Mohamed Osman Mohamed FBI fakebombtrial Appeal Brief

8/20/2019 Mohamed Osman Mohamed FBI fakebombtrial Appeal Brief

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No. 14-30217

____________________

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MOHAMED OSMAN MOHAMUD,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the District of Oregon

Portland Division

____________________

OPENING BRIEF OF APPELLANT

____________________

Stephen R. SadyChief Deputy Federal Public Defender

Lisa C. Hay

Federal Public Defender

Mark Ahlemeyer

Assistant Federal Public Defender

101 SW Main Street, Suite 1700

Portland, Oregon 97204

(503) 326-2123

Steven Toby WaxAttorney at Law

630 SW 5th Avenue, Suite 500

Portland, Oregon 97204

(503) 830-7758

Attorneys for Defendant-Appellant

Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 1 of 256


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TABLE OF CONTENTS

Page

Table of Authorities ............................................................................................... viii

Statement of Jurisdiction ............................................................................................ 1

Statement of Issues ..................................................................................................... 2

Statement of the Case ................................................................................................. 4

Nature of the Case ........................................................................................... 4

Course of Proceedings ..................................................................................... 4

Custody Status ...............................................................................................10

Statement of Facts ....................................................................................................11

Summary of Argument ............................................................................................56

Argument..................................................................................................................68

I. Under Controlling Supreme Court Authority, The Government’s

Extensive Intrusion Into And Influence Over The TeenagedDefendant’s Life Constituted Entrapment As A Matter Of Law AndViolated Due Process. ....................................................................................68

A. Under Jacobson, Religious And Political Beliefs, Even IfAlarming And Repugnant, Are Not Equivalent To PredispositionTo Commit The Crime Charged, Which Is Measured From TheTime Before The First Governmental Contact....................................70

B. Under Sherman, Governmental Sabotage Of RehabilitationEfforts And Exploitation Of Vulnerabilities Are Unlawful FormsOf Inducement. ....................................................................................74

C. Under Poehlman, Exploitation Of Apparent VulnerabilitiesWent Too Far In The Creation Of Crime. ...........................................76



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D. In The Alternative, The Court Should Dismiss This Case BasedOn Government Overreaching Under The Due Process Clause. ........78

II. The Prosecutor’s Closing Argument Violated Due Process By NegatingAnd Misstating The Legal Standard For The Defense Of Entrapment. ........81

A. The Government Argued In Closing That An Individual CannotBe Entrapped To Commit The Charged Offense. ...............................81

B. The Government Argued In Closing For Conviction Based OnPredisposition To Commit Similar Acts. ............................................84

C. The Improper Closing Arguments Violated The Defendant’sRight To Present A Complete Defense And Diluted TheGovernment’s Burden Of Proving Guilt Beyond a ReasonableDoubt. ..................................................................................................86

III. The Trial Court’s Failure To Provide Adequate Jury Instructions OnThe Defense Theory Of The Case Violated The Right To A Fair Trial. ......90

A. Despite Proffered Defense Instructions That Were Supported ByThe Facts And Law, The Trial Court Failed To Instruct The JuryOn Essential Aspects Of Entrapment That Supported TheDefense Case. ......................................................................................91

1. Predisposition To Commit The Specific Offense Charged....................................................................................................91

2. The Meaning Of “Innocent.” ....................................................92

3. “Wherewithal” Or “Capability” To Commit The ChargedCrime Without Government Assistance. ..................................94

4. Vulnerability To Inducement. ...................................................95

5. Evaluation Of Post-Contact Evidence Of Predisposition. ........96

6. The Government Agents’ State Of Mind. .................................98



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B. The Trial Court’s Response To The Jury’s Note CompoundedThe Prejudice From Incomplete Instruction On The EntrapmentDefense And Violated Due Process By Instructing On TheGovernment’s Theory While Continuing To Deprive The

Defense Of Its Theory. ......................................................................100

