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. 

-1-

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 having

been convicted by a jury of 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 making false statements and

concealment in violation of 18 U.S.C. § 1001. Defendant has

filed a motion for judgment of acquittal pursuant to Rule 29,

and a motion for a new trial. These motions are currently before

the Court. 

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

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

around a trip to Pakistan and possibly Afghanistan during the
-2-

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 never 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

had never fired an AK-47 or 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
-3-

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 or participated in jihad training. 

On February 5, 2007, a jury convicted Defendant on all

counts: false declarations to the grand jury (Counts I and II);

obstruction of justice (Count III); and false statements to an

FBI Agent (Count IV). After this conviction, Defendant filed a

motion for judgment of acquittal and a motion for new trial. 

These motions are currently before the Court. 
-4-

II. Standard of Review

A. Motion for Judgment of Acquittal

The question raised by a motion for a judgment of

acquittal is whether “as a matter of law the government's

evidence is insufficient to establish factual guilt on the

charges in the indictment.” United States v. Alvarez, 351 F.3d

126, 129 (4th Cir. 2003) (quoting Smalis v. Pennsylvania, 476

U.S. 140, 144 (1986)). In reviewing a motion for judgment of

acquittal, the court must consider the evidence and “all

reasonable inferences that can be drawn from it in the light most

favorable to the government, and then determine whether any

rational finder of fact could have found the essential elements

of the crimes charged beyond a reasonable doubt.” United States

v. Childress, 26 F.3d 498, 501 (4th Cir. 1994); accord Bonds v.

Beale, 145 F. Supp. 2d 708, 720 (E.D. Va. 2001).

B. Motion for New Trial

Rule 33 of the Federal Rules of Criminal Procedure

grants the trial court discretion to “vacate any judgment and

grant a new trial if the interest of justice so requires.” Fed.

R. Crim. P. 33. According to the Fourth Circuit, “Rule 33

confers broad discretion on a district court.” United States v.

Prescott, 221 F.3d 686, 688 (4th Cir. 2000). Furthermore, “the

interest of justice is the touchstone for consideration” under
 Defendant was convicted of all four counts by a jury using a twenty- 2

one question special verdict form. Questions 1 and 2 refer to Count 1 of the

indictment, questions 3-7 refer to Count 2, questions 8-14 refer to Count 3,

and questions 15-21 refer to Count 4. One affirmative answer is sufficient to

require a guilty verdict on the respective count. In the event Defendant’s

argument is accepted, an acquittal would be required only with respect to

Count 2, as the jury still found sufficiently against Defendant to require a

conviction on Counts 1, 3, and 4. 

-5-

Rule 33. United States v. Mitchell, 602 F.2d 636, 639 (4th Cir.

1979). A leading treatise instructs that “[a]ny error of

sufficient magnitude to require reversal on appeal is an

adequate ground for granting a new trial.” Wright & Miller,

Federal Practice & Procedure § 556 (3d ed. 2004).

III. Analysis

A. Whether Defendant’s Conviction Is Based Upon An 

 Uncorrborated Extrajudicial Admission

Defendant argues that he is entitled to a judgment of

acquittal on the grounds that his conviction was based solely on

an uncorroborated extrajudicial admission. Specifically,

Defendant argues that the testimony of Government witness Allen

Santora–-that Defendant told Santora that he fired an AK-47 and

an RPG while in Pakistan--was entirely uncorroborated, and thus,

his conviction on Count 2 and cannot be sustained. For the 2

reasons that follow, the Court finds that Defendant’s

uncorroborated admission was the basis for his conviction on

Count 2, and will grant Defendant’s motion for judgment of

acquittal as to that count. 
-6-

The administration of criminal justice in federal

courts requires that a criminal conviction must rest upon firmer

ground than an uncorroborated admission of the accused. See,

e.g., Wong Sun v. United States, 371 U.S. 471 (1963). In Smith

v. United States, the Supreme Court found this requirement rooted

in “a long history of judicial experience with confessions and in

the realization that sound law enforcement requires police

investigations which extend beyond the words of the accused.” 

