellee.

August 28, 2019

BARRON, Circuit Judge. Beginning sometime in 2014,

David Wright, Nicholas Rovinski, and Usaamah Rahim -- Wright's

uncle -- engaged in discussions about the Islamic State of Iraq

and Syria ("ISIS"), which the United States has designated as a

Foreign Terrorist Organization under § 219 of the Immigration and

Nationality Act. See 8 U.S.C. § 1189; 80 Fed. Reg. 58,804, 58,804

(Sept. 30, 2015).1 The discussions allegedly involved a "high-

profile" ISIS spokesperson and concerned a plot to fulfill a fatwa

(ISIS decree) issued by "ISIS leaders" to behead Pamela Geller -

- an American citizen living in this country -- for insulting the

Prophet Mohammed. The discussions also concerned plans to kill

police officers in the United States and to establish a "martyrdom"

cell in this country.

Federal Bureau of Investigation ("FBI") agents

electronically monitored the three men's communications, including

through surveillance conducted pursuant to the Foreign

Intelligence Surveillance Act ("FISA"). See 50 U.S.C. § 1801. On

June 2, 2015, after FBI agents intercepted a call between Rahim

and Wright, they confronted Rahim at a bus stop. Rahim then drew

1 The Islamic State of Iraq and the Levant was officially designated as a Foreign Terrorist Organization in December 2004, but the Secretary of State amended its designation in September 2015 to reflect the fact "that the Islamic State of Iraq and the Levant uses the additional aliases the Islamic State, ISIL, and ISIS." Id. Both parties refer to the organization as "ISIS," so we do as well.

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a thirteen-inch knife, which led the agents to shoot him when he

refused to drop it. He died from his injuries.

Less than a month later, Wright was indicted for

conspiracy to provide material support to ISIS, in violation of 18

U.S.C. §§ 2339B(a)(1)-(2) ("Count One"); conspiracy to obstruct

justice, in violation of 18 U.S.C. § 371 ("Count Two"); and

obstruction of justice, in violation of 18 U.S.C. §§ 1519 and 2

("Count Three"). An April 2016 superseding indictment added a

count for conspiracy to commit acts of terrorism transcending

national boundaries, in violation of 18 U.S.C. §§ 2332b(a)(2) and

(c) ("Count Four"); and another February 2017 superseding

indictment added a count of obstruction of justice, in violation

of 18 U.S.C. § 1519 ("Count Five").

Following a fourteen-day trial, the jury convicted

Wright on all counts. The District Court sentenced Wright in

December 2017 to twenty-eight years' imprisonment and lifetime

supervised release. The District Court sentenced Wright to a total

of twenty years' imprisonment on Counts One, Three, and Five, to

be served concurrently with a sentence of five years' imprisonment

on Count Two. The District Court sentenced Wright to eight years'

imprisonment on Count Four to be served consecutively with the

twenty-year prison sentence for Counts One, Two, Three, and Five.

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Wright now appeals his convictions. We affirm Wright's

convictions on Counts Two through Five. We vacate his conviction

on Count One.

I.

We begin by considering Wright's challenges to the

District Court's order that denied various pretrial motions to

suppress evidence. Wright does not make a clear argument as to

how his challenge to the District Court's denial of each of these

motions to suppress relates to each of his convictions.

Nevertheless, we proceed on the understanding that the evidence

implicated in each motion would, if suppressed, affect his

convictions on all counts.

"In reviewing a challenge to the district court's denial

of a motion to suppress, we view the facts in the light most

favorable to the district court's ruling, and review the district

court's findings of fact and credibility determinations for clear

error." United States v. Peake, 804 F.3d 81 , 86 (1st Cir. 2015)

(internal quotation marks omitted). We review legal issues,

including preserved constitutional claims and a district court's

determination of whether the government exceeded the scope of a

warrant, de novo. See id.; United States v. Brown, 669 F.3d 10 ,

19 (1st Cir. 2012); United States v. Volungus, 595 F.3d 1 , 4 (1st

Cir. 2010).

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A.

We first address Wright's challenge to the District

Court's denial of his motion to suppress the fruits or derivatives

of any electronic surveillance that the FBI conducted pursuant to

FISA. On appeal, Wright argues only that the District Court

"should have suppressed the evidence obtained under FISA's

emergency provision" (the "Emergency Provision") -- insofar as any

evidence was so obtained -- "because that portion of the statute

is unconstitutional or, in the alternative, must be construed

narrowly."

1.

FISA is a federal statute. It establishes, as relevant

here, a mechanism by which federal law enforcement officers may

obtain a judicial order that authorizes the use of electronic

surveillance within the United States when a "significant purpose"

of the surveillance is the collection of "foreign intelligence

information." 50 U.S.C. § 1804(a)(6)(B).

Typically, the process is initiated by the submission of

an application, which must be approved by the Attorney General of

the United States (the "Attorney General"), to the Foreign

Intelligence Surveillance Court ("FISC") for review by one of its

judges. Id. § 1804(a). In response to such an application, FISC

judges may issue an ex parte order that authorizes electronic

surveillance after making, among other things, a finding of

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probable cause that the target of the surveillance is a foreign

power or agent of a foreign power. Id. § 1805(a)(2).

Orders may approve surveillance that targets United

States persons for up to ninety days. Id. § 1805(d)(1). Orders

that approve surveillance that targets non-United States persons

may do so for up to 120 days. Id.

The statute also includes an emergency authorization

provision. See id. § 1805(e). The Emergency Provision permits

the Attorney General to authorize electronic surveillance without

prior judicial approval if the Attorney General "reasonably

determines that an emergency situation exists with respect to the

employment of surveillance to obtain foreign intelligence

information before an order authorizing such surveillance can with

due diligence be obtained" and there is a factual basis supporting

issuance of an order. Id. § 1805(e)(1)(A)-(B). The Emergency

Provision requires that the Attorney General inform the FISC of

its decision to employ emergency surveillance and submit an

application for a judicially approved order, from the FISC,

pursuant to the regular procedure "as soon as practicable," but no

later than seven days after the Attorney General grants the

emergency authorization. Id. § 1805(e)(1)(D).

Information collected through surveillance that has been

authorized by the Attorney General pursuant to the Emergency

Provision can be used in certain "proceeding[s]." Id.

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§ 1805(e)(5). However, such information can be so used only "with

the approval of the Attorney General if the information indicates

a threat of death or serious bodily harm to any person." Id.

2.

On June 12, 2015, the government filed a notice of intent

"to offer into evidence, or otherwise use or disclose," as relevant

here, "information obtained or derived from electronic

surveillance . . . conducted pursuant to [FISA]." The notice of

intent made no reference to the Emergency Provision.

Wright thereafter filed a motion to compel discovery of

evidence obtained pursuant to FISA. The District Court denied the

motion. The District Court did so after concluding that FISA

"seems to contemplate the filing of . . . an 'ill-informed motion

to suppress.'"

Wright then filed a motion to disclose or suppress such

evidence, in which he "renew[ed] and incorporate[d] by reference

his motion to compel discovery." In that motion, Wright identified

a number of independent and alternative bases for suppression.

In support of his motion, Wright argued that FISA's

general requirement that the acquisition of foreign intelligence

information need only be a "significant purpose" of the search or

surveillance -- and thus need not be the "primary

purpose" -- renders searches and surveillance under that statute

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violative of the First, Fourth, Fifth, and Sixth Amendments to the

United States Constitution. See 50 U.S.C. § 1804(a)(6)(B).

The government filed a memorandum in opposition to

Wright's motion to suppress. The memorandum provided an overview

of the FISA surveillance process, which included a reference to

the Emergency Provision. The memorandum did not, however, indicate

that the government had relied on the Emergency Provision. Rather,

the memorandum argued, in response to Wright's suppression motion,

simply that the government had complied with FISA's requirements

throughout its surveillance. The memorandum also responded to

Wright's federal constitutional argument concerning FISA's general

"significant purpose" requirement, along with the other arguments

for suppression that he had advanced, none of which, as we have

noted, concerned the Emergency Provision.

The District Court held a status conference shortly

after these filings were made, at which it asked the parties a

series of general questions about FISA. One of those questions

was whether the Emergency Provision, as described in the

government's memorandum, raised any federal constitutional issues.

The District Court specifically stated, "I'm not talking about

this case, I'm talking about generally."

Wright then filed a memorandum of law, in which he

addressed the Emergency Provision. Wright first contended that

the Emergency Provision violated the Fourth Amendment. He relied

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on United States v. U.S. Dist. Court for E. Dist. of Mich., S.

Div., 407 U.S. 297 (1972) [hereinafter "Keith"], to contend that

the Emergency Provision is constitutionally deficient because it

does not require judicial approval of surveillance before it

begins. See id. at 316-17 ("Fourth Amendment freedoms cannot

properly be guaranteed if domestic security surveillances may be

conducted solely within the discretion of the Executive Branch.

The Fourth Amendment does not contemplate the executive officers

of Government as neutral and disinterested magistrates.").

