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Case Name USA v. Moalin NS-CA-0015
Docket / Court 3:10-cr-04246 ( S.D. Cal. )
State/Territory California
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Telephony Metadata
Attorney Organization ACLU Chapters (any)
Brennan Center for Justice
Case Summary
On October 22, 2010, three immigrants from Somalia were indicted on criminal charges in the U.S. District Court for the Southern District of California. The case was assigned to Judge Jeffrey Miller. A superseding indictment added a fourth defendant to the charges on January 14, 2011. Each ... read more >
On October 22, 2010, three immigrants from Somalia were indicted on criminal charges in the U.S. District Court for the Southern District of California. The case was assigned to Judge Jeffrey Miller. A superseding indictment added a fourth defendant to the charges on January 14, 2011. Each defendant was represented by private counsel, and one was additionally represented by the Civil Rights Clinic in Austin, Texas. The charges were related to the defendants’ alleged material and financial support for the terrorist group Al-Shabab, and consisted of five counts: (1) Conspiracy to Provide Material Support for Terrorism, in violation of 18 U.S.C. §2339A(a); (2); Conspiracy to Provide Material Support to a Foreign Terrorist Organization (“FTO”), in violation of 18 U.S.C. §2339B(a)(1); (3) Conspiracy to Kill in a Foreign Country, in violation of 18 U.S.C. §956; (4) Conspiracy to Launder Monetary Instruments, in violation of 18 U.S.C. § 1956(a)(2)(A) and (h); (5) Providing Material Support for Terrorism, in violation of 18 U.S.C. § 2339A(a).

The four defendants were convicted by jury verdict on February 22, 2013. 2013 WL 8351225. The named defendant was convicted on all five counts; two defendants were convicted only on counts 1, 2, 3, and 5; the fourth was convicted only on counts 1, 2, and 5. After several months of pre-sentence investigation, the defendants filed a joint motion for a new trial on September 5, 2013. The motion was based on congressional testimony from the NSA and the FBI relating to materials provided by Edward Snowden regarding NSA surveillance in this particular case. In their new trial motion, the defendants argued: (1) that collection by the NSA of electronic data related to the named defendant violated the First and Fourth Amendment, as well as the Foreign Intelligence Surveillance Act (FISA); (2) that cleared defense counsel should have been provided with the Government’s confidential response to their FISA motion and the ex parte request for a protective order under the Confidential Information Protection Act ("CIPA"); and (3) that the Government failed to provide required discovery and exculpatory materials.

The court denied each of these arguments in its November 14, 2013 order denying the defendants’ motion for a new trial, finding that the public disclosures made by the NSA and the FBI provided no new facts to alter the court's FISA and CIPA rulings. 2013 WL 6079518. The court also denied the defendants' arguments that the Government had violated the First and Fourth Amendments, as well as FISA and CIPA. Finally, the court found that the Government had complied with its obligations to provide required discovery and exculpatory materials. The four defendants were sentenced to 15 years, 13 years, 10 years, and 6 years, respectively.

Each of the four defendants filed appeals to the United States Court of Appeals for the Ninth Circuit in late November 2013.

On October 29, 2015, the defendants submitted their joint appeal. They alleged that (1) the convictions should be reversed because the government, through the NSA’s surveillance program, acted beyond the authority granted to it by 50 U.S.C. §1861; (2) the NSA’s surveillance program violated the Fourth Amendment; (3) the convictions should be dropped and a new trial ordered because the government did not provide exculpatory information and/or notice of its surveillance activities; (4) the district court excluded the appellants’ access to relevant evidence while at the same time allowed the government’s irrelevant and prejudicial evidence; and (5) there was insufficient evidence for the jury to support the fourth appellant’s convictions.

On November 10, 2016, Judges Marsha S. Berzon, Jacqueline H. Nguyen, and Jack Zouhary heard oral arguments. On July 18, 2018, a defendant's lawyer wrote the court asking them to consider how the Supreme Court's recent decision in Carpenter v. United States affects the current case. 2018 WL 3073916. The lawyer argued that the reasoning animating the holding in Carpenter is what is at issue in this case's challenge of the government’s bulk collection, retention, and subsequent review of phone records.

The Ninth Circuit released an opinion (by Judge Berzon) on September 2, 2020, upholding the charges against the defendants but stating that the government may have violated the Fourth Amendment through the bulk telephony metadata collection program. 2020 WL 5225704. Judge Berzon relied on the Carpenter decision to state that bulk telephony metadata collection may violate the Fourth Amendment because the information wireless carriers collect off cell phones is so revealing about an individual's habits that warrantless collection would be an unreasonable search without a warrant. She added that the bulk telephony metadata collection program violated FISA Subchapter IV, stating that the “statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation" language in the Subchapter is intended to limit the scope of the government's ability to request FISA warrants, and that bulk metadata collection was not sufficiently limited to comply with the statute's intent. However, she declined to suppress the evidence collected against the defendants as a result of the FISA violation, writing that the FISA Subchapter IV does not allow suppression as a remedy in contrast to other areas of the statute that do, and that, upon review of the classified FISA warrants at issue, the information collected from the metadata program was not material to the successful FISA warrant application. Turning to the Fourth Amendment's notice requirement, Judge Berzon wrote that, while the defendants found out about the collection of their metadata in an unusual way through the Snowden disclosures, they were given notice to contest the metadata collection in the form of this lawsuit, and that the lack of notice at the District Court was not prejudicial from in-camera review of the record. However, she did mention that the government is obligated to disclose impending use of foreign intelligence surveillance data in order to give the defendants a chance to contest it.

