Full opinion text
PER CURIAM: Burson Augustin, Stanley Grant Phanor, Patrick Abraham, Rotschild Augustine, and Narseal Batiste (collectively, “Appellants”) were all convicted of (1) conspiracy to provide material support to a Foreign Terrorist Organization (A1 Qaeda) by agreeing to provide personnel (including themselves) to work under A1 Qaeda’s direction and control, knowing that A1 Qaeda has engaged or engages in terrorist activity, in violation of 18 U.S.C. § 2339B; and (2) conspiracy to provide material support by agreeing to provide personnel (including themselves), knowing and intending that they were to be used in preparation for and in carrying out a violation of 18 U.S.C. § 844(f)(1) and (i), and to conceal and disguise the nature, location, source, and ownership of such material support, all in violation of 18 U.S.C. § 2339A. Abraham and Batiste were also convicted of conspiracy to maliciously damage and destroy by means of an explosive a building leased to an agency of the United States (the FBI) and a building used in interstate and foreign commerce (the Sears Tower), all in violation of 18 U.S.C. § 844(n). Additionally, Batiste was convicted of conspiracy to levy war against the Government of the United States and to oppose by force the authority thereof in violation of 18 U.S.C. § 2384. Appellants now appeal their convictions, raising six issues. First, Batiste and Augustine challenge the district court’s order granting in part the government’s motion to strike portions of the indictment as surplusage. Second, Augustin, Phanor, and Augustine each challenge the sufficiency of the evidence supporting their convictions. Third, Augustin argues that the government’s involvement in the criminal scheme was outrageous and therefore violated the Due Process Clause of the Fifth Amendment. Fourth, Batiste and Abraham challenge several of the district court’s evidentiary rulings relating to the admissibility of lay and expert testimony. Fifth, Batiste argues that limitations on his cross-examination of witnesses resulted in cumulative error requiring a new trial. Sixth, all of the appellants challenge the district court’s dismissal of a juror for refusing to follow the court’s instructions on the law. After careful review of the record and the parties’ briefs, and after having had the benefit of oral argument, we affirm. I. We first recite the facts of this case in the light most favorable to the government. United States v. Glen-Archila, 677 F.2d 809, 812 (11th Cir.1982). We then describe the procedural history. A. Batiste was the leader of the Miami branch of an organization called the Moorish Science Temple, headed in Chicago by an individual known as Sultan Khan-Bey, who named Batiste a minister in the Temple in July 2004. His followers included the other appellants — Abraham, Phanor, Augustin, and Augustine — as well as Batiste’s wife, Minerva Vazquez, and two other men charged (but subsequently acquitted) in this case, Naudimar Herrera and Lyglenson Lemorin. As early as 2004, Batiste’s group mixed political and religious ideology with martial arts training. The group frequented a convenience store called Al-Saidi Enterprises, where Batiste engaged in political and religious conversations with Abbas Al-Saidi (“Abbas”), a part owner of the store. The government offered evidence that in these conversations, Batiste mentioned his agreement with Osama Bin Laden’s plans to kill Americans in retaliation for America’s killing of Muslims around world. The government contends that when Batiste learned that Abbas would be traveling home to Yemen, he asked him to help contact a foreign terrorist organization, such as A1 Qaeda, Hammas, or Hezbollah, to help support Batiste’s religious and political goals in the United States. According to Abbas, Batiste gave him a flyer containing Batiste’s address and contact numbers to give to Abbas’s connections with those organizations. In the fall of 2005, Abbas contacted the FBI, and began working as a confidential informant for the agency. At the FBI’s request, Abbas began to record his meetings with Batiste and the members of his group to determine if they were a threat. He also pretended that he had made contact with a terrorist organization that was willing to support Batiste’s group. Batiste, Abraham, Herrera, and Augustin drove Abbas past the Miami FBI Building, and Batiste pointed to a window broken during Hurricane Wilma and noted how easy it would be to throw a grenade into the building. He observed that “the best time to attack the U.S. Government is during a disaster.” On November 7, 2005, Augustin met with Abbas at the group’s headquarters — known as the “Embassy”— and discussed how the group’s “plan” for “jihad” to “destroy” the “devil” would attract followers, who would see that “we’re not just talking about taking over Miami or some Dade county, we’re talking about taking over ... Allah’s world” through coordinated attacks in various locations. At the direction of the FBI, Abbas told the group that a representative of a Mid-die East terrorist group was coming to meet them. In anticipation of the meeting, Batiste asked Abbas if the representative knew Osama Bin Laden, because Batiste would “want to meet Usama Bin Laden.” Batiste described his plan to train “soldiers” in order to “make war against America.” He explained: “I got a mission ... this is the time for Jihad.” On December 16, 2005, Abbas introduced Batiste to a second FBI informant, Ellie Assaad (“Assaad”), who was posing as Abbas’s foreign terrorist connection. To prove to Assaad that he was serious about his mission, Batiste told Assaad that he was in the “same situation” as an individual named Jeff Fort, who Batiste described as the “leader of one of the biggest gangs” based on “Islamic philosophy,” and who went to jail in the 1980s “for terrorism,” because “he was being helped by Libya.” Assaad asked Batiste to make a list of what support he wanted, and Batiste provided a list requesting uniforms, boots, machine guns, radios, and other equipment. On December 18, 2005, Abraham brought Abbas to the Embassy, where Batiste, Augustin, Phanor, and Herrera were meeting with a potential recruit. Batiste gave Abbas another list, including assault rifles, boots, uniforms, SUV's, binoculars, bulletproof vests, revolvers, phones, military jackets, and rocket launchers. On December 21, 2005, Batiste told Abbas of his desire to create confusion through bombing or mass poisoning, and in particular raised the idea of blowing up or burning down the Empire State Building or the Sears Tower, adding “[t]hen you gotta get ... the buildings right here in Miami.” On December 22, 2005, Batiste gave Assaad another similar list of materials, this time specifying the shoe sizes for the members of his group. Batiste elaborated on the idea of attacking the Sears Tower. Batiste stated, “I know this building, I know how to get inside this building,” and