IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

UNITED STATES OF AMERICA, )

)

v. )

) 1:06cr9(JCC)

SABRI BENKAHLA, )

)

Defendant. )

M E M O R A N D U M O P I N I O N

Defendant, Sabri Benkahla, stands before this Court

charged with two counts of making false declarations before a

grand jury, in violation of 18 U.S.C. § 1623; one count of

obstruction of justice, in violation of 18 U.S.C. § 1503; and one

count of false statements and concealment, in violation of 18

U.S.C. § 1001. Defendant has filed a motion to dismiss and a

motion in limine, and Government has filed a motion to exclude

reference to Defendant’s prior acquittal. All of these motions

are currently before the Court. For the reasons stated below,

the Court will deny Defendant’s motion to dismiss, grant in part

and deny in part Defendant’s motion in limine, and grant the

Government’s motion to exclude.

I. Background

On August 26, 2004, Defendant testified before a

federal grand jury regarding his possible participation in a

jihad training camp and use of automatic weapons and rocket
Pursuant to 18 U.S.C. § 6003, Judge Hilton entered an Order on April 7, 1

2004 compelling Defendant’s testimony in the grand jury investigation and

granting him use immunity. 

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propelled grenades (“RPGs”). Defendant’s testimony centered 1

around a trip that he took to Pakistan and possibly Afghanistan

during the summer of 1999, as well as e-mail correspondence

referring to the trip. Defendant testified that during his 1999

trip he did not participate in any training relevant to combat,

witness any training relevant to violent jihad, witness any

training relevant to combat, handle a firearm or an explosive

device, discharge a firearm or an explosive device, or witness

anyone else discharge a firearm or an explosive device. During

the same grand jury appearance, Defendant also testified that he

had not ever fired an AK-47 or an RPG. The Government questioned

Defendant about two e-mails he had sent referring to “studying in

Afghan” and traveling to a “place far, far away,” which was “top

secret info.” Defendant testified that these e-mails did not

refer to jihad training in Afghanistan. The Government also

questioned Defendant about a third e-mail in which Defendant

referred to an individual named Haroon. Defendant testified that

he could not identify Haroon or the recipient of the e-mail. 

On November 16, 2004, Defendant testified before the

grand jury for a second time. During this appearance, Defendant

testified that he saw no one other than Pakistani Army soldiers

carrying firearms during his trip in the summer of 1999, that he
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had never fired an AK-47, that he had never fired an automatic

weapon of any kind, and that he had never fired an RPG. Because

Defendant first traveled from the United States to Great Britain

and then purchased a ticket to Pakistan, the Government

questioned Defendant about his reasons for doing so. Defendant

testified that he was not sure whether he would go to Pakistan

until he arrived in London and that he decided to make the trip

after meeting, for the first time, an individual in Great Britain

who agreed to show him around Pakistan.

On April 22, 2004 and July 7, 2004, Defendant made

statements to an agent of the Federal Bureau of Investigation

(“FBI”) conducting an investigation into jihad training camps

under the control of terrorists espousing violence against the

United States. During this interview, Defendant stated to the

FBI agent that he did not know certain details about specific

persons and his interactions with those persons (i.e., the

person’s last name, whether he had spoken with the person,

whether he had met the person, whether jihad had been discussed). 

Defendant also told the FBI agent that he had never fired an AK47 or an RPG nor had he ever participated in jihad training. 

Defendant’s August 26, 2004 grand jury testimony forms

the basis for Count I of the indictment, and Defendant’s November

16, 2004 grand jury testimony forms the basis for Count II. 

Count III, the obstruction of justice charge, is based on both of
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these occasions. Defendant’s statements to the FBI agent on

April 22, 2004 and July 7, 2004 form the basis for Count IV. 

II. Analysis

A. Defendant’s Motion to Dismiss Count IV (Collateral 

 Estoppel)

Defendant’s motion to dismiss seeks to preclude the

Government from relitigating issues that he claims were resolved

against the Government during his prior prosecution. 

