Why Elton Simpson, one of the Texas shooters, had been acquitted of an earlier terrorism-related offense

|The Volokh Conspiracy |

Police officers guard the area around the Autumn Ridge apartment complex which had been searched by investigators in Phoenix on May 4, 2015. Texas police shot dead two gunmen who opened fire on Sunday outside an exhibit of caricatures of the prophet Muhammad that was organized by a group described as anti-Islamic and billed as a free-speech event. Citing a senior FBI official, ABC News identified one of the gunmen as Elton Simpson, an Arizona man who was the target of a terror investigation. REUTERS/Nancy Wiechec

One of the Texas shooters, Elton Simpson, had been prosecuted before by the federal government, for lying to federal officials about his plans to travel to Somalia; he was sentenced to three years' probation and a $500 fine. Here's an excerpt from the federal district court decision (United States v. Simpson (D. Ariz. Mar. 15, 2011)), which held that he was guilty of making a false statement to government officials, but that the government hadn't sufficiently shown that the false statement was in relation to a terrorism offense (some paragraph breaks added):

On January 13, 2010, a grand jury indicted Defendant Elton Simpson for knowingly and willfully making a materially false statement to the Federal Bureau of Investigation …. The indictment also charged that the statement involved international and domestic terrorism.

The indictment specified that on or about January 7, 2010, the Defendant falsely stated to special agents of the FBI that he had not discussed traveling to Somalia, when in fact he had discussed with others traveling to Somalia for the purpose of engaging in violent jihad. The Government is charging Mr. Simpson with making a false statement in violation of 18 U.S.C. § 1001. The Government is also charging that the false statement involves international or domestic terrorism as defined under section 2331, so that he is eligible for a sentence enhancement pursuant to 18 U.S.C. § 1001.

The Defendant waived his right to a trial by jury and elected instead to have a bench trial….

The Government … charges that the Defendant's false statement, that he had not discussed with anyone traveling to Somalia, involves international terrorism, so that under the statute, he is eligible for sentence enhancement. 18 U.S.C. § 1001, provides that one who makes a false statement:

shall be fined under this title, imprisoned not more than 5 years, or if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

18 U.S.C. § 2331(1), in turn, states that the term "international terrorism" means activities that:

(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;
(B) appear to be intended –
(ii) to influence the policy of a government by intimidation or coercion,
(iii) or to affect the conduct of a government by mass destruction, assassination, or kidnaping; and
(C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or … [where perpetrators seek asylum.]

… The problem … is that the Government has not established with the requisite level of proof, that the Defendant's potential travel to Somalia (and his false statement about his discussions regarding his travels) was sufficiently "related" to international terrorism. Rather, the Government missed several steps to meeting its burden for establishing this charge. As a result, the Court cannot find the Defendant eligible for the sentence enhancement….

Even assuming that Agent Hebert's testimony was sufficiently authoritative to establish Somalia as a hotbed of international terrorism, the Government did not prove beyond a reasonable doubt that the Defendant's discussions about traveling to Somalia were related to the political situation Agent Hebert described.

It is true that the Defendant had expressed sympathy and admiration for individuals who "fight" non-Muslims as well as his belief in the establishment of Shariah law, all over the world including in Somalia. What precisely was meant by "fighting" whenever he discussed it, however, was not clear. Neither was what the Defendant meant when he stated he wanted to get to the "battlefield" in Somalia.

The selected conversations between Defendant and the informant played for the Court—some of which took place two years before his indictment—are individually and together ambiguous on these points. The conversations about school being a "front" and what to say if "they stop us" were similarly without context. The informant, Dabla Deng, who could have provided further clarity on the Defendant's statements through context and interpretation, provided no such clarification, but only confirmed that the statements were made.

Agent Hebert's testimony, on the other hand, does attempt to weave the Defendant's various statements into a cogent narrative, explaining that the Defendant sought to go to Somalia to engage in violent jihad to establish Shariah law, that attending the madrassa was a front for this ultimate goal and that the Defendant's discussion about what to say "if they stop us" was a strategy for dealing with questions from authorities when carrying this plan out. But to reach this conclusion, Agent Hebert must make a number of inferential leaps—from Defendant's expressed support of "fighting" of non-Muslims and his support for the establishment of Shariah law, to his sending a video regarding the permissibility of martyrdom operations, to his statement about going to the battlefield in Somalia and his statement that school is a "just a front". It is not uncommon for (and perhaps it is an obligation of) the FBI to make these inferential leaps when conducting their investigations, but the limited evidence presented at trial does not permit the Court to make them to enhance the Defendant's sentence….

"[A]ny fact that increases the penalty for a crime beyond the prescribed statutory minimum must be … proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 489 (2000). As stated, the Government has not established beyond a reasonable doubt that the Defendant's false statement "involved" international terrorism with the portions of conversations played for the Court, which it had recorded during a period spanning over a year. The Government has not established that the selected statements of the Defendant, presented without further context or explanation, establish beyond a reasonable doubt that the Defendant was or planned to be involved in violent acts dangerous to human life, appeared to be intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of a government by mass destruction, assassination or kidnapping[.]

The Government has, at best, established that the Defendant, who harbors sympathy and admiration for "fighting" non-Muslims abroad and establishing Shariah law, made a false statement about discussing traveling to Somalia. "[A] defendant's abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge." Wisconsin v. Mitchell, 508 U.S. 476 (1993) (citing Dawson v. Delaware, 503 U.S. 159 (1992)).

That the Government has not established that Defendant's false statement "involved" international terrorism is confirmed by the fact that even the FBI agents who heard the conversations with the informant that were played for the Court, were unsure of the dangerousness of Defendant's expressed desire to go to Somalia until he denied having discussed traveling there. While the denial suggests a nefarious purpose, it does not serve as sufficient proof for this Court that the Defendant's false statement involved international terrorism.

Had the Government proved beyond a reasonable doubt that the reason Mr. Simpson lied about discussing travel to Somalia was because he intended to engage in violent jihad there, even if he had no definite or concrete plan to do so, the Court would have had a more solid basis for finding that Mr. Simpson's false statement involved international terrorism. The possibility that the Defendant did in fact intend to go to Somalia to engage in violent jihad exists, as the Defendant never presented any alternative reason for going there.

However, that is not the Defendant's burden and as stated, the Government has not established beyond a reasonable doubt that the Defendant had such intentions. As it is, the Government only established that Mr. Simpson discussed traveling to Somalia and later lied about discussing traveling to Somalia. The Government also established that Mr. Simpson expressed sympathy and admiration for individuals who fight non Muslims—possibly even those who engage in violent jihad in other countries including Somalia—that he would like to see Shariah law established, and that he believed that fighting non-Muslims would lead to heaven.

However obnoxious, troubling or repugnant these beliefs and statements may be, this Court cannot find that sufficient evidence exists to enhance the Defendant's sentence.

Accordingly,
IT IS HEREBY ORDERED, finding the Defendant guilty of making a false statement in violation of 18 U.S.C. § 1001.
IT IS FURTHER ORDERED, finding that there is insufficient evidence to support that the false statement "involved" international terrorism….

You might ask why the government didn't appeal: The answer is that it couldn't appeal, because the Double Jeopardy Clause has been understood as forbidding the government from appealing an acquittal, whether acquittals by juries or acquittals by judges in bench trials.