In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-1882

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KHALED ABDEL-LATIF DUMEISI,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 664—Suzanne B. Conlon, Judge.

____________

ARGUED MAY 10, 2005—DECIDED SEPTEMBER 15, 2005

____________

Before FLAUM, Chief Judge, and KANNE and WILLIAMS,

Circuit Judges.

KANNE, Circuit Judge. In the years leading up to the

2003 invasion of Iraq, Palestinian Khaled Abdel-Latif

Dumeisi was in close contact with the Iraqi Mission to the

United Nations (“IMUN”). Dumeisi’s relationship with the

IMUN (as well as his 1999 trip to Baghdad) was ostensibly

related to the publication of his Arabic language newspaper

in a Chicago suburb. Certain evidence obtained by the FBI,

however, suggested that Dumeisi was actually acting as an

agent of Saddam Hussein’s Iraqi regime. He was ultimately

tried by a jury and convicted for acting in the United States

as an agent of a foreign government without prior notification to the Attorney General, conspiracy to do so, and

perjury. Dumeisi appeals, alleging a number of evidentiary
2 No. 04-1882

and other errors by both the trial court and the Foreign

Intelligence Surveillance Act (“FISA”) court. For the

reasons stated herein, we affirm.

I. History

Dumeisi was born in Palestine in 1946. In 1948, he moved

to Jordan, then to Kuwait in 1970. Finally, in March 1993,

Dumeisi emigrated to the United States. Thereafter, he

began publishing an Arabic language newspaper out of

Burbank, Illinois. The paper was initially called “Palestine,”

but was more recently titled “Al-Mahjar,” which translates

to “place of immigration.” Dumeisi received revenue from

advertisers and distributed new issues of the free paper

every three or four weeks. Al-Mahjar primarily contained

articles about Middle Eastern politics. Dumeisi published

a number of articles in support of Saddam Hussein and

against the Iraqi Opposition; Dumeisi felt that the former

leader of Iraq was the only Arab leader who had unwaveringly supported the Palestinian cause. Dumeisi sometimes

received threats and harassment from Opposition sympathizers.

A. Contact with Iraqi Mission to the United Nations

In 1996, Dumeisi hired Kawther Al-Khatib to assist with

the newspaper. Although Al-Khatib was a Palestinian, she

spoke the Iraqi Arabic dialect fluently. Dumeisi directed AlKhatib to contact the IMUN in New York City and to notify

the personnel there that Al-Mahjar was “at their disposal”

and would be interested in publishing materials or articles

supplied by the IMUN.

After Al-Khatib’s initial contact, Dumeisi developed a

close relationship with the IMUN and was a guest there on

several occasions. On one of his IMUN-sponsored visits to

New York, Dumeisi met and interviewed the Foreign
No. 04-1882 3

Minister of Iraq. In 1999, at the invitation of the Foreign

Minister, Dumeisi traveled to Baghdad for Saddam

Hussein’s birthday party. After this visit, Dumeisi spoke

with Shifiq El-Khalil, an acquaintance since 1992 with

whom he shared office space. According to El-Khalil,

Dumeisi said that he had been in Iraq to garner support for

his newspaper and that the people he met were interested

in having him monitor and report on the activities of the

Iraqi Opposition in the United States. Shortly after he

returned from Baghdad, Dumeisi took another trip to the

IMUN in New York. He returned with $3000, which he told

El-Khalil he had received from the IMUN. Dumeisi also

stated that the IMUN would be calling him at 1:00 P.M.

every Thursday to give him “instructions.” El-Khalil saw

Dumeisi on his cell phone Thursday afternoons, and

Dumeisi once told El-Khalil that his IMUN contact placed

calls from a restaurant rather than from the IMUN because

“it was private and secret conversation.”

Dumeisi also discussed his trip to Baghdad with AlKhatib. He explained that his visit was facilitated by the

Iraqi Embassy in Amman, Jordan, so that his passport

would not be stamped with an Iraqi entry visa. Dumeisi

also told her that he had been met by two members of the

Mukhabbarat, the Iraqi Intelligence Service (“IIS”), who

had pre-set a full schedule of activities for him while he was

in Baghdad. Some time after his return to Illinois, Dumeisi

and Al-Khatib were watching an Arab film in which an

intelligence officer was putting a microphone in the handset

of a telephone. Dumeisi remarked that the technique was

quite primitive and proceeded to show Al-Khatib a silver

pen that could be used as a camera and a tape recorder.

Dumeisi said that he had received the pen in Baghdad and

that he had used it in an Illinois meeting with a member of

the Iraqi Opposition. Al-Khatib also observed Dumeisi on

his Thursday afternoon phone calls. On one occasion when

she tried to overhear Dumeisi’s end of the conversation, she
4 No. 04-1882

managed only to hear him say, “Lunch is ready. Let the

group come.” When she asked him about lunch, Dumeisi

responded that it was none of her business.

In July 2000, Dumeisi made the acquaintance of former

ISS officer Hazim El-Dilemi at the residence of the Iraqi

Ambassador to the U.N. in New York. El-Dilemi’s cousin,

Kassim Mohammed, was an IIS officer stationed at the

IMUN. Mohammed introduced Dumeisi and El-Dilemi.