IV. The Trial Court’s Refusal To Instruct The Jury On The FirstAmendment, Combined With The Gag Order Barring The DefenseFrom Mentioning The First Amendment In Closing Argument,Violated The Constellation Of Constitutional Rights Guaranteeing ThePresentation Of A Complete Defense. .........................................................103

V. The Trial Court’s Refusal To Rule On The Constitutionality Of TheGovernment’s Non-FISA Seizures, Searches, and Interrogations

Violated Mr. Mohamud’s Constitutional Rights. ........................................107

A. The Trial Court Repeatedly Refused To Rule On TheConstitutionality Of Government Conduct. ......................................108

B. The Trial Court’s Refusal To Rule On Whether FBI AgentsActed Unconstitutionally Violated The Fourth Amendment, TheDue Process Clause, The Confrontation Clause, And The FifthAnd Sixth Amendment Rights To Present A Complete Defense. ....115

VI.

The Government And District Court’s Withholding Of ClassifiedEvidence And Information Impermissibly Skewed The Fact-FindingProcess, Violating Mr. Mohamud’s Rights To Confront His Accusers,Due Process Of Law, And Effective Assistance Of Counsel. .....................119

A. The Government Cannot Withhold Material Evidence Under TheState Secrets Privilege, CIPA, or FISA, When Doing So CurtailsFundamental Constitutional Rights In A Criminal Trial. .................120

B. Depriving Mr. Mohamud Of The True Identities Of The

Undercover Operatives Who Testified Against Him Violated HisRights To Confrontation, Due Process, And Effective AssistanceOf Counsel. ........................................................................................125



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1. The Government Asserted The State Secrets Privilege ToWithhold The Names And Backgrounds Of Its Operatives..................................................................................................126

2. Depriving The Defense Of The True Names Of Two KeyWitnesses Violated The Defendant’s ConstitutionalRights. .....................................................................................127

C. The District Court’s Denial Of Discovery Regarding, AndTestimony From, “Bill Smith” Violated The Fifth And Sixth

Amendment Rights To Compulsory Process, Confrontation, AndPresentation Of The Complete Theory Of The Defense. ..................133

D. The Government’s Selective Declassification Of Some Material

Obtained Through Electronic Surveillance And Other Means,While Withholding Other Such Material From The Defense,Violated The Right To A Fair Trial. .................................................136

E. The Failure To Allow Discovery Of Classified Brady MaterialAnd Its Replacement With Inadequate Substitute EvidenceViolated The Right To A Fair Trial. .................................................143

F. The Trial Court’s Refusal To Provide Classified MaterialRegarding Amro Al-Ali, Either Directly Or In Substitute Form,

Violated The Due Process Right To Receive Material In ThePossession Of The Government That Is Favorable To TheDefense. .............................................................................................147

VII. By Misconstruing And Misapplying The “State Of Mind” ExceptionTo The Hearsay Rule, The District Court Violated The ConfrontationClause, The Right To Compulsory Process, And The Right To A FairTrial. .............................................................................................................148

A. Over Defense Objection, The Court Construed the Hearsay Rule

To Allow The Government To Introduce Prejudicial HearsayEvidence Regarding A Key Figure, Amro Al-Ali, In ViolationOf Mr. Mohamud’s Right To Confrontation And To A Fair Trial............................................................................................................150



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B. Once The Court Allowed Government Witnesses To TestifyRegarding Their Investigative “States Of Mind,” The Court

Erroneously Restricted Cross-Examination Related To MentalState, Including Motivation And Bias. ..............................................164

C.

Over Defense Objection, The Court Allowed GovernmentWitnesses To Testify About What Mr. Mohamud Meant AndWas Thinking About In Recorded Statements. .................................169

D. Over Defense Objection, The Court Misconstrued The HearsayRule To Exclude Admissible Evidence Of ContemporaneousCommunications By Mr. Mohamud That Reflected His Lack OfPredisposition To Commit The Crime Charged. ..............................171

E.