Specifically, Defendant seeks to preclude any reference to

Afghanistan in Count IV since the Court found in his prior

prosecution that the Government had not proven, beyond a

reasonable doubt, that Defendant had participated in combat

training within the Taliban-controlled regions of Afghanistan. 

On the same grounds as this Court’s May 17, 2006 Opinion, the

Court will deny Defendant’s motion to dismiss based on collateral

estoppel. (Mem. Op., May 17, 2006, 7).

In 2003, Defendant was arrested in Saudi Arabia, flown

back to the United States, and prosecuted in this district for

willfully supplying and attempting to supply services to the

Taliban, in violation of 50 U.S.C. § 1705, the penalty provision

for violations of the International Emergency Economic Sanctions

Act (“IEEPA”). Defendant was also charged with using a firearm

in furtherance of the alleged IEEPA violation, in violation of 18

U.S.C. § 924(c). The charges were based on: (1) Defendant’s

alleged participation, during his trip to South Asia in the
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summer of 1999, in a jihad training camp operated by the

Pakistani terrorist group Lashkar-e-Taiba (“LET”) in the

territory of Afghanistan controlled by the Taliban; and (2)

Defendant’s alleged use of firearms in the course of this

participation. 

At the time of Defendant’s trip to South Asia, LET had

not yet been officially designated a terrorist organization, and

provision of services to LET had not yet been banned. Pursuant

to President Clinton’s Executive Order of July 4, 1999, however,

the provision of services to the Taliban or to the territory of

Afghanistan controlled by the Taliban constituted a violation of

IEEPA. See Exec. Order No. 13129. See also 31 C.F.R. § 545.204. 

Accordingly, proof that Defendant participated in a LET jihad

training camp was insufficient by itself to convict Defendant of

either charge. In the absence of evidence that Defendant

provided services directly to the Taliban, the Government was

required to establish that Defendant’s combat training occurred

within the territory of Afghanistan controlled by the Taliban. 

In March 2004, Defendant waived a jury trial and was

tried on the above charges by Judge Leonie M. Brinkema. After

trial, Judge Brinkema found that the Government had not proven,

beyond a reasonable doubt, that Defendant had participated in

combat training within the Taliban-controlled regions of

Afghanistan. 
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Defendant seeks to bar the use of any reference to

Afghanistan with respect to the statements made in Count IV by

collateral estoppel. In Ashe v. Swenson, 397 U.S. 436 (1970),

the Supreme Court held that the doctrine of collateral estoppel

is embodied within the Fifth Amendment guarantee against double

jeopardy. Id. at 445-46. Thus, “when an issue of ultimate fact

has once been determined by a valid and final judgment, that

issue cannot again be litigated between the same parties in any

future lawsuit.” Id. at 443. An issue is precluded only where:

(1) the issue in question is identical to the previous issue; (2)

the issue was actually determined in the prior adjudication; (3)

the issue was necessarily decided in the earlier proceeding; (4)

the resulting judgment settling the issue was final and valid;

and (5) the parties had a full and fair opportunity to litigate

the issue in the prior proceeding. United States v. Fiel, 35

F.3d 997, 1006 (4th Cir. 1994). Each of these five elements must

be resolved in the movant’s favor before an issue will be

precluded. See United States v. Ruhbayan, 325 F.3d 197, 202 (4th

Cir. 2003). Furthermore, “[r]easonable doubt as to what was

decided by a prior judgment should be resolved against using it

as an estoppel.” Id. at 203 (internal citation omitted;

alteration in original). 

In this case, the Court needs not go any further than

the first element to address Defendant’s claim. In order to
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prove the falsity or concealment of some of Defendant’s

statements to the FBI Agent, the Government will have to

establish that Defendant attended a jihad training camp or fired

an automatic weapon or RPG. Nevertheless, this case does not

involve issues that are identical to the previous prosecution. 

As this Court ruled in response to Defendant’s previous

motion to dismiss based on collateral estoppel, the previous

prosecution required the Government to prove that Defendant’s

combat training activities occurred within the Taliban-controlled

regions of Afghanistan. (Mem. Op., May 17, 2006, 7). It was this

element of the prosecution that Judge Brinkema found deficient. 