348 U.S. 147, 153 (1954). The rationale behind the requirement

was expounded upon in Opper v. United States, where the Court

stated:

In our country the doubt persists that the

zeal of the agencies of prosecution to protect

the peace, the self-interest of the

accomplice, the maliciousness of an enemy or

the aberration or weakness of the accused

under the strain of suspicion may tinge or

warp the facts of the confession. Admissions,

retold at trial, are much like hearsay, that

is, statements not made at the pending trial.

They had neither the compulsion of the oath

nor the test of cross-examination.

348 U.S. 84, 89-90 (1954). However, while “corroboration is

necessary for all elements of the offense established by

admissions alone,” extrinsic proof which “merely fortifies the

truth of the confession” is sufficient. Smith, 348 U.S. at 156.

In addition, the corroborating evidence may be circumstantial

evidence rather than direct. United States v. Matthews, 429 F.2d
 In support of this fact, the Government reiterates the following 3

evidence admitted at trial: his overseas travel, especially to Pakistan and

more specifically, the town of Peshawar; Kwon’s testimony that Defendant

admitted he attended a jihad training camp; Garbieh’s testimony that he went

to “visit the brothers,” a reference to refer to the mujahideen; an email by

Defendant that he was planning to go England, Ireland, and somewhere too

secret to mention over the internet; emails seeking advice on whether to go to

Chechnya, stating that he had previously “studied in Afghan,” which was

intended to convey that he had prior military jihad training. This

reiteration of evidence was unnecessary, as Defendant’s attendance at a

training camp was sufficiently established and corroborated at trial, and for

purposes of this motion, the Court accepted as true. The Government would

have been better served had it focused on: (1) the evidence supporting the

contention that people who attend training camps also fire AK-47's and RPG’s;

and (2) legal precedent demonstrating that this sufficiently corroborates

Benkahla’s extrajudicial confession.

-7-

497 (9th Cir. 1970); United States v. Clark, 57 F.3d 973, 976

(10th Cir. 1005). 

Rather than offer independent evidence of Defendant’s

handling an AK-47 or RPG, the Government merely re-hashes nearly

every piece of evidence introduced at trial that Defendant

traveled to Pakistan and attended a jihad training camp. The 3

Government asks this Court to summarily conclude that Defendant’s

attendance at a training camp sufficiently corroborates his

extrajudicial admission that he also fired an AK-47 and an RPG. 

However, before the Court accepts the Government’s reasoning, a

more thorough review of the record must occur. Specifically, the

Court must review the evidence supporting the contention that

people who attend Lashkar-e-Taiba training camps, such as

Defendant, also fire AK-47s and RPGs. The reason for the inquiry

is simple: for evidence of Defendant’s presence at a training

camp to corroborate the testimony that Defendant fired an AK-47
In this citation, the Court will construe “Kohlman, Linden, Kwon” as an 4

intended citation referring to those person’s trial testimony, despite the

blatant lack of any reference to the transcript using volume or page number. 

-8-

and RPG, there must have been evidence admitted at trial that

tends to establish that those who attend training camps actually

handle such weapons. 

Unfortunately, the Government addresses this crucial

inquiry by a single conclusion with an over-broad citation: “the

training those individuals received from Lashar[sic]-e-Taiba

included the firing of automatic weapons and rocket propelled

grenades. (Kohlmann, Linden, Kwon); GX1D52, 7A4, and 7H3b.” 

(Govt.’s Opp., 5). The Court will review and summarize this 4

relevant evidence in this citation seriatim.

