06-0638-cr, 06-0744
United States v. Elfgeeh


Sack, Circuit Judge, concurring in part and dissenting in part:

           I concur for the most part in the judgment of the Court

and the opinion of Judge Kearse.   I respectfully dissent in part,

however, because I would vacate the judgment of conviction of

Aref Elfgeeh and remand the case against him to the district

court for further proceedings.   I do not think that his

conviction comports with principles of Due Process for two

reasons, one having to do with extensive and particularly

prejudicial publicity (Part I, below), and the other with the

district court's instructions to the jury as to the state of

Aref's knowledge needed to permit a conviction (Part II, below).

That the former requires a good deal more explication than the

latter does not mean that I view the latter as is either a less

important, or a less persuasive, reason for vacatur of the

judgment against Aref.



                  I.   Prejudicial Trial Publicity

A.   The First Indictment of Abad and His Guilty Plea

           Immediately after the 9/11 attacks, President Bush

"announced that the United States would make no distinction

between those who committed t[errorist] acts and those who

harbor[ed] t[errorists]."   Global Relief Found., Inc. v. New York

Times Co., 390 F.3d 973, 975 (7th Cir. 2004) (internal quotation
marks omitted).   "A few days later, the President stated that the

United States would also focus on non-governmental organizations

which served as fronts or as funding mechanisms for terrorist

organizations."   Id.

          Abad Elfgeeh operated an informal money-transmitting

business -- called, in Arabic, a "hawala"1 -- from his ice cream

store in Park Slope, Brooklyn.   The hawala was used largely by

members of Brooklyn's Yemeni-American community to transfer money

abroad.   On February 3, 2003, a four-count indictment returned by

a grand jury sitting in the United States District Court for the

Eastern District of New York charged Abad Elfgeeh -- not his

nephew Aref -- with various violations of federal law in

connection with his operation of the hawala.

          In Count One of the indictment, the grand jury alleged

that between January 1995 and October 2001, Abad had conspired

to, inter alia, conduct a business, the hawala, "knowing

that . . . [it] was an illegal money transmitting business" and

that it affected interstate or foreign commerce, in violation of

18 U.S.C. § 1960(a) (1994).    In Count Two, he was charged with,

inter alia, conducting the business in violation of that statute

and 18 U.S.C. § 3551 et seq.   In Count Three, the grand jury

charged that between November 2001, when a new version of section



     1
        "Hawalas" have been defined as "informal money-lending
networks common in the Arab world." Global Relief Found., Inc.
v. New York Times Co., 390 F.3d 973, 976 (7th Cir. 2004).
1960(a) had become effective, and January 2003, Abad conspired,

inter alia, to conduct an unlicensed money-transmitting business

in violation of 18 U.S.C. § 1960(a) (2001).      In Count Four, the

grand jury asserted that during the same time period, Abad, inter

alia, conducted such a business.

           More than eight months later, on October 8, 2003, Abad

entered a plea of guilty to all four counts in the indictment

before a magistrate judge.    The magistrate judge conducted a

hearing pursuant to Federal Rule of Criminal Procedure 11(b),

which requires that "[b]efore entering judgment on a guilty plea,

the court must determine that there is a factual basis for the

plea."   Fed. R. Crim. P. 11(b)(3).   The magistrate judge then

recommended that the district court accept the plea.

           Seven months later, on May 11, 2004, however, the

district court (Charles P. Sifton, Judge) rejected the magistrate

judge's recommendation.    The court observed:

           [T]he . . . proceedings before the Magistrate
           Judge make[] clear that there was no factual
           basis for a finding that [Abad] Elfgeeh had
           engaged in either of the two
           conspiracies . . . . [N]obody's guilt of any
           offense other than Mr. Elfgeeh's own was even
           discussed. So there was no allocution under
           oath or otherwise by Mr. Elfgeeh to his
           participation in an illegal agreement with at
           least one other individual to commit the
           crimes with which he is charged in Counts One
           and Three.

Tr. of Proceedings at 3, United States v. Elfgeeh, No. CR 03-133,

(E.D.N.Y. May 11, 2004).