explained that he had been thinking about it since 1998. Federal Express records indicate that Batiste had worked for the company in the Chicago Loop (where the Sears Tower is located) in 1998. At a December 29, 2005 meeting, Assaad provided the boots Batiste had requested, and Batiste again elaborated on his idea for a dynamite attack on the Sears Tower, this time pointing to his construction experience (as Batiste was, at the time, running a construction company in Miami): “If I can put up a building, I can take one down.” Batiste provided another list, specifying various firearms and materials, as well as $50,000 in cash. Batiste and Abraham became concerned that Assaad was involved with law enforcement, so when Abbas and Assaad arrived at the Embassy on January 28, 2006, Abraham, Herrera, and Augustin had them strip, change into other clothes, and hand over all electronic devices. Assaad hid the recording device, but refused to give up his phone, explaining that he needed to stay in touch with A1 Qaeda at all times. Abraham drove Abbas and Assaad to see Batiste in Islamorada, without telling Abbas or Assaad where they were going during the two-hour drive. Once in the Keys, Abraham met up with Phanor, who had driven separately, and Phanor and Abraham insisted that Assaad surrender his phone, because according to Phanor: “in this business brother, with electronics, you can never be too safe ... in this country, brother, ... electronic devices [are] something terrible to have cause they find all kinda ways to, you know.” But Phanor assured Assaad that when they spoke of him and his mission “in the circle,” they “speak of you with great, great respect.” Abbas and Assaad were taken to meet Batiste in a fishing tent by the water. Batiste explained that he was suspicious because the government was “concerned about domestic terrorism ... citizens who will help out on the terrorist attack right here in America, as opposed to outsiders coming over here and doing it.” Batiste explained that he was concerned that Assaad was taping them conversations. Assaad assured Batiste that “A1 Qaida [was] very happy with your plans,” and Batiste stated that “those plans will never change.” Batiste and Assaad discussed obtaining funding and a new training headquarters in Miami, as well as bringing in a bomb expert from overseas. Batiste said that he could obtain the materials and access through his construction company, but he needed an expert to help making the bombs. On February 19, 2006, Assaad, Batiste, and Abraham discussed details for sending members of Batiste’s group overseas for A1 Qaeda training. Batiste again elaborated on his plan to detonate explosives under the Sears Tower, explaining how he would obtain a city contract in order to gain access. Batiste also discussed the need for a new training space in Miami, and a video camera to “film [his] evidence.” The next day, however, Batiste told Assaad that after talking to some of his group members, he decided that he wanted to train his members at his property in Louisiana rather than at an A1 Qaeda camp. On March 9, 2006, Assaad aborted a scheduled meeting with Batiste when two of Batiste’s men tried to strip search him at the Embassy. Eventually, Assaad returned and was searched by Abraham and Phanor before meeting with Batiste, Augustin, Augustine, and Herrera. Batiste expressed that he was pleased that A1 Qaeda knew of his Sears Tower plan and wanted an alliance with him, but that he was anxious to receive the money he had requested from Assaad. The next day, March 10, 2006, Batiste reaffirmed to Assaad his desire to form an alliance with A1 Qaeda and took an oath of allegiance to A1 Qaeda that the FBI had written for Assaad. Assaad requested that Batiste have all the group members come to the Embassy so he could “read ... the commitment in front of everybody.” Assaad, Batiste, and Phanor looked at a potential warehouse space, which Assaad presented to the group on March 16, 2006, the day the other defendants were offered the A1 Qaeda oath. On the way to the meeting, Batiste told Phanor not to bring another member, “Brother Corey,” because the meeting was “only for the closed circle.” Batiste directed Lemorin and Phanor to conduct counter-surveillance to make sure “the coast [was] clear.” Batiste, Abraham, Augustin, Augustine, Phanor, Herrera, and Lemorin were at that March 16, 2006 meeting, with Augustine guarding the door. Batiste began by acknowledging how “grateful” his group was for the support of Bin Laden and A1 Qaeda, and Batiste and Assaad both affirmed the bonds of the alliance. Each of the defendants then took an oath, with Assaad first (at Batiste’s prompting), reading it for them, and then the group members repeating along the second time through and substituting their own names in the relevant places. Augustine appears to have misstated the oath such that, on its face, he pledged allegiance to himself. Before taking the oath, Phanor asked Batiste whether it was “alright” to take the oath. With Batiste’s approval, Phanor took the oath. After Batiste read from the Qur’an and from his ministerial license from the Moorish Holy Temple of Science, Assaad announced that the alliance between A1 Qaeda and the Moors was now official, but stated “we are not controlling the Moors ... [y]ou have your leader here.” The defendants applauded. After the oath, as directed by the FBI, Assaad asked Batiste if it was okay to discuss in front of the other members an A1 Qaeda plan to blow up five FBI offices across the country, including the Miami office. Batiste said it was okay to discuss the plan in front of those present at the meeting (including all of the appellants), because they were “[his] close guards.” Assaad explained the plan and asked for help videotaping the Miami FBI building, and presented Batiste with the video camera he had previously requested for his Sears Tower plan. Batiste accepted the task, and promised to deliver the tapes in about a week, but warned Assaad that “when I give you these tapes, you’re gonna have to be very careful with those tapes.” Batiste continued to discuss his Sears Tower plan, and complained that it was taking too long for Assaad to come through with the financial support he had requested. On March 24, 2006, on the way to purchase additional film equipment, Batiste and Abraham drove Assaad past the North Miami Beach FBI office and other alternative targets of their own choosing, such as the National Guard Armory in Northwest Dade and a synagogue. The next day, Phanor, Batiste, and Augustine drove a van around the federal courthouse complex and Federal Detention Center in downtown Miami, and then parked the van and took pictures and video footage of the building. The following day, Batiste and Augustin gave Assaad photographs of the North Miami Beach FBI building and photographs and video recordings of the downtown courthouse complex, depicting the various views