The Trial Court’s Repeated And Pervasive Errors MisconstruingAnd Misapplying The Evidentiary Rules For “State of Mind”

Evidence Require Reversal For Violation Of The Hearsay RuleAnd The Rights To Confrontation, Compulsory Process, And AFair Trial. ...........................................................................................172

VIII. Because The Government Violated The Statute Requiring Pretrial Notice Of Warrantless FISA Amendments Act Electronic Surveillance,The Government Should Have Been Barred From Using The ProductsOf Such Surveillance, Or, In The Alternative, The Case Should Be

Remanded For A Determination Of The Facts Based On Evidence AndAn Adversarial Hearing. ..............................................................................178

A. The Statutory Language Requires Pretrial Notice Of The Use OfEvidence Derived From FAA Warrantless Surveillance. .................180

B. Based On The Defense Evidence That The GovernmentIntentionally Or Recklessly Failed To Provide Pretrial Notice OfFAA Warrantless Surveillance, The Trial Court Should Have AtLeast Suppressed Derivative Evidence. ............................................183

C. In The Alternative, The Trial Court’s Refusal To Hold A HearingRegarding The Circumstances Of The Statutory AndConstitutional Violation Constituted Error Requiring Reversal



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And Remand For Fact Findings And Remedial ActionCommensurate With The Violation Of Rights..................................187

IX. The Warrantless Retention And Searches Of The Content Of Mr.Mohamud’s Electronic Communications Violated The FISAAmendments Act And The Constitution, Which Should Result InSuppression Of The Resulting Evidence. ....................................................190

A. The Search Of The Content Of Americans’ CommunicationsViolates The FAA Because The Statute Does Not ExpresslyAuthorize The Government To Retain And Later Access SuchElectronic Communications That Are “Incidentally” InterceptedWhile Targeting Foreigners. .............................................................192

B.

The Government’s Secondary Searches Of The Content Of AnAmerican Citizen’s Electronic Communications Violated TheConstitution Because The Intrusions Occurred Without JudicialReview And Other Protection Analogous To The FourthAmendment’s Warrant Requirement. ...............................................197

C. Acquisition And Retention Of Americans’ ElectronicCommunications Under The FAA Violates The First And FourthAmendment As Well As The Separation Of Powers Doctrine. ........201

D.

If The Present Record Is Insufficient To Find A Violation Of TheStatute Or Constitution, The Court Should AuthorizeSupplemental Briefing With Defense Access To The RelevantDocuments. ........................................................................................210

E. The Court Should Order Suppression Of Evidence And TheResult Of Decisions Derived From Electronic SurveillanceConducted In Violation Of The Statute And The Constitution. .......214

X. The District Court’s Handling Of Classified Materials Deprived Mr.

Mohamud Of Due Process Of Law And The Effective Assistance OfCounsel. .......................................................................................................216

XI. In The Alternative To Reversal And Remand For A New Trial, TheSentence Imposed In This Case Should Be Vacated Because The



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Government’s Recommendation Involved An Improper Basis AndBecause The Sentencing Involved Procedural Error. ..................................221

A. [Sealed Supplemental Opening Brief] ..............................................222

B.

The Court Should Vacate The Sentence Based On Inter-RelatedProcedural Errors Involving Failure To Adequately ResolveControverted Issues, Mischaracterization Of This Court’s LegalStandard Regarding The Terrorism Enhancement, AndInadequate Explanation Of Rulings Regarding Post-OffenseRehabilitation, Imperfect Entrapment, And FutureDangerousness. ..................................................................................222

Statement of Related Cases ....................................................................................231

Certificate of Compliance ......................................................................................232

Certificate of Service .............................................................................................233

INDEX TO APPENDIX

Appendix A: 50 U.S.C. § 1881a)

Appendix B: [sealed supplemental brief]

Appendix C: Index of Exhibits



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viii

TABLE OF AUTHORITIES

Page

FEDERAL COURT CASES

ACLU Found. of S. Cal. v. Barr,

952 F.2d 457 (D.C. Cir. 1991) ....................................................................215

ACLU v. Clapper,

No. 14-42-CV, 2015 WL 2097814 (2d Cir. May 7, 2015)................... passim

Alabama v. Bozeman,

533 U.S. 146 (2001)....................................................................................180

Alderman v. United States,394 U.S. 165 (1969)................................................................... 121, 199, 213

