United States of America v. Erick Hendricks

Cleveland, Ohio - Criminal defense lawyer represented defendant with attempting and conspiring to provide material support to a foreign terrorist organization charges.

A grand jury indicted Erik Jamal Hendricks on one count of conspiracy to provide material

support to a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1), and

one count of attempting to provide material support to a designated foreign terrorist organization,

also in violation of § 2339B(a)(1). Both counts charged Hendricks with conspiring or attempting

to provide material support in the form of personnel and services to the Islamic State in Iraq and

Syria ("ISIS” or the "Islamic State”).

At trial, four witnesses—Amir Al-Ghazi, Janet Miller, Hamza al-Ansari, and Amanda

Amaro—testified that Hendricks approached them about forming a group for the purpose of

waging jihad in the United States. According to Miller, Amaro, and al-Ansari, Hendricks

expressed admiration for ISIS and inquired about their views on the organization or its ideology.

Hendricks shared that he had purchased land and weapons for his group, occasionally asking

whether they owned guns or suggesting that they should be trained to fight or operate weapons.

Hendricks also exhorted each to recruit other like-minded individuals and, in some instances,

connected them with other recruits.

Al-Ghazi and Amaro testified that they believed Hendricks was trying to form an ISIS cell.

Al-Ghazi explained that, when Hendricks approached him, he deduced that Hendricks was "a

recruiter for the Islamic State.” DE 95, Trial Tr., Page ID 2204. "I was saying things on Twitter

in support of [the] Islamic State,” Al-Ghazi testified, "[s]o if you were looking for me” it was

because "I was pledging allegiance to ISIS at the time.” Id. at 2191, 2204. Al-Ghazi referred at

least one recruit to Hendricks. Amaro also shared that she perceived Hendricks to be "build[ing]

. . . an extension of [ISIS] in America.” DE 96, Trial Tr., Page ID 2401. And Miller testified that

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Hendricks "supported the Islamic State” and "the establishment of [an] Islamic State.” DE 95,

Trial Tr., Page ID 2252, 2265. She recalled that Hendricks asked her to put him in direct contact

with other ISIS supporters, including a "hate preacher” in the United Kingdom who could act as a

"guide into the Islamic State.” Id. at 2254.

Amaro further testified that Hendricks ordered her to disseminate a three-paragraph

document claiming responsibility for a terror attack in Garland, Texas. Although Hendricks

authored its contents, Amaro testified that she transcribed the document, devised a title, and posted

it online, all at the direction of Hendricks. In the document, Hendricks wrote that the Garland

attack had been carried out by his group, which he referred to as the "Islamic State in America.”

DE 160-2, Ex. 53, Page ID 3485. He claimed to "have 71 trained soldiers in 15 different states”

and pledged allegiance "[t]o our Amir Al Mu'mineen”—a reference to the leader of ISIS. Id. at

3486. Hendricks also incorporated an image of the ISIS flag just above the text. After the

document was published, he ordered Amaro to directly share it with several prominent ISIS

supporters, including two senior members of ISIS in Syria, which she did. Amaro recalled that

one of the senior members "seemed pleased with the message.” DE 96, Trial Tr., Page ID 2420.

Hendricks had similar interactions with an undercover FBI agent, Special Agent Steven

Jane. As with the other witnesses, Hendricks conveyed to Jane that he was forming a group to

wage jihad domestically. He connected Jane to other recruits and discussed training together on

his land. Jane eventually asked Hendricks to define the link between his group and the ISIS

organization. Hendricks used the analogy of a body's brain and its limbs. His venture, Hendricks

explained, was a limb and ISIS the "[u]ltimate brain.” DE 92, Trial Tr., Page ID 1522. "Ultimately

the brain is the [caliphate],” he emphasized. Id. at 1518. When pressed by Jane to further clarify

whether his cell was "part of the bigger team” (i.e., ISIS) or "a new team,” Hendricks elaborated

by comparing ISIS to the headquarters of a business and his cell to an "outpost[].” Id. at 1521–22.