of the buildings at the two sites, including their security barricades, check-points, gas lines, and water supplies. In Augustin’s presence, Batiste on two occasions offered advice to Assaad about the security observed at the Miami federal buildings and how to go about the attack. Batiste obtained money from Assaad to bring Khan-Bey — the leader of the group in Chicago — to Miami, in order to tell Khan-Bey of the plan. Batiste also brought his religious mentor, “Master Athea,” to Miami, but Master Athea became disillusioned with Batiste’s and Khan-Bey’s beliefs. On April 19, 2006, Khan-Bey was arrested for firing a gun at Master Athea. Batiste became increasingly suspicious that Assaad was working with the FBI and began to decrease his communication with Assaad. On April 27, 2006, Master Athea spoke with the FBI and agreed to record a conversation with Batiste, in which they discussed their disagreements about Batiste’s waging of a physical rather than spiritual war. Abraham was arrested on May 9, 2006 for overstaying his tourist visa. Abraham gave a statement, after receiving warnings in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which was used only against him at trial. In that statement, he implicated himself and the other group members. The remaining defendants were arrested on June 22, 2006. B. On June 22, 2006, Augustin, Phanor, Abraham, Augustine, Batiste, Herrera and Lemorin were indicted by a federal grand jury sitting in the Southern District of Florida. They were charged with four counts: (1) conspiracy to provide material support to a Foreign Terrorist Organization (A1 Qaeda) by agreeing to provide personnel (including themselves) to work under A1 Qaeda’s direction and control, knowing that A1 Qaeda has engaged or engages in terrorist activity, in violation of 18 U.S.C. § 2339B; (2) conspiracy to provide material support by agreeing to provide personnel (including themselves), knowing and intending that they were to be used in preparation for and in carrying out a violation of 18 U.S.C. § 844(f)(1) and (i), and to conceal and disguise the nature, location, source, and ownership of such material support, all in violation of 18 U.S.C. § 2339A; (3) conspiracy to maliciously damage and destroy by means of an explosive a building leased to an agency of the United States (the FBI) and a building used in interstate and foreign commerce (the Sears Tower), all in violation of 18 U.S.C. § 844(n); and (4) conspiracy to levy war against the Government of the United States and to oppose by force the authority thereof in violation of 18 U.S.C. § 2384. The defendants pled not guilty, and three trials ensued. The first trial began on September 18, 2007. On December 13, 2007, that jury acquitted Lemorin on all counts, but was unable to reach verdicts as to the remaining defendants, and the district court declared a mistrial. The second trial began on January 22, 2008. That trial also ended, on April 16, 2008, with the jury unable to reach verdicts on any of the counts as to the remaining defendants, and the district court again declared a mistrial. The third trial began on January 27, 2009. Much of the government’s evidence consisted of taped conversations recorded by the confidential informants, Abbas and Assaad, as well the one conversation recorded by Master Athea. After approximately three months of trial, the case was sent to the jury for deliberations on Monday, April 27, 2009. One juror was dismissed due to illness on Thursday, April 30, 2009, and the jury was reconstituted. Another juror was dismissed on Tuesday, May 5, 2009 after the district court determined that the juror was unwilling to follow the court’s instructions on the law. The jury was reconstituted again. On May 12, 2009, the reconstituted jury returned a verdict convicting Batiste on all counts, convicting Abraham on Counts 1-3 and acquitting him on Count 4, convicting Augustin, Phanor, and Augustine on Counts 1 and 2 and acquitting them on Counts 3 and 4, and acquitting Herrera on all counts. II. Batiste and Augustine challenge the district court’s order granting in part the government’s motion to strike portions of the indictment as surplusage. We review a district court’s decision on a motion to strike surplusage from an indictment for an abuse of discretion. United States v. Awan, 966 F.2d 1415, 1426 (11th Cir.1992). The Fifth Amendment provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury____” U.S. Const, amend. V. “A fundamental principle stemming from this amendment is that a defendant can only be convicted for a crime charged in the indictment. It would be fundamentally unfair to convict a defendant on charges of which he had no notice.” United States v. Ward, 486 F.3d 1212, 1226 (11th Cir.2007) (quoting United States v. Keller, 916 F.2d 628, 632-33 (11th Cir.1990)). This Court “considers] an indictment to be constructively amended when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment.” Id. (citation and quotation marks omitted). But “Congress defines the elements of an offense, not the charging document.” United States v. Deverso, 518 F.3d 1250, 1258 n. 2 (11th Cir.2008). So, “[a]s long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime.” United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 1815, 85 L.Ed.2d 99 (1985). Thus, “allegations that are unnecessary to an offense that is clearly contained within [the indictment]” may be stricken by amendment. Id. at 144,105 S.Ct. at 1819. Yet, while “mere surplus-age may be deleted from an indictment without error,” it is error when the amendment “impermissibly broadenfs]” the indictment. United States v. Cancelliere, 69 F.3d 1116, 1121 (11th Cir.1995). On December 19, 2007, shortly after the first trial, the government moved to strike from the indictment any references to Lemorin and certain allegations — namely, the General Allegations section of the indictment and several of the enumerated overt acts — claimed to be surplusage. On February 21, 2008, the district court granted in part and denied in part that motion. Specifically, the district court granted the motion to strike the references to Lemorin, as well as two paragraphs in the General Allegations describing the Sears Tower and the Miami Field Office of the FBI. The district court also granted the motion to strike several of the overt acts listed in the indictment, because the indictment never said that any of the defendants committed all of the overt acts. Instead, the original indictment said only that at least one of the defendants committed at least one of the overt acts. In the revised indictment, several overt acts remained. Thus, the district court concluded that omitting some but not all overt acts narrowed rather than broadened the indictment. Finally, the district court granted the motion to strike sentences further describing A1 Qaeda’s leadership and membership, and its designation by the Secretary of State as a “foreign terrorist organization” under the Immigration and Nationality Act. Batiste argues that the district court abused its discretion in granting the government’s motion because Federal Rule of Criminal Procedure 7(d) provides only that a defendant may seek to strike surplusage from an indictment. That rule states that “[u]pon the defendant’s motion, the court may strike surplusage from the indictment or information.” Fed. R.Crim.P. 7(d). Batiste submits that “[t]he Federal Rules thus provide no vehicle by which the government may move to strike as ‘surplusage’ language from an indictment returned by a grand jury.” We do not agree. This Court and the Supreme Court have both recognized that the government may move to strike surplus-age from an indictment. See Miller, 471 U.S. at 133, 144, 105 S.Ct. at 1813, 1819 (explaining that the government may strike “allegations that are unnecessary to an offense that is clearly contained within [the indictment]”); Cancelliere, 69 F.3d at 1120-21 (indicating that upon the government’s motion, “mere surplusage may be deleted from an indictment without error”). We also reject Augustine’s argument that the amendment to the indictment violated the Treason Clause. The Treason Clause of Article III of the Constitution provides that Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. U.S. Const, art. Ill, § 8, cl. 1. Augustine argues that all four counts against him fall ■within the scope of the Treason Clause, which he contends was violated by the striking of the overt acts and the portion of the General Allegations stating that A1 Qaeda members take an oath. We understand Augustine to argue that the offenses implicate the Treason Clause and that therefore the indictment should have kept the allegations regarding the taking of an oath. Augustine makes this same argument with respect to the jury instructions as well. First, we observe that the amended indictment retained the allegations regarding Augustine’s oath of allegiance to A1 Qaeda, and thus, even under Augustine’s legal theory, the amendment did not broaden the indictment. Beyond that, we have previously explained that “Congress defines the elements of an offense, not the charging document.” Deverso, 518 F.3d at 1258 n. 2. With that in mind, we note that neither § 2339A nor § 2339B — the two statutes under which Augustine was convicted — include allegiance to the United States as an element of the offense. See 18 U.S.C. §§ 2339A, 2339B. Thus, we have no trouble concluding that these offenses, as defined by Congress, do not fall within the ambit of the Treason Clause. See United States v. Rahman, 189 F.3d 88, 113 (2d Cir.1999) (explaining that the “requirement that the defendant owe allegiance to the United States” is “an element necessary to conviction of treason”); United States v. Rodriguez, 803 F.2d 318, 320 (7th Cir.1986) (stating that treason “can only be committed by someone owing allegiance to the United States”); see also 18 U.S.C. § 2381. We conclude that the district court did not abuse its discretion to the extent that it granted the government’s motion to strike surplusage from the indictment. III. Augustin, Phanor, and Augustine, who were convicted only on Counts 1 and 2, each challenge the sufficiency of the evidence supporting their convictions. We review de novo the sufficiency of the evidence to support a conviction, viewing the evidence in the light most favorable to the government and making all reasonable inferences and credibility choices in the government’s favor. United States v. Friske, 640 F.3d 1288, 1290-91 (11th Cir.2011). “[T]he jury is free to choose ... among the reasonable conclusions to be drawn from the evidence presented at trial,” but speculation by the jury is not enough to sustain a conviction based on circumstantial evidence. Id. at 1291 (quotation marks omitted). A. We begin by reviewing the statutory provisions relevant to Counts 1 and 2. Count 1 alleged a violation of 18 U.S.C. § 2339B, while Count 2 alleged a violation of § 2339A. Section 2339B(a)(l) provides: Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both .... To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization [by the Secretary of State under section 219 of the Immigration and Nationality Act], that the organization has engaged or engages in terrorist activity ..., or that the organization has engaged or engages in terrorism .... Section 2339A(a) provides: Whoever provides material support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of section ... 844(f) or (i) ... of this title, ... or in preparation for, or in carrying out, the concealment of an escape from the commission of any such violation, or attempts or conspires to do such an act, shall be fined under this title, imprisoned not more than 15 years, or both .... Section 844(f)(1) states: Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both. Section 844(i) provides: Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both .... Under both § 2339A and § 2339B, the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials. 18 U.S.C. § 2339A(b)(1); see 18 U.S.C. § 2339B(g)(4). Section § 2339B(h) provides, however, that [n]o person may be prosecuted under this section in connection with the term “personnel” unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control. Finally, 18 U.S.C. § 2339B(i) states that “[njothing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment.” B. With respect to their convictions under Count 1, Augustin, Phanor, and Augustine first argue that the evidence was not sufficient to prove that they intended to conspire to provide material support to Al Qaeda in the form of their personal service to Al Qaeda, because they were acting “entirely independently of the foreign terrorist organization to advance its goals or objectives.” See 18 U.S.C. § 2339B(h). Viewing the evidence in favor of the verdict, as we must, we cannot agree. At the oath ceremony, Assaad presented the videotaping of the Miami FBI building as something that would provide critical support for an Al Qaeda mission to attack that building. Phanor and Augustine were then seen photographing and videotaping the federal courthouse complex and federal detention center in downtown Miami (which Batiste had mistakenly believed to be a second FBI building). Further, Augustin was present when Batiste presented the photographs to Assaad and discussed the photographs and the possible methods of attack with him, and again when the photographs and FBI building plot were discussed at a later meeting. On this basis, it was reasonable for the jury to conclude that Augustin, Phanor, and Augustine conspired to act— in participating in the photographing of the FBI building — under the direction and control of Al Qaeda. Neither does the fact that Assaad acknowledged that Batiste had command of the group undermine this conclusion. Under the totality of the evidence presented, the jury was free to