In the present case, “the location of Defendant’s combat training

is largely irrelevant.” Id. In the count at issue (Count IV),

Government alleges that Defendant made false statements to the

FBI Agent that he never received or participated in jihad

training anywhere in the world. Instead, Government alleges that

he did actually engage in such training during his trip to South

Asia in the summer of 1999, and further, that he fired a firearm

or an explosive device during this time period. 

To prove the falsity of these statements, the

Government logically must establish that Defendant attended a

combat training camp or fired a firearm or explosive device

during the relevant time period. The question of “where” was

only relevant to the previous prosecution; in the instant case,
Furthermore, this Court provided clear guidance to the parties by 2

listing the portions of Defendant’s grand jury testimony that are susceptible

to proof of falsity in this action. Id. at 8-12. In that list, the Court

provided several statements that Defendant did not participate in training

relevant to combat and violent jihad in “Pakistan or Afghanistan.” Id. The

Court adopts that same position as to Defendant’s statements to the FBI agent

and holds that such similar statements are susceptible to proof of falsity. 

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the issue of utmost relevance is whether Defendant did engage in

the activities at issue, and if so when. In other words, the

issues are not identical. 

Furthermore, if the issues in the previous case are not

identical to those in the instant case, those issues could not

have been actually determined. In the previous prosecution,

Judge Brinkema found only that the Government failed to prove

that Defendant attended a jihad training camp in Afghanistan. 

She did not find, as a general matter, that the Government failed

to prove that Defendant attended a jihad training camp. The

Government is therefore entitled to prove that Defendant

participated in a combat training camp, witnessed training

relevant to combat and violent jihad, fired weapons, and engaged

in other related conduct during his 1999 trip, whether in

Pakistan or Afghanistan. 

2

The central issue in this prosecution is whether

Defendant participated in a combat training camp, regardless of

the location, whether Afghanistan or Pakistan. Since this Court

has never “actually decided” this “identical” issue, collateral
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estoppel is inappropriate. As such, Defendant’s motion to

dismiss Count IV will be denied.

B. Defendant’s Motion in Limine to Bar 404(B) Evidence

Defendant moves to exclude numerous Government exhibits

as character evidence under Federal Rule of Evidence 404(b). 

First, Defendant challenges the admission of evidence that

Defendant has failed to pay his taxes since 1999. Second,

Defendant challenges the admission of the following exhibits,

which were documents identified at Benkahla’s previous trial:

3A8 7A35 7A35a 7A35b 7A35c

7A35ci 7A35d 7A35e 7A35f 7A35g

7A35h 7A35i 7A35j 7A35k 7A35l

7A35m 9G1 9G2 9G5 9G6

9G7 9G8 9G9 9G10 9G11

9G12 9G13 9G14 9G15 9G16

9G18

The Court will address the admissibility of the evidence

demonstrating Defendant’s failure to pay taxes, and then will

address the above enumerated exhibits.

1. Defendant’s Failure to Pay Taxes Since 1999.

The admissibility of evidence showing Defendant’s

failure to pay taxes is governed by Rule 404(b), which provides:

Evidence of other crimes, wrongs, or acts is

not admissible to prove the character of a

person in order to show action in conformity

therewith. It may, however, be admissible for

other purposes, such as proof of motive,

opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake of

accident . . .
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F.R.E. 404(b). To support the admission of this evidence, the

Government states that it will demonstrate that individuals of

the ideology of hatred shared by Benkahla and his colleagues

avoid paying taxes to the United States because, in paying taxes,

they would support the world’s greatest enemy of Islam. 

Witnesses will testify that Benkahla’s jihad training group was

counseled by “Timimi” that they should leave the country before

they pay taxes to the United States. Further, the Government

will provide an expert to testify about the importance of evading

taxes to the United States in the mindset of those who support

Taliban and related groups against the United States.

The Government argues that, after it provides this

testimony, Benkahla’s refusal to pay taxes is probative of his

intent. Particularly, the refusal to pay taxes is probative of

Benkahla’s belief that the United States is the world’s greatest

enemy of his faith, and therefore, is probative of his state-ofmind and his intent to participate in a jihad training camp.