Dumeisi described Al-Mahjar as a “newspaper for Iraq” and

asked Mohammed for financial help for the paper.

In April 2001, at the IMUN celebration of Saddam

Hussein’s birthday, Dumeisi gave a speech praising Saddam

Hussein. After the speech, Dumeisi repaired to the basement of the IMUN with El-Dilemi, Mohammed, and several

IMUN personnel. Dumeisi again asked Mohammed for

financial assistance. Dumeisi indicated that he had been

approached by other groups offering him more money to

write articles for them but that he had refused, telling the

group, “I want to stay with you guys.” Dumeisi was given a

computer, a fax machine, and some articles to be printed in

the next issue of Al-Mahjar. At Mohammed’s request,

Dumeisi provided press identification cards for himself, ElDilemi, and IIS officer Saleh Ahman. These identification

cards purported that Dumeisi, El-Dilemi, and Ahman were

employees of Al-Mahjar, and would allow them to gain

entry to meetings inaccessible to a diplomat. 

As previously mentioned, it was not uncommon for

Dumeisi to receive angry or even threatening phone calls

from members of the Iraqi Opposition upset by Al-Mahjar’s

pro-Saddam stance. In fact, Dumeisi reported to IMUN

officials that his tires had been slashed as a result of a

particular article that he had written. Office-mate El-Khalil

once asked Dumeisi why he invited such trouble with his

pro-Saddam, anti-Opposition articles. Dumeisi replied that

it was a means of learning the identity and whereabouts of
No. 04-1882 5

Opposition members. When El-Khalil recommended that

Dumeisi turn over the answering machine tapes with the

threatening messages to the Chicago police, Dumeisi said

that he had sent the tapes to the IMUN.

B. The Baghdad File

One of the most important pieces of evidence in Dumeisi’s

trial has an interesting history all its own. It begins with

Dumeisi’s female part-time employee, named Wafa Zaitawi,

who delivered newspapers for him. Zaitawi also sold longdistance telephone service for FoneTel.

Fawzi Al-Shammari was a member of the Iraqi Opposition in the United States. He had been a general in

Saddam’s military, but defected to the United States in

1986 and created an organization, called the Iraqi Officers’

Movement to Save Iraq, dedicated to overthrowing Saddam

Hussein. Al-Shammari was recognized as a possible

successor to Saddam Hussein in the event of a regime

change, and he had received publicity in numerous newspapers, magazines, and television programs in the United

States.

In early 2002, Al-Shammari received a phone call from a

friend of his, who also happened to be a friend of Zaitawi,

suggesting that he call Zaitawi to get a good deal on longdistance telephone service. This mutual friend also hinted

that Al-Shammari might form a more personal relationship

with Zaitawi. Al-Shammari purchased long-distance service

from Zaitawi, and the two did, in fact, “hit it off” on a

personal level. They exchanged photographs and went so far

as to discuss the possibility of marriage.

In March 2002, Al-Shammari traveled to Chicago, using

the trip as an opportunity to meet Zaitawi in person and to

make two public speeches against Saddam Hussein’s regime

in Iraq. The speeches went well, but the matchmaking did

not. Al-Shammari was “shocked” at Zaitawi’s appear-
6 No. 04-1882

ance—apparently quite different from her photo—and

abandoned all thoughts of marriage when she picked him

up at the airport. Nevertheless, to be diplomatic, he gave

her a necklace, went home with her to meet her daughters,

and took her to his hotel cafeteria for some snacks. AlShammari did not call Zaitawi again after he left Chicago.

As a FoneTel employee, Zaitawi had access to the records

of customers’ calling activity. IIS records recovered in Iraq

after the fall of Baghdad in 2003 contained listings of

telephone numbers called from Al-Shammari’s telephone in

Zaitawi’s handwriting. These documents were part of a

larger collection of IIS records which came to be known as

“the Baghdad File.” The file also contained a report in

Dumeisi’s handwriting on one of Al-Shammari’s antiSaddam speeches in Chicago. This report identified AlShammari as the leader of a possible successor government

in Iraq, and contained photographs of Al-Shammari and the

names of two of Al-Shammari’s associates who had accompanied him to Chicago.

The Baghdad File contained correspondence between

IMUN personnel in New York and IIS headquarters in

Baghdad. This correspondence referred to Dumeisi as

“Symbol Sirhan”; symbols were considered IIS “sources” as

opposed to fully vetted “agents.” The IMUN communicated

with the IIS regarding Dumeisi’s relationship with Zaitawi

and Zaitawi’s relationship with “the Criminal Fawzi Al

Shammari.” This communication also reported on the plan

prepared for Dumeisi to “start moving on hostile organizations in Chicago and Detroit, and to monitor the activities

of group leaders for the so-called opposition in The United

States of America.” Among other things, Dumeisi was to

“exploit his friend [Zaitawi], who works for a communication company” in achieving that goal. This correspondence

preceded a summary of Al-Shammari’s activities in Chicago,

Al-Shammari’s telephone numbers and records, and

Dumeisi’s handwritten report. On May 22, 2002, the IIS
No. 04-1882 7

directed the IMUN to continue to provide information on AlShammari. The IMUN did so in June and August 2002,

with further reports and an indication that Dumeisi was

paid $877.65 for expenses.