conclude that Augustin, Phanor, and Augustine, though immediately under Batiste’s command, were ultimately volunteering themselves to serve under the direction and control of Al Qaeda. See 18 U.S.C. § 2339B(h) (“Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.” (emphasis added)). We recognize that after the reading and recitation of the oath, Assaad said to the group: “we are not controlling the Moors ... [y]ou have your leader here.” This is certainly evidence favorable to the appellants. But this statement alone did not preclude the jury from finding that Augustin, Phanor, and Augustine were attempting to work under Al Qaeda’s direction or control. Instead, the jury was free to conclude, from the entirety of the oath ceremony, including the revelation of the plan to blow up FBI offices across the country, and the appellants’ later actions in taking photographs and video footage of the Miami federal buildings and presenting them to Assaad, that Augustin, Phanor, and Augustine had volunteered to work under Al Qaeda’s direction or control. See Friske, 640 F.3d at 1291 (“[T]he jury is free to choose between or among the reasonable conclusions to be drawn from the evidence presented at trial.” (quotation marks omitted)). Augustine and Phanor argue that the photographing of the federal buildings from publicly accessible vantage points does not constitute material support. Specifically, Phanor argues that the logic of Holder v. Humanitarian Law Project, — U.S. —, 130 S.Ct. 2705, 2723-24, 177 L.Ed.2d 355 (2010), which explained that § 2339B barred only speech imparting a specialized skill or communicating specialized knowledge — should also be applied to conduct, such that the unskilled conduct of taking photos of federal buildings from vantage points accessible to the public should not constitute material support under § 2339B. Humanitarian Law Project does not support this application. The plaintiffs in Humanitarian Law Project “want[ed] to speak to [designated foreign terrorist organizations], and whether they [could] do so under § 2339B dependfed] on what they sa[id].” Id. Consequently, the Supreme Court concluded that in that case “§ 2339B regulate[d] speech on the basis of its content.” Id. at 2723. The Supreme Court explained that although § 2339B “may be described as directed at conduct,” more rigorous scrutiny applied because “the conduct triggering coverage under the statute consists of communicating a message.” Id. at 2724. But that is not the case here. Instead, whether Augustine and Phanor violated § 2339B turns on what they did, rather than what they said. Specifically, the question in this ease is whether their participation in the oath ceremony, during which the plot against the Miami FBI building was revealed, and their involvement in the subsequent photographing and videotaping of the federal buildings, was sufficient evidence that they volunteered themselves to assist A1 Qaeda in planning attacks on federal buildings. Thus, Humanitarian Law Project does not control our determination of whether the conduct at issue here constituted material support. Beyond this, while we agree with Augustine and Phanor that the recorded images themselves would not actually have been material in furthering the proposed plot to attack the federal buildings, we nevertheless conclude that Augustine and Phanor’s volunteering of their service to A1 Qaeda was sufficient for a jury to deem it material support in the form of personnel. Section 2339B(g)(4) makes clear that providing personnel, which means “[one] or more individuals who may be or include oneself,” constitutes material support under § 2339B. On the basis of the oath ceremony, where the plot against the Miami FBI building was disclosed, and Augustine and Phanor’s later participation in recording images of the federal buildings, the jury was entitled to infer that Augustine and Phanor volunteered their service to A1 Qaeda generally, and thereby conspired to provide material support under § 2339B. Augustine and Phanor also point to evidence that they did not really take the oath. Augustine argues that the record indicates that in reciting the oath, he actually changed the words such that he stated his allegiance to himself, rather than to A1 Qaeda. Similarly, Phanor argues that he initially refused to take the oath, and only did so after being assured by Batiste that it was “alright” for him to do so. However, we do not find the inadequacies or hesitations in the recitation of the oath to inoculate these defendants from the jury verdict. Instead, it is Augustin, Phanor, and Augustine’s participation in the ceremony itself, and their resulting awareness of the plot against the Miami FBI building — rather than the particular words uttered by any given defendant — that is sufficient evidence supplying knowledge and intent to their later participation in the photographing and videotaping of the federal buildings. Neither are we persuaded by Augustin’s argument that the oath ceremony was not sufficient evidence of his intent because the taking of the oath was motivated by a desire to obtain money from Assaad. He argues that “an oath taken for money is a meaningless gesture,” because it does not establish allegiance to a cause. But allegiance to a cause is not an element of § 2339B. A jury could find that by volunteering his service to Al Qaeda — whether for financial or other reasons — Augustin conspired to provide material support to a foreign terrorist organization in violation of § 2339B. Thus, we conclude that the government produced sufficient evidence to support Augustin, Phanor, and Augustine’s convictions under Count l. With respect to Count 2, we first observe that it is not clear that the definition of personnel provided under § 2339B applies equally to § 2339A. Indeed, the terms of § 2339B(h) — insofar as they refer to “foreign terrorist organization^” — do not fit neatly with § 2339A, which does not expressly require the involvement of a “foreign terrorist organization.” See United States v. Stewart, 590 F.3d 93, 118 & n. 21 (2d Cir.2009) (observing that the definition of personnel provided by § 2339B(h) does not apply to § 2339A). However, even if we assume that the principles contained in § 2339B(h) apply to § 2339A, we conclude that the evidence is sufficient to support the convictions under Count 2 insofar as the jury could reasonably find that Augustin, Phanor, and Augustine were under the direction and control of the person carrying out the Sears Tower plot — that is, Batiste. The jury evidently rejected Batiste’s contention that the Sears Tower plot was simply a ruse to deceive Al Qaeda. Thus, the jury’s conclusion that Augustin, Phanor, and Augustine had furnished material support in the form of personnel (i.e., themselves) was reasonable given (1) the evidence showing that Batiste freely, elaborately, and frequently discussed the plot (particularly in December 2005); (2) the