Wright argued in the alternative that, to avoid

constitutional problems, the Emergency Provision must be construed

narrowly. With respect to that latter contention, Wright pointed

out that, although Title III of the Omnibus Crime Control and Safe

Streets Act, which authorizes surveillance without prior judicial

approval in "emergency situation[s]," enumerates the specific

"danger[s]" and "activities" that constitute an "emergency

situation," see 18 U.S.C. § 2518(7)(a), FISA does not. Wright

argued that the Emergency Provision should be construed to permit

the Attorney General to authorize emergency surveillance without

prior judicial approval only "when he has evidence that there is

an imminent threat to life, where the surveillance would assist in

the protection of that life, and where a warrant cannot be obtained

in time to stop this imminent threat to life."

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The government filed a response to Wright's memorandum

concerning the Emergency Provision. The government argued that

the Emergency Provision was constitutional. The government

submitted, shortly after filing that response, ex parte filings of

classified materials to the District Court.

The District Court denied Wright's motion. The District

Court explained that its "de novo review reveal[ed] that the

government attorneys here have throughout acted with scrupulous

regard for the rights of the defendant Wright and have conducted

themselves with utmost fidelity within the limited powers accorded

them under [FISA]." The District Court stated that it did not

"agree with each of the government's characterizations, especially

their perception of the imminence of threat posed by the defendant

Wright and his co-conspirators." Nonetheless, the District Court

stated that it found that the "government attorneys ha[d] followed

the established procedures" under FISA with "scrupulous care."

The District Court thus concluded that "[t]here [was] here no basis

to consider the suppression of evidence."

3.

On appeal, Wright abandons the argument that he made

below that concerned FISA's general "significant purpose"

requirement. We also agree with the government that Wright has

waived for lack of development any argument that FISA surveillance

in this case is unconstitutional because of the ex parte nature of

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the surveillance authorization decisions under FISA, and the

resulting inability of Wright to know which evidence, if any, was

used to justify the initiation of any surveillance, or which, if

any, evidence was obtained pursuant to any such surveillance. See

United States v. Zannino, 895 F.2d 1 , 17 (1st Cir. 1990). Wright

does not, for example, challenge the District Court's observation

that the statute contemplates the filing of "an ill-informed motion

to suppress." Rather, on appeal Wright raises only the two

arguments that he raised below, first challenging the facial

constitutionality of the Emergency Provision and, then, second,

arguing that the provision "need be narrowly construed."

We thus start with Wright's contention on appeal that

the Emergency Provision on its face violates the Fourth Amendment,

because it permits electronic surveillance without prior judicial

approval. In his brief to us on appeal, as in his memorandum

below, Wright relies on Keith to advance that argument. In

particular, Wright stresses that Keith holds that electronic

surveillance in domestic security matters may require an

appropriate ex ante warrant procedure. See Keith, 407 U.S. at

316-17.

But, Wright does not acknowledge that Keith expressly

limits its holding to "only the domestic aspects of national

security" or that Keith "express[es] no opinion as to [] the issues

which may be involved with respect to activities of foreign powers

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or their agents." Id. at 321-22, 324. Nor does Wright confront

the fact that the United States Supreme Court has more recently

characterized Keith as having "implicitly suggested that a special

framework for foreign intelligence surveillance might be

constitutionally permissible." Clapper v. Amnesty Int'l USA, 568

U.S. 398 , 402 (2013) (citing Keith, 407 U.S. at 322-23).

In addition, despite the facial nature of his challenge,

Wright does not develop any argument that surveillance conducted

pursuant to the Emergency Provision is unconstitutional no matter

the circumstances involved, notwithstanding that, in ordinary law

enforcement contexts, exigent circumstances may sometimes justify

a warrantless search. See Kentucky v. King, 563 U.S. 452 , 460

(2011) ("One well-recognized exception [to the warrant

requirement] applies when the exigencies of the situation make the

needs of law enforcement so compelling that

[a] warrantless search is objectively reasonable under

the Fourth Amendment." (internal quotation marks omitted)). Yet,

insofar as Wright means to bring a facial challenge to the

Emergency Provision based on the mere fact that it permits the

authorization of electronic surveillance without prior judicial

approval, he must, as the government points out, explain

why -- even in dire situations -- advance judicial approval is

always required. See City of Los Angeles v. Patel, 135 S. Ct.

2443 , 2450-51 (2015) (noting that the "proper inquiry" for "facial

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challenges to statutes authorizing warrantless searches" is

whether the "searches that the law actually authorizes" are

"unconstitutional in all applications").

We note in this regard that Wright appears to acknowledge

that there are some exigent circumstances in which the

authorization of electronic surveillance without prior judicial

approval -- pursuant to the Emergency Provision or otherwise -- is

constitutionally permissible. Wright argues, for example, that,

to avoid constitutional problems, the Emergency Provision should

be construed in the same narrow fashion that he contends that other

emergency authorization statutes have been construed, such as the

emergency provision in Title III, 18 U.S.C. § 2518(7)(a); see,

e.g., Nabozny v. Marshall, 781 F.2d 83 , 85 (6th Cir. 1986); United

States v. Capra, 501 F.2d 267 , 277 (2d Cir. 1974), and the

emergency provision in the Stored Communications Act, 18 U.S.C.

§ 2702(b)(8); see, e.g., In re Application of United States for a

Nunc Pro Tunc Order for Disclosure of Telecomm. Records, 352 F.

Supp. 2d 45, 47 (D. Mass. 2005). Given these concessions that the

Emergency Provision can be constitutionally applied in some

circumstances, we reject Wright's Fourth Amendment-based facial

challenge. See Patel, 135 S. Ct. at 2450-51.

Wright does appear to press an alternative argument. He

contends that the Fourth Amendment requires that the Emergency

Provision be construed to permit the Attorney General's emergency

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authorization "power [to] be employed [only] in narrow

circumstances." Specifically, he contends, as he did below, that

the Emergency Provision would be constitutional only if the

statutory phrase, "emergency situation," 50 U.S.C.

§ 1805(e)(1)(A), were construed to require "evidence that there is

an imminent threat to life, where the surveillance would assist in

the protection of that life, and where a warrant cannot be obtained

in time to stop this imminent threat to life."

But, even assuming that the Emergency Provision must be

so narrowly construed, notwithstanding that it authorizes the

collection of foreign intelligence information, Wright makes no

argument that the government could not have met this standard for

an "emergency situation." He also makes no argument that any

evidence traceable to the use of the emergency procedure in

particular would have been prejudicial to him if not suppressed.

Nor does he develop any argument as to why he should be excused

from having to make such arguments. Indeed, as we have noted,

Wright does not adequately develop a challenge to the District

Court's conclusion that the statute encompasses the filing of "an

ill-informed motion to suppress." Accordingly, we reject Wright's

narrow-construction challenge, too. Zannino, 895 F.2d at 17; see

also United States v. Mohamud, 843 F.3d 420 , 438 n.21 (9th Cir.

2016) (declining to reach defendant's facial challenge to FISA for

lack of explanation as to why suppression should be required in

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his case); United States v. Posey, 864 F.2d 1487 , 1491 (9th Cir.

1989) ("[W]e think it clear that appellant may not make a facial

challenge to the FISA without arguing that the particular

surveillance against him violated the Fourth Amendment . . . Even

if he is correct that the FISA's language might be applied in ways

that violate the Fourth Amendment, he must show that the particular

search in his case violated the Fourth Amendment. Appellant cannot

invalidate his own conviction on the argument that others' rights

are threatened by FISA." (emphasis in original)).2

B.

We now turn to Wright's challenge to the portion of the

District Court's order that denied his motion to suppress evidence

obtained from the search of his electronic devices. The relevant

facts, to which the parties agree, are as follows.

2 Wright also points out that the FISA Emergency Provision permits the Attorney General to authorize warrantless surveillance for up to seven days, see 50 U.S.C. § 1805(e)(1)(D), whereas the analogous provision in Title III only authorizes warrantless surveillance for up to forty-eight hours, see 18 U.S.C. § 2518(7). Insofar as Wright means to argue that this "longer-term, warrantless wiretapping" violates the Fourth Amendment, Wright makes no argument that any evidence in his particular case was obtained pursuant to surveillance without judicial approval that was conducted for more than forty-eight hours or as to how he can bring a facial challenge to this aspect of the FISA Emergency Provision without making a showing that some evidence in his case was so obtained and was prejudicial to him. See Mohamud, 843 F.3d at 438 n.21; Posey, 864 F.2d at 1491. Nor does he argue that he was wrongly denied access to the information that might support such an argument. Accordingly, we see no reason to address this aspect of Wright's facial challenge to the Emergency Provision.

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During the early morning of June 3, 2015, an FBI agent

filed an application for a search warrant for Wright's apartment.

The affidavit that accompanied the application included two

attachments. One of the attachments described Wright's apartment

("Attachment 2"). The other attachment identified the property

subject to seizure ("Attachment A"). Attachment A included a list

of specific "items," including "[a]ll computer hardware, computer

software, gaming equipment, computer-related documentation, and

storage media" and noted that "[o]ff-site searching of these items

shall be limited to searching for the items described

[previously]." (Emphasis added).

A federal magistrate judge issued a warrant based on the

application. The Magistrate Judge identified the "property to be

searched" in that warrant as Wright's apartment as described in

Attachment 2 and the "property to be seized" as the property listed

in Attachment A.