Mr. Evan F. Kohlman (“Kohlman”) served as the

Government’s expert to provide background regarding jihad

training and Lashkar-e-Taiba. In light of Government’s unhelpful

citation to his testimony as “Kohlman,” the Court was forced to

review his testimony in its entirety. (Trial Tr. Vol. I, 82-

270). In doing so, the Court found that the Government’s expert

testified that one could learn how to shoot an AK-47 if they

attended a Lashkar-e-Taiba “university,” but also that it was a

“center of study of both philosophical and other aspects of

jihad. It wasn’t just for militarily[sic] [training]. . .” 

(Trial Tr. Vol. I, 123, 228, Jan. 29, 2007). 
If it has not already been made clear, the Court wishes to note its 5

frustration with the Government’s casual, slipshod pleading for post-trial

motions. It is the sincere hope of the Court that the Government was simply

mistaken in citing Agent Linden’s testimony in support of the contention that

the training of those individuals who attend Lashkar-e-Taiba training camps

includes the firing of automatic weapons and RPGs. 

-9-

Agent Sarah W. Linden’s (“Linden”) served as the

Government’s witness to establish the background of the

investigation that resulted in Defendant being called before the

grand jury. (Trial Tr. Vol. I, II, 270-459, Jan. 29-30, 2007). 

After review of Linden’s testimony, there appears to be no

reference to AK-47s or RPGs at Lashkar-e-Taiba training camps or

any statement establishing that those at Lashkar-e-Taiba training

camps handle or fire AK-47s or RPGs. 

5

Finally, Yong Ki Kwon (“Kwon”) served as a Government’s

witness as an acquaintance of Defendant’s from the Dar al-Arqam

Islamic Center. Included in Kwon’s testimony is another

uncorroborated confession, albeit one that supports Santora’s

testimony in some manner. Specifically, Kwon testified that

Benkahla told him that he shot an RPG while at a camp in

Pakistan. (Trial Tr. Vol. III, 752). 

To summarize, after a thorough review of this evidence

as well as a general review of the entire record, in

corroboration of Santora’s testimony that Defendant admitted he

shot an AK-47 and an RPG, there is (1) the fact that Defendant

attended a training camp; (2) Kohlman’s testimony that one could

plausibly learn how to fire an AK-47 through Lashkar-e-Taiba; and
The Government also submits numerous photographs related to Al-Qaeda 6

and conflict in Chechnya to support its contention that the AK-47 and RPG can

always be found where there is a jihad training camp. The Court declines to

consider these pictures as they were intended only to set the background for

the investigation, and do not depict Lashkar-e-Taiba camps. For this reason,

even if the Court did consider these photographs in its analysis, their value

would be infinitesimal.

-10-

(3) Kwon’s testimony of an additional uncorroborated confession

that Defendant told him he fired an RPG. 

6

This evidence introduced by the Government falls short

of the corroboration necessary to establish trustworthiness of

Santora’s testimony. First, as to Kwon’s testimony that

Defendant told him that he shot an RPG, the Supreme Court has

held on several occasions that one uncorroborated admission of

the accused cannot corroborate another admission. United States

v. Calderon, 348 U.S. 160, 165 (1954); Wong Sun, 371 U.S. 471,

489-90 n.15 (1963). The rationale is clear: the rule of Opper is

that independent corroborative evidence is needed to establish

trustworthiness. Two entirely uncorroborated admissions, added

together, do not raise their level of trustworthiness. 

Second, the Government failed to introduce sufficient

evidence that those that attend the Lashkar-e-Taiba camps handle

and fire AK-47s and RPGs. Upon a review of the record, the Court

found only one equivocating statement that linked training camps

to such weapons: that one could learn how to fire an AK-47

through Lashkar-e-Taiba. (Trial Tr. Vol. I, 228). This

statement does not bridge the logical inferential leap the
-11-

Government requests to submit to a jury: that since Defendant

went to a training camp, the extrajudicial admission that he

fired an AK-47 or RPG is declared sufficiently trustworthy. 

