United States v. Mubayyid

United States Court of Appeals
For the First Circuit

Nos. 08-1846, 08-1985, 08-1986, 08-2103, 10-1094

UNITED STATES OF AMERICA,
Appellee/Cross-Appellant,

v.

MUHAMED MUBAYYID and EMADEDDIN Z. MUNTASSER,
Defendants, Appellants/Cross-Appellees.

No. 08-2102
UNITED STATES OF AMERICA,
Appellant,

v.

SAMIR AL-MONLA,
Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,
and Smith,* District Judge.

Michael C. Andrews for Muhamed Mubayyid.
Kathleen M. Sullivan, with whom Faith E. Gay, Susan R.
Estrich, Adam M. Abensohn, William B. Adams, and Quinn Emanuel
Urquhart & Sullivan, LLP were on brief, for Emadeddin Z. Muntasser.
Judith H. Mizner, Assistant Federal Public Defender, for Samir
Al-Monla.

*
Of the District of Rhode Island, sitting by designation.
 S. Robert Lyons, Attorney, Tax Division, U.S. Department of
Justice, with whom John A. DiCicco, Acting Assistant Attorney
General, Alan Hechtkopf, Attorney, Tax Division, U.S. Department of
Justice, and Carmen Milagros Ortiz, United States Attorney, were on
brief, for United States of America.

September 1, 2011
 LIPEZ, Circuit Judge. This complex appeal arises out of

the joint criminal prosecution of Emadeddin Muntasser, Muhamed

Mubayyid, and Samir Al-Monla for conspiring to defraud the United

States by obstructing the functions of the Internal Revenue Service

("IRS"), for corruptly endeavoring to obstruct the due

administration of the Internal Revenue laws, for filing false tax

returns, for making false statements to agents of the Federal

Bureau of Investigation ("FBI"), and for scheming to conceal

material facts from a federal agency. The charges stem from each

defendant's involvement with Care International, Inc. ("Care"), a

charitable organization incorporated by Muntasser in 1993 with a

stated purpose of providing worldwide humanitarian aid.

The defendants' twenty-four day jury trial focused on the

circumstances motivating Muntasser's formation of Care in 1993; the

defendants' failure to disclose some of Care's activities, such as

the publication of certain newsletters from 1993 to 1997; and

Care's support for, and promotion of, Islamic jihad and fighters

known as "mujahideen."1 The government's central theory at trial

was that Muntasser had established Care in order to fraudulently

obtain a tax exemption, so that contributions being used to finance

1
At trial, witnesses for the government testified that
"jihad" means "holy struggle," and specifically refers to the duty
to fight against the enemies of Islam, while "mujahideen" refers to
Islamic "holy warriors." In its own materials, Care defined
"mujahideen" as "[t]hose who are going out for Jihad, fighting in
the path of Allah."

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mujahideen overseas could be deducted from individual tax returns

as charitable donations.

At the close of the government's case, the district court

acquitted Muntasser and Al-Monla of endeavoring to obstruct the

administration of the Internal Revenue laws. It found that their

tax filings, which formed the basis of the charge, occurred outside

of the relevant statute of limitations period. The jury then

acquitted Al-Monla of making a false statement to an FBI agent, but

otherwise convicted the defendants of all counts. Following that

verdict, the district court acquitted Muntasser and Al-Monla of

having schemed to conceal material facts from a federal agency, and

acquitted all three defendants of having conspired to defraud the

United States. With respect to the scheme to conceal, it found

that the government's proposed jury instruction, accepted by the

court, had narrowed the charge in a way that rendered Muntasser's

and Al-Monla's acts of concealment immaterial. As to the

conspiracy, the court concluded that the government offered

insufficient evidence that the defendants had reached the specific

agreement described in the indictment.

Muntasser, Mubayyid, and the government have appealed.

Muntasser argues that the evidence introduced at trial linking Care

to organizations financially supporting the mujahideen and jihad,

including an alleged predecessor organization that received

negative publicity in connection with the 1993 World Trade Center

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bombing, biased the jury in the appraisal of the government's

evidence on his sole count of conviction, a false statement charge.

He also challenges his sentence. Mubayyid appeals from his

convictions for filing false tax returns and for endeavoring to

obstruct the administration of the Internal Revenue laws,

contending that the question that the jury found he answered

falsely was fundamentally ambiguous. He also claims that the

evidence was insufficient to support his conviction for scheming to

conceal material facts. Additionally, with respect to all of his

convictions, he claims that he was prejudiced by the introduction

of a recorded telephone conversation and joins Muntasser in

claiming prejudicial spillover from what the defendants

characterize as "terrorism evidence." The government, for its

part, seeks to reinstate the jury's guilty verdict against all

three defendants on the charged conspiracy to defraud the United

States.2 In its view, the district court erred by acquitting the

defendants when the government successfully proved a conspiracy

that was narrower than, but wholly included within, that alleged in

the indictment.

After careful consideration, we reverse the district

court's acquittal of the defendants on the conspiracy count,

2
The government does not challenge the district court's
acquittal of Muntasser and Al-Monla on the charges of scheming to
conceal material facts from a government agency or obstructing the
administration of the Internal Revenue laws.

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reinstate the jury's verdict, and affirm the defendants' other

convictions.

I.

A. Factual Background

We recount the essential facts of the case, drawn from

the trial record, in the light most favorable to the verdict.

E.g., United States v. Poulin, 631 F.3d 17, 18 (1st Cir. 2011).

Due to the complexity of the issues, we reserve additional factual

detail for the analysis that follows.

1. Care's Formation and Operations

Emadeddin Muntasser is a Libyan citizen and a permanent

resident alien in the United States. In the early 1990s, Muntasser

served as Director of the Boston branch of the Al-Kifah Refugee

Center ("Al-Kifah"), the American face of Maktab al-Khidmat

("MAK"), a Pakistan-based organization that openly advocates

violent, Islamic jihad and actively supports mujahideen in

Afghanistan. In a letter of solicitation introduced at trial,

Muntasser described Al-Kifah as "an organization founded by

Sh[eikh] Abdullah Azzam to serve the cause of Jihad," and which

"actively supports the Mujahideen in the front."3 Among its

activities, Al-Kifah's Boston branch published a pro-jihad

3
At trial, the government presented evidence that Abdullah
Azzam founded MAK in the 1980s in Peshwar, Pakistan, and was
largely credited with attracting foreign fighters to Afghanistan to
fight alongside the mujahideen.

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newsletter entitled "Al-Hussam," which translates from Arabic as

"The Sword"; it sold books and audiotapes extolling the cause of

jihad; and it promoted sermons and lectures by like-minded Muslim

leaders. It also solicited substantial charitable donations

through the publication of an annual Zakat Calculation Guide.4

Although the organization advertised itself as a tax-exempt

charity, it had never been granted charitable status by the IRS.

In early 1993, shortly after the World Trade Center

bombing in New York City, both Newsweek and The New York Times ran

articles linking the Brooklyn branch of Al-Kifah to "Islamic

Militant groups, fighters in Afghanistan, and individuals who were

alleged to have committed acts of violence." Within days,

Muntasser dissolved the Boston branch of Al-Kifah and incorporated

Care in Massachusetts. According to its articles of incorporation,

Care was "organized exclusively for charitable, religious,

educational, and scientific purposes including . . . human welfare,

charitable and relief activities." The articles listed Muntasser

as Care's President, Munther Baara as Treasurer, and Ahmad Nawras

as Secretary, and identified Afif Kadri, Mohamad Akra, and Wasim

Abu Yasin as board members. Baara, Nawras, Kadri, Akra, and Yasin

had all served in identical positions for the Boston branch of Al-

4
Zakat, one of the Five Pillars of Islam, is a form of
obligatory charitable giving, similar to the Christian concept of
"tithing." Zakat may only be given to a limited class of
recipients, including those "in the path of Allah." Both Care and
Al-Kifah construed this requirement to include the mujahideen.

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Kifah. The articles also stated, "It is intended that the

corporation shall be entitled to exemption from federal income tax

under Section 501(c)(3) of the Internal Revenue Code."

Following its incorporation, Care effectively replaced

Al-Kifah's Boston branch. It took over Al-Kifah's mailbox address

and deposited financial contributions into Al-Kifah's bank account

(though these contributions were eventually transferred to an

account in Care's name). Care's activities also substantially

mirrored those of Al-Kifah's Boston branch, including the

sponsoring of pro-jihad speakers, the sale of books and tapes

advocating jihad, and the continued publication of the "Al-Hussam"

newsletter.5

Within the organization, individuals referred to Care as

"Maktab," a shorthand reference to MAK. In its own newsletters,

Care referred to itself as "the office of services," a name by

which MAK was known in the United States. Like Al-Kifah, Care also

represented itself to the public as "founded by Imam Abdullah

Azzam," even though Abdullah Azzam had died more than three years

prior to Care's formation. At trial, the government presented two

experts who testified regarding the overseas operations of MAK,

Abdullah Azzam's philosophy on violent jihad, the general trend of

5
A witness for the government testified that Care's "Al-
Hussam" newsletter was "indistinguishable" from Al-Kifah's: "I
mean, the format, the font, the little logo up on the top right,
same exact newsletter."

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using charitable organizations to covertly finance jihad and

mujahideen, and the concept of "economic jihad" -- the precept

that, "[i]f you cannot be a fighter, fund a fighter." It also

asked a witness to read fifty-five pages of the "Al-Hussam"

newsletters into the record, primarily those sections that

demonstrated Care's commitment to violent jihad and its financial

solicitations for the mujahideen.

Defendants Al-Monla and Mubayyid had both been associated

with Care in some form since 1993, and with Al-Kifah before it. In

1996, Al-Monla replaced Muntasser as President of Care. He served

in that capacity until 1998, when he became Treasurer. Mubayyid,

who is Al-Monla's brother-in-law, eventually replaced Al-Monla as

Care's Treasurer in 1998 or 1999. He filled that role through at

least 2002.

2. Care's Tax Filings

Approximately six weeks after incorporating Care,

Muntasser applied to the IRS to have Care designated as a tax-

exempt charity. In order to obtain tax-exempt status, an

organization must file an initial application for tax exemption,

IRS Form 1023, in which the organization demonstrates that it is

organized and operated exclusively for a qualifying purpose.6 In

6
Section 501(c)(3) of the Internal Revenue Code exempts from
taxation designated entities that are "organized and operated
exclusively for religious, charitable, scientific, testing for
public safety, literary, or educational purposes, or to foster
national or international amateur sports competition . . . or for

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Care's Form 1023 filing, Muntasser represented that Care had not

yet become operational, an inaccurate statement, but that "within

a couple months" it would engage in humanitarian projects such as

providing "assistance to victims of natural and man-made

disasters," sponsoring "orphans in disaster areas overseas," and

developing "rehabilitation programs for refugees coming from

overseas." Although the form asked for "a detailed narrative

description of all of the activities of the organization -- past,

present, and planned," Muntasser did not disclose Care's hosting of

religious speakers, its sale of materials advocating jihad, or its

publication of the "Al-Hussam" newsletters (by that point, Care had

already published at least two "Al-Hussam" newsletters in its own

name). Nor did he disclose that Care's orphan sponsorship program

would target the orphans of martyred mujahideen.7 In response to

a question asking for the details of the organization's fundraising

program, Muntasser stated that "mailings" "will commence within the

next couple of months." He did not specifically describe the "Al-

Hussam" newsletters or the Zakat Calculation Guide as fundraising

the prevention of cruelty to children or animals," provided that
"no part of the net earnings of [the entity] inures to the benefit
of any private shareholder or individual." 26 U.S.C. § 501(c)(3).
An organization may serve non-qualifying purposes only if such
purposes are not substantial and are merely incidental to the
organization's qualifying operations.
7
One of the government's expert witnesses testified at trial
that, as used by the mujahideen, the word "martyr" refers to
"someone who is killed in combat, someone who is killed while
defending or fighting in the cause of Islam."

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devices, nor did he attach them in response to the form's request

for "representative copies of solicitations for financial support."

Lastly, Muntasser denied that Care was an outgrowth of or successor

to any other organization, despite Care's obvious ties to Al-

Kifah's Boston branch.

Based on the information provided, the IRS approved

Care's application for tax-exempt status without requesting

additional verifying information. At trial, the IRS employee who

approved Care's application testified that he would have requested

copies of the "Al-Hussam" newsletter and the Zakat Calculation

Guide if their existence had been disclosed in the application. He

further testified that, if he had seen the Zakat guide, he would

have requested further documentation of Care's day-to-day

activities. Similarly, if Muntasser had disclosed the relationship

between Al-Kifah and Care, he would have requested information

about Al-Kifah, including whether it was a tax-exempt organization

in the United States.

In order to maintain its tax exemption, Care had to file

annually IRS Form 990, disclosing the earnings and activities of

the organization. Between 1993 and 2002, each of the three

defendants signed and filed at least one Form 990 on Care's behalf.

In 1996, Muntasser filed delinquent Form 990s for the tax years

1993, 1994, and 1995. In 2000, Al-Monla signed and filed the

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delinquent 1998 Form 990. In 2000, 2001, and 2002, Mubayyid filed

amended Form 990s for the 1997, 1999, and 2000 tax years.

None of the Form 990s filed by the three defendants

revealed that Care was publishing or had published the "Al-Hussam"

newsletters, that Care was operating a website through which it

solicited donations and provided access to articles from the "Al-

Hussam" newsletters, that Care was regularly hosting pro-jihad

speakers, or that Care was selling books and tapes on the subject

of jihad. Although Muntasser had failed to disclose these same

activities in Care's initial application, Form 1023, each of the

defendants answered "No" when the Form 990s asked whether the

organization engaged in any activities that had not previously been

reported to the IRS. Instead, each Form 990 filed by the

defendants depicted Care as engaging in just four program services:

food distribution, cash assistance to orphans and widows, medical

assistance to refugees, and grants to other welfare organizations.