FBI agents seized Wright's electronic media devices

pursuant to the warrant. The agents also later searched those

media devices for evidence.

Wright argues that the plain text of the warrant

precluded the search of the electronic media devices that were

seized. This contention turns on the proper construction of the

warrant, so our review is de novo. See Peake, 804 F.3d at 86.

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We conclude that the warrant is most naturally read to

contemplate the search of Wright's electronic devices after their

seizure. See id. at 87 (explaining that "search warrants and

affidavits should be considered in a common sense manner, and

hypertechnical readings should be avoided" (internal quotation

marks omitted)). The warrant expressly cross-references

Attachment A in describing the property that may be seized.

Attachment A, in turn, expressly provides for the "[o]ff-site

searching of" electronic media devices. Thus, the warrant -- by

virtue of its cross reference to Attachment A -- is best read to

authorize not only the seizure, but also the search of the devices

at issue, as expressly contemplated by the text of Attachment A.

See United States v. Baldyga, 233 F.3d 674 , 683 (1st Cir. 2000)

As a result, Wright's contention that, in light of Riley v.

California, 134 S. Ct. 2473 (2014), we may not infer that an

authorization to seize an electronic device necessarily includes

the authorization to search that device is beside the point.

C.

Wright challenges one other portion of the District

Court's order that denied his various motions to suppress. That

portion of the order concerns Wright's motion to suppress

statements that he made to law enforcement agents at his home on

June 2, 2015.

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Wright contends that the District Court erred by denying

this motion to suppress, because the government violated his

federal constitutional due process rights by failing to record the

interview in which he made the statements. As the government

notes, however, Wright cites no authority to support his alleged

entitlement under the federal Constitution to a recorded

interview. In fact, we have previously held to the contrary. See

United States v. Meadows, 571 F.3d 131 , 147 (1st Cir. 2009)

("[T]here is no federal constitutional right to have one's

custodial interrogation recorded.").

Wright does attempt to ground his claim in a United

States Department of Justice policy that requires the recording of

custodial interviews conducted in a place of detention with

suitable recording equipment. But, that policy does not purport

to create legal rights that may be enforced by criminal defendants.

See United States v. Craveiro, 907 F.2d 260 , 264 (1st Cir. 1990)

(holding that "the internal guidelines of a federal agency, that

are not mandated by statute or the constitution, do not confer

substantive rights on any party"). Thus, that policy supplies no

basis for overturning the portion of the District Court's order

that denied Wright's suppression motion with respect to the

statements that he made to law enforcement.

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II.

We turn our attention now to Wright's challenge of the

District Court's handling of an unplanned interaction that

occurred between a juror and an FBI agent at a restaurant while

the trial was ongoing. Here, too, Wright is less than clear in

identifying the convictions to which this challenge pertains. We

nonetheless proceed on the understanding that, like his challenges

to the District Court's order denying his suppression motions, he

means for this challenge to implicate each of his convictions.

While a district court must make an "adequate inquiry"

into non-frivolous claims of juror bias or misconduct, United

States v. Ortiz-Arrigoitia, 996 F.2d 436 , 442 (1st Cir. 1993), the

district court has "broad discretion to determine the type of

investigation [that] must be mounted." United States v. Boylan,

898 F.3d 230 , 258 (1st Cir. 1990). See also United States v.

Ramirez-Rivera, 800 F.3d 1 , 41 (1st Cir. 2015) ("[T]he trial judge

is vested with the discretion to fashion an appropriate and

responsible procedure to determine whether misconduct occurred and

whether it was prejudicial.").

We review the adequacy of a district court's

investigation of -- and response to -- evidence of potential juror

bias or misconduct for abuse of discretion, "recogniz[ing] that

the district court has wide discretion in deciding how to handle

and how to respond to allegations of juror bias and misconduct

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that arise during a trial." United States v. Tejeda, 481 F.3d 44 ,

52 (1st Cir. 2007) (internal quotation marks omitted). We review

a district court's findings that a juror is credible and that the

jury is impartial for clear error. See United States v. Burgos-

Montes, 786 F.3d 92 , 110-11 (1st Cir. 2015).

A.

The relevant facts, as found by the District Court, are

as follows. Juror 25 encountered one of the FBI agents who had

been sitting at the government's counsel table during trial at a

restaurant over a weekend while the trial was ongoing. Juror 25

and the FBI agent exchanged pleasantries but did not discuss the

case.

When the agent was ready to leave his table, wait staff

informed him that someone had already paid for his meal. Wait

staff suggested to the agent that the person who had paid for his

meal was sitting at a table in the restaurant other than the one

at which Juror 25 had been seated.

The government informed the District Court of this

matter on the Monday morning after the encounter. Both parties

agreed to the District Court's proposal to question Juror 25 about

the incident.

The District Court questioned Juror 25 in the presence

of the parties. Juror 25 admitted to seeing the FBI agent and to

exchanging pleasantries with him. He stated that there was no

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discussion of the substance of the case. He also stated that he

had paid the agent's bill and explained, after being asked why he

had done so, that there was "no reason, we like to pay it forward,

so he happened to be there and that's what we did."

Juror 25 also told the District Court that he had

mentioned to about seven jurors that morning that he had seen the

agent over the weekend. He noted, however, that he did not tell

any of those jurors that he had paid the agent's bill at the

restaurant. Juror 25 also stated that he had, pursuant to the

District Court's instructions at the outset of the trial, not

"expressed any opinions about the substance of the case to [his]

fellow jurors."

The District Court excused Juror 25 from the trial and

instructed him not to say anything about the matter to his fellow

jurors. At that point, Wright's counsel asked that the District

Court question the remaining jurors about what Juror 25 had told

them. The District Court declined to do so. The District Court

instead asked all the jurors at the outset of that day's

proceedings whether they had "heard, read, or seen anything at all

concerning the substance of [the] case," whether they had

"[d]iscussed the substance of the case with anyone," and whether

"anyone [had] discussed the substance of the case in [their]

presence," since they had recessed the previous Thursday. When

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each juror answered, "No," the trial then proceeded without

objection.

B.

Wright emphasizes that "any unauthorized communication

between any person who is associated with the case . . . and a

juror would have the potential for being prejudicial," unless the

communication is completely unrelated to the case or is "shown to

be harmless." United States v. O'Brien, 972 F.2d 12 , 14 (1st Cir.

1992). But, nothing in the record suggests -- nor does Wright

contend -- that the communication between Juror 25 and the FBI

agent was "about the case." See id. ("In those instances where it

is shown that there was a communication about the case, the

communication would be deemed prejudicial unless shown to be

harmless." (emphasis added)); United States v. Sampson, 486 F.3d

13 , 41 (1st Cir. 2007) ("We have attached significance before to

the fact that a juror's casual ex parte communication did not

concern the substance of the case, and we think it is appropriate

to continue to follow that praxis." (citing United States v.

Angiulo, 897 F.2d 1169 , 1185 (1st Cir. 1990)).

In any event, the District Court dismissed the only juror

who had "an unauthorized communication [with] someone associated

with the case." Id. Nor was any wrongdoing or bias on the part

of any juror besides Juror 25, whom the District Court excused,

alleged. Moreover, Wright does not suggest that, even if Juror 25

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gave the other jurors a detailed account of his encounter with the

FBI agent, the other jurors actually became biased against him.

Thus, the cases on which Wright relies in contending

that it was an abuse of discretion for the District Court not to

have questioned the other jurors about the incident at the

restaurant are inapt. See United States v. Resko, 3 F.3d 684 ,

688-693 (3d Cir. 1993) (allegation that jurors had deliberated

prematurely); United States v. Gaston-Brito, 64 F.3d 11 , 13 (1st

Cir. 1995) (allegation of an ex parte communication between a

government agent and jurors); Government of the Virgin Islands v.

Weatherwax, 20 F.3d 572 , 578 (3d Cir. 1994) (allegation that jurors

may have read an inaccurate newspaper article about the case);

United States v. Lara-Ramirez, 519 F.3d 76 , 87 (1st Cir. 2008)

(allegation that Bible in jury room tainted proceedings); United

States v. Paniagua-Ramos, 251 F.3d 242 , 250 (1st Cir. 2001)

(allegation from defendant's sister that two jurors had been seen

conversing with the prosecutor during trial); United States v.

Zimny, 846 F.3d 458 , 464, 467-68 (1st Cir. 2017) (allegation that

jury was exposed to extraneous prejudicial blog post and comments

and had engaged in premature deliberations).

Wright's reliance on cases in which district courts took

more steps to investigate concerns about juror taint than the

District Court took here, see, e.g., United States v. Ortiz-

Arrigoitia, 996 F.2d 436 , 443 (1st Cir. 1993), also cannot help

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his argument. Those cases simply support the notion that "[t]he

trial court has wide discretion in how it goes about this inquiry."

Tejeda, 481 F.3d at 52.

III.

We come, then, to the first of Wright's challenges to

the District Court's jury instructions. Wright first challenges

the instruction that the District Court gave about the permissive

inferences that the jury could make in determining whether Wright

had the intent necessary for him to be found guilty on any count

that required a finding of intent. This challenge, like each of

the challenges that we have thus far considered, appears to take

aim at each of his convictions.