John Andrews was the American counterintelligence

officer who obtained the Baghdad File in Iraq. Andrews was

assigned to Baghdad in late May 2003. He was part of the

Iraq Survey Group, an interagency organization created for

the purpose of exploiting documents and locating weapons

of mass destruction following the invasion of Iraq. Andrews

met weekly with Aras Kareem, a member of the Opposition

group known as the Iraqi National Congress (“INC”).

Kareem gave Andrews a number of documents that the INC

had found. Andrews would typically have the documents

translated and, if they did not appear to have a nexus to the

Department of Defense, turn them over to the FBI office in

Baghdad. Andrews testified at trial that Kareem gave him

the Baghdad File, contained in a blue and clear plastic

folder, sometime in June 2003. Having determined that it

contained some U.S. telephone numbers, Andrews turned

it over to the FBI about two days later.

C. FBI Investigation and Searches

The FBI became interested in Dumeisi as early as 1999.

While Dumeisi was in Baghdad, two agents visited his office

asking for him. In November 2002, the FBI questioned

Dumeisi’s friend and former Al-Mahjar contributor Riad

Rabah about Dumeisi. At the FBI’s direction, on April 30

and May 1, 2003, Zaitawi made consensually monitored

calls to Dumeisi from the federal building in Chicago. She

told him that the U. S. Attorney’s office would be questioning her under oath and that the FBI had obtained AlShammari’s phone records from Baghdad. When she asked

Dumeisi what he had done with the records and how they

might have gotten to Iraq, Dumeisi told her that he didn’t

know. 
8 No. 04-1882

On May 7, 2003, FBI agents conducted consensual

searches of Dumeisi’s office and home. The agents confiscated a 1996 calendar covered almost completely with

Arabic writing and phone numbers. A loose piece of paper

inside the calendar contained two columns of five Arabic

words in each. The English translations for these ten words

are as follows: Abu Mohammed, New York, Taking Things,

Important Items, Threat, The Father, Home, Advertisements, The Wedding, and Inoperable Car. At trial, the

government contended that these were code words.

After the searches, Dumeisi complained to his friend

Rabah (who had previously been questioned about Dumeisi)

that the FBI had taken his computers, rendering him

unable to work. Dumeisi also told Rabah that “the

group”—a colloquial way of referring to the IMUN, according to Rabah—wanted Dumeisi to gather information on AlShammari. Dumeisi said that he had asked Zaitawi to

gather information, that it had something to do with

telephone numbers, and that he had passed this information on to “the group” along with an indication that AlShammari might be the next president of Iraq if Saddam

Hussein’s regime were overthrown.

D. Testimony in Grand Jury and Immigration Proceedings

On September 17, 2002, INS Special Agent Angela

Alonzo-Onate conducted a videotaped interview of Dumeisi

in connection with his application for United States citizenship. Dumeisi was asked if he had “ever worked for, [or] on

the behest of a foreign government,” and he responded

negatively by shaking his head. He was also asked whether

he had “ever failed to register as an agent of a foreign

power[,]” to which Dumeisi responded, “No.” When asked if

he had ever provided services to Iran, Iraq, or North Korea,

Dumeisi stated, “Um, no.” Finally, when asked whether he

had “ever received any property or compensation from a
No. 04-1882 9

foreign power[,]” Dumeisi responded saying, “No.”

Shortly after the FBI searches of his home and office, in

May 2003, Dumeisi testified before a grand jury. He

acknowledged his contacts with the IMUN, claiming they

were related to writing and publishing his newspaper.

Dumeisi testified that Zaitawi gave him Al-Shammari’s

telephone records at some point after Al-Shammari’s visit

to Chicago. Dumeisi further stated that Zaitawi told him AlShammari was a member of the Iraqi Opposition, and that

she wanted Dumeisi to check him out because he had asked

for her hand in marriage. Dumeisi claimed not to know

what happened to the records after he had placed them on

his desk.

E. Trial

On July 16, 2003, Dumeisi was indicted for acting in the

United States as an agent of a foreign government without

prior notification to the Attorney General (in violation of 18

U.S.C. § 951(a)); conspiracy to do so (in violation of 18

U.S.C. § 371); perjury in an immigration proceeding (in

violation of 18 U.S.C. § 1621); and perjury before a federal

grand jury (in violation of 18 U.S.C. § 1623). A jury trial

commenced on January 5, 2004, and a week later Dumeisi

was found guilty on all four counts. He was sentenced to 46

months’ imprisonment.

II. Analysis

Dumeisi appeals his conviction on six different grounds.

First, he argues that the Baghdad File was erroneously

admitted in evidence. Second, he claims that both the

Classified Information Procedures Act (“CIPA”) and the

FISA were misapplied. Dumeisi also asserts that jury

instructions concerning the publication of a newspaper

article and on the law of conspiracy were improper. Finally,
10 No. 04-1882

he argues that there was insufficient evidence against him

for his convictions on all counts. We address each of these

arguments in turn.

