Full Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 6 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT Nos. UNITED STATES OF AMERICA, 20-10155 21-10315 Plaintiff - Appellee, 24-3202 v. D.C. No. 2:15-cr-707-SRB ABDUL MALIK ABDUL KAREEM, Defendant - Appellant. MEMORANDUM* Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding Argued and Submitted September 17, 2025 Phoenix, Arizona Before: COLLINS, MENDOZA, JR., and DESAI, Circuit Judges. Partial Concurrence and Partial Dissent by Judge COLLINS. Abdul Malik Abdul Kareem (“Kareem”) appeals from his convictions and various post-judgment orders, raising challenges that relate to Counts One and Three and to post-trial proceedings. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We address Kareem’s conviction on Count Five in a * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 separate published opinion filed concurrently with this disposition, in which we reverse on insufficiency grounds and do not reach any alternative theories of error as to that count. We affirm as to all remaining issues. Kareem argues that the district court abused its discretion by admitting ISIS- related propaganda materials, including a propaganda video entitled Flames of War, contending that their probative value was substantially outweighed by unfair prejudice. See Fed. R. Evid. 403. To the extent Kareem’s evidentiary objections were directed at Counts One and Three, many were not preserved at trial and are reviewed for plain error, while the remainder are reviewed for abuse of discretion. See United States v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007) (en banc) (“We review for an abuse of discretion a district court’s admission of evidence.”); Puckett v. United States, 556 U.S. 129, 135 (2009) (articulating the plain-error standard). Under either standard, Kareem has not shown reversible error as to Count One. The challenged evidentiary materials were probative of Kareem’s knowledge, intent, and state of mind relevant to those counts, including his shared intent to support a violent attack on the Garland contest with Simpson and Soofi.1 1 Our position that the ISIS-related materials were probative of Kareem’s general violent intent to support his co-conspirators in attacking the Garland event has no bearing on our analysis contained within our opinion as to whether Kareem intended to join a conspiracy wherein material support would be provided to ISIS. 2 The district court reasonably determined that this evidence corroborated witness testimony and contextualized the charged conduct underlying Count One. See United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000) (“A district court’s decision to exclude or admit evidence under FRE 403 is reviewed with ‘considerable deference.’” (citing United States v. Cordoba, 194 F.3d 1053 (9th Cir. 1999))). The district court also provided clear instructions regarding the elements of the offense as to Count One, further mitigating any risk of unfair prejudice. Kareem has not demonstrated that the admission of this evidence affected the fairness, integrity, or public reputation of the judicial proceedings on that count. See Puckett, 556 U.S. at 135. Kareem additionally challenges the sufficiency of the evidence supporting his conviction on Count One for conspiracy to transport firearms and ammunition in interstate commerce with intent to commit murder and aggravated assault under 18 U.S.C. § 371. We review preserved sufficiency challenges de novo, viewing the evidence in the light most favorable to the government. Jackson v. Virginia, 443 U.S. 307, 319 (1979) (“[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”). 3 Assuming arguendo that Kareem adequately preserved a sufficiency challenge as to Count One and that de novo review applies, a rational juror could find beyond a reasonable doubt that Kareem knowingly joined the conspiracy charged in Count One and intended to further its unlawful objectives. See United States v. Archdale, 229 F.3d 861, 867 (9th Cir. 2000) (articulating the standard for sufficiency challenges and noting that the fact finders may “draw reasonable inferences from proven facts”). The record shows that Kareem viewed violent and extremist ISIS propaganda, discussed attacking the Garland event, knew in advance that Simpson and Soofi intended to carry out the attack, took them shooting in the desert, trained them in weapons maintenance, purchased two firearms used in the attack, and previously possessed another firearm brought to Garland. The government also introduced evidence that Kareem possessed ammunition matching that recovered at the scene of the attack. This evidence was sufficient to sustain the conviction as to Count One. See Jackson, 443 U.S. at 319. Kareem contends that the government violated Brady v. Maryland by failing to disclose allegedly exculpatory or impeaching evidence bearing on Count One. 373 U.S. 83, 87 (1963). At most, we review the district court’s Brady determinations raised in a motion for a new trial de novo, and factual 4 determinations relating to Brady claims for clear error.2 United States v. Mazzarella, 784 F.3d 532, 537 (9th Cir. 2015) (articulating the de novo standard); United States v. Cloud, 102 F.4th 968, 975 (9th Cir. 2024). The district court addressed each category of evidence identified by Kareem, including information concerning potential participants, surveillance materials, communications, and investigative leads, and appropriately analyzed their relevance to Count One. The court properly concluded that none of these materials were favorable and material under Brady, either individually or cumulatively.3 The evidence that Kareem identifies was cumulative of information already available to the defense or was speculative or unrelated to the actual elements of Count One. See United States v. Bagley, 473 U.S. 667, 681–82 (1985) (outlining the high bar for the “materiality” prong of Brady). Accordingly, Kareem failed to 2 As we note below, Kareem’s final motion for a new trial was untimely and is ineligible for equitable tolling or tolling for excusable neglect. 