In reviewing preserved challenges to jury instructions,

we "consider de novo whether an instruction embodied an error of

law, but we review for abuse of discretion whether the instructions

adequately explained the law or whether they tended to confuse or

mislead the jury on the controlling issues." United States v.

Ackell, 907 F.3d 67 , 78 (1st Cir. 2018) (quoting United States v.

Gray, 780 F.3d 458 , 464 (1st Cir. 2015)). We assume favorably to

Wright that his challenge alleges an error of law in the

instruction. But, even assuming our review is de novo, Wright's

challenge fails.

The relevant instruction was as follows:

- 24 -

I will tell you that the law provides that you may infer that a person intends the natural and probable consequences of what they say and do. Now when I say you may infer it, what that means is you could draw that conclusion, but you need not, that's left to you as the jury. You look at all the evidence to see whether the government [proved], because they've got to prove this -- this is essential [--] Mr. Wright's intent beyond a reasonable doubt.

(Emphasis added).

We have upheld instructions that allow for permissive

inferences regarding intent. See, e.g., Lannon v. Hogan, 719 F.2d

518 , 521-22 (1st Cir. 1983) (holding that the instruction, "you

may infer or conclude that a person ordinarily intends the natural

and probable consequences of acts knowingly done," did not contain

constitutional error) (collecting First Circuit cases deciding the

same). In fact, the First Circuit pattern jury instructions

expressly include the language, "You may infer, but you are

certainly not required to infer, that a person intends the natural

and probable consequences of acts knowingly done or omitted."

Pattern Jury Instructions for the District Courts of the First

Circuit § 4.18.1343 (2019).

But, as Wright points out, the District Court's

instruction here does not track that pattern jury instruction word

for word. The instruction instead states that the jury was

permitted to "infer that a person intends the natural and probable

consequences of what they say and do." (Emphasis added).

- 25 -

Wright asserts that, in deviating from the pattern

instruction in this way, the District Court's instruction

"improperly highlighted just one aspect of the case, the

Defendant's words, to the exclusion of all the other evidence on

this crucial point [of Wright's intent]." And, Wright contends,

the instruction -- by highlighting his "words" -- undermined his

entire defense at trial, which was "that, even though [Wright]

said and wrote much of what the Government claimed he said and

wrote, he did not intend to support ISIS, obstruct justice, or

commit an act of violence."

Wright's reading of the instruction, however, is not a

fair one. The instruction allows the jury to infer intent from

both Wright's words and his conduct ("what they say and do"), and

the instruction expressly states that the jury must "look at all

the evidence." (Emphases added). For these reasons, the

instruction is not like the one found to have been erroneous in

United States v. Rubio-Villareal, 967 F.2d 294 (9th Cir. 1992),

the out-of-circuit precedent on which Wright relies.

Rubio-Villareal addressed an instruction "which told the

jury it could infer knowledge from two isolated facts -- that the

defendant was the driver and that cocaine was concealed in the

body of the vehicle." Id. at 298. By contrast, the District

Court's instruction did not permit the jury to infer intent from

such isolated facts. Thus, the instruction neither "effectively

- 26 -

told the jury in this case that the judge thought there was

sufficient evidence to convict the defendant" nor "focused the

jury on some rather than all the facts," as the instruction in

Rubio-Villareal did. Id. at 299. In fact, the instruction stated

that the jury must consider "all the evidence." (Emphasis added).

We therefore reject Wright's challenge to this jury instruction.

IV.

Having dispensed with Wright's challenges that target

his convictions generally, we now focus on Wright's challenges

that concern only his convictions on specific counts -- namely,

Counts One and Four. We begin with Wright's challenges to his

conviction on Count One. The challenges concern, respectively,

the sufficiency of the evidence to support the conviction on Count

One and the District Court's instruction on the elements of the

offense underlying that conviction. We then will turn, in Part V,

to Wright's challenges to his conviction on Count Four. Those

challenges concern, respectively, the sufficiency of the evidence

to support his conviction on that Count and the District Court's

jury instruction on the elements of the offense underlying that

conviction.

A.

To understand Wright's challenge to the sufficiency of

the evidence for his conviction on Count One, it is necessary,

first, to provide some background about the elements of the offense

- 27 -

of conviction and the understanding of the parties and the District

Court as to what those elements required the government to prove.

We then need to explain in further detail the aspects of the

government's case for convicting Wright of that offense that he

contends were not supported by sufficient evidence. Finally, we

will explain why, given the arguments that Wright presses, his

sufficiency challenge to his conviction on Count One fails.

1.

Wright was convicted on Count One of violating 18 U.S.C.

§ 2339B. "[T]o prove a violation [of § 2339B], the government

must establish that a defendant (1) knowingly provided or attempted

or conspired to provide material support (2) to a foreign terrorist

organization (3) that the defendant knew had been designated a

foreign terrorist organization or had engaged in terrorism."

United States v. Dhirane, 896 F.3d 295 , 303 (4th Cir. 2018), cert.

denied sub nom., Jama v. United States, 139 S. Ct. 1207 (2019)

(citing Holder v. Humanitarian Law Project, 561 U.S. 1 , 16–17

(2010)). 18 U.S.C. § 2339B goes on to define "material support or

resources" as "any property, tangible or intangible, or service,

including," among other things, "personnel (1 or more individuals

who may be or include oneself)." Id. § 2339B(g)(4) (defining

- 28 -

"material support or resources" in accordance with the definition

used in 18 U.S.C. § 2339A(b)(1)).

The indictment alleged that, in violation of § 2339B,

Wright conspired to provide "material support or resources" in the

form of "services and personnel" to ISIS. At trial, however, the

government argued only that, in connection with the co-

conspirators' plot to kill Geller and police officers in the United

States, Wright engaged in a conspiracy to provide

"personnel" -- himself and potential recruits -- and not "services"

to ISIS.

The government limited its case at trial to the

"personnel" theory of liability. The government did so on the

understanding that the jury should be in agreement, in the event

that the jury returned a guilty verdict, as to the particular type

of "material support or resources" -- i.e., "personnel" or

"services" -- that Wright had conspired to provide.

With regard to "personnel," § 2339B provides that:

No person may be prosecuted under this section in connection with the term "personnel" unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization's direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be

- 29 -

working under the foreign terrorist organization's direction and control. Id. § 2339B(h).

Wright's counsel argued to the District Court, that,

under the definition of "material support or resources" provided

in § 2339A(b)(1), "personnel . . . is an example of a type of

service." Neither § 2339A nor § 2339B provides a definition of

"service." But, the Supreme Court, in the course of construing

§ 2339B, has noted that "a person of ordinary intelligence would

understand the term 'service' to cover advocacy performed in

coordination with, or at the direction of, a foreign terrorist

organization." Holder, 561 U.S. at 24 (emphasis added). Thus,

drawing on Holder and the contention that "personnel is an example

of a type of service," Wright's counsel requested that, despite

the government's representation that it would press at trial only

the "personnel" and not the "services" theory of Wright's criminal

liability set forth in the indictment, the District Court "still

instruct the jury that material support implies coordination."

The District Court agreed with Wright's counsel on this

point. The government did not object. In consequence, the issue

of whether the plot to kill Geller and the police officers that

Wright was charged with conspiring to carry out was undertaken "in

coordination with" ISIS, along with the issue of whether that plot

was undertaken "at the direction of ISIS," became key issues at

trial.

- 30 -

2.

The "at the direction of" and "in coordination with"

theories "provide alternative, independently sufficient grounds

for" sustaining the conviction with respect to the "material

support or resources" element of the conspiracy offense at issue.

United States v. Gaw, 817 F.3d 1 , 5 (1st Cir. 2016) (quoting United

States v. Cruz-Arroyo, 461 F.3d 69 , 73 (1st Cir. 2006)). We have

no need to address, however, whether there was sufficient evidence

to convict Wright on the theory that he conspired to be part of a

plot that was carried out "at the direction of" ISIS. That is

because we reject Wright's contention that there was insufficient

evidence for a rational jury to find beyond a reasonable doubt

that Wright conspired to carry out a plot to kill Geller and others

"in coordination with" ISIS. See id. ("[A]dequate proof of one

[of two alternative theories of criminal liability] obviates any

need for proof of the other." (quoting Cruz-Arroyo, 461 F.3d at

73)).

Our review of Wright's sufficiency challenge is de novo.

See United States v. Ocean, 904 F.3d 25 , 28 (1st Cir. 2018) (citing

United States v. Ramírez-Rivera, 800 F.3d 1 , 16 (1st Cir. 2015)).

In undertaking that review, "[w]e view all the evidence,

credibility determinations, and reasonable inferences therefrom in

the light most favorable to the verdict in order to determine

whether the jury rationally could have found that the government

- 31 -

established each element of the charged offense beyond a reasonable

doubt." United States v. Valdés-Ayala, 900 F.3d 20 , 30 (1st Cir.

2018) (internal quotation marks and punctuation marks omitted).

In overcoming this "formidable standard of review," United States

v. Loder, 23 F.3d 586 , 589 (1st Cir. 1994), "[d]efendants

challenging convictions for insufficiency of evidence face an

uphill battle on appeal," United States v. Hernandez, 218 F.3d 58 ,

64 (1st Cir. 2000).

