United States v. Nicholas Young
United States v. Nicholas Young
Opinion
A jury in the United States District Court for the Eastern District of Virginia convicted Nicholas Young of one count of attempting to provide material support to the Islamic State of Iraq and the Levant ("ISIL"), a designated foreign terrorist organization ("FTO"), in violation of 18 U.S.C. § 2339B, as well as two counts of
*374
attempting to obstruct justice, in violation of
I.
In 2010, the Federal Bureau of Investigation ("FBI") opened a counterterrorism investigation into Young, a police officer with the Washington Metropolitan Area Transit Authority, prompted in part by his connections to an acquaintance who had been arrested on 18 U.S.C. § 2339B charges. That December, "Khalil," an undercover FBI agent, began maintaining contact with Young, who would discuss with Khalil his wariness of FBI surveillance, the measures he had taken to thwart such surveillance, and the skills needed-which he purported to possess-to attack an FBI or a federal office. During this period, law enforcement also observed Young traveling to and from Libya, though law enforcement was unable to determine the purpose of his trips. Khalil's contact with Young eventually concluded in April 2012.
In May 2014, the FBI again began observing Young more actively after an FBI informant, "Mo," met Young through Young's acquaintances, whom Mo was monitoring. Over the next several months, Mo and Young met approximately 20 times. During their meetings, Mo indicated that he was interested in traveling to Syria to join ISIL. Young in turn offered advice on how to travel overseas without being flagged by government authorities. Specifically, Young suggested that Mo devise a cover story for his trip, such as pretending that he was taking a guided tour of Turkey (or that he actually take such a tour). Young also advised Mo to book a roundtrip ticket and volunteered to send a text to Mo a few days after Mo's "return date" to assist Mo in evading law enforcement suspicion, explaining that the text would make it look like Young was expecting Mo's return (rather than staying on in the region to travel to ISIL-controlled territory). Finally, Young and Mo set up covert email accounts to communicate.
That October, Mo traveled to Turkey with his FBI handler, Special Agent John Minichello. While there, Mo emailed Young that he was planning to travel to ISIL-controlled territory in Syria. Mo then returned to the U.S. In November 2014, Young sent Mo the pre-arranged text message: "Hope you had a good vacation. If you want to grab lunch ... hit me up." J.A. 566:3-5. After forwarding that message to Agent Minichello, Mo's involvement in the investigation concluded; from that point on, Agent Minichello and another agent impersonated Mo to Young through the email account.
In subsequent emails to Mo, Young made it clear that he believed Mo had joined ISIL. In 2015, Young asked Mo to mention him to any Libyan ISIL members Mo might encounter and to tell them that Young had been in Libya with the Abu Salem Martyrs' Brigade, a militia group with connections to al Qaeda that had been fighting Muammar al Qaddafi's regime. Young also emailed his contacts in the Brigade on Mo's behalf.
On December 3 and 5, 2015, two FBI agents interviewed Young. Although the agents purported to be questioning Young about Mo's whereabouts, they were attempting to determine whether Young himself was in contact with any terrorists. During the interviews, Young denied having current contact information for Mo. He informed the agents that he believed Mo had gone on vacation but that he had not been in touch with Mo since October 2014.
*375 He also denied knowing anyone who had given Mo travel guidance. Young later emailed Mo to inform him about the FBI's inquiry.
In April 2016, Mo suggested to Young that they should communicate through an encrypted messaging app, Threema. In July, Young created a Threema account and received a message from Mo noting that ISIL needed more fighters. Mo explained that Google gift cards could be used to buy Threema accounts to help fighters communicate with ISIL, thereby facilitating their travel to ISIL-controlled territory. At the end of the month, Young used Threema to transmit $245 in Google gift cards to Mo. After confirming that Mo had received the cards, Young responded that he was "glad" and would be disposing of the device used to communicate with Mo. J.A. 868:13.