Rule 404(b) excludes evidence of prior crimes when

offered to prove the character of a person in order to show

action in conformity with that character. F.R.E. 404(b). In

other words, Rule 404(b) seeks to prevent convictions simply for

possessing bad character. However, in United States v. Queen,

the Fourth Circuit stated this concern diminishes where identity

is not an issue. 132 F.3d 991, 997-98 (4th Cir. 1997). 
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Furthermore, the Fourth Circuit found that “where the trial judge

has given a limiting instruction on the use of Rule 404(b), the

fear that the jury may improperly use the evidence subsides.” Id.

In this case, Benkahla’s identity is clearly not at

issue, thus concerns of using the evidence for general “bad

character” diminishes significantly. Therefore, so long as the

Government establishes adequate foundation that the evidence is

being used to establish intent, evidence of Benkahla’s failure to

pay taxes is relevant and admissible. To minimize improper use

of this evidence by the jury, a limiting instruction will be

given.

2. The video “Russian Hell” (3A8), the email and 

 accompanying website content (7A35 series), and 

 the 9G series emails.

First, the Court feels it is necessary to clarify an

important issue with respect to the attempted exclusion of these

exhibits. As stated above, Rule 404(b) governs the admissibility

of evidence of other crimes, wrongs, or acts. The exhibits at

issue are e-mails, documents, websites, and a video sent and

received by Defendant or his colleagues. These exhibits are not

evidence of Defendant’s prior bad acts, wrongs, or crimes; nor is

this evidence offered to establish Defendant’s general character. 

Therefore, Rule 404(b) is not the correct vehicle to attempt to

exclude this evidence. Instead, the question before this Court

is whether this evidence is relevant under Rule 401. If
“Mujahideen” is an Arabic term for those who engage in jihad. 3

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relevant, then this Court must decide whether the evidence should

be excluded as prejudicial under Rule 403. This approach is also

appropriate upon viewing Defendant’s motion in limine, which

although titled as a 404(b) motion, focuses on excluding the

evidence not because it is character evidence, but because it is

irrelevant.

Defendant argues that since none of these exhibits were

authored by defendant, sought out by defendant, nor received by

defendant before his alleged trip to a jihad camp, they are

irrelevant as to Defendant’s intent and thus should be excluded.

To simplify matters, the Court will discuss these pieces of

evidence in the following groups: (1) the videotape 3A8, (2) the

e-mail 7A35 and the accompanying websites; and (3) the 9G series.

The video “Russian Hell” 3A8:

Government exhibit 3A8 is a video documentary entitled

“Russian Hell 2000" and was originally admitted at Benkahla’s

previous trial. The video was seized from Hamdi, a friend of

Defendant, and depicts the mujahideen engaged in violent jihad 3

in Chechnya. The video is allegedly well-known throughout

Benkahla’s training group and discussed thoroughly among them as

alleged in exhibit 7A35. The Government argues: (1) the video is

admissible to show the context of the investigation and the

materiality of Defendant’s answers; (2) the video corroborates
Whether evidence is relevant under Rule 401 is a binary inquiry: 4

evidence is relevant or irrelevant. The inquiry into probative value,

however, is a question of degree: how much more probable (or less probable) is

the existence of a fact of consequence from the evidence.

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the close relationship between Benkahla and the Government

witnesses that will testify against him; (3) the video is

probative of Defendant’s intent since the evidence will show that

Defendant and his colleagues obtain inspiration from this video;

(4) the video provides context to understand other e-mails.

Federal Rule of Evidence 403 provides that relevant

evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.” F.R.E. 403. In

the following discussion, the Court will address the video’s

relevance, probative value, and potential to mislead, confuse, 4

or prejudice. In weighing these, the Court will examine whether

the evidence should be excluded under Rule 403.

