The appellant’s conviction for attempting to provide material support to the Islamic State is affirmed, but his convictions for attempting to obstruct justice are vacated.
The district court’s admission of Nazi and white supremacist paraphernalia as evidence did not constitute an abuse of discretion. Even if Nazi organizations are not designated foreign terrorist organizations, a reasonable officer executing the warrant here could conclude that the Nazis’ threats and use of violence as a means of achieving their political ends meant that Nazis engaged in terroristic activity. Some of the items also illustrated a historical and present-day connection between Nazism and radical Islamism. Finally, the affidavit provided examples of the appellant’s affiliation with both Nazism and radical Islamism. Agents reasonably concluded both that Nazis qualified as a terrorist organization and that as to this particular case, the appellant’s Nazi paraphernalia was relevant to or probative of material support for a terrorist organization.
Those materials also were admissible under the applicable Rules of Evidence. The district court correctly recognized that Nazism and militant Islamism have radical, anti-Semitic viewpoints in common. Given that the items seized were probative of the appellant’s predisposition to support such viewpoints, the items were relevant to meeting the government’s burden to prove the appellant’s predisposition to support terrorist activity.
However, the evidence was insufficient to prove the nexus and foreseeability requirements of the obstruction statute.
As other circuits have concluded, an FBI investigation would not fall under § 1515(a)(1)(C), which requires proof beyond a reasonable doubt that the defendant contemplated a particular, foreseeable official proceeding, to include a proceeding before a federal judge, court, or grand jury. The appellant’s convictions do not meet this requirement.
Even if the appellant obstructed an FBI investigation, no evidence demonstrates that he was aware either that his conduct would affect a grand jury proceeding or that a grand jury or similar proceeding was impending. Based on this record, the court would be stretching the foreseeability requirement beyond its limits in concluding that the appellant’s anticipation of an FBI investigation into an acquaintance’s future trip would also reasonably herald a grand jury proceeding. To do so would be pure speculation.
Affirmed in part, vacated in part, and remanded.