3. The Federal Investigation

By at least 1999, Care's activities had drawn the

attention of the FBI, which began a formal investigation of both

Care and Muntasser.8 In April of that year, Muntasser was

interviewed by the FBI. During that interview, he disclosed that

he had traveled to Pakistan in 1994 or 1995. However, he did not

8
The details of the federal investigation are sketchy, as the
trial judge appropriately limited the jury's exposure to them.

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volunteer the fact that, during that trip, he had also traveled to

Afghanistan and had met with the Afghan warlord Gulbuddin

Hekmatyar.9 He was not asked a question that required such a

disclosure.

In August of 2001, Mubayyid transferred all of Care's

records out of its offices and into a rented storage unit. Shortly

thereafter, Mubayyid was recorded pursuant to a court-approved

wiretap conversing with Mohammed Chehade, the executive director of

the Global Relief Foundation ("GRF"), about the federal

investigation.10 During the conversation, Chehade implored Mubayyid

to remove Care's records from the storage unit. However, Mubayyid

demurred, insisting that he was "afraid that they may think that

there is something . . . . I don't want to touch anything, so that

there is no."11 Three days later, the FBI covertly searched the

storage unit, pursuant to a court-issued warrant, in order to

gather intelligence about the activities of Care and its officers.

It catalogued the contents of the unit and copied numerous

9
According to testimony at trial, Hekmatyar was an Afghan
warlord in the 1990s who was of particular interest to the FBI.
10
GRF was a charitable organization based in Chicago,
Illinois. It was one of the recipients of Care's contributions.
Muntasser informed an FBI agent during a 2003 interview that
Chehade had previously lived in Boston and had been responsible for
introducing Muntasser to Al-Kifah. GRF had a sister publication to
Care's "Al-Hussam" entitled "Al-Thilal."
11
Although this language does not read like the end of the
sentence, it is an accurate rendition of the recording.

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documents, but it did not remove any materials at that time.

In 2003, the FBI executed a search warrant, seizing the

contents of the storage locker as well as documents discovered at

Mubayyid's residence. Among the items at the residence was a copy

of Care's Form 1023 filing. Several documents that had been in the

storage unit during the 2001 search were not recovered in 2003: the

minutes of a 1995 meeting at which officers of Care and of GRF

discussed jihad and supporting the "battalion"; a letter signed by

Muntasser and Al-Monla pledging support to the Afghan warlord

Hekmatyar; and an e-mail sent to Care from a London-based pro-jihad

organization that announced an impending war involving "Kosovah-

Mujahideen" and requesting aid from Care in the form of money and

fighters.

Around the time of the seizure, the FBI once again

interviewed Muntasser. This time, Muntasser was asked directly

whether he had ever traveled to Afghanistan. He repeatedly denied

having done so, and he also denied having ever met Hekmatyar.

Although an investigating agent testified that he thought Muntasser

had been to Afghanistan, he had no information linking him to

Hekmatyar. He testified that a truthful response by Muntasser

regarding his travel to Afghanistan would have drastically changed

the nature of the interview. Later in 2003, Muntasser disclosed

his trip to Afghanistan on an Application for Naturalization and

admitted the same to an Immigration and Naturalization Service

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officer in a subsequent interview.

B. Procedural History

On May 11, 2005, a grand jury returned an indictment

charging Muntasser and Mubayyid with one count of scheming to

conceal material facts from a federal agency and one count of

conspiring to defraud the United States. The indictment also

charged Mubayyid with three counts of filing a false tax return for

his submission of the Form 990s for the tax years 1997, 1999, and

2000,12 and it charged Muntasser with one count of making a false

statement to a federal agency during his April 2003 FBI interview.

On March 8, 2007, a grand jury returned a superseding

indictment charging all three defendants with scheming to conceal

material facts from a federal agency (Count 1), conspiring to

defraud the United States (Count 2), and endeavoring to obstruct

the administration of the Internal Revenue laws (Count 8). The

2007 indictment retained the tax return charges against Mubayyid

(Counts 3-5) and the false statement charge against Muntasser

(Count 6). Additionally, it charged Al-Monla with one count of

making a false statement to a federal agency (Count 7) for

12
In 2000, 2001, and 2002, Mubayyid amended Care's filings for
the tax years 1997, 1999, and 2000, respectively. Consequently,
his filings fell within the six-year limitations period set by 26
U.S.C. § 6531, whereas the Form 990 filings of the other two
defendants did not.

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allegedly lying to the FBI when he denied knowing a man by the name

of Bassam Kanj.13

Following the government's presentation of evidence at

trial, the defendants moved for a judgment of acquittal on Counts

1, 2, and 8, arguing that the evidence at trial was insufficient to

prove the charged crimes, and also that the relevant statutes of

limitation precluded convictions on Counts 1 and 8. See Fed. R.

Crim. P. 29. The trial judge acquitted Muntasser and Al-Monla on

Count 8, obstructing the Internal Revenue laws, because those

defendants' tax filings on behalf of Care, Forms 1023 and 990, were

outside the statute of limitations, and their more recent

statements to the FBI, even if proven false, could not have been

material to the IRS. It otherwise denied the motions. With

respect to the Count 2 conspiracy charge, however, the judge

expressed significant reservations about the sufficiency of the

evidence.

The defendants called just one witness -- a tax expert14

-- before the case was submitted to the jury. The jury acquitted

Al-Monla on Count 7, the false statement count,15 and returned a

13
For ease of reference, a table of the charges brought and
their dispositions below is appended to this opinion.
14
The witness was examined by counsel for Muntasser, and
primarily spoke to the sufficiency of Care's disclosures on its
initial application for tax exemption, Form 1023.
15
As noted, Al-Monla was charged with denying that he knew a
man named Bassam Kanj during an interview with the FBI in 2003.

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guilty verdict on all other charges. In response to the

defendants' renewed Rule 29 motion, the district court set aside

the jury's verdict against all three defendants on Count 2 and

against Muntasser and Al-Monla on Count 1. According to the

district court, Count 2 charged a conspiracy with a single, unitary

object -- obtaining Care's tax-exempt status in 1993 and

maintaining it thereafter -- but the government had presented

insufficient evidence that Muntasser conspired with anyone prior to

obtaining Care's tax-exempt status in 1993. The district court's

ruling on Count 1, which charged them with scheming to conceal

material facts from a federal agency, was a function of the

government's proposed jury instruction restricting the federal

agency affected to the IRS alone. As with Count 8, the district

court again concluded that the only conduct by Muntasser and Al-

Monla that would be material to the IRS was time-barred.

The district court's combined rulings left Al-Monla

acquitted of all charges, and Muntasser convicted only of his 2003

false statement to the FBI (Count 6). Mubayyid, however, was

convicted of five counts: one count of scheming to conceal material

facts from the IRS (Count 1), one count of endeavoring to obstruct

the administration of the Internal Revenue laws (Count 8), and

three counts of filing a false tax return (Counts 3-5).

The evidence at trial indicated that Al-Monla admitted to knowing
someone named "Bassam," but denied knowing his last name.

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 Muntasser received a twelve-month sentence of

incarceration, twice that recommended by the United States

Sentencing Guidelines for a false statement conviction. Mubayyid

was sentenced to eleven months' incarceration and thirty-six months

of supervised release.

II.

This appeal involves the following claims:

The government appeals from the district court's

post-verdict acquittal of all three defendants on the conspiracy

charged in Count 2.16 It claims that the district court erred by

finding evidentiary insufficiency in a variance in proof that did

not prejudice the defendants. It does not appeal the district

court's acquittal of Muntasser and Al-Monla for scheming to conceal

material facts from the IRS, and for obstructing the due

administration of the IRS.

Mubayyid argues that his convictions for filing false tax

returns are legally unsupportable because they rest on his answer

to a fundamentally ambiguous question. He also claims that the

government's evidence was insufficient with respect to the charged

scheme to conceal, and that both the erroneous admission of certain

evidence and a statement by the prosecutor in closing arguments

prejudiced his trial.

16
Because he was acquitted of all charges, Al-Monla is
participating in this appeal only to defend his post-verdict
acquittal on this count.

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 Muntasser contends that the admission of inflammatory

terrorism evidence, relevant only to the conspiracy and the tax-

related counts of which he was acquitted, spilled over into the

jury's consideration of his false statement charge. He also

contends that his twelve-month sentence is unreasonable.

We address the parties' claims seriatim.

A. The Government's Claim

We begin by addressing the government's appeal because

the correctness vel non of the district court's post-verdict

acquittal informs our analysis of several of the defendants' claims

of error. Our review is de novo, and we may uphold the judgment of

acquittal only if the evidence, viewed in the light most favorable

to the government, could not have persuaded any trier of fact of

the defendants' guilt beyond a reasonable doubt. E.g., United

States v. Merlino, 592 F.3d 22, 29 (1st Cir. 2010). "So long as

'the guilty verdict finds support in a plausible rendition of the

record,' it must be allowed to stand (and the acquittal must be

reversed)." United States v. Rivera Rangel, 396 F.3d 476, 482 (1st

Cir. 2005) (quoting United States v. Rivera-Ruiz, 244 F.3d 263, 266

(1st Cir. 2001)).

Count 2 of the indictment charged the defendants with

conspiring to defraud the United States by obstructing the

functions of the IRS, in violation of 18 U.S.C. § 371. See

generally United States v. Klein, 247 F.2d 908 (2d Cir. 1957).

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Specifically, the indictment alleged that the purpose of the

conspiracy was as follows:

impeding, impairing, interfering, obstructing
and defeating through deceit, craft, trickery,
and dishonest means the lawful functions of
the [IRS] in the ascertainment, assessment,
and determination of whether [Care] qualified
and should be designated as a 501(c)(3)
organization in 1993 and should continue to be
accorded status as [a] 501(c)(3) organization
thereafter.

The district court acquitted the defendants on Count 2

based on its finding that the above language of the indictment

described a conspiracy with a "specific purpose: impairing the

IRS's determination as to whether Care qualified for, and should

continue to be accorded, charitable status." The district court

acknowledged that, where a single conspiracy embraces multiple

unlawful objects, a jury may convict upon proof that the defendants

agreed to any one of those objectives. See Griffin v. United

States, 502 U.S. 46, 57 (1991). It held, however, that "this was

not a multiple-object conspiracy," but rather a conspiracy with "a

single, unitary object." Because the evidence at trial was

insufficient to prove that anyone agreed with Muntasser to obstruct

the IRS prior to Care's initial application for tax-exempt status

in 1993, the district court reasoned that the government had failed

to prove the specific conspiracy charged:17

17
The government's theory of the case was that Muntasser had
conspired with two unindicted co-conspirators, Mohammed Akra and
Waseem Yassin, prior to seeking Care's tax exemption, and that Al-

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 Again, the government charged a single
agreement, an agreement to obtain and maintain
tax-exempt status for Care. There was no
evidence that there was a conspiracy to obtain
that status, and no evidence that there was a
conspiracy of any kind in or about 1993. Even
if Mubayyid or Al-Monla, or both, agreed with
Muntasser in 1995 or later to maintain the
charitable status of Care or to commit another
offense, that is not the agreement charged in
the indictment. To sustain a conviction there
must be sufficient evidence of the conspiracy
charged in the indictment -- that conspiracy
and not some other conspiracy.

On appeal, the government concedes that it presented insufficient

evidence at trial to prove that any of the defendants conspired to

obtain Care's tax exemption in 1993. It also fails to pursue its

argument, made in the district court, that Count 2 of the

indictment alleged a conspiracy with multiple objects.

Nevertheless, the government urges us to reinstate the

jury's verdict, casting the issue as one of evidentiary variance,

rather than insufficiency.18 A variance occurs when the facts

proved at trial differ materially from those alleged in the

indictment without altering the crime charged. United States v.

Monla and Mubayyid joined this conspiracy when they subsequently
agreed with Muntasser and each other to aid in maintaining Care's
fraudulent tax status.
18
Despite the strenuous arguments of the defendants to the
contrary, the government preserved this argument by raising it in
the district court. Although the court did not rule on the
argument in its opinion and order, it expressed doubts during
arguments on the defendants' Rule 29 motions that the government
could permissibly "charge a conspiracy that began in '93 and prove
that it began in '96."

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Tormos-Vega, 959 F.2d 1103, 1115 (1st Cir. 1992). Traditionally,

a claim of variance is raised on appeal by a defendant seeking to

overturn a judgment of conviction. In those situations, we have

said that a variance is not a ground for acquittal, provided that

the facts actually proven at trial are sufficient to convict the

defendant of the charged crime and the variance did not prejudice

the defendant. See United States v. Glenn, 828 F.2d 855, 858 (1st

Cir. 1987) (Breyer, J.). The government claims that it succeeded

in proving a narrower conspiracy prohibited by the same statutory

provision charged, 18 U.S.C. § 371, and comprised wholly of acts

clearly set forth in the indictment, amounting to no more than a

non-prejudicial variance.

The defendants offer three rejoinders. First, they claim

that a variance is only permissible where the indictment is

narrowed in a way that does not alter an "essential element" of the

charged offense. Alterations to the object of a unitary

conspiracy, they contend, fundamentally change the crime of

conviction from that charged. Second, they claim that, even if the

variance was otherwise permissible, it was prejudicial to their

defense, requiring that we affirm the district court's acquittal.

Third, they claim that, in any event, the government failed to

produce sufficient evidence of a narrower conspiracy among the

defendants.

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 1. Did the Variance Alter the Crime Charged?