First, with respect to relevance, a video depicting

disturbing acts of violent jihad, when seized from a computer

belonging to a friend of Defendant and addressed in an email

possessed by Defendant, makes it more probable, even if only in

the slightest, that Defendant had the intent to participate in a

combat training camp. Whether Defendant had such intent is

clearly a “fact of consequence” in this prosecution, and

therefore, the evidence is “relevant” within the meaning of Rule

401. 
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However, the video’s probative value is considerably

weak for several of reasons. First, the video’s probative value

is significantly diminished because it was not seized from

Defendant’s computer, but from the computer of a friend. Second,

the Government offers no proof that Defendant ever praised or

showed approval of the video. In fact, the Government offers no

evidence that Defendant ever possessed or even viewed the video. 

Third, the e-mail discussion of the video among Benkahla’s

colleagues is not substantive. At best, the e-mails briefly

reference the video or jihad in Chechnya. A heavy discussion

focused on the video and praising the acts portrayed within would

provide significantly more probative value for this evidence’s

admission. However, this is not the case. Instead, one email

forwarded to Defendant speaks briefly of the video and the other

e-mails’ fail to mention the video’s content at all.

Regarding the video’s potential for prejudice, this

Court finds without hesitation that the video “Russian Hell” is

unequivocally prejudicial. The Court viewed the six minute

“clip” the Government wishes to introduce. Within this clip, the

mujahideen destroys a Russian convoy by explosion, and then films

the subsequent conflagration containing burning bodies. However,

the majority of the clip focuses on the mujahideen’s interaction

with Russian soldiers taken prisoner. Most disturbing of these

interactions are two execution scenes. First, the video contains
The Court wants to clarify that during oral argument on this motion in 5

limine, the Court was under the impression that the video contained an

execution by beheading. Upon watching the video, the Court realized the

executions were by firearm instead, although equally barbaric.

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a scene of an individual approaching a wounded Russian soldier,

placing his rifle at the back of the soldier’s head at pointblank range, and discharging his weapon into his victim’s head. 

Presumably dead, the Russian soldier remains immobile with a

bloody wound in his head before the camera cuts away. Also

contained in the video is footage of another Russian prisoner,

unable to walk due to disorientation, being executed by an

individual repeatedly firing into his head while his body

convulses violently. To be sure, these scenes depicting the

mujahideen’s mistreatment of the Russian soldiers would prejudice

the jury against Benkahla if admitted into evidence.5

In weighing the probative value against the danger of

unfair prejudice, this Court finds that “Russian Hell” is a

quintessential example of evidence that should be excluded under

Rule 403. This Court refuses to allow a jury to see a video

depicting executions and prisoner mistreatment when the

Government has provided no evidence that Defendant praised the

video, approved of the video, possessed the video, or ever even

watched the video. In sum, the video’s probative value is

considerably weak and, if viewed by a jury, the grisly scenes

undoubtedly would result in unfair prejudice against Defendant. 
The Court may be amenable to referencing the content of the video as 6

necessary to provide the context of the e-mails and the discussion within

those e-mails.

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This danger of prejudice clearly and substantially outweighs the

video’s slight probative value, and therefore, under Federal Rule

of Evidence 403, the video “Russian Hell” (GX 3A8) will be

excluded.6

E-mails Labeled 7A35, 7A35a,b,ci,d,e,f,g,h,i,j,k,l,m

Government Exhibit 7A35 is a November 2000 e-mail from

Kwon, a friend of Defendant (and Government Witness) to Defendant

Benkahla. The e-mail 7A35 contains a recommendation that

Benkahla visit several websites by the name of www.jihadpath.com,

www.jihadroad.com, go2jihad.cjb.net, and connect.to/jihad. It

further contains a message (that apparently Kwon is forwarding)

from an individual discussing his desire to participate in jihad

and his approval of the aforementioned video. Exhibits 7A35a

through 7A35m are the content downloaded from these websites

mentioned in Exhibit 7A35a.