In August 2016, Young was arrested for attempted material support of ISIL, an FTO. On the day of his arrest, agents executed a search warrant and seized militant Islamist, Nazi, and white supremacist paraphernalia as well as weapons from his home. An indictment subsequently charged Young with attempting to provide material support-the gift cards-to a designated FTO, in violation of 18 U.S.C. § 2339B (Count One), and attempting to obstruct-during the 2015 interviews (Count Two) and with the November 2014 text (Count Four)-an official proceeding, in violation of
Young timely appealed, asserting five sets of errors by the district court. The first three concern Count One, to which Young had asserted an entrapment defense during trial. To establish Young's predisposition to commit the offense conduct, the Government had introduced evidence of the seized items over Young's objections. On appeal, Young asserts in Ground One that the district court erred by admitting into evidence the white supremacist and Nazi paraphernalia. Ground Two contends that the district court erroneously certified an expert witness on militant Islamist and Nazi "convergence." Ground Three asserts that a number of the district court's evidentiary rulings deprived Young of his due process right to a fair trial. Ground Four posits that the Government failed to offer sufficient evidence to prove the two attempted obstruction of justice charges. Finally, Ground Five asserts that his sentence was both procedurally erroneous and substantively unreasonable.
This Court has jurisdiction pursuant to
II. Grounds One to Three: Entrapment-Centered Challenges
At trial, Young presented an entrapment defense to Count One, which charged Young with attempting to provide material support to a designated FTO. To establish entrapment, a defendant must first demonstrate the government induced him to engage in the criminal activity.
United States v. McLaurin
,
In reviewing evidentiary rulings, this Court reviews the district court's legal conclusions de novo and its factual findings for clear error.
United States v. Kolsuz
,
A. Ground One: Nazi and White Supremacist Paraphernalia
To prove Young's predisposition to assist an FTO, the Government introduced Nazi and white supremacist paraphernalia seized from Young's home pursuant to a search warrant. The warrant had authorized the seizure of "[a]ll records, documents, and paraphernalia ... relating to ISIL/ISIS," as well as "other designated terrorist groups, or any individual or group engaged in terrorism or terrorist activity, or communications with or involving such groups and/or individuals." J.A. 56; 66. After finding the items in Young's home and consulting with a Government attorney, law enforcement seized the materials.
The Government then moved to admit this evidence (1) to corroborate testimony from Young's college friends and former housemates concerning his pre-2010 interest in these causes 3 and (2) to further illustrate his interest in a historical and modern-day connection between Nazis and militant Islamists. To this latter point, the Government introduced, among other items, a poster Young had downloaded in 2007 depicting a Nazi shaking hands with the Mufti of Jerusalem-who had allied himself with Adolf Hitler and recruited Muslim troops to serve in the SS-titled "The Alliance: Worldwide Association of Nazis and Islamists 1939-2004," Response *377 Br. 35; photos of the Mufti and Hitler as well as the Mufti and Muslim SS troops; Young's prayer list, which included Hitler and the Mufti; a 2007 photo on his computer of Muslim women with a sign saying, "God Bless Hitler," J.A. 1636; a copy of Young's Facebook page from 2011, in which Young linked to a story about the arrest of neo-Nazi turned jihadist Emerson Begolly; and a 2014 graphic on his phone with the words, "Together, we can finish what Hitler started," J.A. 1633.
Young moved prior to trial to suppress the admission of the Nazi and white supremacist paraphernalia based on two asserted errors: first, the seizure of the items exceeded the warrant's scope and second, their admission violated Federal Rules of Evidence 401 and 403. The district court denied the motion, and Young challenges the district court's holding based on these two alleged errors. We consider each in turn and affirm the district court's rulings.
1. Scope of the Search Warrant
Young contends the items should have been suppressed because they were outside the scope of the warrant. He argues the warrant-which permitted the seizure of items related to ISIL as well as "other designated terrorist groups," J.A. 56; 66-did not authorize the seizure of the Nazi and white supremacist items, both because they were not included within the warrant's language and because he was not being investigated for a hate crime. The district court rejected Young's arguments, concluding that the items fell within the scope of the search warrant's expansive language.
"When a search is conducted pursuant to a warrant, it is limited in scope by the terms of the warrant's authorization," but these terms "are not to be interpreted in a hypertechnical manner."
United States v. Williams
,
We conclude the seizure of the items here did not exceed the scope of the warrant. First, as the district court correctly recognized, even if Nazi organizations are not designated FTOs, a reasonable officer would be able to draw on common knowledge to conclude that the Nazis' threats and use of violence as a means of achieving their political ends meant that Nazis engaged in terroristic activity as defined by the U.S. Code and Black's Law Dictionary.