The Court understands and appreciates that this finding

reverses the jury’s verdict as to Count 2. At trial, the

Government produced hours upon hours of testimony, photographs,

and video discussing jihad, al-Qaeda, the events of September 11,

2001, the conflict in Chechnya, and Lashkar-e-Taiba to a lesser

extent–-all of which was intended to address the context of the

investigation. After being flooded with pictures of Osama binLaden and other al-Qaeda operatives handling and firing AK-47s,

as well as videos of the paramilitary training that were viewed

on the nightly news after the events of September 11, 2001, it is

no surprise that the jury presumed as given that one’s presence

at a training camp necessitates the firing of such weapons. Now,

with the benefit of a transcript, the Court can conclude with

certainty that there was insufficient evidence to establish such

a conclusion, and thus, the jury’s verdict cannot stand. 

Had the Government introduced one piece of independent

evidence, outside of his uncorroborated admission, direct or

circumstantial, that Defendant actually fired an AK-47 or an RPG,

this Court would be more likely to hold that trustworthiness is

established. For instance, in United States v. Hall, the Fourth

Circuit found the evidence sufficient when a defendant’s
-12-

otherwise uncorroborated admission provided that he handed a note

to the teller when robbing a bank, and the teller later testified

that she was handed a note during the robbery. United States v.

Hall, 396 F.2d 841, 843 (4th Cir. 1968). This single,

independent circumstance constituted sufficient corroboration. 

Here, no such independent, extrinsic proof exists. 

Similarly, in United States v. Stephens, the Fourth

Circuit reversed a district court’s denial of a motion for

judgment of acquittal for a lack of independent, extrinsic proof. 

482 F.3d 669 (4th Cir. 2007). In Stephens, the defendant was

arrested after he was seen running from an area where gunshots

were fired. Stephens, 482 F.3d at 671. After his arrest, the

defendant told federal agents that a local drug dealer named

“Red” had threatened to kill him for non-payment on a quantity of

cocaine, and that, in self-defense, he fired at Red’s car, a

white Mazda. Id. The defendant recanted this admission, and at

trial, the two federal agents testified to these statements and

also stated that they knew of a suspected drug dealer named Red

who drove a white Mazda. Id. The jury convicted defendant of

conspiracy to distribute cocaine and the use of a firearm in a

drug trafficking crime. Id. at 670. Noting the “heavy burden”

on a defendant when challenging the sufficiency of evidence, the

Fourth Circuit reversed the conviction on the ground that it

rested solely upon the defendant’s uncorroborated admission. Id.
-13-

at 673. Despite the established fact that the defendant was

discharging his firearm late at night, the testimony of two

officers regarding his admission, and their independent knowledge

of a suspected drug dealer named “Red” who drove a white Mazda,

the Fourth Circuit required extrinsic, independent evidence of

defendant’s involvement with drugs. Id. Absent such evidence to

corroborate his extrajudicial admission, the jury’s verdict

convicting defendant of his drug involvement could not be

sustained by the evidence. Id.

The evidence in this case provides even less

corroboration than in Stephens. As in Stephens, the only

evidence linking Defendant to the underlying criminal conduct is

an uncorroborated statement and the equivocating testimony of a

Government witness. However, unlike Stephens, where the federal

agents could personally testify to their independent knowledge to

corroborate the circumstances in the defendant’s admissions, the 

Government witnesses in this case cannot. 

In sum, under Opper, Wong Sun, Smith, and Calderon,

Hall, and Stephens, the Court must reject the Government’s

contention that Defendant’s presence at a training camp somehow

independently corroborates his specific actions while at that

camp. Without the necessary, independent proof, Defendant’s

conviction for lying to the grand jury about firing of an AK-47

or RPG must have come entirely from his uncorroborated
-14-

admissions, and therefore, based on insufficient evidence. 

Accordingly, the jury verdict against Defendant as to Count 2

cannot be sustained, and the Court will grant Defendant’s motion

for judgment of acquittal as to that count.