A. Admission of the Baghdad File

Dumeisi filed a motion in limine objecting to the admission of the Baghdad File. He described the Baghdad File as

“the single most important piece of government evidence,”

but asserted that it was unauthenticated hearsay. The

government responded that the Baghdad File was admissible under Federal Rule of Evidence 807, the residual

exception to the hearsay rule, as well as under Rule 803(6)

(business records), Rule 803(8) (public records), and Rule

801(d)(2)(E) (co-conspirators’ statements). The district court

postponed ruling on this matter until trial was underway,

ultimately admitting the evidence under Rule 807. 

We review a district court’s ruling on the admissibility of

evidence for abuse of discretion. See Chemetall GMBH v. ZR

Energy, Inc., 320 F.3d 714, 722 (7th Cir. 2003); United

States v. Sinclair, 74 F.3d 753, 758 (7th Cir. 1996). “Trial

courts have a considerable measure of discretion in deciding

when a hearsay statement fits the residual exception.”

Sinclair, 74 F.3d at 758 (internal quotation omitted). We

reverse only when no reasonable person could take the view

of the trial court. Chemetall, 320 F.3d at 722 (citation

omitted).

We first tackle the question of whether the Baghdad File

was properly authenticated. Federal Rule of Evidence

901(a) requires, as a condition precedent to admissibility,

“evidence sufficient to support a finding that the matter in

question is what its proponent claims.” Authentication can

be established in a variety of ways, including by

“[t]estimony of [a] witness with knowledge . . . that a matter

is what it is claimed to be[,]” Rule 901(b)(1), and by distinctive characteristics such as “[a]ppearance, contents, sub-
No. 04-1882 11

1 Sargon is not the true name of the witness; he testified under

an assumed name pursuant to agreement.

stance, [or] internal patterns . . . taken in conjunction with

circumstances[,]” Rule 901(b)(4). Dumeisi challenges

authentication under both methods.

The government presented “Mr. Sargon”1

 as a “witness

with knowledge” who could identify the Baghdad File as

genuine IIS records. Indeed, Sargon had worked for the IIS

from 1979 to 2003 and had advanced in rank to a high

position not spoken on the record but made known to the

jury. He had been assigned to posts outside of Iraq, including the United States, and had knowledge of the IIS

missions as well as the organizational structure of the IIS.

Sargon worked in Directorate M4, the group concerned with

external intelligence, from 1999 to 2003. In that role, he

had regular contact and information exchange with the M40

Directorate, which was responsible for “hostile activities,”

or opposition groups within and outside of Iraq. Sargon

unequivocally testified that he could “positively identify

[documents making up the Baghdad File] as Iraqi Intelligence cables, as well as correspondence between the New

York Station and M40.” (Tr. at 406-07.) Sargon was also the

primary witness for the second method of authentication

used by the government; he identified distinctive characteristics including the style and form of the documents (“in line

with the way that the Iraqi Intelligence service will prefer

to produce a document”), symbols, codes, abbreviations, and

signatures of some fellow IIS officers. (Tr. at 406.) The one

thing Sargon did not identify as a typical trait of IIS

documents was the blue and clear plastic folder in which

the Baghdad File was found.

The “circumstances” which we must consider in conjunction with the physical characteristics discussed above

include circumstances surrounding discovery. See United
12 No. 04-1882

States v. Harvey, 117 F.3d 1044, 1049 (7th Cir. 1997)

(approving introduction of written materials as sufficiently

authenticated because they were found in an isolated

campsite occupied only by the defendant); United States v.

Arce, 997 F.2d 1123, 1128 (5th Cir. 1993) (finding the fact

that drug ledgers were discovered in known drug trafficker’s home to be evidence of authenticity). In this case,

classified information surrounding the initial discovery of

the Baghdad File bolsters the contention that the file is

what the government purports it to be.

We find this authentication evidence taken together to be

at least as reliable as that relied upon in United States v.

Elkins, 885 F.2d 775 (11th Cir. 1989). In that case, the

defendant was convicted of conspiracy and engaging in

illegal exporting activity involving the sale of two aircraft

to Libya. Id. at 779. The defendant challenged the use of

circumstantial evidence to authenticate two documents

used to show that the aircraft were purchased by the

Libyan military. Id. at 785. The Eleventh Circuit held that

Rule 901 “requires only some competent evidence in the

record to support authentication”; the circumstantial

evidence of where the documents were found (in West

Germany, in the briefcase of a Libyan arms dealer) was

sufficient to authenticate the documents in the absence of

any evidence of adulteration or forgery. Id. at 785-86. Here,

in addition to the circumstantial evidence regarding the

discovery of the file alluded to above, we have Sargon’s

testimony that the file contained genuine IIS documents.

The district court did not abuse its discretion in determining that the Baghdad File was properly authenticated

under Rule 901. 

As stated above, the Baghdad File was admitted under

Federal Rule of Evidence 807, the residual exception to the

hearsay rule. Rule 807 permits evidence to be admitted if it

has sufficient “circumstantial guarantees of trustworthiness.” Sargon’s testimony, already discussed in the context
No. 04-1882 13

of authentication, provides some circumstantial guarantee

of the trustworthiness of the statements in the Baghdad

File. There were also witnesses at trial who positively

identified the handwriting of Zaitawi and Dumeisi on AlShammari’s phone records and on the report related to AlShammari’s Chicago visit, respectively. In addition, we have

Zaitawi’s relationship to Al-Shammari and her access to

telephone records. At oral argument, Dumeisi clarified that

the hearsay statement with which he takes issue is not so

much the individual documents making up the Baghdad

File—he concedes that many of the documents are admissible and are IIS communications as they purport to be—but

rather with the statement that these documents were found

together, in Baghdad, especially considering the sketchy

circumstances surrounding the file’s whereabouts before it

was given to Andrews. 

