The government sought to commit Antone as a sexually dangerous person. The magistrate court recommended releasing Antone, but, the district court concluded he met the criteria and ordered Antone’s commitment. The panel reversed. It held that the district court erred by failing to consider Antone’s sobriety in prison and near decade without disciplinary infractions. Reviewing the record with proper weight given to those factors, the panel held there was insufficient evidence to conclude by clear and convincing evidence that Antone would have difficulty controlling his sexual desires. The panel therefore ordered the district court to dismiss the petition allowing Antone to be released.
Hassan Yaghi and Sherifi were convicted of terrorism crimes. They challenged their convictions and sentences a on various grounds. The panel found no reversible error and affirmed. It rejected challenges based on the First Amendment as the three defendants did not just talk about jihad but trained with weapons, traveled abroad to attack Americans and requited others to join them. The panel also held that it did nto violate the first Amendment to use the defendants’ words to prove the charged conspiracy crimes and the jury charge on the First Amendment covered the ground the defendants sought to cover in their proposed instructions. The panel rejected the challenge to the government’s expert holding the district court properly considered the witnesses qualifications and expertise and appropriately limited the evidence allowed about jihadi groups. The panel noted the expert had previously been approved by a panel of the Court. It also held that district court properly considered the prejudicial effects of the evidence and correctly chose to admit it. The panel affirmed the admission of Facebook screenshots as properly authenticated business records, the exclusion of certain comment posted by Yaghi as hearsay, a video form Yaghi’s cellphone, lay understandings of the meaning of certain terms used by the defendants and two statements made to explain why certain acts were done. The panel held that the district court properly admitted. After an independent review of the communications seized pursuant to a FISA order, the panel held there was probable cause the Yaghi was an agent of a foreign power a and the evidence was thus properly admitted. The Court affirmed Yaghi’s convictions holding that his seeking out US national jihadists, traveling to the Middle east to try and join an armed groups, recruiting others into the conspiracy and postings of his views were sufficient to prove the conspiracy charges. The panel affirmed Sherifi’s convictions holding that evidence of travel to Kosovo, attempting to recruit others to the conspiracy, participating in weapons training, building a weapons bunker and plotting to attack US military base sin Kosovo and the United States were sufficient to prove the conspiracy dn weapons charges. The panel affirmed Hassan’s conviction holding his travels to the middle east, efforts to join jihadi violence there, efforts to recruit others and efforts to contact an Al Qaeda leader in Yemen were sufficient to sustain his conspiracy conviction. The panel expressed appreciation that the conspiracy statute enabled the prosecution of these defendants before any violent acts actually occurred. As to sentencing, the panel affirmed all the sentences holding the evidence supported the terrorism enhancement and that Yaghi and Sherifi received substantively reasonable sentences which were proper given the circumstances of the case and the characteristics of the defendants.
Mosteller’s attorney moved for a mistrial which was granted on condition that Mosteller waive her rights under the Speedy Trial Act which she did. Mosteller did not move to dismiss the indictment before her retrial. She was convicted at the retrial. The panel affirmed. It held that the district court erred by requiring the waiver as Supreme Court precedent bars waiver of future violations of the Act. However, under 18 USC 3161(e), Mosteller’s failure to move to dismiss waived her rights under the Act. The panel finally held that plain error review was not available because the waiver barred such review. The panel noted it was joining the majority position on the plain error issue.