B.   The Superseding Indictments
          On June 9, 2004, several weeks after Abad's guilty plea

was rejected, the grand jury returned a superseding indictment.

It charged not only Abad, but also his nephew, Aref, in

connection with the operation of the hawala.

          This first superseding indictment noted by way of

introduction that before November 1, 2001, an "illegal money

transmitting business," as defined in 18 U.S.C. § 1960(a), was a

"money transmitting business . . . intentionally operated without

an appropriate money transmitting license" in a state in which

doing so was a crime.   Indictment dated June 9, 2004 at 1, United

States v. Elfgeeh, No. CR 03-133, (E.D.N.Y. June 9, 2004)

(emphases added).   Beginning on November 1, 2001, however,

Congress substituted for the phrase "illegal money transmitting

business" in the statute the phrase "unlicensed money

transmitting business," which included "any money transmitting

business . . . operated without an appropriate money transmitting

license" if criminal penalties were assessed by the state for the

lack of such a license.   Id. at 1-2 (emphasis added).   Thus, in

the new, post-9/11 version of the statute, the requirement that

the defendant "intentionally" operate the business without a

state license was omitted.   See USA PATRIOT ACT of 2001, Pub. L.

No. 107-56, § 373, 115 Stat. 272, 339 (amending 18 U.S.C.

§ 1960(a)).

          In Count One of the first superseding indictment, the

grand jury then alleged that between January 1995 and October
2001, Abad had conspired, inter alia, to conduct a business

"knowing that the business was an illegal money transmitting

business" in violation of 18 U.S.C. § 1960(a) (1994).    Id. at 2-

4.   In Count Two, the grand jury charged that, during the same

time period, Abad, inter alia, conducted such a business in

violation of that statute and 18 U.S.C. § 3551 et seq.     Id. at 4.

In Count Three, the grand jury charged that between November 2001

and January 2003, Abad and his nephew Aref conspired to, inter

alia, conduct an unlicensed money transmitting business in

violation of 18 U.S.C. § 1960(a) (2001).   Id. at 4-6.   In Count

Four, the grand jury asserted that during the same time period,

inter alia, Abad and Aref conducted such a business.     Id. at 6.

Thus, in both the original indictment and the first superseding

indictment, Abad was charged with violation of both the 1994 and

2001 versions of the statute.   In the first superseding

indictment, Aref,2 was also charged, but with violation of the

2001 version of the statute only.   He was thus not accused of

"intentionally" operating the business without a state license.


     2
        Aref, with the government's assent, ultimately received a
minor role downward adjustment to his sentence. He had been
referred to by the government at trial as a "shlepper," Trial
Tr. at 1006, United States v. Elfgeeh, No. CR-03-0133 (E.D.N.Y.
Sept. 20, 2005), although the term "gofer" might have been closer
to the mark. ("According to Leo Rosten's book 'The Joys of
Yiddish,' some of the meanings of the word 'schlepper' are:
'drag, jerk, a maladroit performer, unkempt, untidy.'" Samuel
Chiel, Letter to the Editor, N.Y. Times, Dec. 2, 1994. A "gofer"
is defined in Merriam-Webster's Online Dictionary as an "employee
whose duties include running errands."
http://www.m-w.com/dictionary/gofer (last visited Jan. 13,
2008).).
           On September 15, 2004, the grand jury returned a second

superseding indictment .   See Indictment dated September 15,

2004, United States v. Elfgeeh, No. CR 03-133, (E.D.N.Y. Sept.

15, 2004).   The indictment added a new Count Five charging only

Abad with "structuring," i.e., breaking amounts of currency in

excess of $10,000 into smaller amounts and depositing the smaller

amounts into an account with a financial

institution -- presumably for the purpose of evading federal

reporting requirements, id. at 8 -- in violation of 31 U.S.C.

§ 5324(a).

           Unlike his guilty plea to the first indictment, Abad

Elfgeeh pleaded not guilty to both superseding indictments.     So

did his nephew Aref.