Jane also asked Hendricks how he could help "the brain.” Id. at 1528. Jane indicated a

willingness to travel to join ISIS in Iraq or Syria but told Hendricks that he wanted to be sure he

had "the blessing of the brain.” Id. In response, while praising Jane's proposed travel as a "great

deed,” Hendricks said that he had "spoken to senior brothers and the [advice] is to remain here.”

Id. at 1529. In a later conversation, Hendricks again told Jane that traveling to join ISIS in Iraq or

No. 19-3232 United States v. Hendricks Page 4

Syria "is not what senior people requested [of] me.” Id. at 1552. Lorenzo Vidino, Ph.D., an expert

on terrorism, testified that these interactions were consistent with ISIS strategy at the time. ISIS

leaders, he explained, directed supporters to "[c]arry out attacks wherever you are, . . . under the

ISIS umbrella.” DE 93, Trial Tr., Page ID 1696.

At the close of the government's case, Hendricks moved under Federal Rule of Criminal

Procedure 29 for a judgment of acquittal as to both counts. The district court denied his motion.

Hendricks did not present any witnesses or evidence. Shortly thereafter, the jury returned a guilty

verdict on both counts of the indictment. After trial, Hendricks renewed his motion for a judgment

of acquittal and moved for a new trial under Federal Rule of Criminal Procedure 33. The district

court denied both motions. Hendricks timely appealed.

II.

Hendricks raises three arguments on appeal. First, Hendricks argues that the district court

erred in denying his motion for a judgment of acquittal because there was insufficient evidence to

sustain his convictions. Specifically, he asserts that, although the government may have proved

that he took independent actions inspired by ISIS or supporting its goals, there was no evidence

that his actions were directed by, controlled by, or done in concert with ISIS. Second, relying on

substantially the same reasoning, Hendricks argues that the district court abused its discretion in

denying his motion for a new trial because the evidence weighed heavily against the verdict.

Finally, Hendricks argues that the district court abused its discretion by partially closing the

courtroom to protect the identity of a testifying FBI agent. We address each issue in turn.

A.

Hendricks first argues that the trial evidence was insufficient to establish that he conspired

or attempted to provide material support to ISIS. A defendant challenging the sufficiency of the

evidence supporting her conviction "bears a very heavy burden.” United States v. Davis, 397 F.3d

340, 344 (6th Cir. 2005) (quoting United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999)).

When reviewing an insufficient evidence claim on appeal, we must affirm a conviction if, "after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” United States v.

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Vichitvongsa, 819 F.3d 260, 270 (6th Cir. 2016) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). "[W]e do not weigh the evidence, assess the credibility of the witnesses, or substitute our

judgment for that of the jury,” United States v. Wright, 16 F.3d 1429, 1440 (6th Cir. 1994), and

"[c]ircumstantial evidence alone is sufficient to sustain a conviction,” even if it does not "remove

every reasonable hypothesis except that of guilt,” Spearman, 186 F.3d at 746 (quoting United

States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986)).

Section 2339B(a)(1) makes it a federal crime to "knowingly provide[] material support or

resources to a foreign terrorist organization,” as well as to "attempt[] or conspire[]” to do the same.

18 U.S.C. § 2339B(a)(1). The term "material support or resources” is defined to include, inter

alia, the provision of any "service” or "personnel.”1

Id. § 2339A(b)(1). A person provides

"personnel” to a foreign terrorist organization if she makes available one or more persons—who

may be or include herself—to work under that organization's "direction or control.” Id.

§ 2339B(h). As the statute makes clear, a person does not work under the "direction or control”

of a terrorist organization if she "act[s] entirely independently of the . . . organization to advance

its goals or objectives.” Id.; see also Holder v. Humanitarian Law Project, 561 U.S. 1, 23 (2010)

(emphasizing that the term "personnel” excludes "independent advocacy”). Similarly, although

there is no applicable statutory definition, the Supreme Court has explained that the term "service”

also refers to "concerted activity,” including any "act done for the benefit or at the command of”

a foreign terrorist organization. Holder, 561 U.S. at 23–24 (quoting Webster's Third New

International Dictionary 2075 (1993)).