Alford v. United States,

282 U.S. 687 (1931)....................................................................................129

Anderson v. Yungkau,

329 U.S. 482 (1947)....................................................................................181

Arizona v. Hicks,

480 U.S. 321 (1987)....................................................................................198

Armstrong v. Asselin,734 F.3d 984 (9th Cir. 2013) ......................................................................202

Berger v. City of Seattle,569 F.3d 1029 (9th CIr. 2009) ........................................... 103, 108, 120, 179

Berger v. New York,388 U.S. 41 (1967)......................................................................................201

Berger v. United States,

295 U.S. 78 (1935)........................................................................................89



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ix

Bollenbach v. United States,326 U.S. 607 (1946)....................................................................................101

Brady v. Maryland,373 U.S. 83 (1963)................................................................................ passim

Brandenburg v. Ohio,395 U.S. 444 (1969)......................................................................................72

Bruton v. United States,391 U.S. 123 (1968)....................................................................................176

California v. Green,399 U.S. 149 (1970)....................................................................................128

California v. Trombetta,467 U.S. 479 (1984)......................................................................................91

Camara v. Municipal Court,387 U.S. 523 (1967)....................................................................................206

Chandler v. United States Army,125 F.3d 1296 (9th Cir. 1997) ....................................................................181

Chapman v. California,386 U.S. 609 (1965)......................................................................................86

Clark v. Martinez,543 U.S. 371 (2005)....................................................................................122

Collins v. Gee West Seattle,631 F.3d 1001 (9th Cir. 2011) ....................................................................179

Comstock v. Humphries,

No. 14-15311, 2015 WL 2214647 (9th Cir. May 11, 2014) ......................187

Conde v. Henry,198 F.3d 734 (9th Cir. 1999) ......................................................................106



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x

Crane v. Kentucky,476 U.S. 683 (1986)....................................................................... 86, 91, 106

CT&IA v. FCC,330 F.3d 502 (D.C. Cir. 2003) ....................................................................212

Darden v. Wainwright,477 U.S. 168 (1986)......................................................................................81

Davis v. Alaska,415 U.S. 308 (1974)....................................................................................135

Donnelly v. DeChristoforo,416 U.S. 637 (1974)......................................................................................81

Doody v. Ryan,649 F.3d 986 (9th Cir. 2011) ......................................................................110

Ex parte Endo,323 U.S. 283 (1944)................................................................................... 196

Florida v. Jimeno,500 U.S. 248 (1991)........................................................................... 110, 198

Franks v. Delaware,438 U.S. 154 (1978)................................................................... 189, 218, 219

Gall v. United States,552 U.S. 38 (2007)............................................................. 223, 224, 227, 229

Gant v. Arizona,556 U.S. 332 (2009)....................................................................................204

Georgia v. Randolph,

547 U.S. 103 (2006)....................................................................................205

Hamdi v. Rumsfeld,542 U.S. 507 (2004)....................................................................................196



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xi

Hanna v. Price,245 Fed. Appx. 538 (6th Cir. 2007) .............................................................86

Herring v. New York,422 U.S. 853 (1975)....................................................................................106

Holmes v. South Carolina,547 U.S. 319 (2006)......................................................................................86

Illinois v. Krull,480 U.S. 340 (1987)....................................................................................215

In re Directives,551 F.3d 1004 (FISA Ct. Rev. 2008) ........................................................ 194

In re Grand Jury Subpoena (T-112),597 F.3d 189 (4th Cir. 2010) ......................................................................185

In re Kevork,788 F.2d 566 (9th Cir. 1986) ..................................................................... 212

In re Sealed Cases,710 F.3d 717 (FISA Rev. Ct. 2002) ...........................................................206

Jackson v. Denno,378 U.S. 368 (1964)....................................................................................118