4
See also
United States v. Young
,
2. Federal Rules of Evidence 401 and 403
Even if the items were properly seized, Young argues that they nonetheless should have been excluded under Federal Rules of Evidence 401 and 403. He contends that under Rule 401, the materials were irrelevant because Nazism and militant Islamism are mutually exclusive belief systems. And under Rule 403, he asserts that the items were unfairly prejudicial because they did not tend to prove Young's predisposition. But the district court determined that the evidence was neither unfairly irrelevant nor prejudicial because for this particular defendant, predisposition encompassed "the convergence between Nazis and Islamist terrorists." J.A. 136.
With respect to relevance, we conclude the district court did not abuse its discretion in rejecting Young's argument because Young's advancement of the entrapment defense increased the scope of the relevant evidence. Under Rule 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. Specifically as to this case, "a broad swath of evidence, including aspects of the defendant's character and criminal past, [was] relevant to proving predisposition."
McLaurin
,
Here, the district court correctly recognized that Nazism and militant Islamism share common ground-specifically, radical, anti-Semitic viewpoints. Given that the items seized were probative of (1) Young's predisposition to support such viewpoints, and (2) the length of such a predisposition, the items were relevant to meeting the Government's burden to prove Young's predisposition to support terrorist activity.
See, e.g.
,
United States v. Mostafa
,
Second, even if, as Young contends, Nazism and militant Islamism are mutually exclusive belief systems, absolute consistency of belief is not a prerequisite to proving predisposition. Other circuits have recognized that seemingly inconsistent belief in a terrorist group's ideology does not preclude a finding by a court that
*379
a defendant either supported that group in a criminal fashion or was predisposed to do so.
See
United States v. Van Haften
,
This does not end the analysis, however, because under Rule 403 a court "may exclude relevant evidence if its probative value is substantially outweighed by danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Here, as discussed, the district court properly concluded the evidence was highly probative of Young's particular predisposition to support ISIL.
See
United States v. Siraj
, No. 07-0224-cr,
Furthermore, any prejudicial effect was blunted by the district court's limiting instructions to the jury, which specifically cautioned:
So I want you to understand that he is not being charged and you cannot find him guilty for possessing Nazi or anti-Semitic literature. He's not being charged with that, he cannot be convicted for that, but the evidence is being allowed in [to consider] ... whether or not it helps or doesn't help to establish the predisposition issue, all right?
J.A. 980.
See also
United States v. Cowden
,
B. Ground Two: Expert Certification
At trial, the Government called Dr. Daveed Gartenstein-Ross as an expert witness regarding (1) violent extremist movements claiming inspiration from Islam; (2) white separatists and the neo-Nazi movement; (3) the radicalization processes for such groups; and (4) the Libyan Civil War. Dr. Gartenstein-Ross also explained points of overlap between Nazism and radical Islamism with examples of individuals who had subscribed to both philosophies. Expert testimony is admissible under Federal Rule of Evidence 702 if it involves specialized knowledge that will assist the trier of fact in understanding the evidence or determining a fact in issue, and is both reliable and relevant.
Daubert v. Merrell Dow Pharms., Inc.,
*380 "his extensive academic credentials," "the fact that the United States government uses him for training in these areas," and his prior work as an expert in other contexts sufficiently qualified him as an expert witness. J.A. 212-13. The district court also concluded his testimony was relevant. Although Young contends that the testimony of Dr. Gartenstein-Ross was neither reliable nor relevant, we agree with the district court's conclusions.
With respect to reliability, Young contends that Dr. Gartenstein-Ross had never testified in a civil or criminal proceeding on these issues; had not published his thesis on the "convergence" of white supremacism and militant Islamism in peer-reviewed journals; had not authored any studies on far-right radicalization; and had yet to perform any empirical analysis on this matter in the field.
See
United States v. Hassan
,
In turn, the district court did not abuse its discretion in accepting Dr. Gartenstein-Ross' social sciences-based methodology. At trial, Dr. Gartenstein-Ross explained that he conducted his research "through a comparative method," focusing on primary sources, then comparing his conclusions against secondary sources and "events on the ground." J.A. 1124-25. This methodology appears to be indistinguishable from that which we approved in
United States v. Hammoud
,
*381 then balancing "each new incoming piece of information against the body of information you've built to that point." Id. at 337. Accordingly, the district court did not abuse its discretion when it deemed Dr. Gartenstein-Ross' explanation of his methodology, when combined with his credentials, "sufficient." J.A. 1126.