abundant evidence of Augustin, Phanor, and Augustine’s allegiance to Batiste; and (3) the evidence that Batiste considered Augustin, Phanor, and Augustine members of his inner circle and included them in other similar activities, including the A1 Qaeda oath ceremony. We recognize that the evidence supporting Augustin’s, Phanor’s, and Augustine’s convictions on both Count 1 and Count 2 is far from overwhelming. Indeed, two juries failed to convict on these counts. But those juries also failed to acquit. Ultimately, with the benefit of three months of testimony and over five days of deliberation, the third jury arrived at a verdict, distinguishing between the various defendants and various counts. We cannot say that the jury was unreasonable in concluding that the government carried its burden of proving beyond a reasonable doubt that Augustin, Phanor, and Augustine violated § 2339A and § 2339B as charged. IV. Augustin argues that the government’s involvement in the criminal scheme was outrageous and therefore violated the Due Process Clause of the Fifth Amendment. Ordinarily, we review de novo whether the government’s investigatory techniques constituted outrageous conduct. United States v. Edenfield, 995 F.2d 197, 200 (11th Cir.1993). But where, as here, the “outrageous governmental conduct” argument was not raised in the district court, this Court reviews the issue only for plain error. United States v. Kelly, 888 F.2d 732, 739 & n. 12 (11th Cir.1989). Augustin “argues that his conviction violated the Due Process Clause ... by reason of the Government’s overinvolvement in the case.” The Supreme Court and this Court have both “recognized the possibility that a conviction may be overturned where government involvement in criminal schemes is so extensive that it may be characterized as ‘outrageous.’” Owen v. Wainwright, 806 F.2d 1519, 1521 (11th Cir.1986). But “[g]overn ment involvement in criminal schemes is constitutionally impermissible only where it violates fundamental fairness, shocking to the universal cause of justice.” Id. (quotation marks omitted); see also Eden-field, 995 F.2d at 200 (“[I]n the rarest and most outrageous circumstances government conduct might violate that fundamental fairness, shocking to the universal sense of justice mandated by the due process clause of the fifth amendment.” (quotation marks omitted)). Thus, “[e]xtreme circumstances of outrageous government conduct must be shown before a court will find a due process violation.” Owen, 806 F.2d at 1522. “In reviewing charges that official conduct rose to a constitutionally impermissible level, the cases turn on the totality of the circumstances without any single controlling factor.” Id. at 1521. Here, we cannot say that the government’s conduct was so “shocking to the universal sense of justice” that it was plain error for the district court to refuse to dismiss the indictment. Edenfield, 995 F.2d at 200. The evidence in this case does not show that the government ran “the entire operation with only meager assistance from the [appellants].” Id. Rather, the government only provided means to those who were “willing and predisposed.” United States v. Ciszkowski, 492 F.3d 1264, 1271 (11th Cir.2007). This comports with the basic requirements of the Due Process Clause. Id. We reiterate that the defense of outrageous government conduct can be successfully invoked only in “the rarest and most outrageous [cases].” United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir.1984). After careful review, we are unable to say that this is such a case. V. Batiste and Abraham challenge several of the district court’s evidentiary rulings relating to the admissibility of lay and expert testimony. We review the district court’s evidentiary rulings for an abuse of discretion. United States v. Bradley, 644 F.3d 1213, 1270 (11th Cir.2011). However, “[e]ven if a ruling consti tutes an abuse of discretion, it will result in reversal only if the ... error was not harmless.” Id. (quotation marks omitted) (ellipsis in original). “An error is harmless unless there is a reasonable likelihood that [it] affected the defendant’s substantial rights.” Id. (quotation marks omitted) (alteration in original). In other words, “nonconstitutional error will be harmless unless the court concludes from the record as a whole that the error may have had a substantial influence on the outcome of the proceeding.” Id. (quotation marks omitted). A. First, Batiste argues that the district court erred in admitting some of Special Agent Anthony Velazquez’s testimony because it was impermissible expert testimony about Batiste’s criminal intent. Under Federal Rule of Evidence 704(b), no expert witness “may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto.” Fed. R.Evid. 704(b). Thus, “[e]xpert testimony expressly stating an opinion as to the defendant’s state of mind at the time of the offense is barred by rule 704(b).” United States v. Alvarez, 837 F.2d 1024, 1031 (11th Cir.1988). But this prohibition does not require the exclusion of expert testimony that supports an obvious inference with respect to the defendant’s state of mind if that testimony does not actually state an opinion on this ultimate issue, and instead “le[aves] this inference for the jury to draw.” Id. Here, Agent Velazquez was permitted to testify as to how the contents of the various recorded conversations and other evidence involving Batiste impacted the course of the investigation. Batiste argues that “his defense was that he was simply pretending to conspire with the purported terrorises], and posturing for the purpose of ripping them off, or scumming them out of money.” As such, he claims that the jury at the third trial was tasked with deciding whether he “meant what he said.” He argues that Agent Velazquez testified, in violation of Rule 704(b), that Batiste’s true intent was to commit the charged offenses. We do not find this argument convincing. We note that Agent Velazquez was not asked to testify directly to the state of mind of Batiste. Instead, he was asked about the effect of Batiste’s statements on the course of the investigation. In other words, Agent Velazquez testified as to what an observer perceiving Batiste’s outward manifestations would take to be Batiste’s intentions — and not what Batiste’s actual state of mind was. We acknowledge that this is a very fine line. In light of the specific questions that prompted the challenged testimony, however, we are confident that Agent Velazquez left the ultimate issue of Batiste’s state of mind for the jury to decide. See Alvarez, 837 F.2d at 1031. We therefore conclude that the testimony did not violate Rule 704(b). Batiste also argues that this lay opinion testimony was not relevant, except for the impermissible purpose of proving Batiste’s criminal intent. We reject this argument as well. Agent Velazquez’s testimony as to his perceptions of Batiste’s intent was relevant, as