In general, a defendant can hardly be heard to complain

when the government's proof at trial establishes "a scheme similar

to but somewhat narrower in breadth and malignity than that charged

in the indictment." United States v. Mueffelman, 470 F.3d 33, 38

(1st Cir. 2006). The defendants argue, however, that the object of

a conspiracy is an "essential element" of the crime charged, see

United States v. Roshko, 969 F.2d 1, 5 (2d Cir. 1992), and that

permitting a variance as to that object is improper. They suggest

that the government's failure to establish the precise object of

the conspiracy charged is substantively different from the cases in

which we have permitted a variance -- typically where the

government has failed to establish a particular manner or means, or

that the crimes occurred in the particular time frame alleged. As

the defendants put it, "An agreement to maintain a tax-exempt

status may encompass a narrower range of activity than a conspiracy

to obtain and maintain tax-exempt status, but it is also a

different agreement."

The defendants' claim implicates a number of often-

overlapping limitations on the government's power to prosecute its

citizens.19 As far as is relevant to the government's appeal, these

19
The Fifth Amendment's Presentment Clause guarantees the
defendants the right to be free from a trial for any offense other
than that alleged in the grand jury's indictment. United States v.
Miller, 471 U.S. 130, 134-35 (1985). Its prohibition on double
jeopardy requires that the record show with accuracy the extent to

-23-
limitations are encapsulated by the distinction in our law between

mere variance and the constructive amendment of an indictment.20

See United States v. Brandao, 539 F.3d 44, 57 (1st Cir. 2008) ("The

prohibition on constructive amendment exists to preserve the

defendant's Fifth Amendment right to indictment by grand jury, to

prevent re-prosecution for the same offense in violation of the

Sixth Amendment, and to protect the defendant's Sixth Amendment

right to be informed of the charges against him."). In contrast to

a variance, a constructive amendment occurs where the crime charged

has been altered, "either literally or in effect," after the grand

jury last passed upon it. E.g., United States v. Bunchan, 626 F.3d

29, 32 (1st Cir. 2010) (quoting United States v. Celestin, 612 F.3d

14, 24 (1st Cir. 2010)). "The concepts of constructive amendment

and variance are closer to a continuum than exclusive categories."

Mueffelman, 470 F.3d at 38. "Save at either end of the spectrum,"

which the defendants' convictions bar subsequent prosecution.
Hagner v. United States, 285 U.S. 427, 431 (1932). Due process
precludes the defendants' conviction on any ground that was neither
charged in the indictment nor presented to the jury. Dunn v.
United States, 442 U.S. 100, 106 (1979). The Sixth Amendment,
meanwhile, ensures that the indictment provide the defendants with
fair notice of the charges against which they are called to defend.
Russell v. United States, 369 U.S. 749, 763-64 (1962).
20
They are also reflected in our test to determine whether a
variance has affected a defendant's substantial rights, which we
discuss infra. See United States v. Cruz-Arroyo, 461 F.3d 69, 77
(1st Cir. 2006) ("There is no prejudicial variance so long as an
indictment provides the defendant with sufficient detail to allow
him to prepare a defense, avoid unfair surprise at trial, and plead
double jeopardy when appropriate.").

-24-
it is not always clear what distinguishes a permissible variance

from an impermissible constructive amendment. Haines v. Risley,

412 F.3d 285, 291 (1st Cir. 2005); see also United States v.

Adamson, 291 F.3d 606, 615 (9th Cir. 2002) ("The line between a

constructive amendment and a variance is at times difficult to

draw."); 3 Charles Alan Wright & Sarah N. Welling, Federal Practice

and Procedure, Criminal § 516 (4th ed. 2011) ("The distinction

between variances and constructive amendments is a matter of

degree, and the distinction is rather shadowy." (footnote

omitted)).

The Supreme Court has interpreted the Fifth Amendment's

Presentment Clause to mean that, "after an indictment has been

returned[,] its charges may not be broadened through amendment

except by the grand jury itself." Stirone v. United States, 361

U.S. 212, 215-16 (1960); see also id. at 217-19 (holding that an

indictment was unconstitutionally broadened where prosecution

offered evidence of two theories of liability, but the grand jury

indicted defendant only on the first theory). It has also

expressly rejected the proposition that "a narrowing of the

indictment constitutes an amendment that renders the indictment

void." United States v. Miller, 471 U.S. 130, 144 (1985). The

Miller Court held that the Fifth Amendment was not violated where

the government's variance "added nothing new to the grand jury's

indictment and constituted no broadening," id. at 145, but rather

-25-
proved "a significantly narrower and more limited, though included,

fraudulent scheme," id. at 131. We have since embraced, as a

"well-established" principle, that a court may "narrow the

indictment's charges without adding any new offenses." Celestin,

612 F.3d at 25 (alteration omitted) (quoting Miller, 471 U.S. at

138) (internal quotation marks omitted).

The defendants seek to distinguish Miller on the ground

that "what was removed from the case was in no way essential to the

offense on which the jury convicted."21 See Miller, 471 U.S. at

145. They rely on a Second Circuit case, United States v. Roshko,

for the proposition that, "[w]ithout question, the object of a

conspiracy constitutes an essential element of the conspiracy

offense." 969 F.2d at 5. Thus, they claim, "a variance may be

permissible where it alters the means of a charged conspiracy --

not where it alters the object."

To the extent that the defendants argue that the object

of a conspiracy is always an improper subject for a variance, they

21
The defendants further point to language in both Miller and
our subsequent decision in United States v. DeCicco, 439 F.3d 36
(1st Cir. 2006), that (outwardly) suggests that an indictment may
be narrowed only where the narrowing removes "distinct and
segregable components." See id. at 46. They argue that, because
the maintenance of Care's fraudulent tax exemption was dependant on
Care's initial fraudulent application for tax exemption, the latter
is not distinct and segregable. The language to which the
defendants point does not aid them here. That language refers to
the principle that a variance is permissible so long as the
indictment's remaining allegations are independently sufficient to
constitute the charged crime. That is the case here.

-26-
are wrong. In United States v. Glenn, this circuit's pathmarking

precedent articulating the variance analysis, we upheld a

defendant's conviction for a narrower conspiracy than the one

charged. There, the indictment charged two defendants with a

single, overarching conspiracy to import both marijuana and

hashish. Glenn, 828 F.2d at 857. The government's proof at trial,

however, evidenced two separate conspiracies, each with a narrower,

distinct object of importing only a single drug. Id. Explaining

that "conspiracy law, like most criminal law, focuses on the

activities of an individual defendant," id., the Glenn court set

out to determine "what kind of agreement or understanding existed

as to each defendant," id. (emphasis omitted) (quoting United

States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964)) (internal

quotation mark omitted). Although it concluded that the evidence

was insufficient to convict the defendants "of the conspiracy that

the indictment charged, namely, the conspiracy to import and

possess both marijuana from Thailand and hashish from Pakistan," it

concluded that a permissible variance had occurred because the

evidence remained sufficient to permit a jury, under a proper set

of instructions, to convict one defendant of a "related, similar

conspiracy" to import just one of the drugs. Id. at 858-61.

Roshko is not to the contrary. It involved a conspiracy

to defraud the United States whose object was expressly defined as

"seeking changes in the immigration status of an alien based on a

-27-
sham marriage to a United States citizen that was falsely

represented to be genuine." Roshko, 969 F.2d at 2. At trial, the

government introduced evidence that the defendant had conspired in

the marriage of her future husband, an immigrant from Israel, to a

United States citizen, in order to secure his green card. Id. at

3. It further offered evidence of that couple's subsequent divorce

and of the defendant's marriage to her now-permanent-resident-alien

husband (which ultimately resulted in her successful application

for a green card). Id. When the defendant raised a statute of

limitations challenge to the evidence of her husband's sham

marriage, the government argued that the conspiracy broadly

embraced both marriages, and that the prosecution was therefore

timely. Id. at 4. The Second Circuit, emphasizing that the

indictment specifically charged a purpose to change the status of

"an alien" through marriage to "a United States citizen," found

that the indictment was not so broad as the government claimed.

Id. at 5-6 (emphasis added). It held that the unlimited

introduction of evidence related to the second marriage, combined

with the government's arguments that such conduct was part and

parcel of the conspiracy, was impermissible because it "could

easily have created a basis for conviction which the grand jury did

not intend to create." Id. at 6. Roshko thus stands for the

unobjectionable proposition that the government's broadening of an

-28-
indictment's charges through proof at trial constructively amends

an indictment.

To the extent that the defendants instead argue that the

object of the conspiracy here, because of the way in which it was

charged, may not be narrowed without fundamentally changing the

offense, their claim is unpersuasive. "[T]he line between 'the

crime charged' and 'the facts charged' is inherently fuzzy."

Mueffelman, 470 F.3d at 38. Hence, our practice has been to look

to statutory elements in response to claims by defendants that "the

crime charged" has been changed.22 We have said that, "[s]o long

as the statutory violation remains the same, the jury can convict

even if the facts found are somewhat different than those charged."

United States v. Twitty, 72 F.3d 228, 230 (1st Cir. 1995); cf.

Glenn, 828 F.2d at 858 (noting that one question in variance

22
See, e.g., Celestin, 612 F.3d at 25 & n.4 (upholding a
conviction where the trial judge's instruction to the jury
"eliminated a theory of liability rather than removed an element of
the crime" under the applicable statute, and thus merely "narrowed
the permissible bases for conviction"); United States v. Dowdell,
595 F.3d 50, 68 (1st Cir. 2010) (upholding the literal alteration
of an indictment to change the controlled substance involved
because the nature of the substance is not a statutory element);
United States v. Gómez-Rosario, 418 F.3d 90, 104 (1st Cir. 2005)
(finding no constructive amendment where jury found defendant
"guilty of the crime charged but responsible for a lesser quantity
of drugs than that specified in the indictment" because drug
quantity is not a statutory element); cf. United States v.
Bello–Perez, 977 F.2d 664, 669 (1st Cir. 1992) (holding that, in
conspiracy with no overt act element, "the government is not
limited at trial to proof of the [gratuitously] alleged overt
acts").

-29-
analysis is whether sufficient evidence exists of "related, similar

conspiracy" to one charged).

Here, the titular crime was not altered. The defendants

were indicted under 18 U.S.C. § 371, which criminalizes

conspiracies with an object "to defraud the United States, or any

agency thereof in any manner or for any purpose." Cf. Mueffelman,

470 F.3d at 38 (finding no constructive amendment where "Mueffelman

was charged with mail fraud and convicted of mail fraud").

Pursuant to that provision, the government was required to prove

three elements: "an agreement, the unlawful objective of the

agreement, and an overt act in furtherance of the agreement."

United States v. Barker Steel. Co., 985 F.2d 1123, 1127-28 (1st

Cir. 1993) (quoting United States v. Hurley, 957 F.2d 1, 4 (1st

Cir. 1992)). "The objective of the agreement is unlawful if it is

'for the purpose of impairing, obstructing or defeating the lawful

function of any department of Government.'" Id. at 1128 (quoting

Dennis v. United States, 384 U.S. 855, 861 (1966)). These elements

were fully satisfied by so much of the indictment as charged the

defendants with conspiring "to defraud the United States for the

purpose of impeding, impairing, interfering, obstructing and

defeating through deceit, craft, trickery, and dishonest means the

-30-
lawful functions of the [IRS]."23 That language is also consonant

with the narrower conspiracy proven.

To be sure, the government's indictment did not stop

there. It specifically alleged that the agreed-upon purpose of the

defendants' fraud was to obstruct the IRS "in the ascertainment,

assessment, and determination of whether Care International, Inc.,

qualified and should be designated as a 501(c)(3) organization in

1993 and should continue to be accorded status as [a] 501(c)(3)

organization thereafter." As the district court noted, this

language appears in the key charging paragraph, is identified as a

component of the conspiracy's "purpose," and appears prior to and

apart from the five paragraphs of the indictment setting forth the

"manner and means by which the conspiracy was sought to be

accomplished" and the nine paragraphs identifying the overt acts

committed in furtherance of the conspiracy. The question is

whether, and to what extent, this additional charging language

23
Certainly, the Sixth Amendment's right to notice of one's
criminal charges requires that the indictment do more than parrot
the words of a statute; "the statutory language 'must be
accompanied with such a statement of the facts and circumstances as
will inform the accused of the specific offense, coming under the
general description, with which he is charged.'" United States v.
Mojica-Baez, 229 F.3d 292, 309 (1st Cir. 2000) (quoting Hamling v.
United States, 418 U.S. 87, 117-18 (1974)). Any claim that
upholding their convictions on the ground of variance would deprive
the defendants of fair notice of their crime is more properly a
claim of prejudice, however. See infra. It does not inform our
analysis of whether the government's failure to prove all that it
included in the indictment impermissibly altered "the crime
charged."

-31-
precluded the government from proving a narrower conspiracy that

embraced only the agreement of the defendants to act unlawfully to

maintain Care's tax-exempt status.

We have found no indications in our case law that, as an

element of the offense, the unlawful object of a § 371 conspiracy

must be defined with the level of specificity to which the

defendant now seeks to hold the government. To the contrary, we

have previously declined to parse the conspiratorial object so

finely. See United States v. Goldberg, 105 F.3d 770, 774 (1st Cir.