Dumeisi raises a valid question with respect to the timing

of the discovery of the Baghdad File: if the file was not

obtained by Andrews until June 2002, how could the FBI

question Zaitawi at least a month earlier, in April/May

2002, about Al-Shammari’s telephone records allegedly

found in Iraq? We can only point out that the evidence

presented at trial, including Andrews’s testimony about

when he received the file, is not inconsistent with the FBI

having knowledge from another source, prior to June 2002,

that Al-Shammari’s telephone records had been discovered

in Baghdad. A review of the classified evidence convinces us

that this timing issue is not fatal to the district court’s

finding of authenticity and trustworthiness; the evidence in

fact provides a significant guarantee of trustworthiness that

the Baghdad File was found, Dumeisi’s contributions and

all, in circumstances reinforcing its legitimacy as a coherent

file of IIS documents.

Finally, Dumeisi raises a Sixth Amendment issue with

respect to admission of the Baghdad File, arguing that the

government’s failure to present sufficient “indicia of reliabil-
14 No. 04-1882

ity” regarding the evidence implicates the Confrontation

Clause. See Ohio v. Roberts, 448 U.S. 56, 65-66 (1980)

(excluding hearsay except under certain circumstances

when the evidence is so trustworthy that the rationale for

the hearsay rule is not offended), abrogated by Crawford v.

Washington, 541 U.S. 36 (2004) (regarding only testimonial

evidence). If evidence is not covered by a firmly rooted

exception to the hearsay rule, it must possess particularized

guarantees of trustworthiness at least as reliable as

evidence admitted under a firmly rooted hearsay exception.

See Idaho v. Wright, 497 U.S. 805, 821 (1990). Because this

argument was not raised in the district court, our review is

for plain error; we reverse only if there is a clear or obvious

error that affected the outcome of the trial. See United

States v. Shearer, 379 F.3d 453, 456 (7th Cir. 2004).

Dumeisi correctly points out that the residual hearsay

exception is not a firmly rooted exception for Confrontation

Clause purposes. Cf. Wright, 497 U.S. at 817. But in

determining that the Baghdad File was admissible, the

district court expressly considered the same circumstantial

guarantees of trustworthiness that justify admission of

business records and official records without violating the

Confrontation Clause. For example, the court relied upon

Sargon’s testimony that IIS officers had a duty to accurately

record their own activities and the information received

from their sources. The lack of a motive to falsify information and the fact that written records are often more

reliable than the potentially hazy memory of the recorder

are the classic reasons for excepting business records and

official records from the hearsay rule—in other words, for

making them firmly rooted hearsay exceptions. See

Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir. 1996); see also

United States v. Klinzing, 315 F.3d 803, 810 (7th Cir. 2003).

Thus, the district court did not violate the Confrontation

Clause in admitting the Baghdad File.
No. 04-1882 15

It was within the court’s discretion to admit the Baghdad

File under Federal Rule of Evidence 807. The government

argues that it would have been proper to admit the file

under several other hearsay exceptions as well, including

the business records exception in Rule 803(6) and the public

records exception in Rule 803(8); however, because we have

already found the evidence admissible under Rule 807, it is

unnecessary to analyze its admissibility under these rules.

Once the court admitted the Baghdad File in evidence, it

was within the purview of the jury to assign the file its

proper probative weight. See, e.g., United States v. Hedman,

630 F.2d 1184, 1197-98 (7th Cir. 1980).

B. CIPA Substitution

About a month before Dumeisi’s trial began, on December

8, 2003, the government provided him with materials

pursuant to the Jencks Act, 18 U.S.C. § 3500. Included in

these materials was the grand jury testimony of El-Dilemi,

the former IIS officer and government witness who testified

at trial about the “spy pen” and his observations of Dumeisi

at the IMUN. On a single page of this transcript, El-Dilemi

made a statement referencing classified information, which

the government had inadvertently failed to redact.

Dumeisi’s counsel dutifully returned its copies of the page,

but, believing that the classified statement was helpful to

Dumeisi, filed both a motion for a pre-trial conference under

§ 2 of CIPA, 18 U.S.C. App. 3, and a motion to dismiss the

indictment for discovery violations. On December 31, 2003,

the government filed its CIPA § 6 notice relative to the ElDilemi testimony and requested a protective order prohibiting disclosure of classified information under § 4 of CIPA.

After an in camera examination of the classified material,

the district court denied Dumeisi’s request for a § 2 conference and found that the government had not violated its

discovery obligations under Brady v. Maryland, 373 U.S. 83
16 No. 04-1882

2 The unclassified summary of information concerning El-Dilemi

follows in its entirety:

The United States Government has provided Hazim ElDilemi and/or his family with the following economic and

non-economic assistance:

1. The government agreed to provide asylum to El-Dilemi

and paid him a total of $1000 in remuneration. The

government also paid for El-Dilemi’s airplane ticket to

the United States. Upon his arrival in the United States,

the government provided El-Dilemi with a receipt for an

application for a Social Security number that had been

obtained for him.