3.

To make the case that the evidence sufficed to support

the conspiracy conviction at issue on the basis of an "in

coordination with" theory of criminal liability, the government

argues as follows. First, it contends that the evidence

supportably showed that Wright's uncle and alleged co-conspirator,

Rahim, communicated with a "Mr. Hussain" about the plot to kill

Geller and others. The government further argues that the evidence

supportably showed that this "Mr. Hussain" was at the time living

in an ISIS-controlled territory in Syria and was a "high-profile"

member of ISIS. The combination of this evidence, the government

asserts, was legally sufficient to establish that Rahim and "Mr.

Hussain" were conspiring to kill Geller and others "in coordination

with" ISIS. The government thus contends that, so long as the

evidence sufficed to show that Wright was part of that conspiracy

to carry out that plot, the evidence sufficed, as a whole, to

- 32 -

support Wright's conviction for conspiring to provide "material

support or resources" to ISIS on a "coordination" theory.

Wright asserts on appeal that, "[a]t best, the

Government has shown that the plan was inspired by" (emphasis

added) publicly available ISIS videos and documents, "but

independent of, ISIS." In making this blanket assertion as to

what the record shows about "the plan" and its connection to ISIS,

though, Wright fails to engage with any of the evidence that we

have just discussed that concerned "Mr. Hussain's" involvement in

the plot at issue and "Mr. Hussain's" ties to ISIS. Instead,

Wright merely makes a conclusory contrary characterization of the

evidence as a whole with respect to ISIS's connection to the plot.

Such a conclusory assertion is not the kind of developed

argument about the insufficiency of the evidence that Wright must

make to succeed on his sufficiency challenge. It fails to address

the evidence that the government points to in its brief to show

that the evidence sufficed to prove that the plot at

issue -- independent of whether Wright was a part of it -- was

undertaken "in coordination with" ISIS.

By contrast, the evidence that the government introduced

included, among other things, records of electronic communications

between Rahim and Hussain, expert testimony that explained who

Hussain was and what his ties to the ISIS organization were, and

tweets that, the government contends, a jury rationally could find

- 33 -

were authored by Hussain and showed his substantial involvement in

developing and facilitating the plot at issue. Because Wright

addresses none of this evidence, we deem waived for lack of

development any challenge to the sufficiency of the evidence to

support this critical aspect of the government's case for

satisfying the "coordination" requirement, concerning, as it does,

the nature of the plot in which Wright is charged with having been

a participant. See United States v. Benevides, 985 F.2d 629 , 633

n.6 (1st Cir. 1993) ("[W]e decline to engage in speculation or to

forge beyond the line of argument that defendant has explicitly

pursued in his appeal.").

We recognize that Wright does also appear to advance the

argument that there was insufficient evidence that he

"coordinate[d] his efforts with members of the [ISIS]." In so

arguing, Wright focuses on the fact that the government "failed to

present any evidence of communication between the Defendant and

any ISIS member regarding the plan." Wright stresses in this

regard that the evidence showed at most that he simply downloaded

publicly available videos and documents produced by ISIS. He then

argues that evidence of that conduct cannot suffice to prove that

he conspired to carry out the plot at issue "in coordination with"

or, for that matter, "at the direction of" ISIS.

But, these contentions about what the evidence showed

regarding Wright's own conduct relate merely to what the evidence

- 34 -

showed about the role that he played in the plot in which he is

charged with having been a participant. Those contentions thus

fail to provide a basis for rejecting the government's argument on

appeal that the evidence supportably showed that Rahim and "Mr.

Hussain" were engaged in a plot to kill Geller and others "in

coordination with" ISIS.

To be sure, there does remain the question of whether

the evidence was insufficient to show that Wright had the requisite

intent and knowledge that the conspiracy that he was alleged to

have joined was of such a kind. See United States v. García-

Pastrana, 584 F.3d 351 , 377 (1st Cir. 2009) (noting that the

requisite mental state for conspiracy is "knowledge of the basic

agreement" and "an intent to commit the underlying substantive

offense" (quoting United States v. Brandon, 17 F.3d 409 , 428 (1st

Cir. 1994)). And, because Wright separately contends that the

evidence did not suffice in that regard, we must address that

question as well. As we next explain, though, we are not persuaded

by Wright's argument that the evidence was lacking on that separate

score.

As the government points out, Wright was charged as a

co-conspirator in the plot to kill Geller and the police officers

"in coordination with" ISIS and thus as a co-conspirator in a plot

to "provide" what the parties agreed § 2339B treats as "material

support or resources" to that terrorist organization. Wright is

- 35 -

therefore wrong to suggest that, merely because the government

failed to put forth any evidence of communication between him and

a member of ISIS, he could not be convicted of the conspiracy

offense with which he was charged. The Supreme Court has squarely

rejected the argument that the government is required to prove

that a defendant charged with conspiring to provide material

support in violation of 2339B had the specific intent to further

the terrorist organization's activities. See Holder, 561 U.S. at

16-17 ("Congress plainly spoke to the necessary mental state for

a violation of § 2339B, and it chose knowledge about the

organization's connection to terrorism, not specific intent to

further the organization's terrorist activities." (emphasis

added)). Nor does the fact that Wright was charged with conspiring

to commit that offense require the government to have made that

showing. See United States v. Piper, 35 F.3d 611 , 615 (1st Cir.

1994) (noting that a defendant who "intentionally agrees to

undertake activities that facilitate commission of a substantive

offense, but who does not intend to commit the offense himself"

may be convicted of conspiracy).

Wright also appears to contend that his sufficiency

challenge has merit because the evidence was insufficient to show

that he knew the nature of "Mr. Hussain's" involvement in the plot.

But, even assuming, favorably to Wright, that the government was

required under conspiracy law to make such a showing, compare

- 36 -

García-Pastrana, 584 F.3d at 377 (1st Cir. 2009) (noting that the

requisite mental state for conspiracy is "knowledge of the basic

agreement") with Ocean, 904 F.3d at 31 (concluding that a defendant

need not know all the details of a conspiracy to be found guilty

as a conspirator), we conclude that the evidence sufficed.

The government's evidence on this score included the

recording and transcript of a May 26, 2015 call between Rahim and

Wright, which supportably showed that Rahim recounted to Wright

that he had received an encrypted document from "Mr. Hussain" with

research on Geller, as well as Wright's response that "I gotta see

that [document]." The government also presented testimony from

Wright's co-conspirator Rovinski, who recounted that Wright,

Rahim, and Rovinski had pledged their support to ISIS's leader,

al-Baghdadi, and that their plot to kill Geller and others was

intended to fulfill ISIS's stated goals. In the face of that

evidence, we see no basis to conclude that there was insufficient

evidence from which a rational jury could find that Wright knew

not only about "Mr. Hussain's" involvement in the plot but also

about his ties to ISIS. Thus, this aspect of Wright's sufficiency

challenge lacks merit, too.

B.

Having rejected Wright's sufficiency challenge on Count

One, we now consider his preserved challenge to the District

- 37 -

Court's jury instruction on that count.3 The jury instruction that

Wright challenges was as follows:

The support must be "material," which means it's got to make some sort of difference, not a major coup necessarily, but it's got to make some difference to the goals, plans, strategy, tactics of this foreign terrorist organization, in this case it's ISIS. And there's got to be -- what they do -- and again this is all part of this terrorist connection, what they plan to do has -- the specific language I want to use is that it has to be "conduct done in coordination with or at the direction of the foreign terrorist organization."

Now the coordination -- and the reason that the government has to prove that is to prevent, um, the law from applying [to] some random act, just a random act of violence and then ISIS latches onto that and says, "Oh, yeah, those were our soldiers," or something like that. They have to -- the conspiracy has got to be, um, cognizant of and acting in coordination -- it doesn't have to be direct orders, but in coordination with the strategy, the tactics of the foreign terrorist organization, in this case ISIS. Well, that's the first question.

(Emphasis added).

Wright contends that this instruction, by virtue of the

underlined language, permitted the jury to find that he conspired

3 The government does not dispute that Wright preserved this objection below. The government does, however, argue that Wright's challenge to this instruction should be deemed waived for lack of development on appeal. We do not agree with the government's characterization of Wright's briefing on appeal, in which he sufficiently ties his legal argument to the errors preserved below. We thus proceed to address his instructional challenge on the merits.

- 38 -

to provide "material support or resources" to ISIS merely by having

coordinated with ISIS's publicly available strategy and tactics,

while acting independently of the terrorist organization itself.

As Wright puts it, the District Court's expansive definition of

"coordination" in the underlined language quoted above permitted

the jury to convict him based on a finding that he acted with "mere

awareness of the desires of the terrorist organization, delivered

indirectly," without also finding that there had been any

"communication between the Defendant and any ISIS member regarding

the plan" or other any other "actual connection to the terrorist

group." Wright further contends that this flaw in the instruction

constituted reversible error.

Wright's challenge to this instruction is not merely

that its wording is confusing. It is a contention that the

instruction misstated the relevant law, so our review is de novo.

See Ackell, 907 F.3d at 78.