C. Background: Post-9/11 Prosecution of Terrorists and Those
Providing Funding to Them

           Prominently connected with the prosecution of Abad

Elfgeeh was the high-profile investigation and prosecution of

Mohammed Al-Moayad -- self-described as "Osama bin Laden's Sheik"

-- and his alleged co-conspirator, Mohammed Zayed.   The two were

convicted on March 10, 2005, after a five-week jury trial before

Hon. Sterling Johnson -- the same district judge who presided

over the Elfgeehs' case -- for conspiring and attempting to

provide material support to Hamas and conspiring to support Al-

Qaeda.3   The Al-Moayad prosecution and the events surrounding it

     3
        The judgments of conviction were entered on August 1,
2005 and September 15, 2005, respectively. Al-Moayad was
(including a key witness's apparent attempt to immolate himself

in front of the White House) were widely reported by and

discussed in the media.4

          Abad Elfgeeh apparently had connections to Al-Moayad,

and the government plainly harbored suspicions that his hawala

had been used to funnel money abroad in support of terrorist-

related activity.   But the government never purported to be able

to prove any such link.    No such charge was contained in the

indictment.   Aref Elfgeeh was accused only of the crime of

operating and conspiring to operate an "unlicensed" money-

transmitting business.

          As the majority points out, the district court

recognized that in light of the circumstances under which the

Elfgeehs' trial was conducted, it had a fundamental

responsibility to keep issues of terrorism out of the trial.     It

sought to ensure that the jury would consider the charges that

were actually made against the Elfgeehs, essentially financial in

nature, and not the incendiary and uncharged accusation of their




sentenced to 75 years in prison, Zayed to 45. See Government's
Br. in United States v. Al-Moayad, 2d Cir. No. 05-4186. Appeals
from the convictions were argued before this Court on November
26, 2007.
     4
        Al-Moayad's trial was covered by the local news media on
a regular basis. I count fourteen articles about the trial in
The New York Daily News during that period; twelve in Newsday;
eight in The New York Post; and seventeen in The New York Times.
involvement in, facilitation of, or support for, Islamic

terrorism.

D.   The Trial Publicity

           On September 11, 2005, the city and country marked the

fourth anniversary of the Al-Qaeda attacks.   The commemoration

was, of course, front page news in New York the following day.

See, e.g., Michael Wilson, Marking 9/11 While Mourning a Fresher

Loss, N.Y. Times, Sept. 12, 2005, at A1.   The Elfgeeh jurors were

sworn the same day, September 12, in the Eastern District

courthouse, some two miles from "ground zero."   Opening arguments

were held the next day, Tuesday.

           As the majority opinion explains in some detail, the

Elfgeeh trial itself received substantial press coverage.    The

publicity culminated on the third day of trial, September 14, see

ante at [pp. 21-25], in the principal New York tabloids:

Newsday,5 The New York Post, and The New York Daily News.6   The



     5
        Newsday's home base is in Melville, Long Island, which is
located in Suffolk County, Long Island, New York, and its
principal circulation is in Suffolk and Nassau counties, the two
counties on Long Island that are not part of New York City, and
Queens County, which is part of the city. All are located in the
Eastern District of New York.
     6
        These three papers had a combined daily circulation in
excess of 1.5 million copies. According to Audit Bureau of
Circulation figures reported by the BurrellesLuce media
monitoring service, in 2005, The New York Daily News, The New
York Post, and Newsday ranked sixth (708,773), seventh (643,086),
and twelfth (459,305), respectively, in daily circulation among
United States newspapers. See
http://www.burrellesluce.com/top100/2005_
Top_100List.pdf (last visited Jan. 22, 2008).
stories that day strongly suggested a link between the

prosecution of the Elfgeehs and other terrorism prosecutions.

Worse, they specifically questioned the district court's ruling

that the Elfgeehs' prosecution was not a terrorism prosecution,

and the trial judge's insistence that the issue of terrorism be

avoided.   The Post, for example, asked:

           Was Abad Elfgeeh, upstanding American
           citizen, financing terror through ice cream?
           You may never know because federal jurors may
           never hear the "T" word spoken aloud.7

The articles were indisputably, intentionally inflammatory.    And

as the majority observes, "There can be little doubt that in the

wake of September 11, 2001, evidence linking a defendant to

terrorism in a trial in which he is not charged with terrorism is

likely to cause undue prejudice."    Ante at [p. 43].