2. The government also provided immigration assistance

to relatives of El-Dilemi.

(1976). The court also found that the government’s proposed

unclassified summary2

 was sufficient so as not to deprive

Dumeisi of any potential impeachment value that the

information had under Giglio v. United States, 405 U.S. 150

(1972).

Dumeisi argues that CIPA was misapplied, and that his

resulting position with respect to the information at issue

deprived him of his rights to confrontation, effective

assistance of counsel, and a fair trial. Both parties invited

this court to review the classified information in order to

evaluate the district court’s decision regarding disclosure of

material for abuse of discretion. See United States v.

O’Hara, 301 F.3d 563, 569 (7th Cir. 2002). We review

questions of CIPA interpretation de novo. Id. at 568. 

The CIPA’s fundamental purpose is to “protect[ ] and

restrict[ ] the discovery of classified information in a way

that does not impair the defendant’s right to a fair trial.” Id.

It is essentially a procedural tool that requires a court to

rule on the relevance of classified information before it may

be introduced. See United States v. Wilson, 901 F.2d 378,
No. 04-1882 17

379 (4th Cir. 1990). As Dumeisi concedes, the CIPA does not

create any discovery rights for the defendant. The district

court appropriately utilized § 4 and § 6 of the act to deal

with the use, relevance, and admissibility of the evidence at

issue. Section 2 provides for a pretrial conference to establish timetables for discovery and for the procedures established by other sections of CIPA (i.e., the alternative

procedures for disclosing classified information in § 6); the

court found it unnecessary to conduct this conference, given

that the procedures were already underway. This did not

violate Dumeisi’s constitutional rights; he received a

summary of the relevant information, which the court found

would provide him with “substantially the same ability to

make his defense as would disclosure of the specific classified information,” several days prior to trial. To the extent

he takes issue with the fact that this information was

received only days before trial, we note that “[d]elayed

disclosure of evidence does not in and of itself constitute a

Brady [or Giglio] violation.” O’Hara, 301 F.3d at 569.

Having reviewed the classified evidence, we find that the

district court did not abuse its discretion in substituting the

government’s summary of classified information regarding

El-Dilemi for the actual information. Nor did the court err

in denying Dumeisi’s motion for discovery sanctions against

the government; the material does not implicate Brady.

Finally, the government’s summary related to El-Dilemi did

not deprive Dumeisi of its potential impeachment value

under Giglio.

C. Surveillance under the FISA

On August 28, 2003, Dumeisi filed a motion seeking

disclosure of any materials related to surveillance under the

FISA, 50 U.S.C. §§ 1801-1811, 1821-1829. The district court

held a hearing on the motion, at which the government

stated that both electronic and physical surveillance had
18 No. 04-1882

been conducted on Dumeisi under the FISA. The government submitted the materials relied upon by the Foreign

Intelligence Surveillance Court (“FISC”), and after ex parte,

in camera review, the district court concluded that the FISA

surveillance was lawful and that disclosure of the materials

would endanger national security. The court therefore

denied Dumeisi’s motions for disclosure of the materials

and for suppression of the fruits of all surveillance conducted under the FISA. Dumeisi appeals this decision,

expressing concern that the facts presented to the FISC in

support of the application for surveillance consisted solely

of his First Amendment-protected activities as a journalist.

We review the district court’s ruling on the propriety of the

FISC’s orders de novo. Cf. In re Grand Jury Proceedings of

the Special April 2002 Grand Jury, 347 F.3d 197, 204-05

(7th Cir. 2003).

The FISC must make certain findings before authorizing

electronic or physical surveillance. See 50 U.S.C. §§ 1805(a),

1824(a)(3)(A). For targets that are “United States persons,”

such as Dumeisi, the FISC must find:

(3) on the basis of the facts submitted by the applicant

there is probable cause to believe that—

(A) the target of the electronic surveillance is a foreign

power or an agent of a foreign power: Provided, That no

United States person may be considered a foreign power

or an agent of a foreign power solely upon the basis of

activities protected by the first amendment to the

Constitution of the United States[.]

50 U.S.C. § 1805(a)(3). We have reviewed the classified

materials relied upon by the FISC and conclude that the

government provided probable cause that Dumeisi was an

agent of a foreign power entirely independent of any of his

journalistic activities. The requirements of §§ 1805(a)(3)

and 1824(a)(3) were properly fulfilled, and the district

court’s ruling must be affirmed.
No. 04-1882 19

D. Jury Instructions on Newspaper Articles

At trial, Dumeisi requested Defendant’s Instruction No.

5: “It is not a violation of 18 U.S.C. § 951(a) to publish a

news article.” The court refused this instruction, instead

giving the following:

The First Amendment to the Constitution protects the

right to free speech and the freedom of the press. This

means that individuals are permitted to express views

that are controversial or even despicable. The speech

that Mr. Dumeisi gave at the Iraqi Mission and newspaper articles he authored or published are protected by

the First Amendment. The speech and newspaper

articles, as well as Mr. Dumeisi’s opinion and political

views, are to be considered only insofar as they may

pertain to issues of motive and intent. 

