On November 19, 2010, the government initiated criminal prosecution of Mohamed Osman Mohamud in the U.S. District Court for the District of Oregon. The government charged Mohamud with attempting to use a weapon of mass destruction, against a person or property within the U.S., in violation of 18 U.S.C. § 2332a(a)(2)(A). Mohamud, a naturalized American from Somalia, allegedly tried to detonate what he thought was a car-bomb at a Christmas tree lighting event in Portland. The bomb was in fact a fake supplied to the 19-year-old by federal agents as part of a sting operation. On November 26, 2010, the FBI arrested Mohamud.
This case is in this Clearinghouse because the district court addressed the scope of required notification of surveillance under FISA Section 702, and that provision's constitutionality. So that's the focus of this summary. But more details on the underlying criminal litigation are provided at the end.
At the start of the proceedings, the government filed a FISA Notification which gave Mohamud notice that the government intended to use information obtained and derived from electronic surveillance and a physical search conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 ("FISA"), specifically Title I and Title III. On May 7, 2012, Judge Garr King denied Mohamud's motion to disclose FISA-related material necessary to litigate the motions for discovery and for suppression of the fruit of the FISA activity.
(More details on the criminal case are at the end of this summary.) On January 31, 2013, the jury found Mohamud guilty of attempting to use a weapon of mass destruction against a person or property within the United States. Judge King rejected Mohamud's motion for a judgment of acquittal and for a new trial on April 22, 2014. On November 19, 2013, while sentencing was pending, the government filed a supplemental FISA notification informing the court that the government had used information collected under FISA section 702, a part of Title VII, a different title from what the government indicated at the beginning of the trial. Prosecutors had only just discovered that the information might have been derived from prior Title VII FISA collection. In particular, § 1881a of Title VII, which does not require the government to demonstrate probable cause that the target of the electronic surveillance is a foreign power or agent of a foreign power. In addition, unlike traditional FISA, § 1881a does not require the government to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur. The government had based their interpretations on the Supreme Court's ruling in Clapper v. Amnesty International, NS-NY-0006
in this Clearinghouse. In light of that revelation, and in anticipation of the defendants' FISA-related motions, Judge King canceled Mohamud's sentencing.
Mohamud then challenged both the government's compliance with provisions of the FISA and those provisions' very legality. In order to do so, Mohamud moved for full discovery regarding the facts and circumstances underlying surveillance and to compel immediate production to the court of classified documents related to the pending post trial discovery motion.
On March 19, 2014, Judge King denied Mohamud's motions because he was not persuaded that there was a need to go beyond the procedures outlined in FISA's § 1806, or that he had the authority to do so.
On June 25, 2014, Judge King issued the first district court opinion on the constitutionality of FISA section 702, upholding the constitutionality of the statute and the legality of the disclosure provided to the defendant. The court denied Mohamud's motion for vacation of conviction and alternative remedies of dismissal of the indictment, suppression of evidence, and new trial for the government's violation of the Pretrial Notice Statute. Judge King also denied the defendant's alternative motion for suppression of evidence and a new trial based on the government's introduction of evidence at trial and other uses of information derived from unlawful electronic surveillance, and the defendant's second motion for a new trial. United States v. Mohamud, 3:10-CR-00475-KI-1, 2014 WL 2866749 (D. Or. June 24, 2014).
Judge King scheduled sentencing on October 1, 2014.
Here are additional details on the criminal case: Prior to his arrest, the FBI had been had been investigating Mohamud for over a year after Mohamud's father had called the FBI to report his son's intent to travel to Yemen to study and his fear of radical recruiters overseas. The FBI began monitoring Mohamud's emails, particularly e-mails he was exchanging with an Islamic extremist who promoted international terrorism and violent jihad. The FBI had even interrogated Mohamud when he was prevented from flying to Alaska from the Portland airport because he was on the No-Fly list. The government claimed that during the FBI's sting operation the undercover agents proposed other, less lethal ways Mohamud could help his radical cause, but that Mohamud was steadfast. One of the main defenses that Mohamud argued was that he was entrapped.