           The articles plainly had the potential for
           unfair prejudice. Each referred to the
           Elfgeehs' trial and made pointed references
           to, inter alia, terrorism and/or al Qaeda; in
           addition they described evidence that the
           jury would not be allowed to see or hear at
           trial; and two of the articles stated that
           Abad had previously pleaded guilty to the
           charges on which he was now being tried.

Id. at [p. 50].   The articles threatened to nullify the district

court's requirement that no one suggest to the jury that the

prosecution was terrorism-related.

E.   Circuit Law on Prejudicial Trial Publicity



     7
        Andrea Peyser, "Trial Serves Up Some Really Nutty
Buddies," New York Post, Sept. 14, 2005, at 9. A copy of the
text of the article is attached hereto.
          The difficulty of the challenge to courts in ensuring

that a criminal defendant enjoys Due Process even while the press

is free to report on the defendant's trial and the public is thus

able to learn about it as it unfolds, has long been understood.

See, e.g., Hans A. Linde, Fair Trials and Press Freedom: Two

Rights Against the State, 13 Willamette L. Rev. 211, 214 (1977).

The Supreme Court has for many years recognized that in some

cases trial publicity can so pollute criminal proceedings and

thereby abridge the ability of the defendant to receive a fair

trial that only remand and retrial can remediate the damage.

See, e.g., Estes v. Texas, 381 U.S. 532 (1965) (holding that

televising the trial, over defendant's objection, violated Due

Process); Rideau v. Louisiana, 373 U.S. 723 (1963) (holding that

television broadcast of the defendant's pre-trial confession

violated Due Process).   In Sheppard v. Maxwell, 384 U.S. 333

(1966), the Court addressed, among other things, prejudicial

publicity in the course of a criminal trial.

          Due process requires that the accused receive
          a trial by an impartial jury free from
          outside influences. Given the pervasiveness
          of modern communications and the difficulty
          of effacing prejudicial publicity from the
          minds of the jurors, the trial courts must
          take strong measures to ensure that the
          balance is never weighed against the accused.
          And appellate tribunals have the duty to make
          an independent evaluation of the
          circumstances. . . . If publicity during the
          proceedings threatens the fairness of the
          trial, a new trial should be ordered. But we
          must remember that reversals are but
          palliatives; the cure lies in those remedial
          measures that will prevent the prejudice at
          its inception.
Id. at 362-63; see also Neb. Press Ass'n v. Stuart, 427 U.S. 539,

553-554 (1976) (noting that judges have a duty to protect

defendants from prejudicial publicity) (quoting Sheppard, 384

U.S. at 362-63).

          Pervasive trial coverage, of concern to the Stuart and

Sheppard Courts, is hardly unknown in this Circuit.   "It is not

an uncommon occurrence for a notorious trial held in Metropolitan

New York to engender extensive publicity."   United States v.

Gaggi, 811 F.2d 47, 51 (2d Cir.), cert. denied, 482 U.S. 929

(1987).   For that reason, more than twenty-five years ago -- the

year following the Supreme Court's decision in Nebraska Press

Association -- we established the appropriate procedures to be

taken by a district court in the face of prejudicial trial

publicity like that which occurred in the Elfgeehs' case:

          The guidelines to be followed by a district
          court confronted with the problem of
          publication or broadcast of information
          concerning an ongoing criminal trial have
          been indicated by us. First the court must
          decide whether the publicity contains
          potentially prejudicial information, and
          whether the members of the jury might have
          been exposed to it. If the broadcast or
          article contains no information beyond the
          evidence in the case, or if the information
          is clearly innocuous or the possibility of
          the jury's exposure to it is remote, further
          inquiry may not be necessary. If, however,
          the court determines that the article or
          broadcast has a potential for unfair
          prejudice, then an initial inquiry of the
          jury is necessary to ascertain whether any of
          its members have been exposed to the
          information. Any juror who responds that he
          or she has been so exposed should be examined
          individually, out of the presence of the
          other jurors, to determine the extent of the
          exposure and its effect on the juror's
          attitude toward the trial. This
          precautionary procedure should permit the
          court to determine what further steps, if
          any, are required to insure that the trial
          proceeds fairly.
United States v. Lord, 565 F.2d 831, 838-39 (2d Cir. 1977)

(emphasis added; citations and footnote omitted) (reversing a

conviction because of, inter alia, the district court's failure

to take correct protective measures in the face of prejudicial

publicity during a jury trial).