the phrasing of the questions suggests, to show why the law enforcement agents responded to Batiste’s statements in the way that they did. Specifically, this evidence helped to establish that the agents were responding to Batiste’s actions and statements, rather than leading Batiste to act in a way that he was not inclined to. We conclude that the district court did not abuse its discretion in permitting this testimony. B. Next, Batiste and Abraham challenge the district court’s decision to qualify Dan Young as an expert in gangs and allow him to testify about Jeff Fort. Under Federal Rule of Evidence 702, [i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed.R.Evid. 702. Thus, in determining whether a proffered expert is qualified under Rule 702, trial courts must consider whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert [v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)]; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004) (en banc). But “[i]f the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Id. at 1261 (emphasis omitted). In this case, Agent Young testified, as an expert, that Jeff Fort — the man Batiste compared himself to in one of the recorded conversations — was the leader of a Chicago group, influenced by the Moorish Science Temple, known as the Almighty Black P. Stone Nation or the El Rukns. Agent Young testified about the structure of that organization, and stated that Fort sought support and military equipment from the government of Libya and was convicted for conspiring to shoot down an airplane in exchange for two million dollars. In a later written order on the motion in limine, the district court explained that ‘Young’s extensive experience with [Fort’s organization] and other Chicago street gangs makes his testimony as to their organization, history, symbols, etc. a reliable source of his expert opinion,” and that this testimony was “relevant in educating the jury as to the background and significance of Defendant Batiste’s statements regarding Jeff Fort, his involvement with the Black Stone Rangers, and his alleged use of gang symbols and codewords.” Abraham and Batiste argue that Agent Young was not qualified to give this testimony. Specifically, Batiste argues that Agent Young did not have sufficient experience to testify as an expert on the Black P. Stones, the El Rukns, or Jeff Fort. To that end, Batiste points out that Agent Young began his career with the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) in 1989, just as Jeff Fort’s activities in Chicago were coming to an end with his conviction in the late 1980s. As a result, Young’s knowledge came from law enforcement reports generated by the ATF, Chicago police, and an article by a University of Chicago professor. We reject Batiste’s and Abraham’s assertion that the district court erred in qualifying Agent Young as an expert. Agent Young’s expertise for the purposes of this trial did not need to extend to every detail and intricacy particular to Fort’s personal history and organization. Agent Young’s experience included fifteen years with the ATF specializing in Chicago street gangs, during which he participated in extensive interviewing and investigation of gang members from the El Rukns and other gangs. Agent Young also acted as a nationwide consultant in over fifty investigations, prosecutions, and sentencings of members of the Black P. Stones, and was consulted for a television documentary series on Chicago street gangs, including Jeff Fort and the Black Stone Rangers. We note that Federal Rule of Evidence 702 does not define an expert “in a narrow sense.” Fed.R.Evid. 702 advisory committee’s note. In light of the substantial experience that Agent Young had with respect to street gangs, we conclude that the district court was within its discretion in determining that Agent Young was qualified to give expert testimony about Jeff Fort and his organization. Batiste and Abraham also argue that the testimony had a minimal probative value and was highly prejudicial. They argue that Batiste’s one reference to Fort over the course of hundreds of hours of recorded conversations made Agent Young’s testimony minimally relevant, and that this evidence — given as expert testimony — prejudiced Batiste by equating him with Fort and the El Rukns gang. Batiste elaborates that his single reference to Fort did not suggest that his knowledge about Fort approached the level of detail presented in Agent Young’s testimony. He argues that the district court erred in refusing to accept his stipulation to a more limited and less prejudicial description of Fort. As a result, Batiste argues that he was placed in a Catch-22 as he was forced to decide between two unattractive options: he could either emphasize Fort’s violent history' — compared to Batiste’s peaceful one — to distinguish himself from Fort, or ignore Fort’s violent past and let the comparison between himself and Fort go essentially unchecked. After examination of the record, we reject Batiste’s characterization. The explanation of Jeff Fort’s significance became relevant upon the admission of the recording of Batiste’s first meeting with Assaad, during which Batiste likened himself to Fort. Once this came into evidence, the district court was within its discretion in admitting Agent Young’s testimony about Jeff Fort and the El Rukns. Neither do we view this evidence as unduly prejudicial. See Fed.R.Evid. 403 (requiring exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice”). To the extent that Batiste wanted to distinguish himself from Fort, he could have done so on cross-examination. It was not Agent Young’s testimony that placed Batiste in a Catch-22. Rather, Batiste’s own comparison of himself to Jeff Fort was evidence favorable to the government that he could not easily avoid. We recognize that the district court could have limited Agent Young’s testimony further to mitigate the concerns Batiste and Abraham raise, but viewing these rulings, as we are required to, through the abuse of discretion standard, we cannot say that the district court committed error by these rulings. C. Batiste also argues that the district court erred in prohibiting him from presenting lay opinion testimony from Lance Williams. On the second day of his defense, Batiste offered the lay testimony of Williams, who had not been listed as an expert witness prior to trial. The defense intended to offer Williams — a Professor of Inner City Studies who was not a gang member, but who grew up around them in Chicago, and whose father was a gang member — to testify (in response to Agent Young’s testimony) that certain words attributed to gangs were actually common slang in urban Chicago. After hearing a proffer of Williams’s testimony, and considering argument from the parties, the district court ruled that Williams could not testify as a lay witness (1) on gang terminology that was part of common language in