In the present case, there was ample evidence from which a rational juror could find that

Hendricks attempted and conspired to provide material support to ISIS. As an initial matter,

Hendricks does not contend that he lacked the requisite intent or common purpose to form and

operate a terrorist cell. Nor does he contend that he failed to take a substantial step toward

engaging in such activity. Instead, he contends only that the government failed to present evidence

1As defined in full, "the term 'material support or resources' means any property, tangible or intangible, or

service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert

advice or assistance, safehouses, false documentation or identification, communications equipment, facilities,

weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and

transportation, except medicine or religious materials.” 18 U.S.C. § 2339A(b)(1).

No. 19-3232 United States v. Hendricks Page 6

that he agreed or intended to do so on behalf of ISIS. That argument, however, ignores evidence

from which a jury could reasonably infer that Hendricks (1) communicated with and took direction

from ISIS members, (2) viewed himself and his recruits as agents of ISIS, and (3) acted in a manner

consistent with someone who was operating or seeking to operate on behalf of ISIS. Those

reasonable inferences, whether considered individually or in combination, support the jury's

finding that Hendricks and his group operated under the direction or for the benefit of ISIS.

First, the government presented evidence that Hendricks was communicating with and

acting at the direction of senior ISIS members. When discussing ISIS and whether to join the

group in Iraq or Syria, Hendricks told Special Agent Jane that he had "spoken to senior brothers.”

DE 92, Trial Tr., Page ID 1529. Those individuals, Hendricks claimed, had advised him to "remain

here” in the United States, rather than travel overseas. Id. Hendricks repeated the same claim in

a second conversation with Jane, stating that traveling to join ISIS in Iraq or Syria was "not what

senior people requested [of] me.” Id. at 1552. The government's expert, Dr. Vidino, testified that

the substance of these conversations was consistent with the thinking of ISIS leaders at the time.

Although Hendricks contends that he referred to all ISIS supporters as "brothers,” this particular

reference to "senior brothers” and "senior people” arose while discussing whether to join ISIS

overseas. A jury could thus reasonably infer that Hendricks was communicating with and acting

at the direction of ISIS members.

Second, the government presented evidence that Hendricks viewed himself and his recruits

as agents of the ISIS organization. In discussions with Jane, Hendricks used the analogy of a

body's brain and its limbs to describe the relationship between his venture and the ISIS

organization. His venture, Hendricks explained, was a limb and ISIS the "[u]ltimate brain.” Id.

at 1522. When pressed by Jane to clarify whether his cell was "part of the bigger team” (i.e., ISIS)

or "a new team,” Hendricks elaborated by comparing ISIS to the headquarters of a business and

his cell to an "outpost[].” Id. at 1521–22. That description was consistent with how Hendricks

conducted his recruitment activities. Amir Al-Ghazi, a cooperating witness who connected

Hendricks with a prospective recruit, testified that Hendricks identified himself as a "recruiter.”

Id. at 2201. Although Hendricks never mentioned ISIS by name, Al-Ghazi understood Hendricks

to be a "recruiter for [ISIS],” explaining that Hendricks knew Al-Ghazi had "pledg[ed] allegiance”

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to ISIS. Id. at 2204. "You wouldn't be looking for me,” Al-Ghazi testified, unless you were

specifically interested in his ISIS affiliation. Id. A jury could thus reasonably infer that Hendricks

viewed himself as operating on behalf of ISIS.

Finally, the government presented evidence that Hendricks acted in a manner consistent

with someone who was operating or seeking to operate on behalf of ISIS. After a terror attack in

Garland, Texas, Hendricks ordered Amanda Amaro to disseminate a document he had authored

claiming responsibility on behalf of the "Islamic State in America.” DE 160-2, Ex. 53, Page ID

3485. In the document, Hendricks expressed allegiance to the leader of ISIS—referring to him as

"our” leader—and appended an image of the ISIS flag. Id. at 3485–86. He then directed Amaro

to share the document with several ISIS members, which she did. Although Hendricks argues that

calling his group the "Islamic State in America” was meant to evidence its independence, it was

reasonable for the jury to infer that his use of the Islamic State name—especially when read in

conjunction with his invocation of the ISIS leader and flag—conveyed an affiliation with ISIS.