            As we restated the rule ten years later:
          The simple three-step process is, first, to
          determine whether the coverage has a
          potential for unfair prejudice, second, to
          canvass the jury to find out if they have
          learned of the potentially prejudicial
          publicity and, third, to examine individually
          exposed jurors -- outside the presence of the
          other jurors -- to ascertain how much they
          know of the distracting publicity and what
          effect, if any, it has had on that juror's
          ability to decide the case fairly.
          Ultimately, the trial judge must examine the
          special facts of each case to determine
          whether the jurors remained impartial.
          Absent a clear abuse of the trial court's
          discretion, its finding that the jury was
          impartial should be upheld.
Gaggi, 811 F.2d at 51 (internal quotation marks and citations

omitted).

F.   Aref's Motion To Poll the Jurors

            The majority opinion describes in detail the district

court's attempt to neutralize the prejudicial publicity in the
Elfgeehs' case.   See ante at [pp. 25-31].   To summarize:     On the

morning of the day of the appearance of the articles in question

-- Wednesday, September 14 -- the principal Assistant United

States Attorney prosecuting the case called the court's attention

to the articles in question, asking the court to admonish the

jury to avoid press accounts of the trial.    The court did so.

          The same afternoon, Aref's counsel addressed the

articles and their potential impact at some length.    He moved for

a mistrial or, in the alternative, for the court to interview the

jurors to see whether they had read the articles, and also to

admonish them.    Abad's counsel worried aloud, however, "Sometimes

when you have a situation like this, you make it worse [by

polling the jurors]."    The court agreed, leaning toward an

admonishment only.   Aref's counsel nonetheless asked that the

court ask the jury "as a group" whether anyone had read one of

the articles.     The district judge, noting that he had not seen

the articles himself, said, "There might be some who have not

read it, you'll call their attention to it," and, after more

colloquy, concluded, "I think what I should do at the end of the

day, when we get ready to go home, to mention it again as opposed

to right after lunch."    To this, Aref's counsel responded:

"Again, I have made my request.    My request is on the record."

As the majority recognizes, Aref's counsel, by requesting that

the jurors be polled individually, and then asking that they be

polled as a group, "eventually made a proper request."    Ante at
[p. 49]   At the end of the trial day, the court instructed the

jury to avoid media reports, and that the case would be

determined solely on the evidence presented at trial.

           The trial continued five days later, on Monday,

September 19.   Abad's lawyer raised the publicity issue again

then, but it was in the form of a motion in limine about issues

as to which Abad would not have to testify.   The motion was

denied.   The district court then reviewed one of the offending

articles, apparently for the first time.   The court repeated its

September 14 admonishment to the jury.

G.   The Insufficiency of the District Court's Admonishment

           The majority states: "If [the court gave a standard

admonition not to read or watch anything about the trial], we may

presume, in the absence of any indication to the contrary, that

the jurors have followed the court's instructions and have

rendered their verdict solely on the basis of the evidence at

trial."   Ante at [p. 48].   In Gaggi, however, we opined, on just

that point, that a district court "should not rely solely on

repetitive admonitions when widespread publicity created a strong

possibility that some jurors might have been exposed to

prejudicial publicity."   Gaggi, 811 F.2d at 52 (citing Lord, 565

F.2d at 838).   And in Lord, we found it an abuse of discretion

for the district court to rely solely on such an admonition.

Where articles about the trial appeared on the front page of the
second section of the primary city newspaper, Lord, 565 F.2d at

838 n.6, we said:

          The widespread availability of the newspapers
          as well as the prominent position occupied by
          the articles, created a strong possibility
          that some jurors might have been exposed to
          the irrelevant and prejudicial matter in the
          publicity. Under such circumstances it is
          not enough to assume that jurors will
          faithfully observe general cautionary
          instructions, in view of some experience to
          the contrary.
Id. at 838 (emphasis added; footnote and citation omitted); cf.

Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson,

J., concurring) ("The naive assumption that prejudicial effects

can be overcome by instructions to the jury all practicing

lawyers know to be unmitigated fiction.").

           The analysis we employed in Lord should be applied

here.

H.   An Aside as to the Likelihood of Juror Exposure

           The majority, after concluding that the district court

did not abuse its discretion, says, "The articles were clearly

prejudicial, but it is hardly clear that the jurors would have

seen them.   The judge had not seen them; Abad's attorney has not

seen them; and we assume that Aref's attorney had not seen them

since he said nothing during the first discussion of the articles

(and at lunchtime did not even recall that the court had

instructed the jury that morning to avoid such articles)."
Ante at [p. 53].   I have considerable difficulty with that

inference.

           This was the first day of testimony in a high-

visibility criminal case.   Articles of similar prejudicial import

appeared in all three major tabloids serving the Eastern District

of New York that morning.   Counsel and the court were deeply

engaged in trial preparation; it is therefore not surprising that

they were not reading press accounts.   But I would surmise that

jurors, while commuting to the courthouse or waiting to enter the

courtroom, and having been warned not to discuss the case among

themselves, would be very likely to read the papers.   The chances

seem to me to be rather remote that no juror saw or heard about

the contents of any of the four articles about the case on which

they were sitting –- court admonishment to the contrary

notwithstanding.   It was perhaps for similar reasons that the

Gaggi and Lord courts thought such court instructions to be

insufficient.

I.   Waiver

           The majority observes that: "Had there been no

expression of concern by Abad's attorney following the

government's suggestion that the court pose a general question to

the jury, or had Abad joined in Aref's eventually appropriate

motion for such questioning, the court should have followed the

Gaggi procedures and asked the jurors, as a group, whether any of

them had been exposed to the articles."   Ante at [p. 52].    The
opinion goes on to refer to the divergent views of Aref and Abad

and concludes that in light of that divergence, the "trial judge

had discretion to decide whether or not to put the question to

the jury."    Ante at [p. 53].

            It is a fair reading of the transcript to conclude, as

the majority does, that counsel for Abad preferred for the court

not to poll the jury.    His client is reasonably bound by that.

But Aref was not represented by the same counsel, nor were his

interests necessarily aligned with Abad's.    And, in a situation

where there was an extraordinary danger of actual prejudice, I

think that our case law strongly suggests that his request for

the jury to be polled should have been honored.    I think the

failure to do so on the facts of this case was a "clear abuse of

the trial court's discretion."    Gaggi, 811 F.2d at 51.

            This is not a purely theoretical matter.   I fear that

there is a substantial danger that Aref, at best a third-string

player in the scheme for which he was indicted, was convicted

because he was a member of the Yemeni community, and the jury

suspected that the prosecution was, at bottom, about terrorism

and Al Qaeda, supported by publicity to that effect.    I do not

see how, with respect to Aref, the error can be said to be

harmless.

            Lord and Gaggi do not establish immutable legal

requirements for dealing with potentially prejudicial trial

publicity.    As the majority points out, "A district court's
decision regarding juror impartiality is reviewed for abuse of

discretion and deserves deference."    Ante at [p. 47] (quoting

United States v. McDonough, 56 F.3d 381, 386 (2d Cir. 1995)

(internal quotation marks omitted)).   But for the foregoing

reasons, and in light of the analysis by the Lord and Gaggi

courts and their exhortations, I would conclude that it was an

abuse of discretion for the district court not to employ those

procedures under the unusual circumstances presented here.

            II.   Instruction on Knowledge Requirement

          The majority concludes, rightly in my view:

          In the present case, Aref asked the court to
          instruct the jury, inter alia, that "[t]he
          government must also prove beyond a
          reasonable doubt that the defendant knew that
          the business was unlicensed." The trial
          court should have included such an
          instruction in its charge to the jury.
Ante at [p. 57] (alteration in original).     The majority

nonetheless affirms the judgment of the district court,

essentially on the basis of harmless error.    I disagree.