Jacobson v. United States,503 U.S. 540 (1992).............................................................................. passim

Jencks v. United States,353 U.S. 657 (1957)........................................................................... 121, 186

Jones v. United States,

357 U.S. 493 (1958)....................................................................................205

Klayman v. Obama,957 F. Supp. 2d 1 (D.D.C. 2013) ................................................................218



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xii

Koon v. United States,518 U.S. 81 (1996)..................................................................... 222, 224, 226

Kyles v. Whitley,514 U.S. 419 (1995)....................................................................................118

Lawrence v. Texas,539 U.S. 558 (2003)....................................................................................203

Lilly v. Virginia,527 U.S. 116 (1999)....................................................................................128

Matthews v. Eldridge,424 U.S. 319 (1976)....................................................................................189

Merck & Co. v. Reynolds,130 S. Ct. 1784 (2010) ................................................................................121

Mistretta v. United States,488 U.S. 361 (1989)....................................................................................209

Morrison v. Olson,487 U.S. 654 (1988)....................................................................................209

Murray v. United States,487 U.S. 533 (1988)................................................................... 116, 182, 214

Ocampo v. Vail,649 F.3d 1098, 1110 (9th Cir. 2011) ................................................. 174, 175

Pointer v. Texas,380 U.S. 400 (1975)....................................................................................127

Pollard v. Galaza,

290 F.3d 1030 (9th Cir. 2002) ....................................................................111

Reynolds v. United States,345 U.S. 1 (1953) .........................................................................................120



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xiii

Riley v. California,134 S. Ct. 2473 (2014) ................................................................................192

Riley v. California,134 S.Ct. 2473 (2014) ...................................................................................66

Rita v. United States,551 U.S. 338 (2007)....................................................................................227

Rodriguez v. United States,135 S. Ct. 1609 (2015) ................................................................................198

Roviaro v. United States,353 U.S. 53 (1957)............................................................................. 121, 186

Sandoval v. Calderon,241 F.3d 765 (9th Cir. 2001) ........................................................................87

Segura v. United States,468 U.S. 796 (1984)....................................................................................200

Shepard v. United States,290 U.S. 96 (1933)......................................................................................176

Sherman v. United States,356 U.S. 369 (1958)................................................................... 69, 74, 75, 76

Silverthorne Lumber Co. v. United States,251 U.S. 385 (1920)....................................................................................179

Smith v. Illinois,390 U.S. 129 (1968)....................................................................................128

Sorrells v. United States,

287 U.S. 435 (1932)......................................................................................72

Terry v. Ohio,392 U.S. 1 (1968)............................................................................... 197, 206



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xiv

United Sates v. Kojayan,8 F.3d 1315 (9th Cir. 1993) ........................................................................188

United Staes v. Segna,555 F.2d 226 (9th Cir. 1977) ................................................................. 86, 88

United States v. Abel,469 U.S. 45 (1984)......................................................................................176

United States v. Alvarez,358 F.3d 1194 (9th Cir. 2004) ................................................................... 150

United States v. Bailleaux,685 F.2d 1105 (9th Cir. 1982) ....................................................................138

United States v. Bello-Bahena,411 F.3d 1083 (9th Cir.2005) .......................................................................90

United States v. Bin Laden,126 F.Supp.2d 264 (S.D.N.Y. 2000) ..........................................................205

United States v. Bosse,898 F.2d 113 (9th Cir. 1990) ......................................................................110

United States v. Branson,756 F.2d 752 (9th Cir. 1985) ........................................................................89

United States v. Buckland,289 F.3d 558 ( 9th Cir. 2002) .....................................................................196

United States v. Carty,520 F.3d 984 (9th Cir. 2008) (en banc) ......................................................227

United States v. Celis,

608 F.3d 818 (D.C. Cir. 2010) ....................................................................130

United States v. Chapman,524 F.3d 1073 (9th Cir. 2008) ........................................................... 187, 188



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xv

United States v. Chun,503 F.2d 533 (9th Cir. 1974) ......................................................................182