The Court finds all these exhibits relevant and

admissible. An e-mail (7A35) sent by a friend directly to

Defendant containing commentary approving of jihad and websites

dedicated to jihad is relevant to Defendant’s intent as to his

participation in a jihad training camp. Furthermore, Defendant’s

possession of website addresses that not only express approval of

jihad but facilitate participation in jihad also are clearly
 This Court easily reconciles the admission of the website content 7

(7A35a-m) and the exclusion of “Russian Hell”(3A8): First, the website content

simply is not comparable to “Russian Hell” with respect to potential for

prejudice. Second, the websites in 7A35a-m actually facilitate participation

in jihad, which is central to this prosecution. “Russian Hell”’s connection

to Defendant’s intent is far more tenuous. Third, although the Government

cannot show that Defendant visited the websites, these website addresses were

taken from an e-mail that Defendant possessed, unlike “Russian Hell” which was

seized from a colleague of Defendant.

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relevant to Defendant’s desire to participate in one of these

training camps. Therefore, this Court concludes that the e-mail 7

(7A35) and the accompanying exhibits of website content (7A35a

through m) are relevant and admissible.

E-mails 9G1 and 9G2

E-mails 9G1 and 9G2 are e-mails sent by Defendant

describing his travels, discussing Islam, and soliciting advice. 

Furthermore, these e-mails were the subject of extensive

questioning now central to this prosecution. Both e-mails are

clearly evidence of Defendant’s intent and the materiality of his

answers. Defendant incorrectly argues that this Court has ruled

that the alleged truth of these two e-mails cannot be relitigated. As provided in the Court’s discussion denying

collateral estoppel, this Court has only ruled that the

Government may not use these e-mails in an attempt to prove that

Defendant participated in jihad training in Afghanistan. 

However, they are entirely relevant and admissible as to the

Government’s attempt to prove that Defendant lied about attending

jihad or combat training somewhere during the summer of 1999.
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E-mail 9G5

Government Exhibit 9G5 is an October 2000 e-mail to

Defendant from Garbieh, who is expected to testify that Defendant

admitted going to a jihad training camp. The e-mail is an

article that was apparently downloaded from a LET website. This

e-mail is probative of Defendant’s state-of-mind as to his

awareness of the LET and its website. Furthermore, this e-mail

corroborates Garbieh and Defendant’s relationship and that they

communicated about subjects related to Islam, holy war, and LET. 

Therefore, this e-mail is relevant and admissible.

E-mails 9G6, 9G7, 9G10, 9G12, 9G18

These exhibits are all e-mails to Defendant in 2001

from an individual identified as “Affan” that Defendant retained

in his e-mail “inbox” until June or July 2003. The e-mails

contain approval of the Taliban regime, information about the war

in Chechnya, poems approving of jihad and martyrdom, and messages

about individuals hoping for the opportunity to engage in jihad. 

All of these e-mails are relevant and admissible. In discussing

jihad and martyrdom, these e-mails are probative of Defendant’s

intent since they were in his possession for several years and

deleted soon after Abu-Ali was arrested. Furthermore, these e-
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mails provide significant context for the questioning of

Defendant and the materiality of his answers.

E-mails 9G8 and 9G9

Government Exhibits 9G8 and 9G9 are e-mails from Kwon

in May 2001 that Defendant retained in his e-mail inbox until

shortly after Abu-Ali was arrested in June 2003. Exhibit 9G8

suggest arguments to be used to justify the actions of the

Taliban, and 9G9 consists of a speech by Osama Bin Laden. These

e-mails corroborate Kwon’s expected testimony regarding his close

relationship with Defendant and the communications between them. 

Furthermore, like the other e-mails, these e-mails are relevant

to Defendant’s state-of-mind; they demonstrate approval of

staunch advocates of jihad; namely, the Taliban and Osama Bin

Laden. Additionally, Benkahla’s deletion of these e-mails after

Abu Ali’s arrest are probative of his intent to sever any

possible connection to Kwon. Consequently, these e-mails are

relevant and admissible.

E-mail 9G11

Government Exhibit 9G11 is an e-mail that is apparently

a questionnaire from Benkahla to a potential spouse, courting the

woman with inquiries such as: “[i]f you were pregnant and your

husband wanted to go to jihad, how would you advise him?” This

e-mail is clearly probative of Defendant’s state-of-mind
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regarding his intent to engage in jihad, and therefore is

relevant and admissible. On the contrary, the answers by the

potential spouse are irrelevant and are not admissible.