1997) ("[W]e see no sharp distinction under section 371 between a

purpose to file [false tax] documents and a purpose to interfere

[with the functions of the IRS]."); cf. Dennis, 384 U.S. at 863

(rejecting claim that defendants' specific purpose of filing false

documents in violation of another statute precluded trial under

general charge of conspiracy to defraud, noting that indictment

under the broader charge is permissible so long as it "properly

reflects the essence of the alleged offense"). We have also held,

in other contexts, that where the government's charging language

identified an element of the crime with greater specificity than

was required by the statute, the alteration of that additional

language had "no bearing on the substance of the charge." United

States v. Dowdell, 595 F.3d 50, 68 (1st Cir. 2010) (finding no

constructive amendment in government's clarification of drug type

identified in indictment where charged crime "prohibits

-32-
distribution of any controlled substance regardless of type," and

thus "the government could technically have omitted reference to a

particular controlled substance altogether"). This approach is

consistent with the approach taken in other circuits. See, e.g.,

United States v. Kuenstler, 325 F.3d 1015, 1022 (8th Cir. 2003)

(treating as surplusage language in the indictment that described

the object of the conspiracy in detail exceeding that which was

needed to make out the statutory offense); United States v.

Garcia-Paz, 282 F.3d 1212, 1215-17 (9th Cir. 2002) (holding that

language preceded by the phrase "to wit" in the indictment is mere

surplusage that may be disregarded and need not be proven); United

States v. Pumphrey, 831 F.2d 307, 309 (D.C. Cir. 1987) ("[E]xcess

allegations in an indictment that do not change the basic nature of

the offense charged need not be proven and should be treated as

mere surplusage.").24

Thus, what is striking about the language relied upon by

the defendants for the unitary conspiracy theory is that it is

needless in the purpose portion of the indictment. If the

indictment's reference to "the ascertainment, assessment, and

determination of whether [Care] qualified and should be designated

24
The cases that reflect the opposite conclusion involve
situations where the government's failure to prove the crime as it
was charged in the indictment opens the possibility that the jury
convicted on the basis of conduct that was never charged. See,
e.g., United States v. Narog, 372 F.3d 1243, 1247-49 (11th Cir.
2004).

-33-
as a 501(c)(3) organization in 1993 and should continue to be

accorded status as [a] 501(c)(3) organization thereafter" had

appeared in the section of the indictment describing the

conspiracy's "manner and means," rather than its "purpose," the

defendants would have no argument at all. Hence, the defendants'

argument challenging the government's right to prove a narrower

conspiracy elevates form over substance. All of the material in

the "manner and means" portion of the indictment, along with the

overt acts alleged, is the specification of the ways in which the

defendants sought to accomplish the conspiracy. Given the

sufficiency of the more broadly stated purpose of the conspiracy

and the detailed specification of conduct in its "manner and means"

portion, the language at issue could have been omitted altogether

without affecting the sufficiency of the indictment. See United

States v. Troy, 618 F.3d 27, 34 (1st Cir. 2010) ("[T]he statutory

language may be used in the indictment to describe the offense,

'but it must be accompanied with such a statement of the facts and

circumstances as will inform the accused of the specific offence,

coming under the general description, with which he is charged.'"

(quoting Hamling v. United States, 418 U.S. 87, 117-18 (1974))).

In light of the foregoing considerations, the government

has demonstrated that variance, rather than constructive amendment,

is the proper lens through which to view the narrowing of the

-34-
conspiracy that occurred in this case.25 The allegations in the

indictment charging, in the words of the district court, a

conspiracy with a "single, unitary object" are not indispensable or

"essential" to the integrity of that document. Indeed, they were

effectively surplusage. The government is not seeking to reinstate

the defendants' conviction on the basis of a crime other than the

one with which they were charged. Although we hold the government

to its charging decisions, we must also hold defendants to so much

of their criminal conduct that the government has properly charged

and successfully proven.

2. Was the Variance Prejudicial?

As noted, to be grounds for reversal, a variance must be

severe enough to affect the defendant's substantial rights.

Tormos-Vega, 959 F.2d at 1115 (citing Berger v. United States, 295

U.S. 78, 82 (1935)). "The 'substantial rights' protected by this

rule are that the defendant have sufficient knowledge of the charge

against him in order to prepare an effective defense and avoid

surprise at trial, and to prevent a second prosecution for the same

offense." Id. In addition, a variance can affect a defendant's

substantial rights where, in cases with multiple defendants, proof

that one defendant was involved in one conspiracy leads the jury to

25
We note that the defendants conspicuously avoided almost any
reference to the concept of constructive amendment in their
briefing to this court. The government, on the other hand, aptly
pointed out that the defendants were "[c]onflating and confusing
the distinct concepts of variance and constructive amendment."

-35-
believe that another defendant was involved in a separate

conspiracy. Id. We review de novo whether a variance affected a

defendant's substantial rights. United States v. Fornia-Castillo,

408 F.3d 52, 67 (1st Cir. 2005).

The defendants claim that they tailored their defense

strategy at trial to their expectation that the government was

obligated to prove the entire conspiracy as charged. Thus stated,

the defendants' claim of prejudice is not one about fair notice of

the charges or conduct at issue. Instead, their claim of prejudice

rests uneasily on their misunderstanding about the legal

sufficiency of the government's narrower proof. To the extent that

the defendants believed that the government's conspiracy charge

would fail because the government could only prove the narrower

conspiracy to maintain Care's tax-exempt status, they misunderstood

the law of conspiracy in this circuit. That misunderstanding

cannot support a claim of prejudice. We have previously rejected

similar claims in analogous circumstances. See Mueffelman, 470

F.3d at 38-39 (rejecting a claim of prejudice where the defendant

structured his defense to combat a claim that the government was

not required to prove); accord United States v. Davis, 679 F.2d

845, 852 (11th Cir. 1983) ("Appellants' contention that they

suffered prejudice because they were prepared to defend against the

larger conspiracy but not the smaller one is nothing more than an

-36-
argument that they had less of a defense against the smaller

conspiracy since the larger one may not have existed.").

Moreover, even if the nature of the prejudice claimed by

the defendants was legally relevant (which it is not), the

defendants have not pointed to any evidence in the voluminous trial

record that reflects a less-than-vigorous defense. Although the

defendants do not elaborate in their briefs on their prejudice

claim, counsel for the defendants asserted at oral argument that,

because they believed the government's inability to prove a

conspiracy to obtain Care's tax-exempt status in 1993 would be

fatal to the conspiracy charged, their defense did not emphasize

the weaknesses of the government's circumstantial evidence of any

narrower agreement to maintain that status. Our own review of the

record does not support the defendants' claim.

To begin with, although the government has conceded on

appeal that it charged a unitary conspiracy to both obtain and

maintain Care's tax exemption, it argued below that the indictment

charged a multiple-object conspiracy. The trial judge did not

reject that argument until after the close of the government's

evidence. In their initial Rule 29 motion, the defendants

challenged Count 2 only on the ground that the government had

failed to demonstrate that the defendants had, in fact, reached an

-37-
agreement among themselves sometime after 1993.26 It was not until

their memorandum in support of a renewed Rule 29 motion that the

defendants first suggested that the indictment did not charge a

conspiracy with separate objects. Similarly, the defendants'

proposed jury instruction on the conspiracy count merely specified

that the jury must be required to find "that the object of their

agreement was to impede or thwart the IRS as alleged in the

indictment. . . . If you find that tax fraud was not the object of

the conspiracy, then even if you find that tax fraud was a

foreseeable consequence of the conspiracy, you must find the

defendants not guilty." Again, the defendants' own conduct reveals

no particular emphasis on the unity of the charged object.

Nor have we found that the defendants placed an undue

emphasis on defending against the government's proof of Muntasser's

agreement with unindicted co-conspirators in 1993. In fact,

Muntasser's principal defense to the Count 2 conspiracy was that he

withdrew from the conspiracy by 1996.27 He expressed this position

26
The memorandum accompanying Muntasser's motion read as
follows:
The defendants are charged, in count two, with a
conspiracy to defraud the United States. . . . But the
government has introduced absolutely no evidence, direct
or circumstantial, of any agreement, express or implied,
between these three defendants. There is no evidence of
what, if anything, they agreed to, nor any evidence tying
Mr. Muntasser to any agreement, whatever it might have
been, after September 1996.
27
The government's theory at trial was that Muntasser had
conspired with unindicted co-conspirators in 1993 to fraudulently

-38-
through the opening statement of his defense counsel, through

cross-examination of witnesses, including Afif Kadri, one of Care's

founding officers, and again through closing argument.

The absence of outward indications of prejudice is not a

surprise: a less-than-vigorous defense of the conduct underlying

the narrower conspiracy would have compromised the defendants'

defense of other charges. For example, the evidence supporting the

narrower conspiracy was directly relevant to Count 1, which charged

all three defendants with a scheme to conceal material facts from

the FBI, IRS, and INS, and Count 8, which charged all three

defendants with endeavoring to obstruct the due administration of

the Internal Revenue laws. Thus, even if the defendants

subjectively believed that the government's failure to prove a

conspiracy to fraudulently obtain Care’s tax exemption in 1993 was

fatal to the conspiracy claim, the defendants had strong incentives

to continue to challenge the evidence that most demonstrated their

willing agreement to fraudulently maintain that exemption in

subsequent years.

Finally, in a different version of their prejudice

argument, the defendants claim that the variance affected their

substantial rights because, by charging a larger conspiracy than it

obtain Care's tax exemption, that Al-Monla joined that conspiracy
at some later time by agreeing with Muntasser, an unindicted co-
conspirator, or both, to fraudulently maintain Care's tax status
for the indefinite future, and that Mubayyid subsequently conspired
with Al-Monla to do the same.

-39-
could ultimately prove, the government was permitted to introduce

much of the so-called "terrorism" evidence, relevant to Muntasser's

initial motivation for incorporating Care, which would not have

been admissible if the government had charged only the narrower

conspiracy at the outset. According to the defendants, "The

government should not be permitted to have it both ways" (i.e.,

securing the admission of potentially inflammatory evidence through

a broadly worded charge while securing a conviction on a narrower

ground).

The defendants have underestimated the extent to which

the challenged evidence was relevant to the narrower conspiracy.

The most inflammatory evidence presented at trial was the content

of Care's "Al-Hussam" newsletters, with its accounts of the violent

jihad being conducted overseas, described by the district court as

"blood curdling." While the newsletters were probative of whether

Care was a successor to Al-Kifah and whether Muntasser incorporated

Care to legitimize the tax exemption Al-Kifah incorrectly claimed,

they also played a central role in explaining why Care's Form 990

filings were fraudulent. Similarly, the expert testimony

explaining the concept of economic jihad, and thus the way in which

Care's "orphan sponsorship program," among other things, promoted

and supported the mujahideen and jihad, would have been

independently admissible to prove the pattern of conscious

concealment that reflected agreement among the defendants when they

-40-
filed the Form 990s. Consequently, in this way as well, the

variance in proof at trial did not prejudice the defendants'

substantial rights.28

3. Did the Government Prove the Narrower Conspiracy?

The defendants contend that the government may not rely

on a variance to reinstate their conspiracy conviction because the

evidence at trial was insufficient to demonstrate a narrower

conspiracy among the defendants. As noted, the general conspiracy

statute, 18 U.S.C. § 371, criminalizes the conspiring of two or

more people "to commit any offense against the United States, or to

defraud the United States, or any agency thereof in any manner or

for any purpose." The defendants were charged under § 371's

defraud clause with conspiring to defeat the IRS's proper

28
As we have explained, the notice and "prejudicial spillover"
arguments that were persuasive in United States v. Dellosantos,
Nos. 09-2135, 09-2670, 2011 WL 3569334 (1st Cir. Aug. 16, 2011),
are not persuasive here. Unlike Dellosantos, this case does not
involve two or more distinct conspiracies with "different products,
a different source of supply, different goals, and a different
history." See id. at *10. Rather, the defendants in this case
claim a lack of notice because they erroneously believed that the
conspiracy charge would fail if the government could not prove that
the single tax-related conspiracy in which the defendants
participated extended for the entire period of time and involved
all of the tax filings alleged in the indictment. Additionally, we
found the variance in Dellosantos prejudicial because it allowed
the government to introduce "voluminous testimony relating to
unconnected crimes in which [the appellants] took no part"
perpetrated by sixteen co-defendants. Id. at *14. That evidence,
wholly irrelevant to the conspiracy involving the appellants,
created an impermissible risk that the jury would find the
appellants guilty of one conspiracy solely because their co-
defendants engaged in a different conspiracy. Id. That risk does
not exist here.

-41-
assessment and collection of tax revenue, commonly known as a Klein

conspiracy. See Goldberg, 105 F.3d at 773. To prove a Klein

conspiracy, the government is required to establish both "an

agreement whose purpose was to impede the IRS (the conspiracy),"

and the knowing participation of each defendant in that conspiracy.

United States v. Adkinson, 158 F.3d 1147, 1154 (11th Cir. 1998).

Although "[v]olumes could be written" on the "subtle problems in

discriminating 'purpose' from 'knowledge' and in separating the

objects of a conspiracy from its more remote consequences," it is

well settled in this circuit that, "where the conspirators have

effectively agreed to falsify IRS documents to misstate or

misattribute income, . . . the factfinder may infer a purpose to

defraud the government by interfering with IRS functions."

Goldberg, 105 F.3d at 774. We therefore turn our attention to the

evidence at trial that indicates the defendants' knowing agreement

to falsify Care's tax filings.29

The government presented no direct evidence of an

agreement either among the defendants or between any defendant and

an unindicted co-conspirator. Of course, this is unsurprising. By

their very nature, criminal conspiracies are clandestine and

29
Title 18, § 371 also requires proof of an overt act in
furtherance of the conspiracy by at least one conspirator.
However, there can be no serious debate that this requirement has
been met here: in the years covered by the indictment, each of the
three defendants filed at least one Form 990 with the IRS, through
which Care maintained its fraudulently obtained tax exemption.

-42-
inchoate, and "may be completed in the brief period needed for the

formation of the agreement and the commission of a single overt act

in furtherance of the conspiracy." Boyle v. United States, 129 S.