3 Relatedly, Kareem also challenges the district court’s orders striking his untimely third motion for a new trial, denying equitable tolling under Federal Rule of Criminal Procedure 33, and denying his motion to compel additional disclosures. However, the district court correctly applied Rule 33’s three-year limitations period. Fed. R. Crim. P. 33(b)(1); Eberhart v. United States, 546 U.S. 12 (2005). And even assuming arguendo that the issue of equitable tolling was not waived, the court reasonably concluded that Kareem failed to demonstrate the diligence and extraordinary circumstances required for equitable tolling. See Holland v. Florida, 560 U.S. 631, 649 (2010). Finally, the district court did not abuse its discretion in denying the motion to compel, having found that the government satisfied its disclosure obligations and that the requested materials were not material. 5 show a reasonable probability that the outcome of the trial on Count One would have been different had the evidence been disclosed. Kareem argues that the district court violated due process by permitting ex parte and sealed filings, including submissions under the Classified Information Procedures Act (“CIPA”). 18 U.S.C. app. 3. However, we reviewed the CIPA materials and, at most, they pertain exclusively to Count Five. Because Kareem’s conviction on Count Five is reversed on insufficiency grounds in our separate published opinion, we do not reach the issue of whether any CIPA materials could have affected the jury’s verdict on that count. As to any unclassified but sealed, ex parte filings, the district court reviewed the materials and determined that they did not contain information favorable and material to the defense under Brady with respect to Count One. The district court correctly concluded that disclosure was not required where the filings concerned an individual who did not testify at trial, a remote prior bad act of a witness disclosed at a post-trial evidentiary hearing, or evidence the government considered but did not use at trial or resentencing. Kareem has also not shown that the district court’s handling of the sealed filings resulted in the suppression of material evidence bearing on his guilt or otherwise deprived him of a fair trial. Kareem challenges several jury instructions and the district court’s response to a jury question. Many of Kareem’s instructional claims as to Counts Three were 6 forfeited by his failure to object at trial and are therefore reviewed for plain error. United States v. Frady, 456 U.S. 152, 163–64 (1982) (articulating the plain error standard for unpreserved jury instruction challenges). Under plain error review, the jury instructions as to Count Three adequately conveyed the applicable law regarding mens rea, unanimity, and the elements of those counts. United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010) (“[T]he question before us is . . . whether the instruction actually given was misleading or inadequate to guide the jury’s decision.”). Kareem also argues that the district court erred in failing to define “willfully” in its jury instruction for Count One. We review his challenge for plain error. United States v. Vazquez-Hernandez, 849 F.3d 1219, 1224 (9th Cir. 2017) (“Although this Court generally reviews a jury instruction that misstates the elements of a statutory crime de novo, we review an instruction for plain error in the absence of a timely objection to it below.”). Because the jury instructions in their totality comport with the requisite “knowing” mens rea requirement for conspiracy, there was no plain error. See United States v. Reed, 575 F.3d 900, 926 (9th Cir. 2009) (“A single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” (citation modified)). Kareem also challenges the district court’s response to a jury request to review certain evidence. Even assuming error, any misstep was not a plain error 7 and did not affect Kareem’s substantial rights with respect to Counts One or Three. Hoard v. Hartman, 904 F.3d 780, 786 n.7 (9th Cir. 2018). Because the whole of Kareem’s alleged individual errors does not warrant reversal, his cumulative error claim necessarily fails. See Kyles v. Whitley, 514 U.S. 419, 436 (1995). AFFIRMED. 8 FILED NOV 6 2026 United States v. Kareem, Nos. 20-10155+ MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS COLLINS, Circuit Judge, concurring in the judgment in part and dissenting in part: For the reasons stated in my contemporaneously-filed published partial concurrence in the judgment and partial dissent, I would affirm the challenged judgment and orders of the district court in their entirety.