B. Whether Hearsay Evidence Unfairly Prejudiced 

 Defendant

 Next, Defendant moves this Court for a judgment of

acquittal or, in the alternative, for a new trial on the grounds

that the Government’s attempts to inject prejudicial hearsay

deprived him of a fair trial. Defendant argues that Agent

Kneisler’s testimony–-that Defendant told her that he told Hamdi

that he had a dream about attending jihad training camps–-

unfairly prejudiced him before the jury. The Court struck the

testimony as hearsay, confusing, and in violation of Crawford v.

Washington, 541 U.S. 36 (2005), and instructed the jury to

disregard it.

In Greer v. Miller, the Supreme Court offered

considerable guidance with respect to the introduction of

inadmissible evidence and curative instructions. Specifically,

the Court stated:

We normally presume that a jury will follow an

instruction to disregard inadmissible evidence

inadvertently presented to it, unless there is

an overwhelming probability that the jury will

be unable to follow the court’s instructions,

and a strong likelihood that the effect of the

evidence would be devastating to the defendant.
The Court manifested its Crawford concerns regarding Defendant’s 7

statements in response to statements by Hamdi. The Court viewed this as a

back-handed attempt to inject Hamdi’s statements into the trial record. 

Whether such statements actually violated Crawford is not of concern in the

instant motion since they were all excluded from the record, and the curative

instruction sufficed to remedy any confusion.

-15-

483 U.S. 657, 766 n.8 (1987)(citations omitted). It is in this

light that the Court evaluates Defendant’s claim of unfair

prejudice. 

After a thorough review of the record, the Court cannot

find that Defendant was unfairly prejudiced. Out of concerns for

confusion, prejudice, and potential violations of Crawford v.

Washington, 541 U.S. 36 (2004), the Court excluded the testimony

and instructed the jury to disregard it in every instance that

the prosecution improperly elicited a statement by Hamdi.7

Defendant fails to point to any reason why the jury would be

unable to follow the instruction, nor can this Court find grounds

for one. Without doing so, there is far from an “overwhelming

probability” that the jury was unable to follow the instruction.

Furthermore, this testimony surrounding Hamdi did not

practically prejudice Defendant. The Court’s repeated, sustained

objections and striking of testimony made clear that it was

improper, and from an advocacy perspective, the Government’s

attempts to elicit this testimony did little to serve its

credibility. Additionally, even if the testimony had been
For this reason, the Court still cannot understand the Government’s 8

adamance in pursuing this line of questioning. The Government already

introduced more than sufficient evidence to secure a finding of Defendant’s

attendance at a training camp, and the jury likely would have been confused by

the case agent’s testimony of Defendant’s statements to the case agent about

Defendant’s statements to Hamdi. 

After the Court’s grant of Defendant’s motion for judgment of acquittal 9

as to Count 2, but before this opinion was published, Defendant moved this

Court to reconsider its decision and to extend its ruling to Counts 1 and 3 on

the grounds that Defendant’s attendance at a training camp was also not

corroborated. However, as stated supra, the Government clearly established

Defendant’s attendance at a training camp in Pakistan at trial, and this basis

alone is sufficient for the conviction on Counts I and III. Accordingly,

Defendant’s motion to reconsider will be denied.

-16-

permitted, it hardly rises to the level of being “devastating” to

the Defendant, as its probative value was severely limited. 

8

In light of these two conclusions, the Court cannot

find that Defendant was unfairly prejudiced at trial. The

evidence was sufficient against Mr. Benkahla to all remaining

counts, and the interests of justice do not require a new trial. 

Accordingly, his motion for judgment of acquittal and motion for

new trial on this ground will be denied.9

IV. Conclusion

For the foregoing reasons, Defendant’s motion for

judgment of acquittal will be granted in part and denied in part. 

In addition, Defendant’s motion for a new trial will be denied.

An appropriate Order will issue.

July 24, 2007 ________________/s/_______________

Alexandria, Virginia James C. Cacheris

 UNITED STATES DISTRICT COURT JUDGE