In undertaking that review, we first explain why the

instruction was in error. We then turn to a consideration of

whether the error was harmless, first by determining the standard

for assessing whether an error of this type is, in fact, harmless,

and then by explaining why the applicable harmless error standard

has not been satisfied by the government here.

- 39 -

1.

The government does not make any contention that, even

if the instruction says what Wright says it does, it is a correct

statement of the law. Instead, the government argues only that

Wright misreads it.

The government focuses on the fact that the instruction

begins with a statement that "[the conduct] has to be . . . done

in coordination with or at the direction of the foreign terrorist

organization." The government argues that this initial statement

should be read to qualify the District Court's subsequent

explanation of "coordination" as "coordination with the strategy,

the tactics of the foreign terrorist organization." Thus,

according to the government, the jury would have understood, taking

the instructions as a whole, that it had to find that the

"coordination" was with ISIS itself and not merely with its

publicly available strategy and tactics.

But, we do not agree with the government's proposed

reading of the instruction. The statement that "coordination"

could be merely "coordination with the strategy, the tactics of

the foreign terrorist organization" is preceded by a sentence that

began, "Now the coordination." That same preceding sentence then

goes on to "explain the reason that the government has to prove

that."

- 40 -

In context, then, the instruction's key statement that

describes "coordination" to be merely with the "strategy" and

"tactics" of ISIS, rather than with the terrorist organization

itself, is most naturally read as defining the same "coordination"

that the District Court mentions in its initial statement that

"[the conduct] has to be . . . done in coordination with or at the

direction of the foreign terrorist organization." Most naturally

read, this more detailed definition of the kind of coordination

that is required displaces the stricter requirement of

"coordination with . . . the foreign terrorist organization"

itself that the instruction earlier sets forth. See United States

v. Pizarro, 772 F.3d 284 , 300 (1st Cir. 2014) (opting for the "most

natural reading of [a] passage" in a jury instruction,

"particularly in light of" other statements made by the District

Court); United States v. Latorre-Cacho, 874 F.3d 299 , 305 (1st

Cir. 2017) (concluding "that the instructions as a whole did not

suffice to disabuse the jury of the misimpression about what it

needed to find that had been created by the erroneous part of the

instructions").

The government does contend that such a reading of the

instruction fails to account for the portion of it that elaborates

on what constitutes "coordination" and that states that "it doesn't

have to be direct orders." The government argues that the

statement at issue thus "could logically have been heard as merely

- 41 -

providing examples of conduct falling short of 'direct orders'

(i.e., coordination with the organization regarding strategy or

tactics)" that would suffice to show "coordination." The

government thus contends that this portion of the instruction

should be read to merely clarify that "coordination" need not rise

to the level of "direct orders."

But, the statement in the instruction that "it doesn't

have to be direct orders," even if properly read to clarify that

"coordination" need not take the form of "direct orders," was still

problematic. The statement cannot be read to say that

"coordination" must be with the terrorist organization itself

rather than with the organization's strategy and tactics, if merely

publicly available. Thus, we conclude that, given the way that

the words of the instruction juxtapose certain conduct that could

suffice as "coordination" with certain conduct that could not, the

instruction is most naturally read to state that "it" -- on the

government's reading, "coordination" -- could be "with the

strategy, the tactics of the foreign terrorist organization" and

so need not be with the organization itself. See, e.g., Febres v.

Challenger Caribbean Corp., 214 F.3d 57 , 64 n.8 (1st Cir. 2000)

(opting for a "phrase's more natural reading" in a jury

instruction).

The conclusion that the instruction should be read as

Wright urges us to read it finds additional support in another

- 42 -

portion of the instruction. That portion supports Wright's

proposed reading by setting forth one "example" of the type of

conduct that might fall outside the statute's ambit: "a random act

of violence [that] then ISIS latches onto." (Emphasis added). By

ruling out only that one example, the instruction implicitly

suggests what the displacing definition of "coordination"

suggests: that a jury may deem a defendant to have acted "in

coordination with" a terrorist organization based merely on a

finding that the defendant had operated in parallel to that

organization.

The government does not cite -- nor do we know of -- any

authority to support such an expansive construction of the

"material support or resources" element of the offense. Nor does

the government develop any argument that, insofar as it is so read,

the instruction still properly stated the law of what constitutes

"coordination." We thus conclude that, at least given the

arguments presented to us, Wright has adequately made the case

that the instruction on Count One with respect to the definition

of "coordination" constitutes legal error.

2.

Of course, "[e]ven an incorrect instruction to which an

objection has been preserved will not require us to set aside a

verdict if the error is harmless." United States v. Sasso, 695

F.3d 25 , 29 (1st Cir. 2012) (citing United States v. Argentine,

- 43 -

814 F.2d 783 , 788–89 (1st Cir. 1987)). The determination of

whether the erroneous instruction was harmless turns in part on

whether the flaw in it was of a constitutional dimension. We thus

start by considering that issue.

a.

An instruction that relieves the government of its

burden of proving beyond a reasonable doubt an element of the

offense violates the Due Process Clause of the Fifth Amendment to

the Constitution. See Patterson v. New York, 432 U.S. 197 , 210

(1977). Such an instruction is harmless if "it appears 'beyond a

reasonable doubt that the error complained of did not contribute

to the verdict obtained.'" Neder v. United States, 527 U.S. 1 , 15

(1999) (quoting Chapman v. California, 386 U.S. 18 , 24 (1967)).

The government bears the burden, moreover, of showing that an

instruction that is constitutionally flawed is harmless. See

United States v. Sepulveda-Contreras, 466 F.3d 166 , 171 (1st Cir.

2006).

The government does not explain how -- if we conclude

that the instruction says what Wright contends that it says -- we

could reach any conclusion other than that it reduced the

government's burden to prove one of the theories that the parties

themselves agreed was necessary to prove the "material support or

resources" element of the conspiracy charge at issue. After all,

the government makes no argument that an instruction that permitted

- 44 -

Wright to be convicted merely for having coordinated with the

"strategy" and "tactics" of ISIS properly described the

"coordination" that it agreed had to be proven, in the event that

"direction" was not. Accordingly, we proceed on the understanding

that this instructional error is a constitutional one and thus

triggers the harmless error standard for errors of that magnitude.

The government submitted both the "coordination" and

"direction" theories of the "material support or resources"

element to the jury. As the government rightly notes, nothing in

the government's presentation of the case "force[d] or urge[d]"

the jury "to decide the case on the theory [implicated by the

flawed instruction]." See United States v. Skilling, 638 F.3d

480 , 483 (5th Cir. 2011). Thus, when applying the demanding

harmless error standard for constitutional errors, we are required

to affirm the conviction if the evidence for either theory of guilt

-- "coordination" or "direction" -- was so

"overwhelming . . . that the jury verdict would have been the same

absent the error." Neder, 527 U.S. at 17; see United States v.

Zhen Zhou Wu, 711 F.3d 1 , 30 (1st Cir. 2013) (citing Neder, 527

U.S. at 17; Hedgpeth v. Pulido, 555 U.S. 57 (2008)).

The government makes no argument, however, that it met

the harmless error standard for a constitutional error with respect

to the "in coordination with" theory of guilt, which is the theory

that the flawed instruction described. See United States v.

- 45 -

Rodríguez–Marrero, 390 F.3d 1 , 18 (1st Cir. 2004) (noting that we

may deem any harmless error argument not briefed by the government

as waived). The only respect in which the government even touches

on the harmlessness of the instruction is its contention that

"[a]ny possibility that Wright would have been prejudiced by any

confusion caused by this instruction, moreover, is lessened by the

government's closing argument . . . that the evidence showed that

he acted at 'the direction of' ISIS, and not merely in coordination

with ISIS." We thus confine our harmless error analysis to

determining whether the government has met its burden to show that

the evidence that Wright participated in the plot "at the direction

of" ISIS was "overwhelming," see Neder, 527 U.S. at 17, as it

must be to render harmless the constitutional error caused by the

instruction.

b.

The government argued to the jury at trial -- and argues

to us on appeal -- that the evidence of "Wright's avowed intent to

attack Geller to fulfill the fatwa established that he was acting

'at the direction' of ISIS." To make that case, the government

relied heavily on Rovinski's testimony to show that Wright had

pledged allegiance to ISIS's leader and that Rovinski, Rahim, and

Wright were making a plan to kill Geller and others to fulfill

ISIS's fatwa in the hopes of attaining "martydom." But, such

evidence is solely based on a government cooperator's testimony,

- 46 -

which is a type of evidence that is rarely deemed to be

overwhelming on its own. See United States v. Melvin, 730 F.3d

29 , 39 (1st Cir. 2013) (rejecting the government's argument that

the "evidence of the defendant's guilt was so overwhelming as to

render the [error] benign" where "[t]his proposition relie[d]

heavily on [a cooperating witness's] testimony"); see also, e.g.,

United States v. Ramirez-Rivera, 800 F.3d 1 , 33 (1st Cir. 2015)

(finding a constitutional error not harmless where "the only other

evidence connecting [the defendant] to anything illegal was the

testimony of the cooperators, which they provided in exchange for

leniency in their own cases"); United States v. Ocasio-Ruiz, 779

F.3d 43 , 48 (1st Cir. 2015) (finding an error not harmless where

"the government's cooperating witness . . . gave the only evidence

tying [the defendant] to the [crimes]").

