Evidence; Hearsay; Admissibility of evidence documenting a terrorist group’s organizational structure, logistics, & activities; Statements of co-conspirators; FRE 801(d)(2)(E); Whether the government adequately defined the scope of the conspiracy; The court’s jurisdiction under 18 USC § 3731; Islamic State of Iraq & Syria (ISIS)

[This appeal was from the ED-MI.] In this interlocutory appeal, the court reversed the district court’s decision to deny the admission of evidence documenting ISIS’s organizational structure, logistics, and activities. It held that the evidence qualified as “statements of co-conspirators” and was admissible under FRE 801(d)(2)(E). ISIS allegedly recruited defendant-Musaibli, who was originally from Dearborn, Michigan. He moved to Yemen, and then to ISIS training camps in Syria and Iraq. He claimed that he was forced to join ISIS. His name, identification number, and activities appeared in ISIS documents. He was eventually taken into custody and returned to the U.S. The government alleged that he was a member of ISIS from 10/15 until his capture in the summer of 2018. A grand jury indicted him on multiple charges, including “providing and attempting to provide material support to a designated foreign terrorist organization” and “conspiracy to provide material support to a foreign terrorist organization[.]” Before trial, the government sought to have several ISIS documents admitted as evidence, including rosters of fighters, budget databases, and spreadsheets, several of which mentioned Musaibli by name. It argued they established a conspiracy to support ISIS through his actions of attending training camps and fighting as a soldier. Musaibli argued that the documents were hearsay and could not be authenticated. The government countered that they were admissible as co-conspirators’ statements, and offered the testimony of an ISIS database administrator. The district court ruled that the documents did not qualify as co-conspirator statements. The case was adjourned pending appeal. The court first rejected Musaibli’s challenge to its jurisdiction, holding that the district court’s ruling was “an order excluding evidence within the scope of” § 3731. It then held that the government met its burden to show “the existence of a conspiracy to provide ISIS with the alleged material support.” It noted that in “determining whether a conspiracy existed under Rule 801(d)(2)(E), ‘[t]he key is coordinated action.’” The ISIS database administrator “provide[d] some of the foundation for the ISIS documents[,]” and statements identifying the conspiracy participants and their roles “‘are made “in furtherance” of a conspiracy.’” Further, the government offered the required corroborating evidence – “Musaibli’s own words supported the existence of a conspiracy to provide ISIS with personnel and services.” Remanded.