## Facts

- Federal authorities conducted a sting operation using a confidential informant, Mohammed Al-Anssi, who had approached the FBI after September 11 and identified individuals he claimed were linked to terrorism, including Mohammed Ali Al-Moayad.
- The government’s case relied heavily on FBI-arranged meetings in Frankfurt, Germany (January 2003), where informants posed as potential donors and discussed providing money and support to Hamas and al-Qaeda.
- Al-Moayad and Mohammed Mohsen Zayed were charged with conspiring to provide material support to designated foreign terrorist organizations (Hamas and al-Qaeda) and attempting to provide material support to Hamas; Al-Moayad also faced additional counts related to Hamas and al-Qaeda.
- The defense theory was entrapment, contending the informant and agents induced the alleged conduct and that defendants lacked predisposition.
- To advance the entrapment defense, defendants called Al-Anssi as a witness and attacked his credibility and incentives to cooperate.
- Over defense objections, the district court admitted extensive “terrorism background” evidence, including graphic testimony from a survivor of a Hamas bus bombing and other details about terrorist attacks not tied to defendants’ conduct.
- The district court also admitted Al-Anssi’s handwritten notes of conversations as prior consistent statements to rehabilitate him after impeachment, even though the notes were created after he began cooperating with the FBI.

## Issues

1. Whether admitting detailed, emotionally charged terrorism and victim-impact evidence not directly linked to defendants’ conduct violated Federal Rule of Evidence 403 by creating unfair prejudice that substantially outweighed probative value.
2. Whether a cooperating informant’s notes were admissible as non-hearsay prior consistent statements under Federal Rule of Evidence 801(d)(1)(B) when made after the informant had a motive to curry favor with the government.
3. Whether the combined effect of the evidentiary errors deprived defendants of a fair trial requiring vacatur and remand.

## Decision

- The Second Circuit vacated both defendants’ convictions and remanded for further proceedings.
- The court held the district court committed prejudicial evidentiary errors that undermined trial fairness.
- The court concluded that the volume and graphic detail of terrorism-related evidence—particularly victim testimony about an attack unconnected to defendants—posed an undue risk of conviction based on emotion rather than proof of the charged conduct and intent.
- The court ruled that Al-Anssi’s handwritten notes were improperly admitted as prior consistent statements because they were prepared after he began cooperating and thus did not predate his motive to fabricate.
- Considering the case’s credibility-dependent posture (including predisposition and inducement), the court held the errors were not harmless and cumulatively created an unacceptable risk that passion and prejudice influenced the verdict.

## Legal Principles

- Under Rule 403, even when some contextual evidence is relevant, courts must exclude or strictly limit emotionally powerful terrorism evidence—such as victim-centered descriptions of attacks—when it is not tied to the defendant’s conduct and its prejudicial effect substantially outweighs probative value.
- A criminal trial must focus on whether the defendant committed the charged acts with the required mental state; it may not become a generalized condemnation of terrorism.
- Under Rule 801(d)(1)(B), a prior consistent statement is admissible as substantive, non-hearsay evidence to rebut a charge of fabrication only if the statement was made before the alleged motive to fabricate arose.
- When a cooperating witness’s incentive to obtain benefits or favor from the government existed at the time of the statement, later-created notes or accounts generally cannot qualify as admissible prior consistent statements.
- Multiple evidentiary errors may cumulatively deprive defendants of a fair trial, warranting vacatur even if any single error might be argued to be harmless in isolation.

## Conclusion

The Second Circuit vacated the material-support convictions and remanded because the jury heard highly inflammatory terrorism evidence with limited probative value and the government improperly bolstered its central informant with inadmissible prior consistent statements, producing cumulative prejudice in a credibility-driven entrapment case.


United States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008)