(Tr. at 1177-78.) Dumeisi contends that the failure to give

his instruction created the “very real probability that the

jury’s verdict rested on the sole basis that Dumeisi printed

articles in his newspaper.” The government, for its part,

stated in a hearing before the district court that Dumeisi’s

proposed instruction would be “a bit confusing, because one

of the allegations [made against Dumeisi] is that . . . he

acted . . . by publishing certain news articles that would

enable him to identify opposition members.” (Tr. at 1031.)

We review the district court’s refusal to give a theory of

defense instruction de novo. United States v. Buchmeier,

255 F.3d 415, 426 (7th Cir. 2001).

We find nothing improper in the district court’s instructions with respect to publishing a newspaper article. The

limiting instructions to the jury on First Amendment

protection—which, we note, were repeatedly given throughout the trial—stated that Dumeisi should not, and legally

could not, be convicted simply for publishing unpopular or

even “despicable” opinions. A jury is generally presumed to
20 No. 04-1882

follow limiting instructions. See, e.g., United States v.

Smith, 308 F.3d 726, 739 (7th Cir. 2002). Given that an

element of § 951 is acting “subject to the direction or control

of a foreign government or official,” 18 U.S.C. § 951(d), and

there was evidence suggesting that Dumeisi published

certain articles at the behest of the IIS, we find this

publication relevant and agree with the district court that

Dumeisi’s proposed instruction would have been “misleading as to the law.” (Tr. at 1031.) Refusing Dumeisi’s proposed instruction did not deprive him of a fair trial; the

instruction given meets the concern he raised at trial that

his First Amendment-protected speech would be used as the

sole basis for a guilty verdict. See Buchmeier, 255 F.3d at

426; United States v. Boykins, 9 F.3d 1278, 1287 (7th Cir.

1993).

E. Jury Instructions on Conspiracy

Dumeisi also appeals the instructions given to the jury on

the law of conspiracy. Dumeisi was convicted both of

violating 18 U.S.C. § 951, which provides criminal liability

for anyone “other than a diplomatic or consular officer or

attaché, [who] acts in the United States as an agent of a

foreign government without prior notification to the

Attorney General,” and of conspiracy to violate the same.

He argues that the IIS agents alleged to have conspired

with him were all diplomatic attachés and thus were legally

incapable of conspiring to violate this statute. As we have

stated, “[t]he elements of the crime [of conspiracy] are not

satisfied unless one conspires with at least one true coconspirator.” United States v. Mahkimetas, 991 F.2d 379,

383 (7th Cir. 1993) (citation omitted). To that end, Dumeisi

proposed two different jury instructions related to the

conspiracy count in his indictment. On appeal, he asserts

that the district court’s refusal of these instructions was

wrong as a matter of law. Again, we review the district
No. 04-1882 21

court’s refusal to give a theory of defense instruction de

novo. Buchmeier, 255 F.3d at 426.

 The first proposed instruction indicated that a diplomat

need not inform the Attorney General that he is an agent of

a foreign government. Although a correct statement of law,

this instruction is irrelevant to Dumeisi’s case; no argument

was made that he was exempt from the statute. Thus, the

district court’s decision to refuse this instruction was

proper. 

Defendant’s Proposed Instruction No. 6, more closely

related to the argument we summarized above, stated: 

To be guilty of conspiracy, the defendant must have an

agreement with at least one person. In considering

whether there was at least one other person who was a

party to the alleged agreement, you must exclude as

potential parties any person acting entirely outside the

United States and any person who was a diplomatic or

consular officer or attache.

The district court was unpersuaded that this instruction is

a correct statement of the law. We agree that it is not. The

rule that a conspiracy cannot be established between one

criminally-minded individual and a government agent or

informer was established to combat the risk of “ ‘the manufacturing’ of crime which might occur if the presence of

government agents could create indictable conspiracies.”

Mahkimetas, 991 F.2d at 383 (citation omitted). That risk

is not present in this case. On the other hand, at least one

of the risks that underlie criminal punishment for conspiracy—that of “concerted action shrouded in secrecy”—is

entirely present here.

Only one case interpreting § 951 (actually, its predecessor, 22 U.S.C. § 288) has been cited by the parties. In

United States v. Melekh, the District Court for the Northern

District of Illinois found that a U.N. employee could be

convicted of conspiracy to violate the statute, even though
22 No. 04-1882

he himself could not have been prosecuted for failure to

register. 193 F. Supp. 586, 592 (N.D. Ill. 1961). We agree

with the analysis by the district court in that case that the

purpose of the act “is to grant a personal exemption to such

person as to his own liability for registration. There is no

reason to suppose that carte blanche privileges were

thereby to be accorded the immune person’s activities in

respect to third parties not so immune.” Id. In other words,

if there was a real agreement between Dumeisi and IIS

agents for Dumeisi to act in the United States as an agent

of Iraq without notifying the Attorney General, the diplomatic titles held by those IIS agents cannot save Dumeisi

from being prosecuted for the conspiracy. The refusal of the

district court to charge the jury with Dumeisi’s proposed

jury instruction was proper.