United States v. Crist,627 F.Supp.2d 575 (M.D. Pa. 2012) ...........................................................198

United States v. Daoud,755 F.3d 479 (7th Cir. 2014) ......................................................................219

United States v. Dean,980 F.2d 1286 (9th Cir. 1992) ....................................................................174

United States v. Dumeisi,424 F.3d 566 (7th Cir. 2005) ......................................................................122

United States v. Duran-Orozco,192 F.3d 1277 (9th Cir. 1277) ....................................................................116

United States v. El-Mazain,664 F.3d 467 (5th Cir. 2011) ......................................................................130

United States v. Faust,850 F.2d 575 (9th Cir. 1988) ......................................................................172

United States v. Fernandez-Angulo,897 F.2d 1514 (9th Cir. 1990) (en banc) ....................................................224

United States v. Freeman,761 F.2d 549 (9th Cir. 1985) ............................................................. 104, 105

United States v. Frega,179 F.3d 793 (9th Cir. 1999) ......................................................................101

United States v. Giordano,

416 U.S. 505 (1974)........................................................................... 181, 216

United States v. Henderson,241 F.3d 638 (9th Cir. 2000) ......................................................................134



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xvi

United States v. Hernandez,608 F.2d 741 (9th Cir. 1979) ......................................................................129

United States v. Hernandez-Meza,720 F.3d 760 (9th Cir. 2013) ......................................................................188

United States v. Houston,217 F.3d 1204 (9th Cir. 2000) ....................................................................223

United States v. Jayyousi,657 F.3d 1085 (11th Cir.2011) ...................................................................224

United States v. Johnson,459 F.3d 990 (9th Cir.2006) .........................................................................90

United States v. Kellington,217 F.3d 1084 (9th Cir. 2000) ....................................................................107

United States v. Klimavicius-Viloria,144 F.3d 1249 (9th Cir. 1998) ................................................... 122, 123, 124

United States v. Koon,34 F.3d 1416 (9th Cir. 1994) ........................................................................87

United States v. Lamberty,778 F.2d 59 (1st Cir. 1985) .........................................................................174

United States v. Larson,495 F.3d 1094 (9th Cir.2007) .....................................................................150

United States v. Leon-Reyes,177 F.3d 816 (9th Cir. 1999) ........................................................................87

United States v. Lucas,

932 F.2d 1210 (8th Cir. 1991) ....................................................................131

United States v. Marguet-Pillado,648 F.3d 1001 (9th Cir. 2011) ..................................................................... 90



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xvii

United States v. May,622 F.2d 1000 (9th Cir. 1980) ........................................................... 163, 184

United States v. Mazzarella, No. 12-10171, 2015 WL 1769677 (9th Cir. Apr. 20, 2015) ..... 108, 116, 188

United States v. McClelland,72 F.3d 717 (9th Cir. 1995) ..........................................................................78

United States v. McCoy,23 F.3d 216 (9th Cir. 1994) ........................................................................177

United States v. Mejia,448 F.3d 436 (D.C. Cir. 2006) ........................................................... 122, 123

United States v. Miguel,338 F.3d 995 (9th Cir. 2003) ......................................................................107

United States v. Monaghan,741 F2d 1434 (D.C. Cir. 1984) .....................................................................87

United States v. Moussaoui,591 F.3d 263 (4th Cir. 2010) ......................................................................124

United States v. Mulder,808 F.2d 1346 (9th Cir. 1987) ....................................................................198

United States v. Nixon,418 U.S. 683 (1974)........................................................................... 121, 213

United States v. Novak,918 F.2d 107 (10th Cir. 1990) ....................................................................174

United States v. O’Hara,

301 F.3d 563 (7th Cir. 2002) ......................................................................122

United States v. Ordonez,737 F.2d 793 (9th Cir. 1984) ......................................................................129



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xviii

United States v. Ott,827 F.2d 473 (9th Cir. 1987) ......................................................................211

United States v. Palermo,410 F.2d 468 (7th Cir. 1969) ......................................................................131