As to relevance, we conclude the testimony was relevant and met Rule 702 's requirement that the expert's specialized knowledge "help the trier of fact ... understand the evidence or to determine a fact in issue." Dr. Gartenstein-Ross' testimony assisted the jury by providing context for the historical backgrounds of and connection between Nazism and militant Islamism. As the "evidence in this case was complicated, touching by necessity on a wide variety of ideas, terms, people, and organizations connected to radical Islam," as well as white supremacism, the district court fairly concluded that the testimony would assist the jury in understanding evidence regarding predisposition.
United States v. Benkahla
,
C. Ground Three: Evidentiary Rulings
Young argues that three of the district court's evidentiary rulings, considered individually or cumulatively, violated his due process right to a fair trial.
1. Admission of Weapons and Young's Comments
Young argues that the district court denied Young a fair trial when it reversed pretrial rulings excluding evidence of (1) Young's lawfully-owned weapons and (2) remarks Young had made to Khalil about attacking federal buildings. The contention by Young is that the district court violated his claimed entitlement to rely on several pretrial rulings as the settled law of the case. But "the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling," especially in light of issues that arise during a trial.
Luce v. United States
,
Here, the district court did not abuse its discretion in later deeming certain evidence admissible. First, the district court provided notice to Young multiple times that it could change its in limine rulings depending on what occurred during trial. For example, the district court warned, "[N]ormally my rulings on a motion in limine are always with a caveat that if something changes during the course of the trial, the decision may be reversed[.]" J.A. 127-28. Second, with respect to Khalil's testimony, the district court properly admitted this evidence after Young decided to focus his entrapment defense on whether there was predisposition prior to his first contact with Khalil. At a pretrial hearing, the district court warned Young that by framing his entrapment defense in this manner, some of Khalil's testimony about Young's statements might be admitted because such testimony would be probative of whether Young was already predisposed to support militant, radical ideas or whether Khalil implanted such ideas. (Specifically, the district court advised, "[I]f you start the predisposition at a later date, then some of that Khalil business might not come in." J.A. 261.) Nonetheless, Young continued to pursue this line of argument utilizing an earlier chronological starting point. As a result, the district *382 court allowed Khalil to describe his relationship with Young, including recounting Young's statements about attacking the FBI, his ability to smuggle guns into a federal building, and the usefulness of ballistic vests if the FBI were to come to his home. Third, at that point, the district court did not abuse its discretion in deeming Young's possession of firearms and weapons admissible. Such possession was corroborative of Khalil's testimony, and therefore properly admissible because Khalil's credibility was fundamental in establishing Young's predisposition before 2010. For these reasons, we affirm the district court's admission of this evidence.
2. Exclusion of Young's and Agents' Comments
Young argues the district court erred by excluding purportedly exculpatory evidence demonstrating that he lacked the predisposition to support ISIL. First, the district court excluded, among other claimed exculpatory remarks, online comments Young had made from his LiveLeak
7
account denouncing ISIL because the Government had previously been barred from introducing other comments from this same account, which the district court had deemed unfairly prejudicial and cumulative. We discern no reversible error because in excluding these and similar comments, the district court acted within its discretion to determine whether introducing such comments would permit the admission of other previously-excluded evidence.
See
McLaurin
,
Second, the district court barred the introduction of June 2016 messages between FBI agents reflecting their frustration with the slow pace of the investigation, which Young argued went to their motives and consequently the issue of entrapment. The district court properly concluded that the agents' motives were "irrelevant" to entrapment because whether or not Young was induced had to be assessed by "what specifically was presented to [Young]" by the agents rather than what the agents discussed amongst themselves. J.A. 443.
See also
United States v. Daniel
,
3. Jencks Act and Brady Materials
Finally, Young asserts Jencks 8 and Brady 9 errors. In the week prior to trial, the Government made two last-minute classified Jencks productions of communications amongst FBI agents about (1) the number of audio recordings made of Mo's meetings with Young and (2) their frustration with the pace of their investigation of Young. Young moved to strike the witnesses as to whom the Jencks material applied or to continue trial. Rather than striking the witnesses, the district court permitted defense counsel a five-day continuance to which Young did not object. Young now *383 argues that the district court erred in doing so, contending these materials suggested spoliation of exculpatory evidence and therefore a Brady violation.
We discern no reversible error by the district court. First, when the government fails to timely provide discovery materials that are not exculpatory, such as Jencks materials, the district court's determination of whether to impose a sanction, and what sanction to impose, is reviewed for abuse of discretion.
See
United States v. Sterling
,
Second, to establish a
Brady
violation, the evidence at issue must have been (1) favorable to the defendant (either because it was exculpatory or impeaching), (2) material to the defense (that is, prejudice must have ensued), and (3) suppressed (that is, within the prosecution's possession but not disclosed to defendant).