Moreover, Wright testified extensively at his trial that

he was simply engaged in an "ISIS role-play fantasy" to "escape

[his] real life at the time," in which he was "morbidly obese" and

"playing video games all day." Wright did admit in his testimony

that he "said a lot of things that sound[ed] like [he] w[as] really

in support of ISIS," but Wright also testified that these

statements were nothing more than "trash-talking" and "trolling."

Wright testified, for example, that he never intended to support

ISIS or to carry out ISIS's "plan" to kill Geller and police

officers.

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Consistent with this aspect of Wright's testimony, we

note, Wright also offered expert testimony from a

neuropsychologist. She testified that Wright had "significant

elements of a personality disorder." She also testified that

Wright had a fragile ego, used language to impress other people,

and had an unrealistic perception of who he was and impaired

personal relationships.

To be sure, "the jury [may have chosen] to credit the

accounts of the cooperating witness[] over the admittedly self-

serving testimony of the defendant." United States v. Ofray-

Campos, 534 F.3d 1 , 28–29 (1st Cir. 2008). But, "[Wright's]

countervailing testimony on his own behalf is a factor in

conducting the harmless error analysis." Id. Taking account of

that factor here, we conclude that a rational jury could have found

from this evidence that Wright could have been simply

"role-playing" with respect to following ISIS's direction. We

thus cannot find the constitutional error in the instruction to

have been harmless beyond a reasonable doubt, because the evidence

to which the government points to make that showing fails to show

that there was "overwhelming" evidence that Wright had conspired

to kill Geller and others "at the direction of" ISIS. And that is

so, even if we were to assume that -- as the government contends

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-- intending to fulfill a publicly made ISIS decree constitutes

acting "at the direction of" ISIS.4 See Neder, 527 U.S. at 17.

V.

Wright next challenges his conviction on Count Four for

conspiracy to commit an act of terrorism transcending national

boundaries. See 18 U.S.C. § 2332b(a)(2) and (c). Wright

challenges this conviction -- just as he challenged his conviction

on Count One -- both on sufficiency grounds and in consequence of

an allegedly erroneous jury instruction. We begin with his

sufficiency challenges.

A.

Entitled, "Acts of terrorism transcending national

boundaries," § 2332b(a)(2) provides that whoever "conspires" "to

commit an offense under [18 U.S.C. § 2332b(a)(1)] . . . shall be

punished under [18 U.S.C. § 2332b(c)]." 18 U.S.C. § 2332b(a)(2).

Section 2332b(a)(1), in turn, provides in relevant part that

"[w]hoever, involving conduct transcending national

boundaries . . . , kills, kidnaps, maims, commits an assault

4 Wright also challenges his conviction on Count One based on the District Court's refusal to give a clarification that it is "legal to join, associate, advocate, and even praise a terrorist organization." Because we vacate and remand Wright's conviction on Count One on the ground that the instruction that the District Court did give on "material support or resources" was erroneous, we have no occasion to consider whether Wright's proposed instruction -- insofar as it would attach to the District Court's erroneous instruction -- was required.

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resulting in serious bodily injury, or assaults with a dangerous

weapon any person within the United States . . ." shall be subject

to specified punishments. Id. § 2332b(a)(1)(A). The statute

defines "conduct transcending national boundaries" to mean

"conduct occurring outside of the United States in addition to the

conduct occurring in the United States." Id. § 2332b(g)(1).

Wright premises his sufficiency challenges on the

argument that, under § 2332b(a)(1), the "[a]ct of terrorism" must

be one "involving conduct transcending national boundaries." See

§ 2332b(g)(1). He contends, first, that the "conduct transcending

national boundaries" must be "substantial" and that the only

evidence of "conduct transcending national boundaries" that the

government sufficiently proved at trial is not "substantial." For

that reason, Wright contends that the evidence put forward to

satisfy the "transcending national boundaries" requirement is not

sufficient. Wright then separately contends that, because he was

convicted as a conspirator under 18 U.S.C. § 2332b, the

requirements of conspiracy law obliged the government "to prove

that [Wright] knew and intended that the plan to kill would involve

conduct transcending national boundaries." Yet, he contends, the

evidence at trial was not sufficient to permit a rational juror to

so find.

We review Wright's preserved Count Four sufficiency

challenges de novo. See Ocean, 904 F.3d at 28. As we did when

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reviewing Wright's Count One sufficiency challenges, "we view all

the evidence, credibility determinations, and reasonable

inferences therefrom in the light most favorable to the verdict in

order to determine whether the jury rationally could have found

that the government established each element of the charged offense

beyond a reasonable doubt." Valdés-Ayala, 900 F.3d at 30 (internal

quotation marks and punctuation marks omitted).

1.

We start with Wright's contention concerning the failure

of the government to prove that the "conduct transcending national

boundaries" was "substantial." We are not persuaded.

Even if we were to agree that the "conduct" must be

"substantial" to constitute "conduct" within the meaning of the

statute's "conduct transcending national boundaries" requirement,

the evidence that the government put forth at trial sufficed. To

see why, recall that, in countering Wright's sufficiency challenge

to his conviction on Count One, the government argued that it

introduced sufficient evidence that Rahim was plotting with a "Mr.

Hussain" to kill Geller and others. That is significant for

present purposes, because, in countering Wright's sufficiency

challenge to his conviction on Count Four, the government contends

that this same evidence sufficed to show that the conspiracy was

to commit a killing "involving conduct transcending national

boundaries," because there was evidence sufficient to show both

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that "Mr. Hussain" was involved in the plot to kill Geller and

others and that "Mr. Hussain" was overseas during that involvement.

The government's evidence on the latter score included

a British foreign intelligence expert's testimony and social media

records, which the government contends supportably showed that

"Mr. Hussain" was in fact a British national, Junaid Hussain. The

government then proceeds to point out that it introduced certified

border-crossing records to supportably show that Junaid Hussain -

- who, other evidence supportably showed, also went by the moniker,

Abu Hussain -- had never traveled to the United States. The

government thus contends that a rational jury could find from this

body of evidence, taken as a whole, that Hussain's conduct in

connection with the plot -- exchanging information about the plot

to kill Geller with Rahim -- took place overseas and that the plot

"involv[ed] conduct transcending national boundaries."

Notably, Wright does not appear to contend otherwise.

In fact, Wright at one point appears to concede that "the jury may

have been legally entitled to infer from these facts that

'abuhussain' was overseas." We thus proceed on the understanding

that the evidence was sufficient to establish that "Mr. Hussain"

was involved in the plot to kill Geller and others and that Mr.

Hussain's involvement took place overseas. But, for that reason,

Wright's sufficiency challenge has little merit.

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The government points out that the District Court found

that the evidence of Hussain's involvement in the plot was

significant enough to deem him a co-conspirator, and Wright does

not challenge that finding on appeal. That evidence, we agree,

sufficed to show that Hussain did not merely "communicate" with

Rahim but provided him with research and guidance on the plot to

kill Geller, and Wright does not argue otherwise. Thus, we agree

with the government that the evidence of Hussain's involvement in

the plot at issue sufficed to show that the "conduct transcending

national boundaries" was "substantial" under any reasonable

interpretation of that term.

2.

We turn now to Wright's other sufficiency challenge to

his conviction on Count Four. Here, he contends that the evidence

was lacking to permit a rational juror to find him guilty of

conspiring to commit the underlying offense, given what he contends

are the requirements of conspiracy law.

But, Wright misapprehends conspiracy law, insofar as he

contends that the government had to prove not only that the

evidence showed that he intended to join a plot that he knew was

to commit a killing involving "conduct transcending national

boundaries," but also that he intended that the killing would

involve such extra-territorial conduct. Conspiracy law simply

imposes no such proof requirement on the government. Piper, 35

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F.3d 611 at 615 (noting that a defendant who "intentionally agrees

to undertake activities that facilitate commission of a

substantive offense, but who does not intend to commit the offense

himself" may be convicted of conspiracy).

There does remain the question of whether the evidence

sufficed to show that, in joining the conspiracy, Wright knew that

the plot was to kill Geller and others in a manner "involving

conduct transcending national boundaries." But, while Wright

contends that there was not sufficient evidence on that score, we

disagree.

As the government points out, it introduced sufficient

evidence of "Wright's knowledge that Rahim was communicating with

Hussain about their plans [to kill Geller] and awareness that Abu

Hussain was overseas." The government's evidence on this score

included copies of two "Islamic State e-books" that Wright had

shared with Rahim that listed Hussain as a member of ISIS living

in Syria. The evidence also included the recording and transcript

of the May 26, 2015 call between Rahim and Wright in which Rahim

told Wright that "Mr. Hussain" had information that one of Wright's

friends was attending ISIS training in Syria, from which, the

government contends, a rational jury could infer that Wright must

have known that Hussain was overseas.

In response, Wright merely states, without further

explanation, that "there is no evidence that he agreed or intended

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that any plan to kill would be conducted, in significant part, by

someone overseas." But, this cursory statement is inadequate to

satisfy Wright's burden to explain why the evidence that the

government identifies on appeal was legally insufficient to show

the requisite knowledge. See Zannino, 895 F.2d at 17. We thus

reject Wright's sufficiency challenge to his conviction on Count

Four.5 See Benevides, 985 F.2d at 633 n.6.