The case remains open until the window for a petition for review by the Supreme Court closes.

Nicholas Hazen - 04/03/2017
Dawn Lui - 06/19/2020
Ellen Aldin - 09/07/2020

compress summary

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Issues and Causes of Action
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Constitutional Clause
Unreasonable search and seizure
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
Private Plaintiff
Type of Facility
Causes of Action 42 U.S.C. § 1983
FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812
Defendant(s) United States
Plaintiff Description Four Somali immigrants, convicted on criminal charges related to providing aid to Al-Shabab.
Indexed Lawyer Organizations ACLU Chapters (any)
Brennan Center for Justice
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Criminal Conviction
Source of Relief Litigation
Filed 10/22/2010
Case Ongoing Yes
Additional Resources
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  See this case at (May provide additional documents and, for active cases, real-time alerts) U.S. v. Moalin
[ Detail ] [ External Link ]

3:10-cr-4246 (S.D. Cal.)
NS-CA-0015-9000.pdf | Detail
Date: 09/23/2015
Source: PACER [Public Access to Court Electronic Records]
13-50572 (U.S. Court of Appeals)
NS-CA-0015-9001.pdf | Detail
Date: 09/04/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Introductory Allegations Common to All Counts [ECF# 1]
NS-CA-0015-0001.pdf | Detail
Date: 10/22/2010
Source: PACER [Public Access to Court Electronic Records]
Statement of Facts and Memorandum of Points and Authorities in Support of Joint Motion Pursuant to Rule 33, R.Crim. P., For a New Trial [ECF# 345-1]
NS-CA-0015-0002.pdf | Detail
Date: 09/05/2013
Source: PACER [Public Access to Court Electronic Records]
Order Denying Motion for New Trial [ECF# 387] (2013 WL 6079518) (S.D. Cal.)
NS-CA-0015-0003.pdf | WESTLAW | Detail
Date: 11/14/2013
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# 85-1] (2020 WL 5225704)
NS-CA-0015-0004.pdf | WESTLAW | External Link | Detail
Date: 09/02/2020
Source: ACLU
show all people docs
Judges Berzon, Marsha Siegel (Ninth Circuit) show/hide docs
Miller, Jeffrey T. (S.D. Cal.) show/hide docs
NS-CA-0015-0003 | NS-CA-0015-9000 | NS-CA-0015-9001
Nguyen, Jacqueline Hong-Ngoc (C.D. Cal., Ninth Circuit) show/hide docs
Zouhary, Jack (N.D. Ohio) show/hide docs
Plaintiff's Lawyers Cole, William P. (California) show/hide docs
NS-CA-0015-0001 | NS-CA-0015-9000
Duffy, Laura E. (California) show/hide docs
Han, Caroline Pineda (California) show/hide docs
NS-CA-0015-0001 | NS-CA-0015-9000
Smith, Jeffrey Michael (District of Columbia) show/hide docs
Ward, Steven Philip (District of Columbia) show/hide docs
Zipp, Daniel Earl (California) show/hide docs
Defendant's Lawyers Abdo, Alex (New York) show/hide docs
Coleman, Benjamin L. (California) show/hide docs
Dratel, Joshua L. (New York) show/hide docs
NS-CA-0015-0002 | NS-CA-0015-9000 | NS-CA-0015-9001
Durkin, Thomas Anthony (Illinois) show/hide docs
NS-CA-0015-0002 | NS-CA-0015-9000
Fontier, Alice L. (New York) show/hide docs
Geller, Marc B. (California) show/hide docs
Ghappour, Ahmed (Texas) show/hide docs
NS-CA-0015-0002 | NS-CA-0015-9000
Hanover, Holly S. (California) show/hide docs
Missakian, Elizabth (California) show/hide docs
Moreno, Linda (Florida) show/hide docs
NS-CA-0015-0002 | NS-CA-0015-9000
Roberts, Janis D. (Illinois) show/hide docs
Sherif, Mahir Tewfik (California) show/hide docs
Sullivan, Holly A. (California) show/hide docs
Toomey, Patrick Christopher (New York) show/hide docs
Troiano, Kenneth J. (California) show/hide docs
Zugman, David J. (California) show/hide docs
Other Lawyers Patel, Faiza (New York) show/hide docs

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