United States v. Sarihifard
,
*384
(noting that to prove a
Brady
violation, the defendant must show that "the prosecution had the [purportedly withheld materials] and failed to disclose them");
see also
United States v. Caro
,
III. Ground Four: Obstruction Convictions
Young argues that the Government failed to provide sufficient evidence to prove the attempted obstruction of justice counts and that the district court erroneously denied his motion for judgment of acquittal after a guilty verdict. Fed. R. Crim. P. 29(c). We review the denial of such a Rule 29 motion de novo.
United States v. Howard
,
A. Elements of the Offense
To convict Young of attempted obstruction, the Government was required to prove he (1) "corruptly" attempted to (2) "obstruct[ ], influence[ ], or impede[ ]" (3) "an official proceeding" during the December 3 and 5, 2015 interviews with FBI agents (Count Two) and when he sent the November 2014 text message (Count Four).
An "official proceeding" includes a grand jury investigation, but not an FBI investigation.
Young argues that the evidence was insufficient to prove the existence of an "official proceeding" that he could have obstructed. First, Young asserts there was no "official proceeding" concerning Mo for Young to obstruct: Mo was the FBI's own informant and therefore the FBI never investigated Mo. Second, Young contends there was no evidence that Young attempted to obstruct a proceeding concerning himself: the agents never informed Young that he was under investigation; the gift card crime was committed after the allegedly obstructive conduct, so there was no crime whose investigation Young could *385 knowingly have attempted to obstruct; and an agent testified that Young was not aware of any investigation until his arrest in August 2016. And even if he had been aware of an FBI investigation of himself, Young asserts, such an investigation would not have constituted an "official proceeding" under § 1515(a)(1).
Young's view misses the mark but points to a much more fundamental flaw in the Government's evidence. As
Aguilar
considered the catchall provision of a statute criminalizing attempted grand jury tampering.
Arthur Andersen
applied the nexus requirement to § 1512(b)(2)(A) offenses, which criminalize "knowingly" and "corruptly persuad[ing]" another person "with intent to cause" that person to tamper with documents that would be used in an official proceeding.
Though we have not specifically done so,
13
other circuits have applied
Aguilar
and
Arthur Andersen
to the similarly-structured statute, § 1512(c), to conclude that, in demonstrating a § 1512(c)(2) offense, "the government must prove that such a proceeding was reasonably foreseeable to the defendant" and "that there was a 'nexus' between the defendant's conduct and the pending, or foreseeable, official proceeding."
United States v. Martinez
,
B. Young's Obstruction Convictions
Upon considering the evidence presented at trial, we conclude that the evidence was insufficient to convict Young of Counts Two and Four for attempting to obstruct justice under
*387
But this is not enough for purposes of § 1512(c)(2). In neither situation (November 2014 or December 2015) was this conduct connected to a specific official proceeding, nor was such a specific official proceeding reasonably foreseeable to Young. Simply because an FBI investigation was reasonably foreseeable to Young does not mean that a grand jury investigation was reasonably foreseeable to him or that his conduct was designed to obstruct a grand jury's proceedings. Specifically as to Count Two, the evidence is insufficient largely for the same reason that it was insufficient in
Aguilar
: "All the Government ha[s] shown was that [the defendant] had uttered false statements to an investigating agent who might or might not testify before a grand jury."
Arthur Andersen
,
Rather, Young's case is more analogous to that of
Friske
, in which the Eleventh Circuit reversed a defendant's § 1512(c)(2) conviction for attempting to obstruct a forfeiture proceeding. There, the defendant had, at the behest of an incarcerated friend, gone to the latter's home to retrieve certain unspecified items which turned out to be subject to forfeiture.
The insufficiency of the evidence here is highlighted by cases in which courts have found that a grand jury proceeding into criminal activity was reasonably foreseeable because of a defendant's actual
*388
awareness of an ongoing or impending investigation into closely related activity and specific criminal actions in relation to such awareness.