Ct. 2237, 2246 (2009); see also United States v. Rodríguez-Vélez,

597 F.3d 32, 39 (1st Cir. 2010). Accordingly, the government is

not required to offer proof of an express agreement. Rather, it is

a "well-established legal principle that a conspiracy may be based

on a tacit agreement shown from an implicit working relationship."

United States v. Patrick, 248 F.3d 11, 20 (1st Cir. 2001). As we

detail below, there was sufficient evidence here of a deliberate,

coordinated effort among the defendants reflecting just such a

tacit agreement.

The government's theory at trial was that the defendants,

through a series of fraudulent Form 990 filings, intentionally

concealed from the IRS the fact that Care's activities

substantially advanced two non-charitable purposes: financial

support of the mujahideen and promotion of jihad. During their

tenure with Care, each defendant filed at least one Form 990.

Muntasser signed and filed Care's Form 990s for the 1993, 1994, and

1995 tax years. He did so with considerable assistance from Waseem

Yassin, an unindicted co-conspirator and an officer of both Care

and Al-Kifah. For example, Yassin contacted an attorney to assist

in the preparation of the forms, he provided the attorney with

Muntasser's materially false Form 1023 application for tax

-43-
exemption, and he gave an incomplete description of Care's

activities to the attorney when that information was requested.

Al-Monla had been involved with Care since 1993, became

more involved in 1995, and eventually succeeded Muntasser as Care's

President in 1996. The government introduced evidence that showed

how, prior to becoming President, Muntasser and Al-Monla worked

closely together to advance Care's non-charitable purposes. For

example, the evidence showed that the two defendants jointly met

with Mohammed Chehade, the executive director of GRF, to discuss

the solicitation of donations and "coordinating with the

battalion." It also introduced a written pledge of support to the

Afghan warlord Gulbiddin Hekmatyar, which was signed by Muntasser,

Al-Monla, Yassin, and another unindicted co-conspirator. In 1996,

the year Muntasser became president, Yassin stated in a recorded

conversation that his involvement in Care was waning and that he

would be handing the reigns over to someone else. Yassin

subsequently provided Al-Monla with Care's financial information.

Following his tenure as President, Al-Monla served as Care's

Treasurer in 1998. He signed and filed Care's Form 990 for that

year.

Mubayyid, Al-Monla's brother-in-law, performed volunteer

work for Care in 1993 and 1994 before leaving the country for

several years. In 1998 or 1999, Mubayyid succeeded Al-Monla as

-44-
Care's Treasurer. He signed and filed amended Form 990 returns for

the 1997, 1999, and 2000 tax years.

The Form 990s filed by the defendants were nearly

identical, regardless of the preparer. Substantially mirroring the

Form 1023 submitted by Muntasser in 1993, each return listed only

the same four program accomplishments: food distribution, cash

assistance to orphans and widows, medical assistance for refugees,

and grants to other welfare organizations. As we explain below,

however, the evidence showed that Care's day-to-day activities and

objectives were markedly different than those reported to the IRS.

The consistency of the misrepresentations over a span of nearly ten

years and the failure of the defendants to disclose precisely those

activities that were most likely to jeopardize Care's tax-exempt

status provide strong circumstantial evidence that the defendants

were operating under an implicit agreement. See, e.g., United

States v. Shea, 211 F.3d 658, 665 (1st Cir. 2000) (pointing to

evidence of "a common and continuing aim, similar methods of

operation, continuity in personnel, and interdependence" to prove

conspiracy); cf. United States v. Niemi, 579 F.3d 123, 127 (1st

Cir. 2009) ("[I]nterdependence may be shown where one participant

knows that his own success depends on the continued existence and

health of the [unlawful] organization as a whole."). That the

misrepresentations came from defendants who had assumed substantial

leadership roles in the organization; who, in those roles, had

-45-
primary authority over Care's tax filings, which were central to

the fraud; and who succeeded one another in those roles, further

negate the alternative possibility that any falsity was the product

of separate, individual misunderstandings about the required

disclosures. Cf. United States v. Peters, 732 F.2d 1004, 1007 (1st

Cir. 1984) ("The jury could reasonably have disbelieved that

[defendants], as cousins and as president and vice president,

respectively, of a relatively small company, acted entirely

independently of one another . . . ." (footnote omitted)).

While the above evidence demonstrates an implicit

agreement among the defendants, other evidence shows that the

defendants had knowledge that their Form 990 submissions were

materially false. To begin with, the evidence showed that Care was

a small, tight-knit organization whose members were actively and

intimately involved in its cause. Its officers were volunteers

whose roles were not rigidly segregated.30 We have previously held

that an organization's small size and informal structure may

support a jury's inference that the organization's officers had

30
Affif Kadri, one of Care's founding directors, testified for
the government in this respect. He explained that, for example,
Waseem Yassin, also listed as a director, was heavily involved in
the organization simply as "the go-around guy. . . . Anything that
needs to be done, or you know, whatever it is, he's there when that
person or people make it happen." Al-Monla eventually told the FBI
during his 2003 interview that Yassin was one of the officers
primarily responsible for directing Care's charitable
disbursements.

-46-
knowledge of and voluntarily participated in a conspiracy. See

United States v. Pesaturo, 476 F.3d 60, 72 (1st Cir. 2007).

Additionally, the evidence at trial indicated that

financial support of the mujahideen and promotion of jihad were

Care's primary purposes. The "Al-Hussam" newsletters were replete

with exhortations to join the jihad or to finance the mujahideen.

The Zakat Calculation Guide distributed by Care described it as

"imperative" to "give part of your Zakat to Mujahideen" (which it

defined as "those who are going out for Jihad, fighting in the path

of Allah") because "the Mujahideen represent the most needy

category today since they are facing a shortage of financial

support." Care's website similarly contained overt solicitations

for support of the mujahideen. Witnesses testified that, in

addition to distributing the "Al-Hussam" and the Zakat guide, Care

was selling books and tapes advocating jihad at the lectures of

religious speakers that it hosted. Indeed, the government even

introduced a recorded phone conversation between Al-Monla and the

head of another Islamic charity, in which Al-Monla described Care

as existing on "the rear lines" and "financing the brothers picking

apples," a reference to Care's financial support of the mujahideen.

Through its solicitations, Care collected nearly two

million dollars in untaxed donations. Many of the donation checks

received by Care during this time expressly indicated that the

funds were to be used for "mujahideen," "fighters," "martyrs," and

-47-
"Jihad." Some checks specified particular countries, or even

particular groups of fighters, for which the funds should be used.

For example, three checks presented to the jury bore the memo

lines: "Bosnia mujahideen," "Jihad Bosnia," and "mujahideen Bosnia,

9th Battalion." During this time, Care deposited checks made out

to Al-Kifah and even to "Human Services Office," referring to MAK.

The government introduced evidence of personal checks

from each of the defendants to Al-Kifah or Care containing similar

instructions. Muntasser made a donation to Al-Kifah shortly after

Care's formation in April 1993 in which he indicated that the funds

were "Zakat for the mujahideen in Afghanistan . . . Zone 1." He

subsequently made a donation to Care in which he stated that his

donation was for "renewing the sponsorship of the family of a

martyr." Despite not being a formal officer at the time, Mubayyid

made two donations to Care in 1993 for "Printing of the Al-Hussam"

and "Al-Hussam and pilgrimage." A check from Al-Monla in 1993

simply reads, "Buying Bosnia." This evidence makes plain the

defendants' intimate knowledge of the very activities and purposes

of Care that were concealed through the submission of incomplete

and inaccurate Form 990s.

We are of course always wary of the dangers associated

with a § 371 conspiracy. See Goldberg, 105 F.3d at 775 ("[T]he

defraud clause of section 371 has a special capacity for abuse

because of the vagueness of the concept of interfering with a

-48-
proper government function."). Its broad sweep can capture the

innocent as well as the culpable. Cf. Dennis, 384 U.S. at 860.

This is not such a case. The defendants, well known to each other,

succeeded each other as authority figures in a small organization

that benefitted from the perpetuation of a fraudulent tax status.

Given the significance of the factual misrepresentations when

juxtaposed with the single-mindedness of Care's apparent mission,

given the overlap among the defendants and the closeness of their

working relationships, and given the consistency of the

misrepresentations necessary to sustain the fraud for so long, the

government's evidence sufficed to prove a narrower conspiracy to

fraudulently maintain Care's tax exemption.

B. Mubayyid's Claims

Mubayyid makes several challenges to his convictions on

appeal. First, he argues that his convictions for filing false tax

returns and for obstructing the functions of the IRS rest on his

answer to a tax-form question that is fundamentally ambiguous,

precluding the jury from finding deliberate falsity. Second, he

challenges the legal sufficiency of the government's evidence on

his conviction for scheming to conceal material facts from the IRS.

Finally, he claims that he was prejudiced on all counts by the

admission of a recorded phone conversation in which another speaker

-49-
urged him to remove Care's documents from the storage unit

eventually searched by the FBI.31

1. False Tax Filings

Mubayyid was convicted on three counts (Counts 3-5) of

filing false tax returns, in violation of 26 U.S.C. § 7206(1), and

one count (Count 8) of corruptly endeavoring to obstruct the

administration of the Internal Revenue laws, in violation of 26

U.S.C. § 7212(a). All four counts rest on Mubayyid's answers to

Question 76 on Care's Form 990 for the tax years 1997, 1999, and

2000. Question 76 asks, "Did the organization engage in any

activity not previously reported to the IRS? If 'Yes,' attach a

detailed description of each activity." The instructions

accompanying Form 990 clarified the inquiry as follows:

Attach a statement explaining any significant
changes in the kind of activities the
organization conducts to further its exempt
purpose. Include new or modified activities
not listed as current or planned in the
organization's application for recognition of
exemption [IRS Form 1023], or not yet reported
to the IRS by a letter to its key district
director or by an attachment to the
organization's return for any earlier year.
Also include any major program activities that
are being discontinued.

For each of the charged years, Mubayyid answered "No" to Question

76. The government alleges that, in so doing, he intentionally

31
As we noted previously, Mubayyid also joins Muntasser in
claiming prejudicial spillover from the introduction of so-called
"terrorism evidence." We address Muntasser and Mubayyid's joint
claim separately, infra.

-50-
concealed from the IRS the fact that Care was "engaged in

activities involving the solicitation and expenditure of funds to

support and promote the mujahideen and jihad."

To support a conviction for filing false tax returns, the

government was required to prove, inter alia, that Mubayyid filed

a return that was "false as to a material matter" and that he

"signed the return willfully and knowing it was false." United

States v. Boulerice, 325 F.3d 75, 79-80 (1st Cir. 2003) (quoting

United States v. LaSpina, 299 F.3d 165, 179 (2d Cir. 2002)). Count

8 charged the same underlying conduct, with a purpose "to obstruct

or impede the due administration of the Internal Revenue laws."

United States v. Marek, 548 F.3d 147, 150 (1st Cir. 2008). The

filing of false tax documents to mask an organization's non-

charitable purposes falls within the purview of § 7212. See United

States v. Mitchell, 985 F.2d 1275, 1279 (4th Cir. 1993). Thus, for

all four tax-filing charges, the government needed to show that

Mubayyid knew when he answered Question 76 on Care's Form 990 for

the 1997, 1999, and 2000 tax years that the answer was false.32

The government argued at trial that Question 76 required

the reporting of any activities ever conducted by Care that had not

previously been reported. Mubayyid asserts that he reasonably

32
Mubayyid does not challenge the other elements required to
show a violation of § 7206(1): that he filed a verified return for
the year(s) at issue and that the return contained a written
declaration that it was made under penalty of perjury. See
Boulerice, 325 F.3d at 79-80.

-51-
understood the question to require reporting only of changes in

Care's activities and only when those changes occurred during the

single tax year for which the Form 990 was filed. Mubayyid's

version of the question is thus more limited both temporally –-

covering only one year, rather than the organization's lifetime –-

and in content –- covering only new undertakings or activities that

had significantly changed from the previous year, rather than all

activities Care had not previously reported. Mubayyid maintains

that, under his version of the question, the record does not allow

a finding beyond a reasonable doubt that he knew his answers on the

tax forms were false.

Mubayyid thus claims that the government failed to show

that his answers were willfully false because Question 76 is

fundamentally ambiguous and, hence, cannot legally support a jury's

finding that his answer was willfully false. It is not unusual for

the defendant in cases such as this to argue that the question he

is alleged to have answered falsely was ambiguous, that his

understanding of the question differed from the government's, and

that, under his understanding, he answered the question truthfully.

United States v. Posada Carriles, 541 F.3d 344, 362 (5th Cir.

2008). Traditionally, it is the province of the jury to decide

whether the defendant "intended to and did in fact give a response

that was literally false." United States v. Richardson, 421 F.3d

17, 33 (1st Cir. 2005) (quoting United States v. Finucan, 708 F.2d

-52-
838, 848 (1st Cir. 1983)) (internal quotation mark omitted).

We have recognized, however, that in the exceptional case

a question may be so fundamentally ambiguous as to foreclose a

jury's resolution of a perjury or false statement charge because

"it could never be said that one intended to answer such a question

untruthfully." Id. (quoting United States v. DeZarn, 157 F.3d

1042, 1049 (6th Cir. 1998)). As we shall explain, this is not such

a case. Any ambiguity in the substantive scope of Question 76 is,

at most, the sort of imprecision that is appropriately evaluated by

a jury. As for the question's temporal scope, any ambiguity is

irrelevant to our analysis because the government produced

sufficient evidence for a jury to find that Mubayyid provided false

answers to the question even as he claims to have understood it.

