On September 30, 2015, Yahya Farooq Mohammad, Ibrahim Zubair Mohammad, Asif Ahmed Salim, and Sultane Roome Salim were indicted in U.S. District Court of the Northern District of Ohio for conspiracy to provide and conceal material support and resources to terrorists, for providing material support and resources to terrorists and for conspiracy to obstruct justice. Farooq Mohammad and Ibrahim Mohammad were additionally indicted for conspiracy to commit bank fraud. The defendants were appointed federal public defenders and retained private counsel. The case was assigned to District Judge Jack Zouhary.

On December 21, 2015, the U.S. Department of Justice notified the criminal defendants in this case that some of the evidence the government intended to use against them came from a FISA warrantless wiretap, pursuant to Sec. 702 of the FISA Amendment Acts of 2008. This notice provides standing to criminal defendants to challenge the constitutionality of the government's surveillance techniques. All cases challenging this provision are available in the Foreign Targeting (702, 703, 704) special collection.

On July 6, 2016, Yahya Mohammad was indicted in another case (3:16-cr-00222) in the U.S. District Court of the Northern District of Ohio for attempted first degree murder of a federal officer, solicitation to commit a crime of violence, and use of interstate commerce facilities in the commission of a murder-for-hire. While Yahya Mohammad was detained and housed at the Lucas County Corrections Center in Toledo, Ohio, pending resolution of this case, he had told another inmate that he wanted to hire someone to kill Judge Zouhary. The inmate reported Mohammad to the FBI and introduced Mohammad to an FBI undercover employee, who posed as someone willing to kill Judge Zouhary for money.

On July 12, 2016, Judge Zouhary ordered recusal of himself from the case due to Yahya Mohammad's attempt to murder him. Chief Judge Solomon Oliver of the U.S. District Court of the Northern District of Ohio had requested that Chief Judge Guy Cole of the Sixth Circuit Court of Appeals appoint an out-of-district judge to hear both cases due to their close relation with each other. The cases were transferred to Chief Judge Edmund A. Sargus, Jr. from the Southern District of Ohio.

On September 30, 2016, the defendants filed a motion for disclosure of FISA-related materials and to suppress the fruits or derivatives obtained from warrantless surveillance under Section 702 of FISA.

On November 18, 2016, the government filed an ex parte in camera motion for a protective order pursuant to Section 4 of the Classified Information Procedures Act and Rule 16(d)(1) of the Federal Rules of Criminal Procedure. The government filed a supplemental motion on February 16, 2018. Both motions were submitted under seal with the Classified Information Security Officer.

On July 18, 2017, Chief Judge Cole of the Sixth Circuit reassigned Yahya Mohammad's three co-defendants, Ibrahim Mohammad, Asif Salim, and Sultane Salim, to District Judge Jeffrey J. Helmick. However, Judge Sargas was to continue hearing the cases in regard to Yahya Mohammad.

On November 8, 2017, after Yahya Mohammad pled guilty to one count of providing material support to terrorists under this case (count 1) and one count of solicitation to commit a crime of violence (against Judge Zouhary) in case 3:16-cr-222 (count 2), Judge Sargus sentenced Mohammad to 180 months (minus time served) for count 1 and 240 months for count 2, with 90 of those months to run concurrently with count 1. The remaining 150 months were to run consecutively with count 1 for a total of 330 months; 10 years supervised released; and a $200 special assessment fee. No fines or restitution were imposed.

On March 20, 2018, Judge Helmick granted the government's motion for a protective order (originally filed on November 18, 2016) under Section 4 of the Classified Information Procedure's Act (CIPA). Judge Helmick denied the defendants' motions to suppress evidence obtained from a warrantless surveillance under Section 702 of FISA, to suppress fruits or derivatives of electronic surveillance, to compel discovery, and for disclosure related to FISA amendments. He noted that he had provided classified versions of his opinion to the Classified Information Security Officer for service to the relevant agencies for classification review.

On September 11, 2018, an unclassified version of Judge Helmick's opinion on the government's classified, ex parte, in camera motion for a protective order was released. Although even the unclassified version of the opinion is heavily redacted, it shows Judge Helmick finding that the defendants' objections to an ex parte, in camera review of the government's Section 4 filing without merit because none of the government's surveillance had been deemed unlawful. He further noted that nothing he had seen in his review of the classified documents in this case suggested that the government was using CIPA to conceal unlawful surveillance techniques. Furthermore, although he acknowledged that he was "not in an optimal position to act as surrogate defense counsel," Judge Helmick maintained that he had sufficient knowledge of the case and the defendants' theories of the case to determine whether the government's Section 4 filings discuss information that would be relevant and helpful to the defense.

On September 11, 2018, Judge Helmick released an unclassified memorandum opinion denying the defendants' several motions regarding the government's FISA evidence. First, he denied the defendant's request for disclosure of the FISA materials because he concluded that the challenged FISA collection was lawful. Therefore, Judge Helmick believed that disclosure to the defendants was not necessary to make an accurate determination of the legality of the surveillance. He rejected the defendants' argument that disclosure of FISA materials are permitted to the extent that due process requires it; the Sixth Circuit had already rejected an argument similar to the defendants', holding that "FISA's requirement that the district court conduct an ex parte, in camera review of FISA materials does not deprive a defendant of due process." Second, Judge Helmick denied the defendants' motion for suppression of the evidence obtained or derived from FISA surveillance and physical searches because he found that the surveillance and searches were conducted in compliance with the FISC's orders, which had properly found the existence of probable cause.

As of March 20, 2019, the case is still pending in regard to the three defendants, Ibrahim Zubair Mohammad, Asif Ahmed Salim, and Sultane Roome Salim.

Lisa Limb - 03/20/2019


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