See
United States v. Binday
,
Nonetheless, in an effort to bolster the evidence presented, the Government points to Young's (1) awareness of his acquaintances' arrests; (2) status as a law enforcement officer; and (3) heightened suspicion of FBI surveillance of him, contending that these three factors should support the inference that a grand jury investigation was reasonably foreseeable to him and that he designed his conduct to obstruct such an investigation. But this case is entirely distinguishable from those in which a court has inferred the nexus and foreseeability requirements from similar factors. For example, in
Martinez
, the Second Circuit affirmed a § 1512(c)(2) conviction of a defendant police officer who was part of a conspiracy in which at least two dozen co-conspirators committed more than 200 robberies of drug traffickers. In upholding the sufficiency of the evidence, the Second Circuit concluded that "it was easily inferable that the 2008 arrests of many of his coconspirators made it foreseeable to [the defendant]-who estimated that as an NYPD officer, he had testified 15-20 times in grand jury proceedings ... -that there would be a grand jury proceeding leading to numerous indictments."
By contrast, the indictment of Young's acquaintances was too attenuated from Young's relationship with Mo to have made a grand jury investigation of Young, Mo, or their relationship foreseeable to Young. And neither Young nor Mo was involved in an ongoing criminal conspiracy with those acquaintances. Furthermore, although Young worked in law enforcement, the Government's evidence failed to establish that he was routinely involved in grand jury proceedings-or, for that matter, had ever testified in such a proceeding. And finally, Young's awareness about FBI surveillance was also inadequate to create a sufficient nexus. Although the Government established at trial that Young was constantly aware of the fact that the FBI could be investigating him, the Government failed to connect this general awareness-whether in combination with any of the issues discussed above or individually-with a specific and reasonably foreseeable official proceeding.
Thus, "based on our review of the record, we have uncovered no evidence to satisfy
Arthur Andersen
's requirement that the Government prove a nexus between
*389
[the obstructive] conduct and a foreseeable particular federal proceeding to establish a conviction under" § 1512(c).
Tyler
,
IV.
For the foregoing reasons, we affirm Young's conviction as to Count One, vacate Young's convictions as to Counts Two and Four, and remand for resentencing. 14
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
Count Three, charging a violation of
We have omitted internal quotation marks, alterations, and citations here and throughout this opinion, unless otherwise noted.
Specifically, Young's college friend testified that after they had attended a 2001 gathering of neo-Nazis for a school project, Young told him not to discount an alliance between Nazis and Muslims to combat Jews. And Young's former housemates testified that Young had listened to racially inflammatory music and used an Israeli flag as a doormat to make an anti-Semitic statement. To corroborate this testimony, the Government introduced, among other items, a copy of a neo-Nazi book that Young had gifted to his college friend; a flyer for a "white power" music company; and an anti-Semitic graphic that Young had downloaded to his computer in 2007.
Furthermore, contrary to Young's assertion, a
Daubert
hearing was not required. A district court need not hold a hearing if, after being presented with a proposed expert's "substantial" credentials and training, it concludes "[t]his training and experience amply [qualifies the expert] to give testimony [on the topic for which he or she is being qualified]."
United States v. Beasley
,
These credentials included: training on radical groups for federal agencies; teaching university courses on violent non-state actors; consultation on the Libyan Civil War for the U.S. government; field research on jihadist recruiting in the Middle East; and testimony in immigration cases on the Taliban and al Qaeda.
LiveLeak is a video-sharing website.
"Under the Jencks Act,
Brady v. Maryland
held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment[.]"
Evidence is material if there is a reasonable probability that it would have produced a different outcome.
United States v. Kelly
,
Although the FBI began "request[ing] federal grand jury subpoenas related to [Young]" as early as 2011, the existence of such a grand jury investigation is irrelevant to our determination of this matter for the reasons we describe. J.A. 1376.
Our sister circuits have noted that "[t]he nexus limitation is best understood as an articulation of the proof of wrongful intent that will satisfy the
mens rea
requirement of 'corruptly' obstructing or endeavoring to obstruct"-that is, the first element of proving a § 1512(c)(2) charge.
United States v. Erickson
,
We have previously considered in an unpublished per curiam opinion a defendant's nexus argument. In affirming his § 1512(c)(2) conviction, we concluded the evidence was sufficient to uphold his conviction because "there [was] a clear, logical relationship between his [obstructive] conduct and the judicial proceeding."
United States v. Wein
,
Because Counts One, Two, and Four were grouped under United States Sentencing Guidelines § 3D1.2(c) for sentencing purposes, we do not address Young's challenges to his sentence which, if relevant, can be addressed by the district court in the first instance upon remand.
Reference
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- UNITED STATES of America, Plaintiff - Appellee, v. Nicholas YOUNG, Defendant - Appellant.
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