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Defendant sent gifts to agent he believed was in ISIS.

Byline: Virginia Lawyers Weekly

A defendant who sent gift cards to an undercover agent he believed was a member of ISIS was guilty of attempting to provide material support to a foreign terrorist organization where his collection of Nazi paraphernalia suggested a predisposition to commit the offense.


In 2010, the FBI opened a counterterrorism investigation into appellant Nicholas Young, based, in part, on his connection to an acquaintance who had been arrested for providing material support to terrorists. In December 2010, "Khalil," an undercover FBI agent, began maintaining contact with Young. They discussed Young's wariness of FBI surveillance and the measures he had taken to thwart such surveillance. During this time, Young was observed traveling to and from Libya. Khalil's contact with Young concluded in April 2012.

The investigation intensified in May 2014, when "Mo," an FBI informant who was monitoring Young's acquaintances, was introduced to Young. Young and Mo met approximately 20 times over the next several months, during which time Mo indicated that he was interested in traveling to Syria to join ISIS. Young advised Mo to buy a roundtrip ticket and pretend to take a guided tour of Turkey to avoid arousing suspicion. Young also offered to send Mo a message after his return date to make it look like his return was expected. They set up covert email accounts to communicate.

In October 2014, Mo traveled to Turkey and emailed Young about his plans to travel to ISIS-controlled territory in Syria. In November 2014, Young sent Mo the pre-arranged message. Mo forwarded the message to FBI Agent Minichello and ended his involvement in the investigation. Minichello and another agent began impersonating Mo and communicating with Young through Mo's email account.

In December 2015, two FBI agents questioned Young about Mo's whereabouts. Young claimed his contact with Mo ended in October 2014 and denied having any current contact information for him. He also denied having provided advice to Mo about his travel.

Young then emailed Mo about the FBI inquiry and, at Mo's suggestion, the two began communicating through Therma, an encrypted messaging application. Mo told Young that Google gift cards could be used to purchase Therma accounts to help fighters communicate with ISIS and facilitate their travel to ISIS-controlled territory. Young transmitted $245 in Google gift cards to Mo and, after confirming receipt, told Mo that he would be disposing of the device he was using to communicate with him.

In August 2016, FBI 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 one count of attempting to provide material support to a designated foreign terrorist organization and two counts of attempting to obstruct an official proceeding. Young was convicted on all three counts and this appeal followed.


The district court did not err in allowing the government to introduce evidence of the seized Nazi and white supremacist paraphernalia. The seized evidence did not exceed the scope of the search warrant as it was reasonable for the agents to conclude that Nazis qualified as a terrorist organization.

Notably, Young's invocation of the entrapment defense increased the scope of the relevant evidence. The district court correctly recognized that Nazism and militant Islamism share radical, anti-Semitic viewpoints and the items seized were probative of both Young's predisposition to support such viewpoints and the length of such predisposition. Absolute consistency of belief is not required to demonstrate predisposition. Because of the highly probative value of the evidence, any prejudicial effect was not unfair and was mitigated by the judge's limiting instruction.

The district court likewise did not err in admitting expert testimony of Dr. Daveed Gartenstein-Ross. Gartenstein-Ross's background, academic credentials and areas of expertise provided a sufficient basis to qualify him as an expert despite the fact that he had not testified before and had not been published in a peer-reviewed publication. In addition, he used a methodology previously found acceptable in this circuit and his testimony was relevant to assist the jury in their understanding of the evidence regarding predisposition.

The district court did not abuse its discretion in reversing certain pre-trial rulings regarding the admissibility of evidence. Young was specifically told that his statements to Khalil might be admitted if he focused his entrapment defense on whether he had a predisposition prior to his first contact with Khalil.

The district court properly excluded exculpatory comments made from one of Young's online accounts because the court had prevented the government from introducing other comments from the same account. Messages between the agents expressing their frustration with the slow pace of the investigation were likewise properly excluded as the agents' motives were irrelevant to the entrapment defense. Although these messages were belatedly disclosed, there was no Jencks violation because district court provided a continuance to allow the evidence to be reviewed. In addition, Young's rank speculation as to the nature of other allegedly suppressed materials was insufficient to establish a Brady violation.

However, the evidence introduced at trial was insufficient to support Young's conviction for obstruction of justice. A successful prosecution under 1512(c)(2) requires proof that the defendant contemplated a particular, foreseeable proceeding and that the contemplated proceeding constituted an official proceeding defined under 1512(a)(1)(A) to include a proceeding before a federal judge, court or grand jury. Young's contemplation of a potential FBI investigation was insufficient to meet this standard.

Affirmed in part, vacated in part and remanded.

United States v. Young, Case No. 18-4138, Feb. 21, 2019. 4th Cir. (Agee), Appeal from EDVA at Alexandria (Brinkema). Nicholas David Smith for Appellant; Gordon D. Kromberg for Appellee. VLW 019-2-062. 32 pp.

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Title Annotation:United States v. Young, U.S. Court of Appeals for the 4th Circuit
Publication:Virginia Lawyers Weekly
Date:Mar 8, 2019
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