In December 2010, shortly after the Mohamud was arrested, Attorney General Eric Holder made statements on the merits of the case to the media. As a result, Mohamud asked the court to direct the government to cease and desist from making inappropriate pretrial comments. Mohamud was concerned that these comments had compromised his ability to obtain a fair trial by unbiased jurors.
On February 23, 2011, Judge King denied Mohamud's motion because there was already an applicable standard that the DOJ had to adhere set forth in the Release of Information by Personnel of the Department of Justice Relating to Criminal Civil Proceedings. Judge King made it clear that the Attorney General should not have made his comments, since according to the Statement of Policy, it is inappropriate for DOJ personnel to give personal opinions regarding the supposed facts of the case or to make available a defendant's statements that could be construed as an indication of guilt. United States v. Mohamud, CR.10-475-KI, 2011 WL 654964 (D. Or. Feb. 23, 2011).
Previously in 2011 and 2012, the government had moved for rulings that certain classified materials potentially discoverable by Mohamud either failed to meet the standard for disclosure because they were not relevant to the defense or were otherwise subject to deletion or substitution under the Classified Information Procedures Act. Judge King ruled on the motions ex parte by filing classified orders but did not file any public orders. Mohamud then asked the court to also enter public orders that were as specific as possible in the event that appellate review was required. The government did not oppose the public filing orders but did oppose Mohamud's request for specificity in the orders preferring more general terms.
On October 2, 2012, Judge King granted Mohamud's motion but with less specificity than Mohamud requested. Judge King explained that the orders were specific enough to allow Mohamud to appeal them, if necessary. United States v. Mohamud, 3:10-CR-00475-KI, 2012 WL 4594746 (D. Or. Oct. 2, 2012).
Next, Mohamud moved to suppress the evidence seized during an investigation by the Oregon State Police (OSP) after a student accused him of date rape. The FBI was also involved in the investigation. The evidence included statements he made and information from his computer and cell phone. Mohamud claimed that his consent for the search was not freely and voluntarily given, and the searches and seizures went beyond the scope of his consent. Mohamud also moved to suppress all evidence collected by the government in its parallel national security investigation because he claimed all evidence obtained after the OSP investigation is the fruit of evidence obtained illegally in the OSP investigation.
On October 22, 2012, Judge King denied Mohamud's motion to suppress because the information that FBI learned from the OSP investigation did not taint the evidence gathered later and the that evidence gathered later had an independent source. Thus, Judge King concluded that there was no need to address the alleged constitutional violation. Judge King also found that Mohamud made the statements at the Portland airport voluntarily. United States v. Mohamud, 3:10-CR-00475-KI, 2012 WL 5208173 (D. Or. Oct. 22, 2012).
On January 4, 2013, after both parties objected to certain expert witnesses that the other party planned to use, Judge King ruled that he would allow all of the expert witnesses to testify at trial, but he would limit their testimony in ways explained in the opinion. United States v. Mohamud, 3:10-CR-00475-KI, 2013 WL 71806 (D. Or. Jan. 4, 2013).
After Mohamud's Jan. 31, 2013, conviction, Judge King denied Mohamud's motions for acquital or new trial. Judge King held that (1) sufficient evidence negated Mohamud's entrapment defense; (2) the District Court's response to the jury note seeking clarification on the entrapment instruction did not unfairly favor the prosecution's evidence; (3) the prosecutor did not impermissibly shift the burden of proof during closing argument; (4) the District Court's admission of the Interpol notice into evidence identifying a fugitive wanted for prosecution with whom Mohamud was in contact with did not result in miscarriage of justice; (5) the recordings of meetings between Mohamud and undercover government agents were not testimonial evidence; (6) the District Court's deletion of undercover government employees' true names from discovery did not deprive Mohamud of fair opportunity to cross-examine employees; and (7) the denial of the true identity of the government operative who exchanged e-mails with Mohamud did not violate Mohamud's right to confrontation. United States v. Mohamud, 941 F. Supp. 2d 1303 (D. Or. 2013).Jessica Kincaid - 07/07/2014