Chicago, outside of gang circles, (2) that the word “Mo” was used popularly, and (3) that people who were not related, or only marginally related to gangs, were affected by or interacted with gang culture. Batiste argues that the district court erred in limiting Williams’s testimony because the testimony was based on perception, not specialized knowledge. We reject this argument as well. A lay witness is permitted to provide opinion testimony only to the extent that it is “rationally based on the perception of the witness” and “helpful to a clear understanding of ... a fact in issue.” Fed.R.Evid. 701. A lay witness, however, cannot provide opinion testimony that is “based on scientific, technical, or other specialized knowledge.” Id. The record reveals that the district court took care to ensure that Williams was able to testify on the basis of perception, as Rule 701 permits, while only excluding testimony that required specialized knowledge. Specifically, the court permitted Williams to testify “to his observations of how [Fort’s gang] dressed,” and “to hearing the term ‘Mo’ being used by non-gang members,” but not “as to the transition of the term ‘Mo’ from gang members into the lexicon of popular culture in communities in Chicago.” Likewise, Williams was not allowed to testify “as to gang terminology becoming part of a popular culture in Chicago communities and becoming part of slang and social interaction.” Williams was also prevented from testifying that young people who have marginal or no participation in street gangs are nevertheless affected by them. But Williams was allowed to testify “that, as a young man, he referred to gang members as ‘Folks’ and as ‘People,’ ” and “as to whether or not there were flags displayed in the exterior of the headquarters of Jeff Fort.” The district court thus carefully distinguished between proper lay testimony based on perception, and impermissible opinion testimony based on expertise. We therefore conclude that the district court did not abuse its discretion in excluding the portions of Lance Williams’s testimony described above. VI. Batiste offers several arguments relating to limitations on his cross-examination of witnesses, which he contends resulted in cumulative error requiring a new trial. As explained above, we review the district court’s evidentiary rulings for an abuse of discretion, but will reverse only if “the error may have had a substantial influence on the outcome of the proceeding.” Bradley, 644 F.3d at 1270 (quotation marks omitted). However, “[e]ven where individual judicial errors ... may not be sufficient to warrant reversal alone, we may consider the cumulative effects of errors to determine if the defendant has been denied a fair trial.” United States v. Ladson, 643 F.3d 1335, 1342 (11th Cir.2011). Batiste had sought disclosures from the government under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The district court granted his request for some of these materials, but Batiste contends that the court denied his attempts to inquire on cross-examination into specific details of immigration benefits Assaad received from the government. Batiste also asserts that the district court denied him the opportunity to call an immigration expert to testify about these benefits. Batiste argues these rulings deprived him of his right to effectively cross-examine Assaad, who was one of the most important government witnesses. As the government points out, however, the record reveals extensive cross-examination of Assaad regarding his immigration status and any immigration benefits he received, as well as his relationship with the FBI. Thus, even assuming that the district court erred in some way by limiting the cross-examination or expert testimony, we cannot say that “there is a reasonable likelihood that [the asserted error] affected the defendant’s substantial rights,” Bradley, 644 F.3d at 1270, nor can we say such errors would have denied him a fair trial. See Ladson, 643 F.3d at 1342. Batiste next argues that the district court erred in barring him from questioning Assaad about a polygraph test he failed in 1997. Federal Rule of Evidence 608(b) commits to “the discretion of the [district] court” the determination as to whether specific instances of conduct, “if probative of truthfulness or untruthfulness,” may be the subject of cross-examination. Fed.R.Evid. 608(b). We have previously recognized that if the specific instance of conduct that is at issue is “temporally remote,” a district court may properly conclude that it is not probative of truthfulness. See United States v. Novaton, 271 F.3d 968, 1006-07 (11th Cir.2001). The polygraph that is at issue in this case was administered more than a decade before the third trial took place. Beyond that, we have acknowledged that there may be substantial limitations to the reliability of polygraphs. United States v. Henderson, 409 F.3d 1293, 1303 (11th Cir.2005). Bearing this in mind, we cannot say that the district court abused its discretion in determining that the polygraph was not probative of truthfulness and that therefore, it could not be the subject of cross-examination. Batiste then argues that his Confrontation Clause rights were violated by admission into evidence of the recording of the conversation with Master Athea, because Master Athea was not available for cross-examination. However, the district court instructed the jury that Master Athea’s statements were not offered for the truth of the matters asserted, but rather to provide context for Batiste’s own statements. This Court has explained that the Confrontation Clause is not violated by a non-testifying informant’s recorded statements when offered only to place the defendant’s statements in context. See United States v. Byrom, 910 F.2d 725, 737 (11th Cir.1990). Because Master Athea’s statements were offered only for context, and not for the truth of the matters asserted, their admission did not violate the Confrontation Clause. See United States v. Jiminez, 564 F.3d 1280, 1286 (11th Cir.2009) (“There can be no doubt that the Confrontation Clause prohibits only statements that constitute impermissible hearsay.”). In sum, we find that the district court did not commit any errors, let alone ones that cumulatively would require the reversal of Batiste’s convictions. VII. Finally, all of the appellants challenge the district court’s dismissal of Juror # 4 for refusing to follow the court’s instructions on the law. A district court’s decision to remove a juror is reviewed for abuse of discretion. United States v. Register, 182 F.3d 820, 839 (11th Cir.1999). Under the Sixth Amendment, “[a]ny criminal defendant ... tried by a jury is entitled to the uncoerced verdict of that body.” Lowenfield v. Phelps, 484 U.S. 231, 241, 108 S.Ct. 546, 552, 98 L.Ed.2d 568 (1988). However, Federal Rule of Criminal Procedure 23(b) permits the district court “to excuse a juror for just cause