United States v. Partyka,561 F.2d 118 (8th Cir. 1977) ......................................................................149

United States v. Pepper,131 S. Ct. 1229 (2011) ................................................................................222

United States v. Perlaza,439 F.3d 1149 (9th Cir. 2006) ......................................................... 81, 87, 88

United States v. Pickard,236 F. Supp. 2d 1204 (D. Kan. 2002) ....................................................... 122

United States v. Poehlman,217 F.3d 692 (9th Cir. 2000) ................................................................ passim

United States v. Ramos-Cruz,667 F.3d 487 (4th Cir. 2012) ......................................................................129

United States v. Rangel,534 F.2d 147 (9th Cir. 1976) ......................................................................129

United States v. Ressam,679 F.3d 1069 (9th Cir. 2012) ........................................................... 224, 228

United States v. Rice,478 F.3d 704 (6th Cir. 2007) ......................................................................216

United States v. Richardson,

583 F. Supp. 2d 694 (W.D. Pa. 2008) ........................................................110

United States v. Rothman,492 F.2d 1260 (9th Cir. 1973) ....................................................................110



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xix

United States v. Sallins,993 F.2d 344 (3d Cir. 1993) .......................................................................174

United States v. Sandoval-Gonzalez,642 F.3d 717 (9th Cir. 2011) ........................................................................88

United States v. Sandoval-Mendoza,472 F.3d 645 (9th Cir. 2006) ........................................................................95

United States v. Santiago,46 F.3d 885 (9th Cir. 1995) ..........................................................................81

United States v. Sarkissian,841 F.2d 959 (9th Cir. 1988) ..................................................... 121, 123, 124

United States v. Sedaghaty,728 F.3d 885 (9th Cir. 2013) ................................................................ passim

United States v. Silva,380 F.3d 1018 (7th Cir. 2004) ....................................................................173

United States v. Simpson,927 F.2d 1088 (9th Cir. 1991) ....................................................................187

United States v. Simtob,901 F.2d 799 (9th Cir. 1990) ........................................................................89

United States v. Smith,555 F.2d 249 (9th Cir. 1977) ......................................................................104

United States v. Song Ja Cha,597 F.3d 995 (9th Cir. 2010) ......................................................................199

United States v. Sterling,

724 F.3d 482 (4th Cir. 2013) ..................................................................... 129

United States v. Straub,538 F.3d 1147 (9th Cir. 1991). .......................................................... 136, 137



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xx

United States v. Thickstun,110 F.3d 1394 (9th Cir. 1997) ......................................................................94

United States v. Trujillo,713 F.3d 1003 (9th Cir. 2013) ....................................................................223

United States v. Truong,629 F.2d 908 (4th Cir. 1980) ......................................................................205

United States v. United States District Court for the E. District of Michigan,407 U.S. 297 (1972)........................................................... 194, 199, 202, 203

United States v. Warshak,631 F.3d 266 (6th Cir. 2010) ......................................................................199

United States v. Weatherspoon,410 F.3d 1142 (9th Cir. 2005) ......................................................................88

United States v. Winsor,846 F.3d 1569 (9th Cir. 1988) (en banc) ....................................................207

United States v. Yarbrough,852 F.2d 1522 (9th Cir.1988) .......................................................................88

United States v. Young,470 U.S. 1 (1985)..........................................................................................89

United States v. Young,573 F.3d 711 (9th Cir. 2009) ......................................................................198

United States v. Yunis,867 F.3d 617 (D.C. Cir. 1989) ....................................................................123

Warden v. Hayden,

387 U.S. 294 (1967)....................................................................................197

Wardius v. Oregon,412 U.S. 470 (1973)................................................................... 102, 136, 137



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xxi

Zadvydas v. Davis,533 U.S. 678 (2001)........................................................................... 122, 196

Zurcher v. Stanford Daily,436 U.S. 547 (1978)....................................................................................202

Zweibon v. Mitchell,516 F.2d 594 (D.C. Cir. 1975) ....................................................................206

