Reported / Citable
Background
In May 2015, Elton Simpson and Nadir Soofi attacked the 'Muhammad Art Exhibit and Contest' in Garland, Texas, wounding a security guard before police killed them. A federal investigation identified Abdul Malik Abdul Kareem as a close associate who spent extensive time with the men, watched ISIS propaganda with them, helped fund and train them on firearms, and discussed attacking the event. A jury convicted Kareem on all five counts, including Count 5, conspiracy to provide material support to a foreign terrorist organization under 18 U.S.C. § 2339B, and the district court sentenced him to 360 months in prison.
Kareem later won a new trial on Count 2 after an evidentiary hearing revealed pole-camera footage from outside Simpson and Soofi's apartment, recorded May 1–3, 2015, showing Kareem had not visited during the critical period before the attack; the government then dismissed Count 2, and Kareem was resentenced to the same 360-month term. His remaining post-trial motions were denied, and his consolidated appeals reached the Ninth Circuit. The panel resolved all issues except Count 5 in a separate memorandum disposition and addressed here only the sufficiency of the evidence supporting the Count 5 conviction.
The Court’s Holding
The panel restated that the substantive inquiry for sufficiency challenges is the same whether or not the defendant preserved the issue: under Jackson v. Virginia, viewing the evidence in the light most favorable to the government, reversal is required if no rational trier of fact could find the elements beyond a reasonable doubt, because a conviction on insufficient evidence is necessarily plain error and a manifest miscarriage of justice. Applying that standard, the court held the government failed to prove Kareem intended to join a conspiracy in which material support would be provided to ISIS. Under Holder v. Humanitarian Law Project and 18 U.S.C. § 2339B(h), 'personnel' and 'service' reach only concerted activity under a foreign terrorist organization's direction or control, not independent advocacy, and no evidence showed Kareem intended for himself, Simpson, or Soofi to act under ISIS's direction or control.
The court found the case 'on all fours' with the Second Circuit's United States v. Ullah and distinguished precedents like Osadzinski, Hendricks, and Farhane, where concrete evidence tied defendants to an organization's direction, control, or operational involvement. Simpson's pledge of allegiance to ISIS did not change the analysis because there was no evidence Kareem knew of it or that it established direction or control. The court reversed the Count 5 conviction and remanded with instructions to enter a judgment of acquittal and resentence Kareem. Judge Collins concurred in part and dissented in part, arguing review should have been for plain error and that responding to ISIS's public call for attacks can constitute a 'service.'
Key Takeaways
- The same Jackson v. Virginia reasonable-doubt inquiry governs sufficiency challenges whether or not the defendant preserved the issue, because a conviction on insufficient evidence is always plain error and a manifest miscarriage of justice.
- A § 2339B material-support conspiracy conviction requires proof that the defendant intended to join an agreement to act under the organization's direction or control, not merely ideological sympathy or self-initiated violence inspired by its propaganda.
- The panel aligned with the Second Circuit's Ullah decision and distinguished circuit precedents that sustained convictions only where evidence showed an operational nexus with the terrorist organization.
- The court expressly declined to decide whether Simpson and Soofi's own conduct would have constituted material support, and Judge Collins dissented, arguing that answering ISIS's public call for attacks can itself qualify as a 'service.'
Why It Matters
This published opinion reinforces an evidentiary floor for federal material-support prosecutions: the government cannot secure a § 2339B conspiracy conviction by showing only that a defendant consumed extremist propaganda, expressed ideological alignment, or assisted violence motivated by a group's generalized rhetoric. By embracing the Second Circuit's Ullah reasoning, the Ninth Circuit deepens an emerging consensus that direction, control, or coordination with the organization itself is required, while Judge Collins's dissent highlights a live debate over whether answering a terrorist group's public call to attack qualifies as a prohibited 'service.'
The decision also clarifies that the substantive Jackson sufficiency inquiry does not change when a defendant fails to preserve the issue. On remand, the district court must enter a judgment of acquittal on Count 5 and resentence Kareem, while his other convictions and the denial of his post-trial motions stand.