F. Sufficiency of the Evidence

Dumeisi’s final contention is that the evidence elicited at

trial was insufficient as a matter of law to support his

conviction for all counts. In reviewing a sufficiency challenge, we view all evidence in the light most favorable to

the government, defer to the credibility determinations

made by the jury, and reverse only when no rational trier

of fact could find the essential elements of the crime beyond

a reasonable doubt. United States v. Thomas, 284 F.3d 746,

751 (7th Cir. 2002); United States v. Moore, 115 F.3d 1348,

1363 (7th Cir. 1997).

We first address the conviction for violating 18 U.S.C.

§ 951, which provides criminal liability for “[w]hoever . . .

acts in the United States as an agent of a foreign government without prior notification to the Attorney General[.]”

§ 951(a). The term “agent of a foreign government” is

defined in § 951(d) as “an individual who agrees to operate

within the United States subject to the direction or control

of a foreign government or official[.]” Dumeisi argues that
No. 04-1882 23

the evidence at trial established nothing more than that he

gathered publicly accessible information, published news

articles, and communicated with foreign consular officials.

To the contrary, there is ample evidence that Dumeisi acted

knowingly at the behest of the IIS.

First of all, the correspondence amongst IIS officials

contained in the Baghdad File—the trustworthiness of

which we have discussed at length—indicates that Dumeisi

received payments from the IIS and that he received

directions from that organization (as to how to use Zaitawi,

for example). Further evidence that Dumeisi was an “agent”

of Iraq is his handwritten report on Al-Shammari’s activities in Chicago and the telephone records, which were,

drawing all inferences in favor of the government, transferred to someone within the IIS in Iraq. In addition to the

Baghdad File, there was evidence that Dumeisi initiated

contact with the IMUN and offered to publish articles

supplied by them; that he received training and was asked

to report on Iraqi Opposition activities in the United States;

that he had telephone conferences with someone from the

IMUN every Thursday afternoon to receive instructions;

that he was given a pen like those used by the IIS that

could be used as a camera and a tape recorder; that he

printed provocative articles in his paper in order to learn

more about the Opposition; and that he produced false press

passes for IMUN employees to facilitate their access to

places which they could not, as diplomats, have gone.

Dumeisi’s protestations notwithstanding, it is irrelevant

that the IIS itself considered Dumeisi a “source” as opposed

to a fully vetted “agent.” Congress’s definition of “agent” for

the purpose of § 951 is the only one at issue here, and

ample evidence was elicited at trial to satisfy that definition.

Dumeisi’s final argument with respect to the § 951 charge

is that he did not “knowingly” violate the statute because he

did not have knowledge of the requirement to register. He
24 No. 04-1882

did not make this argument at trial, and the instruction

given by the district court—without objection—required the

jury to find that Dumeisi “acted knowingly and that he

knew that he had not provided notification to the Attorney

General prior to acting in the United States on behalf of

Iraq.” (R. at 105.) Knowledge of the requirement to register

is not an element of § 951.

Dumeisi makes essentially the same “knowledge” argument with respect to the conspiracy count. Again, it is

immaterial whether the IIS co-conspirators had knowledge

of the registration requirement set forth in § 951. We have

already discussed the propriety of the district court’s

instructions on the law of conspiracy, and there was

sufficient evidence elicited at trial to show agreement

between Dumeisi and others to violate the law.

The jury found Dumeisi guilty of lying under oath in an

immigration proceeding, in violation of 18 U.S.C. § 1621,

and before a grand jury, in violation of 18 U.S.C. § 1623.

The elements of perjury are (1) testimony under oath before

a competent tribunal, (2) in a case in which United States

law authorizes the administration of an oath, (3) false

testimony, (4) concerning a material matter, (5) with the

willful intent to provide false testimony. United States v.

Chaplin, 25 F.3d 1373, 1377 (7th Cir. 1994). 

In the immigration proceeding, Dumeisi responded

negatively to the following questions: “Have you ever

worked for, on the behest of a foreign government?”; “Have

you ever failed to register as an agent of a foreign power?”;

and “Have you ever received any property or compensation

from a foreign power?” Whether Dumeisi had knowledge of

the registration requirement is of no importance in evaluating whether his answers were knowing falsehoods; his

knowing receipt of money and property (including a computer, fax machine, and cash payments) from IMUN

representatives, for example, renders his answer to the
No. 04-1882 25

third question false regardless of any requirement to

provide Attorney General notification. Likewise, Dumeisi

testified before the grand jury that he had no knowledge of

what he did with the phone records on Al-Shammari given

to him by Zaitawi. Evidence produced at trial was sufficient

for a rational juror to find beyond a reasonable doubt that,

as he acknowledged to his friend Rabah, Dumeisi in fact

obtained the records from Zaitawi at the request of IMUN

personnel and then passed them on to the IMUN.

III. Conclusion

We conclude that the district court properly admitted the

Baghdad File in evidence, that the jury instructions given

on newspaper publication and on the law of conspiracy were

proper, and that the CIPA and the FISA were properly

applied to Dumeisi’s case. There was sufficient evidence to

convict Dumeisi on all counts. The jury’s verdict will not be

disturbed, and the conviction is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-15-05