Similarly, although Hendricks directed Amaro to share the document with ISIS members only after

it had been published, a jury could reasonably interpret these contacts as attempts to coordinate or

continue coordinating with ISIS.

Hendricks points out that the record contains no direct evidence that he contacted ISIS

members or was directed to act on behalf of ISIS. The jury, he continues, could therefore only

speculate and pile "inference upon inference” to find that he attempted and conspired to direct

personnel or services to ISIS. CA6 R. 14, Appellant Br., at 32 (quoting United States v. Coppin,

1 F. App'x 283, 289 (6th Cir. 2001)). Hendricks is right that the government presented no direct

evidence of any conversation or meeting with specific ISIS members where Hendricks was

directed or proposed to establish an ISIS cell. It was not necessary, however, for the government

to present such evidence. A conviction may be based on "[c]ircumstantial evidence alone.”

Spearman, 186 F.3d at 746 (quoting Vannerson, 786 F.2d at 225). And in this case, there was a

mountain of circumstantial evidence from which a juror could find beyond a reasonable doubt that

Hendricks attempted and conspired to direct services or personnel to the ISIS organization—not

merely operate an "entirely independent[]” venture. 18 U.S.C. § 2339B(h). Accordingly, we find

that the evidence was sufficient to support both of Hendricks's convictions.

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B.

Hendricks next argues that the district court abused its discretion in denying his motion for

a new trial. Under Federal Rule of Criminal Procedure 33, a district court "may vacate any

judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). In

general, a jury verdict should be vacated only "in the extraordinary circumstance[] where the

evidence preponderates heavily against the verdict.” United States v. Hughes, 505 F.3d 578, 593

(6th Cir. 2007) (quoting United States v. Turner, 490 F. Supp. 583, 593 (E.D. Mich. 1979)). When

considering a Rule 33 motion, the trial judge acts as a "thirteenth juror, weighing evidence and

making credibility determinations.” United States v. Mallory, 902 F.3d 584, 596 (6th Cir. 2018).

Our review, however, is limited to determining whether "the district court's ruling was a clear and

manifest abuse of discretion.” United States v. Hernandez, 227 F.3d 686, 695 (6th Cir. 2000).

Hendricks points to the same alleged deficiencies in the trial record to support his argument

that the district court abused its discretion. He contends that the absence of direct evidence linking

his operations to the ISIS organization outweighs any circumstantial evidence tending to show the

same. As outlined above, however, there was ample evidence—whether considered in isolation

or in combination—from which a juror could find that Hendricks attempted and conspired to direct

services or personnel to ISIS. The district court, in denying his Rule 33 motion, agreed, finding

credible the evidence that Hendricks (1) had communicated with and taken direction from ISIS

members, and (2) viewed himself as an extension of the ISIS organization. It further found that

Al-Ghazi's perception of Hendricks as an ISIS recruiter, along with his referral of another recruit

to Hendricks, was more than adequate to prove at least one conspiracy. The trial record, as

discussed above, supports the district court's conclusions. Accordingly, we affirm the district

court's denial of Hendricks's motion for a new trial.

C.

Hendricks also argues that the district court abused its discretion by partially closing the

courtroom during Special Agent Jane's testimony. Jane is an undercover FBI agent who conducts

counterterrorism investigations. Prior to trial, the district court entered a protective order

governing Jane's testimony. The protective order provided, inter alia, that Jane could testify using

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an "undercover pseudonym,” wear a "light disguise,” enter the courthouse using a nonpublic

entrance, and seat himself on the witness stand "outside the presence of the jury and defendant.”

DE 84, Order, Page ID 586–87. The order also directed that the public be moved to a different

room with real-time audio and display of exhibits but no video or images of the witness. Hendricks

challenges only the closure provision on appeal.

The Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall

enjoy the right to a . . . public trial.” U.S. Const. amend. VI. The right to a public trial, however,

"may give way in certain cases to other rights or interests, such as the defendant's right to a fair

trial or the government's interest in inhibiting disclosure of sensitive information.” Waller v.