B.

We now consider Wright's preserved challenge to the

District Court's jury instruction on Count Four. The relevant

instruction was as follows:

Well, the first two steps are exactly the same, the government has to prove that Mr. Wright was part of a conspiracy, as I have

5 Wright also argues that the District Court erred in denying his motion for a new trial because, even assuming that the government established a legally sufficient circumstantial case on Count Four, the evidence that the plot "involv[ed] conduct transcending national boundaries" lacked probative force. "[T]he decision to grant or deny a new trial is committed to the sound discretion of the district court," United States v. Andrade, 94 F.3d 9 , 14 (1st Cir. 1996) (quoting United States v. Soto-Alvarez, 958 F.2d 473 , 479 (1st Cir.), cert. denied, 506 U.S. 877 (1992)), and the denial of a motion for a new trial is reviewed for manifest abuse of that discretion, Gaw, 817 F.3d at 10. The remedy of a new trial based on the weight of the evidence is to be "sparingly used, and then only where there would be a 'miscarriage of justice'" if the verdict were left in place. United States v. Rothrock, 806 F.2d 318 , 322 (1st Cir. 1986) (quoting United States v. Indelicato, 611 F.2d 376 , 387 (1st Cir. 1979)). Wright points to the fact that the evidence of overseas conduct was minimal and suspect, but his argument is cursory at best, and he makes no attempt to satisfy this "miscarriage of justice" standard or meet the demands of the deferential abuse- of-discretion standard. Therefore, this argument also fails.

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defined that to you. Second, they have to prove -- and the specific intent here, the specific intent is different, but they've got to prove specific intent, they've got to prove it beyond a reasonable doubt. Here the specific intent has got to be to commit acts of terrorism transcending national boundaries . . . .

Second, because it requires, um, transcending national boundaries, in this one there has to be conduct that they're planning within the United States, the conspirators, and there also has to be conduct outside the United States, somewhere, anywhere outside the national boundaries of the United States. The conduct? Now the conduct can be communication of some sort, encouragement, direction, but it's got to be conduct outside the United States . . . .

Now one or more members of the conspiracy, and the government says the conspiracy is at least Wright, Rahim, and Rovinski, they've got to know about the foreign, um, communication, or direction, or encouragement, or the foreign conduct related to what they're doing, and it doesn't mean that Wright has to know specifically because you see if one is a conspirator, not every conspirator has to know everything every other conspirator is doing. Conspiracy is like a partnership and if one of the -- once they're a partnership, the things that the partners do in furtherance of the conspiracy is attributed to all the partners.

But at least they've got to show that that Wright was -- that Wright himself, the person who's on trial here, that he reasonably understood that he was engaged in a conspiracy to do conduct that transcends national boundaries, that has this terrorist connection as I've just defined it to you.

(Emphasis added).

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1.

Wright first argues that the District Court erroneously

instructed the jury that "conduct" can mean mere communication.

He contends that the "conduct [transcending national boundaries]

must be, in some way, criminal." Again, we "consider de novo

whether an instruction embodied an error of law." Ackell, 907

F.3d at 78.

Wright develops no argument as to why the "conduct

transcending national boundaries" to which the statute refers must

in and of itself be criminal. Moreover, although the instruction

does list "communication" as one example of "conduct," it

immediately emphasizes that such communication "[has] got to be

conduct outside the United States." This language tracks the

statute's definition of "conduct transcending national

boundaries." See id. § 2332b(g)(1) ("'[C]onduct transcending

national boundaries' means conduct occurring outside of the United

States in addition to the conduct occurring in the United

States."). Therefore, we see no legal error in the District

Court's instruction on "conduct transcending national boundaries."

2.

Wright also argues that the District Court erred by

refusing to instruct the jury, as he requested, that it needed to

find that he intended that the "act of terrorism" to be committed

would involve "conduct transcending national boundaries." We

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review the District Court's refusal to give an instruction

requested by the defendant for abuse of discretion and will "only

reverse if the proposed instruction is '(1) substantively correct;

(2) was not substantially covered in the charge actually delivered

to the jury; and (3) concern[ed] an important point in the trial

so that the failure to give it seriously impaired the defendant's

ability to effectively present a given defense.'" United States

v. Belanger, 890 F.3d 13 , 32 (1st Cir. 2018) (quoting United States

v. González–Pérez, 778 F.3d 3 , 15 (1st Cir. 2015)) (alteration in

original). "The burden is on the defendant, as the proponent of

the theory, to identify evidence adduced during the trial that

suffices to satisfy this standard." United States v. Ramos-

Paulino, 488 F.3d 459 , 462 (1st Cir. 2007) (citing United States

v. Rodriguez, 858 F.2d 809 , 814 (1st Cir. 1988))).

The District Court began its instruction with a

statement that the jury was required to find Wright's "specific

intent . . . to commit acts of terrorism transcending national

boundaries." Wright makes no argument that this statement in and

of itself failed adequately to inform the jury of the intent that

he contends that it was required to find that he had. Wright

contends, instead, that the District Court's instruction as a whole

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failed to do so, because of a subsequent portion of the

instruction.

That portion of the instruction described conduct that

Wright need not "know specifically" for a jury to find him guilty

as a conspirator. That portion of the instruction also stated

that the government "[has] got to show that . . . Wright

himself . . . reasonably understood that he was engaged in a

conspiracy to do conduct that transcends national boundaries."

Wright contends that, in consequence of these statements, this

portion of the instruction implied that proof of his mere knowledge

that the plot was to commit an "act of terrorism" involving conduct

"transcending national boundaries" -- rather than proof that he

intended that the "act of terrorism" to be committed would involve

conduct "transcending national boundaries" -- was sufficient to

convict him of the conspiracy charge that he faced. Thus, Wright

contends, the District Court's instruction failed to

"substantially cover[]" his requested instruction with respect to

his intent.

But, the District Court's statement concerning the level

of knowledge of the conduct "transcending national boundaries"

that Wright needed to have did not purport to displace its previous

instruction that the jury needed to find that Wright had "the

specific intent . . . to commit acts of terrorism transcending

national boundaries." In fact, consistent with that conclusion,

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we note that, elsewhere in the instructions, as the government

points out, the District Court summarized conspiracy law by stating

that "for every conspiracy, he’s got to have a specific intent,

and the government’s got to charge what the specific intent is,

and this is important. . . . He's got to have that specific

intent."

We must consider the instructions as a whole. See United

States v. Richardson, 225 F.3d 46 , 54 (1st Cir. 2000). Wright

acknowledges that proof of intent is a distinct requirement for

this offense from proof of knowledge -- given that Wright was

charged with a conspiracy offense. We thus do not see how the

instructions regarding the knowledge requirement can fairly be

read to displace or water down the District Court's separate

instructions on intent, which Wright does not contend were, in and

of themselves, erroneous.

Insofar as Wright means to argue that the wording of the

instruction was "confusing" on this point, because the jury might

not differentiate between the "intent" and "knowledge"

requirements, he did not raise that specific argument below. Thus,

our review would be only for plain error, but Wright develops no

argument as to how he could meet that standard. See United States

v. Prieto, 812 F.3d 6 , 17 (1st Cir. 2016).

The District Court, as we have noted, did make a

statement in which it instructed the jury that Wright did not need

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"to know specifically" about "the foreign conduct." Wright appears

to contend that, independent of his challenge to the instruction

based on how it described the element of "intent," this statement

by the District Court about what Wright needed to "know

specifically" was erroneous. He appears to contend, in this

regard, that this statement was likely to confuse the jury as to

whether Wright himself needed to know that the terrorist act to be

committed would involve conduct that "transcended national

boundaries."

But, insofar as Wright does mean to advance that argument

regarding the "knowledge" element, he cannot do so successfully.

At trial, Wright only objected to the District Court's "specific

intent" instruction, and did not raise any concerns about the

District Court's instruction as it pertained to what he was

required to know. Consequently, even if Wright does mean to raise

this argument about the "knowledge" instruction on appeal, our

review would be only for plain error. See Prieto, 812 F.3d at 17.

But, once again, Wright develops no argument as to how he could

meet that standard.

Nor do we see how he could. As the government points

out, the instruction regarding what he needed to "know

specifically" followed a discussion of particular types of conduct

that would qualify as "conduct transcending national boundaries,"

and a conspirator need not be proven to have known all the details

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of a conspiracy. Ocean, 904 F.3d at 31. Moreover, immediately

after instructing the jury as to what Wright did not need to "know

specifically," the District Court correctly stated that the

government needed to show that Wright "reasonably understood that

he was engaged in a conspiracy to do conduct that transcends

national boundaries." We thus cannot say that, when the

instructions are "considered as a whole," the portion of the

instruction that concerned what Wright had to "know specifically"

constituted a "clear and obvious" error. See id. (describing the

plain error standard in the context of jury instructions).

VI.

For the foregoing reasons, we affirm Wright's

convictions on Counts Two through Five, and we vacate Wright's

conviction on Count One and remand for further proceedings not

inconsistent with this opinion.

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