We expand on these two conclusions in turn.

a. The Substantive Scope of Question 76

As noted, Question 76 asks simply whether "the

organization engage[d] in any activity not previously reported to

the IRS." In elaborating on the reporting obligation, the guiding

instructions demand an explanation of "any significant changes in

the kind of activities the organization conducts to further its

exempt purpose." Taking his lead from the instructions, Mubayyid

argues that the question asks only about "changes," and that he was

thus not required to report activities that were ongoing and

unchanged, even if they had never previously been included in

-53-
Care's filings. He asserts that Care had engaged in no new

activities in the relevant tax years, and that his answer to

Question 76 could therefore not be found to be false. We consider

this view of Question 76 to be unreasonable.

A straightforward reading of Form 990 and its

instructions makes plain that Question 76 seeks the disclosure of

information about activities not accurately depicted in the

organization's application for recognition of exemption, Form 1023,

or in any other year's return. Indeed, reading Question 76

together with Form 1023 confirms that, in posing Question 76, the

IRS's purpose was to require organizations to update their initial

filings on an annual basis. Like Question 76, Form 1023 contains

a broad request for information regarding every activity of the

organization. It asks organizations to provide "a detailed

narrative description of all the activities of the organization."

It instructs filers to list "each activity separately in order of

importance" and to include, "as a minimum," "(a) a detailed

description of the activity including its purpose; (b) when the

activity was or will be initiated; and (c) where and by whom the

activity will be conducted." The interpretation of Question 76

advanced by Mubayyid would defeat the IRS's clear intent to obtain

an accurate, current report of the organization's activities. It

defies common sense to conclude that the IRS sought, under penalty

of perjury, detailed information about a tax-exempt organization's

-54-
activities if begun, altered, or ended in the current tax year, but

that it was wholly uninterested in such an organization's ongoing,

previously unreported activities if begun in any other year.

Hence, in context, the instruction's references to

"changes" cannot reasonably be understood to circumscribe the broad

request for disclosure of "any activity" required by the text of

Question 76 itself. Mubayyid's proffered reading does not take

into account the IRS's justifiable assumption, built into the

instruction, that an organization would have complied with its

obligation to disclose previously existing reportable activities in

either its Form 1023 or in a prior Form 990. In other words, the

instructions focus on "significant changes" because the IRS expects

that "changes" will be the only information not previously

reported. The question itself, however, clearly requires

disclosure of "any activity not previously reported to the IRS."

Further, the request in the instruction for disclosure even of

those activities that are being discontinued highlights that the

IRS is seeking to correct and update all information previously

submitted to it about the organization's activities. A defendant

who has previously filed a fraudulent or incomplete return, in

contravention of the government's reasonable expectation, may not

then "'twist the meaning of a question in his own mind into some

totally unrecognizable shape and then hide behind it' by alleging

its fundamental ambiguity." Richardson, 421 F.3d at 35 (quoting

-55-
United States v. Reveron Martinez, 836 F.2d 684, 691 (1st Cir.

1988)).

In urging an interpretation of Question 76 that

disregards its obvious context, Mubayyid falls far short of

demonstrating a fundamental ambiguity that would preclude a jury's

evaluation of his defense. Of course, a defendant is entitled to

argue even an unreasonable interpretation of a question to the

jury.33 Here, Mubayyid did so, and the jury rejected it. But the

unreasonableness of his claimed interpretation shows that Question

76 is, at most, only arguably ambiguous. Where a question is only

arguably ambiguous, the issue of the defendant's guilt is properly

one for the jury. Id. at 33.

There is no question that sufficient evidence supported

the jury's rejection of Mubayyid's claim that he understood

Question 76 to require reporting only of changes. The jury

reasonably could have found that Mubayyid, as Care's treasurer,

understood the context described above and, specifically, knew that

33
In a footnote in United States v. Boskic, 545 F.3d 69, 91
n.22 (1st Cir. 2008), we stated, correctly, that "the question of
objective reasonableness was for the judge to decide in considering
whether the government had presented enough evidence to allow the
jury to find the statement false." However, the fact that the
judge has concluded that a defendant's interpretation of the
question is unreasonable, and hence has rejected a defendant's
argument that the question, so interpreted, is fundamentally
ambiguous, does not mean that the jury cannot still consider the
defendant's interpretation of the question in deciding whether the
defendant willfully and knowingly gave a false answer to the
question. To the extent that our statement in Boskic suggests
otherwise, it is inaccurate.

-56-
the IRS sought through Question 76 to determine whether the

organization remained entitled to its charitable tax status. To

that end, the IRS plainly needed to know what the organization was

currently doing. The interpretation Mubayyid posits is so

inconsistent with the plain intent of the question when considered

in context that -– particularly given his role as the

organization's financial manager -– a reasonable jury could readily

reject his claim that he understood the question in the way he

describes.

In sum, we conclude that Question 76 is, at most, only

arguably ambiguous in its demand that the filer advise the IRS of

all activities, not simply changes. It was well within the jury's

capability to find that Mubayyid in fact understood that the

obligation imposed by Question 76 required reporting of more than

just Care's new or modified activities.

b. The Temporal Scope of Question 76

At trial, the government's position was that Question 76

required a Form 990 filer to disclose any previously unreported

activity in which the filing organization had ever engaged,

irrespective of whether that activity had taken place during the

year that was the subject of its tax filing. Mubayyid argues that

the question is reasonably understood to require reporting only of

activities occurring during the subject tax year. He asserts that

-57-
"common sense argues that if one is filing a 1999 tax form the

questions pertain to 1999."

Mubayyid's claim of fundamental ambiguity with respect to

the temporal scope of Question 76 need not detain us. A question

is not fundamentally ambiguous if "a reasonable jury, given the

language of the question to the defendant and the context in which

it was asked, could conclude beyond a reasonable doubt that the

defendant knew that the answer he gave was false." United States

v. Boskic, 545 F.3d 69, 90 (1st Cir. 2008); see also Richardson,

421 F.3d at 33 ("In determining whether a statement made in

response to an ambiguous question could be said to be false, 'the

context of the question and answer becomes critically important.'"

(quoting United States v. Farmer, 137 F.3d 1265, 1269 (10th Cir.

1998))). Even when the temporal scope of the question is viewed as

Mubayyid claims to have understood it, the jury's verdict was

supported by the evidence presented at trial. Specifically, as

detailed below, the record supports a finding that Mubayyid

answered Question 76 falsely by failing to disclose three distinct

activities: the publication of the "Al-Hussam" newsletter in 1997;

the operation of Care's website in 1999 and 2000; and, in all three

years, an orphan sponsorship program that targeted the families of

martyred mujahideen.34

34
Both understandings of the timing were argued to the jury.
The prosecutor urged the jury to convict Mubayyid for failing to
disclose in the 1997, 1999, and 2000 tax returns that Care had

-58-
 c. The Evidence of Falsity

i. The Newsletter in 1997

It is undisputed that Care published a single issue of

the "Al-Hussam" newsletter in January 1997. Dawn Goldberg, an IRS

employee, testified that she would "certainly" expect the

publication of a newsletter such as the "Al-Hussam" to be disclosed

in response to Question 76 because the instructions "say it should

published the "Al-Hussam" newsletters from 1993 to 1997.
Mubayyid's counsel argued that the evidence was insufficient based
on the more limited temporal scope, asserting, "In 1999 there was
no newsletter. In 2000 there was no newsletter. There was only
this website." In rebuttal, the government argued that Mubayyid's
failure to report the website was also a material non-disclosure.
The court then instructed the jury to "consider whether a
defendant's response was actually false under each reasonable
interpretation of the question or instruction." The jury's verdict
may thus be upheld if the evidence showed that Mubayyid knew that
reportable activities had taken place during 1997, 1999, and 2000
–- i.e., that he knowingly replied falsely when asked whether,
during each of those years, "the organization engage[d] in any
activity not previously reported to the IRS." See United States v.
Gobbi, 471 F.3d 302, 309 (1st Cir. 2006) ("The law is crystalline
that, when the government has advanced several alternate theories
of guilt and the trial court has submitted the case to the jury on
that basis, an ensuing conviction may stand as long as the evidence
suffices to support any one of the submitted theories.") (citing
Griffin, 502 U.S. at 49-51).
On appeal, Mubayyid also argues that a statement by the
prosecutor -- "That question was not limited to that tax
year. . . . The question was: 'Has the organization ever engaged
in any activity not disclosed to the IRS?'" -- was prosecutorial
misconduct because it incorrectly recites the language of Question
76. In the context cited above, however, the statement is most
sensibly read as the prosecutor's suggestion to the jury of how to
interpret the question. It is therefore not error. See, e.g.,
United States v. Henderson, 320 F.3d 92, 105 (1st Cir. 2003)
(noting that a prosecutor "may attempt to persuade the jury to draw
inferences unfavorable to the defense" (quoting United States v.
Smith, 982 F.2d 681, 683 (1st Cir. 1993))).

-59-
be, but, also, it's an activity of the organization." She later

repeated that she would expect it to have been disclosed "because,

as we read in the directions, it falls in the category of 'program

service.'"

Consistent with this testimony, a thorough reading of the

Form 990 instructions illuminates that the phrases "activities" and

"major program activities," used in Question 76 and the Form 990

instructions, encompass an organization's newsletters. In

explaining a part of the form preceding Question 76, the Form 990

instructions define the term "program services" as "mainly those

activities that the reporting organization was created to conduct

and which . . . form the basis of the organization's current

exemption from tax." That section then includes the following

explanation:

Program services can also include the
organization's unrelated trade or business
activities. For example, publishing a
magazine is a program service even though the
magazine contains . . . advertising, the
income from which is taxable as unrelated
business income.

Similarly, the instruction for Part III, "Statement of Program

Service Accomplishments," states:

A program service is a major (usually
ongoing) objective of an organization, such as
adoptions, recreation for the elderly,
rehabilitation, or publication of journals or
newsletters. Specify the service outputs,
products, or other measures of a program
service, such as clients served, days of care,
therapy sessions, or publications issued.

-60-
Thus, in the full context of the Form 990 instruction, it is clear

that the term "activity" used in Question 76 encompasses all

"program services," which are by definition "major objective[s] of

an organization" and which, at the very least, include the

publication of journals or newsletters.

It is also clear that the publication of the "Al-Hussam"

newsletters, in particular, was a major objective of Care. The

evidence revealed that thousands of copies of the newsletters were

printed and distributed internationally. Witnesses testified to

the newsletters' "underlying theme" of the promotion of jihad. The

newsletters contained "descriptions of ongoing fighting happening

in different corners of the world, interviews of fighters, and

encouraging people to participate in the fight and, . . . if they

can't participate, to provide funding." The jury heard excerpts

from numerous issues of the newsletters in which readers were

exhorted to finance the mujahideen if they could not otherwise join

the jihad. The government combined this evidence with expert

testimony explaining the concept of "economic jihad," the belief

that individuals who "cannot participate in that fighting

themselves . . . should at least finance someone who can." A

reasonable jury could have considered the centrality of the "Al-

Hussam" newsletters to Care's organizational mission as evidence

both that Mubayyid would have recognized that publication of the

"Al-Hussam" was an activity that should be disclosed, and that the

-61-
"Al-Hussam" was willfully not disclosed to the IRS precisely

because it reflected Care's non-charitable purposes.

Mubayyid attempts to obfuscate Question 76's otherwise

clear instruction by pointing to testimony by Dawn Goldberg on

cross-examination. When questioned about a separate section of the

Form 990 that asks filers to segregate the organization's expenses

among three categories -- program services, managerial services,

and fundraising – Goldberg admitted that the filer must use some

amount of judgment. She acknowledged that, depending on the facts

and circumstances, it might not be unreasonable for a filer to

identify all of the printing expenses associated with a newsletter

as fundraising expenses. Mubayyid claims that the possibility that

he reasonably categorized the expense of publishing the "Al-Hussam"

newsletters as a fundraising expense rather than a "program

service" expense invalidates the argument that the newsletters are

necessarily program services that would need to be disclosed in

response to Question 76.

This argument is unavailing. First, Mubayyid did not

attribute Care's printing and publication expenses to fundraising

on the Form 990 for 1997. Rather, all of Care's printing expenses

for that year were categorized as managerial service expenses. The

evidence thus belies Mubayyid's claim that his statement was not

false because Care had consistently treated the "Al-Hussam"

-62-
newsletters as merely a fundraising device, rather than an activity

of the organization.

Second, even if the attribution of printing expenses in

1997 was a mere scrivener's error, a reasonable jury could have

concluded that Care's designation of the "Al-Hussam" newsletters as

a fundraising activity would not have been a reasonable accounting

choice. Dawn Goldberg testified that she looked at thirty-five

"Al-Hussam" newsletters and saw "a handful, maybe six or eight

little blurbs" related to fundraising. Referencing the Form 990

instructions' directive to "allocate expenses that relate to more

than one functional category," she acknowledged that "a small

amount of [the publication expenses for the "Al-Hussam"] might be

attributable to 'fundraising,'" but that the newsletter is

primarily "educational and informative," and should therefore

properly be designated as a "program service."

In light of the Form 990 instructions -- including the

specific example of newsletters as a program service activity --

and Goldberg's testimony on the inappropriateness of designating

the "Al-Hussam" as a fundraising device, it would have been

reasonable for the jury to conclude that the designation instead

reflected an intent to conceal Care's true nature. In any event,

the jury was entitled to conclude that Mubayyid understood that

Question 76's request for "any activity" of the organization not

previously disclosed called for disclosure of Care's publication of

-63-
the "Al-Hussam" newsletters, regardless of whether Care was

permitted to allocate the associated expenses as "fundraising" in

other parts of the Form 990.