          The majority first notes that only one sentence of the

disputed jury instruction was erroneous, and that that sentence

was surrounded by proper explanations of the knowledge

requirement under the amended statute.   The majority concludes:

"In sum, viewing the instructions as a whole and the nature of

the evidence presented at trial, we are persuaded beyond a

reasonable doubt that the error in the instructions was harmless

because the jury would have reached the same verdicts had it been
instructed not to convict these defendants unless it found they

knew the business was unlicensed."    Ante at [p. 62].

             I agree that Abad's conviction should stand

notwithstanding this error.    He was convicted on the more

stringent standard that preceded the amendment of the statute

effective November 1, 2001.    There was ample evidence that he

knew his own money-transmitting business was unlicensed.      But I

disagree with that analysis as it pertains to Aref.

           After recognizing that the evidence of Aref's knowledge

that the business was unlicensed "was more circumstantial," the

majority states nonetheless: "[W]e likewise conclude beyond a

reasonable doubt that the instructional error did not contribute

to the verdict against him."    Ante at [p. 61].   It seems doubtful

to me that circumstantial evidence of Aref's knowledge of the

intricacies of an operation run by his uncle is "overwhelming."

The majority discusses the circumstantial evidence of the

"furtiveness" of the money-transmitting operations.      See ante at

[pp. 61-62].    But furtiveness does not necessarily amount to

knowledge.    For all the evidence discloses, Aref was simply doing

what his uncle instructed him to do, trusting that his uncle knew

what was proper.    As the opinion recognizes, a hawala is not

illegal.   It was the failure first to obtain a license for the

business that was the crime.    And Abad had been operating the

hawala for many years before Aref became involved.    Without any

direct evidence to the contrary, a properly instructed jury might
well have inferred that Aref believed his uncle must have

licensed the business, particularly in light of the fact that he

displayed other business licenses in his store.

          I am not convinced beyond a reasonable doubt that Aref

knew that Abad had failed to obtain a state license for the

hawala.

          ***

          For the foregoing reasons, I would vacate the judgment

of conviction as to Aref and remand the case against him to the

district court for further proceedings.
                         EXHIBIT TO OPINION OF JUDGE SACK


TRIAL SERVES UP SOME REAL NUTTY BUDDIES

BY DAY, Abad Elfgeeh posed as an ice-cream peddler - a jolly pillar of the community and
unofficial "mayor" of his Yemeni neighborhood in Brooklyn.

But behind the scenes, Elfgeeh used his Park Slope sweet shop to funnel cash to the Middle East,
say the feds. Wads of it - some $20 million was scooped out and shipped over, in small chunks
that no one was supposed to notice.

When Elfgeeh was arrested, Attorney General John Ashcroft went so far as to say that this case
proves "the FBI can better prevent terrorism and save American lives."

Was Abad Elfgeeh, upstanding American Citizen, financing terror through ice cream? You may
never know because federal jurors may never hear the "T" word spoken aloud.

Elfgeeh is standing trial on charges he illegally transferred money to Yemen - which could put
him away for 15 years. But prosecutors agreed that mentioning terror might "prejudice" the jury,
a source told me. This surreal trial gets even stranger, when you learn how it all came about.

On Elfgeeh's legal team in Brooklyn federal court is one Burton Pugach. He is a jolly paralegal
and former lawyer who was disbarred more than 40 years ago after he was convicted of hiring
three men to throw lye in the face of a girlfriend who tried to leave him. She was blinded
permanently. Then he married her.

Then, eight years ago, he was accused of threatening to maim a second woman.

"I only asked someone to beat her up," Pugach, 78, said about his wife, who for some reason
remains wed to him.

So now he wants to fight for fellow victims of the system.

Elfgeeh actually pleaded guilty to the charges against him two years ago. But then he met
Pugach. He pleaded "not guilty" and now faces up to 15 years in prison if convicted. Pugach is
convinced his client will walk. These two deserve each other.


Andrea Peyser, "Trial Serves Up Some Real Nutty Buddies," New York Post, Sept. 14, 2005, at
9.
