In United States v. Abdul Kareem, --- F.4th ---, No. 24-3202 (9th Cir. 2026), the Court reversed Kareem's conviction for conspiracy to provide material support to a foreign terrorist organization in violation of 18 U.S.C. § 2339B (Count 5), and remanded with instructions that the district court enter a judgment of acquittal as to Count 5 and that Kareem be resentenced.
[W]e now restate what our precedent has long recognized. Whether or not a defendant preserved the issue below, the governing substantive inquiry for evidentiary sufficiency challenges raised on appeal remains the same: whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. If the answer is yes, the conviction stands. If the answer is no, reversal is required, because permitting a criminal conviction to stand on insufficient evidence would constitute plain error and a manifest miscarriage of justice.On the merits, Kareem argues that the government’s evidence was insufficient to show that he intended to join a conspiracy wherein material support would be provided to ISIS. The government, on the other hand, contends that there was ample evidence to show that Kareem possessed the requisite mental state to join such a conspiracy. Because no evidence shows that Kareem intended to join a conspiracy to provide material support to ISIS—even assuming without deciding that such a conspiracy existed—we disagree.To convict a defendant of a conspiracy, the government “must prove beyond a reasonable doubt ‘both the existence of the conspiracy alleged and the defendant’s membership in it.’” United States v. Farhane, 634 F.3d 127, 144 (2d Cir. 2011) (quoting United States v. Chavez, 549 F.3d 119, 125 (2d Cir. 2008)). In the Section 2339B context, this means that the government must show that “two or more persons agreed to provide material support” to a foreign terrorist organization and that the defendant “knowingly became a member of the conspiracy with the intent to further its unlawful purpose” of providing material support to that foreign terrorist organization.On appeal, Kareem argues there was insufficient evidence to justify his Count 5 conspiracy conviction. Kareem asserts that the government “had no evidence of th[e] more demanding scienter element of the ‘material support’ necessary to convict on this type of conspiracy.” Instead, he contends that “proof of Count 5 was based solely on inferential evidence argued by the government in its conclusory claim that Kareem ‘not only helped and aided his friends who he knew supported the Islamic State and were intending to act out to attack, in the name of the Islamic State, but it also shows that he wanted to attack too.’”[T]he government asserts that “[t]here was overwhelming evidence that Kareem joined . . . a conspiracy to provide material support to ISIS through the commission of a terrorist act in ISIS’s name.” We find the government’s position unavailing.There is an absence of evidence showing that Kareem possessed an intent to join a conspiracy wherein material support would be provided to ISIS in the form of “personnel,” and the government fails to address this argument on appeal. Even viewing the evidence in the light most favorable to the government, there is no evidence showing that Kareem intended to join a scheme wherein he or his co-conspirators would receive directions from, or be in coordination with, ISIS personnel.In sum, there is no evidence that Kareem intended for Simpson, Soofi, or himself to act under ISIS’s “direction or control” or in a manner that went beyond “act[ing] entirely independently of the foreign terrorist organization to advance [the organization’s] goals or objectives.” See 18 U.S.C. § 2339B(h). We conclude that the evidence was insufficient to sustain Kareem’s Count 5 conviction on the basis that he entered into an agreement for him or his coconspirators to operate as “personnel” to ISIS.Deviating from its trial arguments, the government now contends that Kareem entered a joint commitment to provide material support to ISIS in the form of “service.” The government principally points to Kareem’s fascination with ISIS propaganda to show that Kareem had the requisite mental state to be convicted of Count 5. However, under Section 2339B, none of the evidence presented at trial reveals Kareem’s intent to join a conspiracy wherein a service would be provided to ISIS.As the Supreme Court has pointedly explained, “if independent activity in support of a terrorist group could be characterized as a ‘service,’ the statute’s specific exclusion of independent activity in the definition of ‘personnel’ would not make sense,” as “Congress would not have prohibited under ‘service’ what it specifically exempted from prohibition under ‘personnel.’” Id. Thus, the term “service” as it is understood under Section 2339B cannot include independent advocacy even when that advocacy is undertaken on behalf of a designated terrorist organization. However heinous Kareem’s conduct may be, the government needed to show more than what it did here for a rational juror to find the elements of the charged offense beyond a reasonable doubt.We would be remiss if we did not recall one final truth: the law applies even to the most unsympathetic individuals. The evidence presented at trial reveals that Kareem was fascinated with ISIS’s violent and extremist views and brazenly acted on those beliefs with the plan to harm others. Such conduct is undoubtedly repugnant. But whether a defendant is deserving of our sympathy is not the question we must answer. Instead, we apply the law as it is written and as it has been interpreted by the Supreme Court. A conspiracy charge under Section 2339B requires proof of an intent to take coordinated action under a foreign terrorist organization’s “direction or control,” not schemes rooted in expressed ideological alignment or independent violence undertaken on behalf of an organization. That boundary is one Congress and the Supreme Court have drawn, and it is one we are bound to respect.