Taking another tack, Mubayyid claims that his answer was

not false because the "Al-Hussam" newsletters had arguably already

been disclosed to the IRS on Care's initial application for tax

exemption, Form 1023, and therefore were not required to be

disclosed in answer to Question 76. Here, Mubayyid refers to a

statement in Care's initial Form 1023 that the organization's

fundraising efforts would comprise "[s]ubstantial efforts . . . by

means of: . . . mailings." Again, his argument fails.

A reasonable jury could have readily concluded that the

"Al-Hussam" newsletters were not, in fact, the type of mailings

disclosed to the IRS in the cursory reference to "mailings" on the

Form 1023. To begin with, the Form 1023 refers to such mailings

prospectively, yet the evidence at trial demonstrated that two

"Al-Hussam" newsletters had already been published in Care's name

at the time the Form 1023 was filed. Likewise, neither the "Al-

Hussam" newsletters nor the Zakat Calculation Guide were submitted

with the Form 1023 as "representative copies of solicitations for

financial support."

Moreover, Robert Charnoff, a former IRS employee who had

been responsible for reviewing Care's Form 1023 application,

testified for the government that fundraising mailings are

-64-
typically "just a one- or two-page solicitation letter," while the

evidence presented at trial demonstrated that the "Al-Hussam"

newsletters primarily consisted of multi-page descriptions of the

successes of jihad, exhortations to join the fighting, and

reminders of the duty to engage in jihad. They contained only a

few small blurbs that might be fairly characterized as overt

fundraising. On this basis, Charnoff explained that he would have

expected the "Al-Hussam" newsletter to be identified elsewhere

because "it's an activity in its own right."

We thus conclude that, based on the evidence presented at

trial, a reasonable jury could find that Mubayyid understood that

the "Al-Hussam" newsletter was required to be disclosed in response

to Question 76 on the 1997 Form 990.35

ii. The Website in 1999 and 2000

The government's evidence at trial showed that, by 1999,

Care was operating a website that was described as "similar in

content" to the "Al-Hussam" newsletters. A witness testified for

the government that Mubayyid had approached him in 1997 or 1998 to

discuss the construction of a website for Care. The two men worked

together over the course of nearly a year on designing and naming

35
Given our description of the newsletter's importance to the
purposes of the organization, we think it beyond debate that the
falsity was "material." See Boulerice, 325 F.3d at 79 (stating
that the government was required to prove that "the tax return was
false as to a material matter" (quoting LaSpina, 299 F.3d at 179)).

-65-
the website, and on hiring a local business to host it. According

to the witness, Mubayyid provided a CD of content that he wanted

uploaded to the website, the witness constructed the website, and

he provided Mubayyid with the administrative privileges to modify

and update the website once it was up and running. The website was

operational by early 1999.

The government also introduced printed copies of the

content of Care's website as of June 4, 2000, and March 1, 2001.

Those printouts reveal that Care was providing regularly updated

content to its website's readers. As one example, Care maintained

a page entitled "News from the Battlefields of Chechnya" that

provided daily news bulletins throughout late December 1999. The

website also republished selected articles from the "Al-Hussam"

newsletters, including a collection explaining the duty of jihad,

an article entitled "Story of a Muhajid," and an exhortation for

readers to "Do Something!" Additionally, the website contained

information about calculating Zakat and a contact page informing

readers where to send their donations (with Care's United States

tax identification number prominently displayed).

In these respects, Care's website effectively replaced

the publication of the "Al-Hussam" newsletter following its

discontinuation in 1997. It provided an important communications

link between the organization and potential supporters, and it

sought to generate affirmative conduct to benefit the mujahideen.

-66-
Hence, based on the website, the jury properly could have found

that Mubayyid knowingly made a false statement about a material

matter when he declared that the organization had engaged in no

previously unreported activity in 1999 and 2000.

iii. The Orphan Sponsorship Program

The third activity to which we turn our attention spanned

all three years covered by Counts 3-5 and 8, and the alleged

falsity was a matter of inaccurate disclosure rather than

nondisclosure. Throughout the trial, the government argued that

Mubayyid's failure to correct substantial misrepresentations in

Care's Form 1023, through the attachments requested in Question 76,

concealed the organization's support for and promotion of the

mujahideen and jihad. In particular, the government alleged that

Care's initial application for tax exemption was false because it

failed to disclose to the IRS that Care's orphan sponsorship

program focused on the orphans of martyrs. When asked to provide

"(a) a detailed description of the activity including its purpose,"

Muntasser stated in the Form 1023 that Care would develop a program

for orphan sponsorship in Bosnia, Afghanistan, and Kashmir.

Consistent with this representation, each of the Form 990s

submitted by Mubayyid reported a substantial amount of cash

assistance to orphans and widows.

At trial, an expert for the government, who testified

that he had reviewed the materials and solicitations associated

-67-
with Care's orphan sponsorship program, opined that the purpose of

the program's focus on the orphans of martyrs was to promote

violent jihad:

In the context of encouraging people to go and
participate in fighting, it's important to
remove anything that may prevent them from
doing so, to remove disincentives. If a
person who is inclined to go fight knows that
if something should happen to him that his
family would be taken care of, that removes
the disincentive, and he's more likely to be
able to go and fight.

The witness also testified that he had seen similar, targeted

solicitations used by organizations to support mujahideen

activities "many times." This focus was reflected in Care's

website solicitation, which depicts a child to be sponsored as "an

orphan whose father died in defense of the faith."

Because orphan sponsorship was, from Care's own

perspective, a responsive answer to the call for "activities" on

the Form 1023 and "program services" on the Form 990s, Mubayyid

cannot sensibly deny that it was also an "activity" within the

understood meaning of Question 76. Instead, as with the "Al-

Hussam" newsletter, Mubayyid suggests that this activity had

already been disclosed to the IRS on Care's Form 1023 and on Care's

Form 990s for previous years. Although those forms did not reveal

that the organization's orphan sponsorship focused on the children

of martyred fighters, Mubayyid argues that, because the Form 1023

disclosed that the program would focus on orphans in war-torn

-68-
countries, "[i]t is no great inferential leap to conclude some of

the widows and orphans became such because husbands and fathers

died fighting." He also notes that the sole defense witness, a

former IRS employee, testified that the program's focus would not

have changed his opinion of Care's entitlement to tax exemption

"because widows and orphans are traditional objects of charitable

aid. It's not significant for tax purposes how they became widows

and orphans."

The defense testimony was directly contradicted, however,

by Robert Charnoff, the IRS employee who actually reviewed Care's

application. Charnoff testified that he "almost certainly" would

have denied Care's initial application for tax exemption if Care

had disclosed that its orphan sponsorship program targeted children

of martyred mujahideen because "it's telling would-be fighters in

foreign conflicts that if something happens to them, if they're

killed say, this organization will provide funds to their orphans.

So the net effect is it's an inducement for them to go to these

areas of conflict." Likewise, Dawn Goldberg testified that

evidence indicating that Care was "soliciting people to go out and

fight, or soliciting money to help fighters," could have led to the

revocation of Care's tax exemption because "one of the basic things

[a 501(c)(3) charity] can't do is they can't do anything that's

illegal or violate[s] public policy."

-69-
 The materiality to the IRS of the undisclosed focus of

Care's orphan sponsorship program demonstrates why the simple

listing of an orphan sponsorship program on the Form 1023 and prior

Form 990s was not an adequate disclosure of the activity that was

in fact being carried out by Care. To employ a counterfactual, if

Care had initially conducted the unfocused orphan sponsorship

program described in the Form 1023, but later elected to focus its

donations on the orphans of martyrs, the testimony by Charnoff and

Goldberg makes clear that the change in the program's focus should

have been disclosed in response to Question 76 as a substantial

modification. On the same basis, it would have been reasonable for

the jury to have concluded that Care's Form 1023 described an

orphan sponsorship activity that Care had never conducted, and

hence Mubayyid was required to report Care's actual orphan

sponsorship program in response to Question 76 as an ongoing

activity that had never been accurately disclosed.

The 990s themselves, though incomplete in the way we have

described, provide evidence that the orphan sponsorship program was

ongoing during each of the tax years in question. In addition, a

government witness who volunteered for Care in 1996 and 1997

acknowledged that Care was actively raising money for orphan

sponsorship during those years, and authenticated a flyer

soliciting donations for orphans in language substantially similar

to that contained on the website. In 2000 and 2001, as described

-70-
above, the website featured the program in a way that made clear

its true purpose. Although there was no direct testimony or record

evidence confirming the program's operation in 1999, the other

evidence permits the reasonable inference that it was an ongoing

activity.

We thus conclude that the government presented sufficient

evidence from which a reasonable jury could have found that, in

response to Question 76 on Care's Form 990s, Mubayyid willfully

failed to disclose at least one reportable activity that occurred

in each of the 1997, 1999, and 2000 tax years. Any arguable

ambiguity in the temporal scope of Question 76 could not,

therefore, have precluded Mubayyid's conviction for making a false

statement; Mubayyid's answers would have been false even under the

interpretation of the question consistent with his claimed

understanding.

For the foregoing reasons, we affirm Mubayyid's

convictions on Counts 3, 4, and 5, for filing false tax returns in

violation of 26 U.S.C. § 7206(1), and his conviction on Count 8,

for corruptly endeavoring to obstruct the administration of the

Internal Revenue laws in violation of 26 U.S.C. § 7212(a).

2. Scheme to Conceal

Mubayyid claims that Count 1 of the indictment, which

charged him with a scheme to conceal material information from a

federal agency, in violation of 18 U.S.C. § 1001(a)(1), was not

-71-
supported by sufficient evidence. The crime under § 1001(a)(1) is

the concealment of a material fact by scheme, trick, or device.36

The charge in the indictment, which covered all three defendants,

alleged that the defendants concealed "material facts . . . to wit:

the Defendants concealed the fact that Care International, Inc.,

was an outgrowth of and successor to the Al-Kifah Refugee Center

and was engaged in non-charitable activities involving the

solicitation and expenditure of funds to support and promote

mujahideen and jihad."

Mubayyid emphasizes that the language of the indictment

following "to wit" stated that the defendants concealed "the fact

that" before proceeding to describe two facts. Then, with echoes

of his challenge to the Count 2 conspiracy, he asserts that the

government necessarily charged each defendant with a "single-object

scheme" that embraced both facts as if one. He notes that the

36
18 U.S.C. § 1001(a) provides in relevant part:

[W]hoever, in any matter within the jurisdiction of the
executive, legislative, or judicial branch of the
Government of the United States, knowingly and
willfully--

(1) falsifies, conceals, or covers up by any trick,
scheme, or device a material fact;

. . .

shall be fined under this title, imprisoned not more than
5 years or, if the offense involves international or
domestic terrorism (as defined in section 2331),
imprisoned not more than 8 years, or both.

-72-
government presented insufficient evidence at trial to demonstrate

that his scheme encompassed one of those facts "for the simple

reason that the Form 990 does not request any information regarding

whether the organization filing the return is the outgrowth or

successor of another organization." As he did with the conspiracy

charge, Mubayyid thus contends that his conviction must be vacated

because the government failed to prove the specific scheme charged.

The government was not required to prove that Mubayyid

schemed to conceal that Care was an outgrowth of, or successor to,

Al-Kifah. It is well established that an indictment may charge

alternative theories of guilt in the conjunctive, and that, "[w]hen

a jury returns a guilty verdict on an indictment charging several

acts in the conjunctive, the verdict stands if the evidence is

sufficient with respect to any one of the acts charged." United

States v. Murray, 621 F.2d 1163, 1171 n.10 (1st Cir. 1980); see

also Turner v. United States, 396 U.S. 398, 420 (1970). Moreover,

indictments are to be read in a plain and commonsense manner.

United States v. Flemmi, 245 F.3d 24, 29 (1st Cir. 2001). The

indictment charged Mubayyid with concealing two facts by scheme,

trick, or device. Under our settled precedent, proof that he

concealed either fact is sufficient to support his conviction.

Mubayyid attempts to extend the defendants' constructive amendment

argument from the conspiracy charge in Count 2 to the charge in

Count 1; the argument is as unconvincing here as it was there. Cf.

-73-
Dowdell, 595 F.3d at 68; Garcia-Paz, 282 F.3d at 1212 (holding that

language preceded by the phrase "to wit" in the indictment is mere

surplusage that may be disregarded and needs not be proven).

As a second line of attack, Mubayyid contends that his

false statements on the Form 990s are legally insufficient to

support his conviction under § 1001(a)(1) because they were not

affirmative acts of concealment in the face of a legal duty to

disclose.37 As just described, § 1001(a)(1) criminalizes the

concealment of material facts from a government agency by scheme,

trick, or device. A separate provision of the statute, under which

Mubayyid was not charged, criminalizes the making of materially

false or fraudulent statements. 18 U.S.C. § 1001(a)(2).

Reflecting this statutory separation, we have held that simple

omissions fall short of constituting affirmative acts of

concealment, which are required to prove a "scheme, trick, or

device." United States v. St. Michael's Credit Union, 880 F.2d

579, 589 (1st Cir. 1989). Additionally, under § 1001(a)(1), the

concealment must occur in the face of a legal duty to disclose the

material fact. See generally United States v. Anzalone, 766 F.2d

37
Because the jury was instructed that it was required to find
that the fact concealed was material to the IRS, Mubayyid's
conviction under § 1001(a)(1) for a scheme to conceal material
facts rests on the same conduct that forms the basis of his false
tax filing convictions pursuant to 26 U.S.C. § 7206(1), which
criminalizes materially false representations on subscribed tax
filings, and his conviction for corruptly endeavoring to obstruct
the due administration of the IRS pursuant to 26 U.S.C. § 7212(a).

-74-
676, 682-83 (1st Cir. 1985).

