Ninth Circuit Vacates ISIS Support Conviction of Arizona Man

The Ninth Circuit on Friday threw out the terrorism centerpiece of Abdul Malik Abdul Kareem's 2016 conviction, ordering a new trial on the one count that tied him to the Islamic State. A three-judge panel reversed the conspiracy-to-provide-material-support verdict while leaving four other counts intact. Kareem, a Phoenix man, is serving a 30-year sentence for his role in arming the shooters behind a 2015 attack in Garland, Texas.

What did the court decide?

Two Biden appointees, U.S. Circuit Judges Salvador Mendoza Jr. and Roopali Desai, ruled the government presented no evidence that Kareem actually intended to provide services to ISIS. Writing for the majority in a 33-page opinion, Mendoza drew a sharp line between sympathy and service.

"At most, the evidence demonstrated that Kareem was independently inspired by ISIS's ideology and goals," Mendoza wrote. "But acts rooted in ideological sympathy toward an organization, standing alone, do not establish that a defendant knowingly agreed to provide material support to that organization or that he intended for a co-conspirator to operate under the organization's direction or control."

The panel found the evidence insufficient even under the deferential standard (viewing facts in the light most favorable to the government, the usual test on appeal). "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," Mendoza wrote.

Why did the pledge matter so little?

The case turns on a single tweet. Kareem's roommates, Elton Simpson and Nadir Soofi, drove from Phoenix to Garland in May 2015 to attack a "Draw Muhammad" cartoon contest organized by a right-wing extremist group. Just before opening fire, Simpson pledged himself to ISIS on Twitter. An undercover police officer shot and killed both attackers after they wounded a security guard once in the leg.

For the majority, that pledge proved nothing about Kareem. Simpson's declaration displayed only his personal devotion to ISIS, not an agreement between the group and himself, the panel said. And even if it showed agreement, no evidence indicated Kareem ever heard of or knew about the tweet. Think of it as a fan wearing a team jersey. The jersey shows allegiance. It doesn't prove the team drafted him.

Kareem, the third roommate, supplied the pair with three rifles, three handguns and 1,500 rounds of ammunition. The government also accused him of training the shooters, though that allegation formed no part of the conviction.

What was the trial record?

At trial, prosecutors built their case on association and exposure. Evidence showed Kareem began staying with Simpson and Soofi in 2014. The three consumed and discussed Islamic extremist media, including ISIS propaganda videos. A former roommate testified Kareem declared himself "part of ISIS."

That wasn't enough. The majority called Kareem's inspiration by ISIS propaganda irrelevant to his state of mind, because no agreement for him to serve as "personnel" of the group was ever established. Material support under § 2339B (the federal statute criminalizing aid to designated foreign terrorist organizations) requires proof of a knowing agreement, not mere ideological alignment.

"However heinous Kareem's conduct may be, the government needed to show more than what it did here," Mendoza wrote.

The defense also faces a wrinkle of its own making. At trial, Kareem's attorney conceded that Simpson and Soofi conspired to provide services to ISIS, contesting only whether Kareem shared their intent. On appeal, he argued the government never proved that intent at all.

What did the dissent say?

U.S. Circuit Judge Daniel P. Collins, a Donald Trump appointee, dissented. He saw no material difference between acting in direct service to a group and acting in alignment with its core mission.

"The majority is wrong in contending that an individual provides a 'service' to a foreign terrorist organization only when he undertakes 'coordinated actions that integrate [him] into [the] organization's operations,'" Collins wrote.

The government, he argued, didn't need to show communication between Kareem and ISIS. Acting on "ISIS's public call for its supporters to conduct terrorist attacks in the United States" could suffice. Collins also flagged the defense's shift: "Kareem's current narrow reading of § 2339B is thus contrary to the position he affirmatively took during the trial."

What happens next?

The panel said Kareem must be acquitted and retried on the final count, conspiracy to provide material support to a foreign terrorist organization. His 2016 convictions for transporting firearms across state lines, making false statements to the FBI and illegal possession of a firearm stand untouched, along with the 30-year sentence those counts support.

For terrorism prosecutors, the ruling tightens the evidentiary bar. Inspiration, propaganda consumption and close association with attackers no longer carry a conspiracy count on their own. The government must show coordination with, or direction from, the organization itself — or find a different theory. Expect retrial litigation over what proof can close that gap, and a likely push for en banc review given the 2-1 split.