Georgia, 467 U.S. 39, 45 (1984). These instances are "rare” and "the balance of interests must be

struck with special care.” Id. In turn, to justify partially closing a trial, (1) the moving party must

show a "substantial reason” that is "likely to be prejudiced” absent the closure, (2) the closure must

be "narrowly tailored,” (3) "the trial court must consider reasonable alternatives,” and (4) "the trial

court must make findings adequate to support the closure.” United States v. Simmons, 797 F.3d

409, 414 (6th Cir. 2015). Although we review a district court's closure decision for abuse of

discretion, any error gives rise to a presumption of prejudice and "require[s] automatic reversal.”

Id. at 413 (quoting United States v. Stewart, 306 F.3d 295, 321 (6th Cir. 2002)).

Here, the district court clearly articulated the necessity and rationale supporting its limited

closure of the courtroom. The court explained that Jane's safety, as well as the integrity of his

active investigations, would be jeopardized if the general public could observe his physical

appearance. This was especially so, the district court explained, because the government had

"shown that both [Hendricks] and others utilizing the same social media platforms and . . . sharing

the same [jihadist] ideologies” had "engaged in extensive counter-surveillance measures to detect

undercover law enforcement.” DE 84, Order, Page ID 585. Indeed, as the government submitted

to the court, Hendricks had shared documents detailing how to identify undercover agents and

reminded one cooperating witness that "the punishment for telling on a Muslim is death.” DE 63,

Mot. for Protective Order, Page ID 348. As even Hendricks concedes, the threat to Jane's safety

and effectiveness was a substantial reason for partially closing the courtroom. See Simmons, 797

F.3d at 414 (noting that "witness safety” has "consistently” been accepted as a substantial reason

No. 19-3232 United States v. Hendricks Page 10

for partial closures); see also Brown v. Artuz, 283 F.3d 492, 501 (2d Cir. 2002) ("The safety of a

police officer working undercover surely constitutes an overriding interest.”).

The district court also considered two alternatives: use of a screen to block the witness and

use of a heavier disguise. Both alternatives were designed to obscure Jane's true physical

appearance—the government's main interest—but still allow the public to observe his testimony.

After a colloquy about the courtroom's layout and the parties' ability to view the witness, however,

the court rejected use of a screen, finding that the measures eventually included in the protective

order would be "less intrusive.” DE 126, Hr'g Tr., Page ID 3037. Hendricks "agree[d].” Id. at

3038. Similarly, with respect to use of a heavier disguise, Hendricks voiced concerns that any

physical alterations could interfere with the jury's ability to "see the reaction of the witness” or

"read his responses facially.” DE 126, Hr'g Tr., Page ID 3037. The use of a heavy disguise,

Hendricks warned, could also infringe upon his right to confront the witness. The court weighed

each of these considerations and concluded that use of a light disguise, as well as live-streamed

audio in a separate room, would best balance the defendant's public trial right against both his

confrontation right and the government's interest in protecting the witness.

Hendricks takes issue with the thoroughness of the trial court's findings, arguing that it

should have considered whether the light disguise alone was adequate to protect Jane. While the

district court could have more clearly articulated its findings on this point, we can still "glean” the

court's reasoning and supporting facts "from the record.” Simmons, 797 F.3d at 415 (quoting

United States v. Farmer, 32 F.3d 369, 371 (8th Cir. 1994)); see also Waller, 467 U.S. at 45

(explaining that purpose of findings requirement is to allow review of the reason for closure). The

disguise was limited to minor physical details—so minor, in fact, that none of the participants

could discern what features, if any, had been altered. The court even stated that observers could

"see [the witness's] face like any other witness.” DE 92, Trial Tr., Page ID 1418. The disguise,

in short, was insufficient to protect an undercover agent from attempts at countersurveillance.

After the judge and parties had inspected the witness, Hendricks renewed his objection, and the

court—specifically noting the objection—adhered to its prior ruling. True, the court never

expressly found that the disguise would allow for identification; however, based on its existing

rationale, prior consideration of alternatives, and reasoned balancing of the parties' interests, the

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court's adherence to its earlier ruling clearly conveyed that the light disguise was insufficient to

protect the witness. We therefore find that the district court did not abuse its discretion

Based on the foregoing, we affirm Hendricks’s convictions for attempting and conspiring to provide material support to a foreign terrorist organization