E-mail 9G13

Government Exhibit 9G13 is a May 2001 e-mail from

Benkahla in which he declared his hope to devote his life to

“seeking knowledge, calling others to Islam(dawa) and jihad.” 

This clearly is direct evidence of Defendant’s state-of-mind and

is irrefutably probative of his intent to engage in jihad or

jihad training. Therefore, the e-mail is relevant and

admissible.

E-mail 9G16

Government Exhibit 9G16 is an e-mail from Defendant to

Kwon, Hamdi, Garbieh, Timimi, Abu Ali, and others. This e-mail

shows that Defendant initiated communications with those that may

testify against him, just as they often initiated communications

with him. Therefore, this e-mail is relevant and admissible to

help establish and corroborate the relationship between Defendant

and the individuals expected to testify at trial. 

C. Government’s Motion to Exclude Reference to Defendant’s 

 Prior Acquittal

The United States moves to exclude all references to

Benkahla’s prior acquittal at trial in 2004. The Government

argues that the fact Benkahla was acquitted of the charges
 Any reference to Defendant’s prior trial instead shall be a “prior 8

hearing.” For example, a reference by the parties to testimony at Defendant’s

prior trial will be referenced as a “testimony at a prior hearing.” 

-21-

against him at the previous trial is irrelevant in this case. 

This Court agrees. 

As discussed infra, in 2004, Judge Brinkema found

Defendant not guilty of having participated in combat training in

Taliban-controlled regions of Afghanistan. While the Government

will have to prove elements in this prosecution that are similar

to those at issue in the 2004 trial, the prior acquittal is

irrelevant since its introduction would allow the jury to

conclude only that the Government did not prove all elements

required for conviction of the prior prosecution. Not only is

such a conclusion irrelevant to this prosecution, but it also

begs the jury to speculate, as any reasonable juror necessarily

would wonder whether the Government failed to prove all, most,

some, or only one of the elements at the previous trial. 

Therefore, since the prior acquittal is irrelevant and its

introduction would only trigger endless speculation by the jury,

this Court will exclude any reference to Defendant’s prior

acquittal.8

Even if the prior acquittal was relevant, the Court

would still exclude it as confusing and misleading under Rule

403. In reaching this decision, the Court gave thorough

consideration as to exactly how the acquittal would be admitted,
In the Government’s interpretation of Judge Brinkema’s opinion, the 9

Court found that Benkahla participated in a jihad training camp, but could not

conclude beyond a reasonable doubt that said training camp was in Talibancontrolled regions of Afghanistan. Defendants dispute this reading.

-22-

if deemed relevant. Both parties wished for the prior acquittal

to be admitted, but only on certain conditions. The Defendant

argued for the prior acquittal’s admission, but only to the

extent that Defendant was found “not guilty.” To the contrary,

the Government argued that, if the acquittal is admitted, the

particular grounds upon which the acquittal was based should be

specified. The Court believes that both of these options would 9

only confuse and mislead the jury, and the appropriate resolution

is to exclude the previous acquittal altogether. Therefore, even

if the prior acquittal is relevant, this Court still finds that

its admission would also be precluded as confusing and misleading

under Rule 403.

In conclusion, the Court will: (1) deny Defendant’s

Motion to Dismiss Count IV on the grounds of collateral estoppel;

(2) deny Defendant’s motion in limine to exclude evidence of

Defendant’s failure to pay taxes; (3) grant Defendant’s motion in

limine with respect to the video “Russian Hell” (3A8) and the

“answers” from 9G11; (4) deny Defendant’s motion in limine to

exclude 7A35, 7A35a-m, and 9G series exhibits; and (5) grant the

Government’s motion to exclude the admission of Defendant’s prior

acquittal.
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III. Conclusion

For the foregoing reasons, the Court will deny

Defendant’s Motion to Dismiss, grant in part and deny in part

Defendant’s Motion in Limine, and grant the Government’s Motion

to Exclude.

October 2, 2006 ____________/s/___________________

Alexandria, Virginia James C. Cacheris

UNITED STATES DISTRICT COURT JUDGE