Mubayyid fails to acknowledge that one has a legal duty

to disclose information when a response is required by statute,

government regulation, or government form. See, e.g., United

States v. Calhoon, 97 F.3d 518, 526 (11th Cir. 1996); United States

v. Kingston, 971 F.2d 481, 489 (10th Cir. 1992); United States v.

Bucey, 876 F.2d 1297, 1307 (7th Cir. 1989). Moreover, by filing

the false Form 990s, which he signed under penalty of perjury,

Mubayyid did not passively fail to disclose material facts; he

engaged in an affirmative act of concealment. Cf. St. Michael's

Credit Union, 880 F.2d at 590-91. His conduct is therefore

sufficient grounds for a conviction under § 1001(a)(1).

Lastly, Mubayyid contends that, if the government did not

charge Count 1 as a unitary scheme, his conviction needs to be set

aside under the rationale of Yates v. United States, 354 U.S. 298

(1957). See generally United States v. Nieves-Burgos, 62 F.3d 431,

434-37 (1st Cir. 1995) (explaining Yates). Yates stands for the

principle that a conviction must be vacated where the charged crime

was submitted to the jury on two independent theories of guilt, one

of which depends upon conduct that falls outside of the relevant

limitations period, and where "it is impossible to tell which

ground the jury selected." See id. at 312 (emphasis added).

Yates is inapplicable to Mubayyid's conviction under

§ 1001(a)(1) because it is not "impossible to tell" whether the

-75-
jury rested their verdict upon evidence of time-barred conduct.

Cf. United States v. Zvi, 168 F.3d 49, 55 (2d Cir. 1999); United

States v. Hudgins, 120 F.3d 483, 487 (4th Cir. 1997) (describing

Yates's "impossible to tell" requirement as "integral to the rule's

application"). The indictment charged all three defendants with

scheming to conceal two facts: that Care was a successor to Al-

Kifah, and that Care was engaged in non-charitable activities that

included supporting the mujahideen and jihad. In separate counts,

the jury convicted Mubayyid of filing false tax returns within the

five-year limitations period by failing to disclose that Care was

involved in non-charitable activities that involved supporting the

mujahideen and jihad. As noted above, the filing of false tax

returns is an affirmative act of concealment sufficient to support

a conviction for scheming to conceal material facts under

§ 1001(a)(1). By contrast, there was no evidence at trial that

Mubayyid engaged in any effort to conceal the fact that Care was a

successor to Al-Kifah (the conduct which Mubayyid now claims would

have occurred outside of the limitations period, if it had been

proven). Thus, far from being "impossible to tell" whether the

jury based its verdict on a theory of guilt that depends on time-

barred conduct, it is obvious that Mubayyid's conviction under

§ 1001(a)(1) rests exclusively on his false Form 990 filings within

the limitations period. The argument fails.

-76-
 3. Recorded Telephone Conversation

Mubayyid also challenges the admissibility of a recorded

telephone conversation between himself and the executive director

of GRF, Mohammed Chehade, in which he declined the advice to remove

Care's documents from a storage unit in response to the FBI's

investigation of Care. In the telephone call, Mubayyid informs

Chehade that the FBI had attempted to search Care's former offices.

The relevant portion of the call was as follows:

Chehade: What did you have? Did you have
things?

Mubayyid: Actually, we had already moved, we
were not there. . . . We had moved our effects
to uh-wha do you call it? To storage.

. . .

Chehade: Alright. What do you have?
Storage? What-what do you have for storage?
Take the things out of storage.

Mubayyid: They were originally locked, in-
in- in-, uh, in- the ugh- the office, and we
moved them to the storage.

. . .

Chehade: Remove them.

Mubayyid: It need uh, one is afraid that they
may think that there is something, I mean--

Chehade: No.

Mubayyid: I don't want to touch anything so
that there is no.

Chehade: No, no, no, remove them, remove them.

-77-
 The government introduced the conversation to show that,

notwithstanding his statement to the contrary at the time, Mubayyid

ultimately removed and destroyed documents from the storage unit,

evidencing his consciousness of guilt. To that end, the government

tied this conversation to evidence indicating that three

particularly damning documents, one of which involved GRF, had been

removed from the storage unit between the time of the FBI's covert

search in October 2001 and the time of the FBI's subsequent search

in April 2003. It also explained this theory of the evidence to

the jury in closing argument.

Appropriately, the district court instructed the jury

that it could not consider Chehade's statements for the truth of

the matter asserted, and that the conversation was being offered to

show the impact upon Mubayyid. The evidence was admissible for

this limited purpose. Cf. United States v. Walter, 434 F.3d 30,

34 (1st Cir. 2006) (concluding that informer's out-of-court

statements during taped "sting" were admissible as context for

defendant's taped responsive admissions).

In any event, the admission of this phone conversation

was harmless. "[A] non-constitutional evidentiary issue will be

treated as harmless if it is highly probable that the error did not

contribute to the verdict." United States v. Rose, 104 F.3d 1408,

1414 (1st Cir. 1997). At trial, the government introduced evidence

that the storage unit was rented by Mubayyid and remained under his

-78-
control during the time between the two FBI searches. It further

showed that many of Care's documents were retrieved from Mubayyid's

residence during the 2003 search, that the documents in question

were not recovered from either the storage unit or the residence,

and that the storage unit contained a paper shredder in 2003 that

had not been present in 2001. Thus, the government had substantial

other evidence from which it could have asked the jury to draw the

same conclusion. Moreover, by choosing to demonstrate

consciousness of guilt as it did -- i.e., by emphasizing that

Mubayyid had been asked to remove documents -- the government

necessarily highlighted for the jury that Mubayyid, in fact,

refused to do so. For these reasons, it is highly probable that

the introduction of the challenged phone conversation and the

prosecutor's reference to it in closing argument did not contribute

to the verdict.

C. Muntasser and Mubayyid's Joint Claim38

Muntasser, in an argument adopted by Mubayyid, contends

that so-called "terrorism" evidence admitted to prove the

conspiracy of which both defendants were ultimately acquitted by

the district court was so extensive, inflammatory, and prejudicial

that it necessarily spilled over into the jury's consideration of

their guilt on other charges. In effect, they argue that their

38
Because we have ordered that the conspiracy conviction be
reinstated, which will require re-sentencing, we do not consider
Muntasser's additional claims related to sentencing.

-79-
acquittal produced a "retroactive misjoinder."39 See generally

United States v. Hamilton, 334 F.3d 170, 181-82 (2d Cir. 2003).

Because we reinstate the conspiracy conviction against all three

defendants on Count 2, the defendants' contention is without merit.

As we explained when addressing the defendants' claim that the

variance was prejudicial, the challenged evidence was properly

admitted to prove the conspiracy.

Additionally, the defendants are unable to show that,

though properly admitted for the conspiracy charge, this evidence

was so inflammatory that it prejudiced the jury against them on the

discrete counts for scheming to conceal material facts from the

IRS, filing false tax returns, endeavoring to obstruct the

administration of the Internal Revenue laws, and making a false

statement to the FBI. In order to determine whether a new trial is

warranted, we look for a "serious risk" that the joinder of

offenses compromised a specific trial right or "prevent[ed] the

jury from making a reliable judgment about guilt or innocence."

United States v. Houle, 237 F.3d 71, 75-76 (1st Cir. 2001) (quoting

Zafiro v. United States, 506 U.S. 534, 539 (1993)).

39
"Retroactive misjoinder occurs where joinder was proper
initially because of a conspiracy allegation, but where later
developments, such as the district court's decision in the case
months later to set aside a defendant's conspiracy conviction,
appear to render the initial joinder improper." United States v.
Deitz, 577 F.3d 672, 693 (6th Cir. 2009) (alterations omitted)
(quoting United States v. Warner, 690 F.2d 545, 553 (6th Cir.
1982)) (internal quotation marks omitted).

-80-
 Here, the district court went to considerable lengths to

safeguard against the possibility of prejudicial spillover.40 The

court's timely use of cautionary instructions weakens the inference

of prejudice to be drawn from any evidence that would not have been

independently admissible. See United States v. Ofray-Campos, 534

F.3d 1, 35 (1st Cir. 2008) (citing United States v. Sabatino, 943

F.2d 94, 96-97 (1st Cir. 1991)). We have "no basis to suppose that

the jurors disregarded the trial judge's admonitions and departed

on a frolic of their own." United States v. Pierro, 32 F.3d 611,

616 (1st Cir. 1994).

Additionally, the charges on which Muntasser and Mubayyid

were convicted are distinct from the conspiracy charge to which the

challenged evidence had primary relevance. This factor increases

the likelihood that the jury engaged in the "individualized

40
For example, when the government presented expert testimony
describing the operations of Al-Kifah and MAK, the judge instructed
the jury as follows:

Testimony concerning -- or testimony has been admitted
concerning the organization and activities of Al-Kifah
and the organization and activities of Care. And it's to
go to this issue, the successor or outgrowth issue. And
you may consider that issue only for that purpose. And
just to be clear, defendants are not charged with any
actions or activities relating to MAK or Al-Kifah. The
issue here is the successor or outgrowth issue. And you
may not conclude or infer or surmise that the defendants
are somehow charged with or responsible for the actions
or activities of MAK or Al-Kifah. They are not. Again,
it's solely this issue of successor or outgrowth and, in
effect, comparing the activities or organization of the
two organizations.

-81-
factfinding" to which each defendant was entitled. See United

States v. Josleyn, 99 F.3d 1182, 1188 (1st Cir. 1996). Indeed, the

jury asked several incisive questions during deliberation that

demonstrated its discriminating appraisal of all the evidence.41

Moreover, the jury's acquittal of Al-Monla on his false statement

charge, pursuant to the same statute under which Muntasser was

convicted, further undercuts the defendants' spillover argument.

Cf. United States v. Edgar, 82 F.3d 499, 504 (1st Cir. 1996)

(jury's acquittal on one of several counts demonstrated

harmlessness of spillover evidence). Where the jury renders a

judgment of conviction against only some of the defendants or on

only some of the charges, we are particularly reluctant to presume

that the jury was unable to compartmentalize the evidence of each

offense. United States v. Casas, 425 F.3d 23, 50 (1st Cir. 2005).

Most importantly, however, the evidence against both

defendants on the relevant charges was simply overwhelming. We

have already detailed the evidence supporting Mubayyid's

convictions. Muntasser's conviction is similarly supported by

substantial evidence, in part because the offense itself is so

straightforward. Cf. Josleyn, 99 F.3d at 1189. FBI Agent Peet

41
For example, the jury asked, "Does Muntasser asking for a
lawyer negate his previous answer 'no' twice visiting Afghanistan
to Special Agent Peet?" The trial judge correctly instructed that
Muntasser's request for a lawyer rendered no part of the FBI's
questioning legally impermissible, but that the jury was free to
consider all of the evidence concerning the interview and to give
it such weight as it deserves.

-82-
testified at trial that he interviewed Muntasser in 2003 as part of

an active investigation into both Muntasser and Care. During the

interview, Muntasser indicated that he had traveled to Peshwar,

Pakistan in 1994 or 1995. Because Agent Peet was aware that

Peshwar is only about fifty kilometers from the Afghanistan border,

and is a main route into Jalalabad, Afghanistan, he specifically

asked whether Muntasser had traveled to Afghanistan or had ever met

Gulbiddin Hekmatyar. Muntasser responded that he "had never, ever

traveled to Afghanistan" and that he "had never met" Hekmatyar.

During the interview, the agents inquired several more times into

whether Muntasser had visited Afghanistan, but, each time,

Muntasser denied having done so. Agent Peet testified that, if

Muntasser had told him the truth about visiting Afghanistan in 1994

or 1995, it "would have drastically changed the course the

interview took."42

At trial, Muntasser conceded that he lied, arguing to the

jury only that the lie was not material because Agent Peet already

had credible information that he had traveled to Afghanistan and

was therefore not misled by Muntasser's statements to the contrary.

42
According to Agent Peet, he would have asked such additional
questions as, "Where was the safe house in Peshwar? Who was
guarding that safe house? Are Pakistani authorities in compliance
with [sic] that safe house?" Additionally, he stated, "We would
have asked if false identification had been used to get across the
border; were Pakistani authorities helping him; what Afghans were
helping him; where the meeting took place; and, again, under what
circumstances did the meeting take place."

-83-
Thus, although the evidence against Muntasser on this count

constituted only a small fraction of that produced over the twenty-

four days of trial, we are hard-pressed to imagine that a

reasonable jury would have been unable to evaluate such clear

evidence objectively.

III.

For the foregoing reasons, we reverse the district

court's judgment of acquittal on Count 2, thereby reinstating the

jury's verdict of guilty. We affirm the defendants' other

convictions. The case is remanded to the district court for the

sentencing of defendant Al-Monla, and the re-sentencing of

defendants Muntasser and Mubayyid.

So ordered.

-84-
 APPENDIX

Count Charge Muntasser Al-Monla Mubayyid
1 Scheme to conceal Post- Post- Guilty
material facts. verdict verdict
18 U.S.C. § 1001(a)(1) acquittal acquittal
2 Conspiracy to defraud Post- Post- Post-
the United States. verdict verdict verdict
18 U.S.C. § 371 acquittal acquittal acquittal
3 False tax filing. Guilty
26 U.S.C. § 7206(1)

4 False tax filing. Guilty
26 U.S.C. § 7206(1)

5 False tax filing. Guilty
26 U.S.C. § 7206(1)

6 False statement. Guilty
18 U.S.C. § 1001(a)(2)

7 False statement. Not
18 U.S.C. § 1001(a)(2) Guilty

8 Corruptly obstructing Pre- Pre- Guilty
IRS administration. verdict verdict
26 U.S.C. § 7212(a) acquittal acquittal

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