FEDERAL STATUTORY AUTHORITIES

18 U.S.C. § 2332a(a)(2) .......................................................................................4, 72

18 U.S.C. § 3231 ........................................................................................................ 1

18 U.S.C. § 3553(a) ...............................................................................................223

18 U.S.C. § 3742(a) ................................................................................................... 1

28 U.S.C. § 1291 ........................................................................................................ 1

28 U.S.C. § 2106 ....................................................................................................210

50 U.S.C. § 1802(a)(1)(B) .....................................................................................205

50 U.S.C. § 1805(a)(2) .................................................................................. 193, 219

50 U.S.C. § 1805(a)(4) ...........................................................................................193

50 U.S.C. § 1806(c) ...................................................................... 178, 180, 181, 183

50 U.S.C. § 1806(f) ............................................................... 119, 121, 210, 211, 212

50 U.S.C. § 1806(g) .............................................................................. 182, 214, 215

50 U.S.C. § 1881a ............................................................................................ passim

50 U.S.C. § 1881e(a) ..............................................................................................180

150 U.S.C. § 1806(g) .............................................................................................215



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FEDERAL RULES AND REGULATIONS

28 C.F.R. § 50.2 .......................................................................................................80

75 Fed. Reg. 707 (Dec. 29, 2009) .........................................................................137

Fed. R. Crim. P. 16(d)(1) .......................................................................................124

Fed. R. Crim. P. 32(i)(3)(B) .......................................................................... 224, 227

Fed. R. Evid.801 ....................................................................................................173

Fed. R. Evid.802 ....................................................................................................172

Fed. R. Evid.803(3) ............................................................................... 148, 172, 173

Fed. R. Evid.803(8) ................................................................................................152



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STATEMENT OF JURISDICTION

The District Court’s jurisdiction over the underlying criminal prosecution was

conferred by 18 U.S.C. § 3231. This Court has jurisdiction over the direct appeal of

the conviction and sentence imposed pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291. This appeal is timely filed pursuant to Rule 4(a) of the Federal Rules of

Appellate Procedure because the District Court entered judgment on October 6,

2014, and Mr. Mohamud filed his notice of appeal on October 14, 2014.



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STATEMENT OF ISSUES

I. Under controlling Supreme Court authority, did the government’s extensiveintrusion into and influence over the teenaged defendant’s life constituteentrapment as a matter of law and violate due process?

II. Did the prosecutor ’s closing argument violate due process by negating andmisstating the legal standard for the defense of entrapment?

III. Did the trial court’s failure to provide adequate jury instructions on the theoryof the defense violate the defendant’s right to a fair trial?

IV. Did the trial court’s refusal to instruct the jury on the First Amendment,combined with the gag order barring the defense from mentioning the FirstAmendment in closing argument, violate the constellation of constitutionalrights guaranteeing the presentation of a complete defense?

V. Did the trial court’s refusal to rule on the constitutionality of the government’snon-FISA seizures, searches, and interrogations violate the FourthAmendment, the right to confrontation, and the right to present a completedefense?

VI. Did the government and district court’s withholding of classified evidence andinformation impermissibly skew the fact-finding process, violating Mr.

Mohamud’s rights to confront his accusers, due process of law, and effectiveassistance of counsel?

VII. By misconstruing and misapplying the “state of mind” exception to thehearsay rule, did the district court violate the confrontation clause, the right tocompulsory process, and the right to a fair trial?

VIII. Because the government violated the statute requiring pretrial notice ofwarrantless FISA Amendments Act electronic surveillance, should thegovernment have been barred from using the products of such surveillance or,

in the alternative, should the case be remanded for a determination of the facts based on evidence and an adversarial hearing?



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IX. Did the warrantless retention and searches of the content of Mr. Mohamud’selectronic communications violate the FISA Amendments Act and theConstitution, requiring suppression of the resulting evidence?

X. Did the district court’s handling of classified materials deprive Mr. Mohamudof due process of law and the effective assistance of counsel?

XI. In the alternative to reversal and remand for a new trial, should the sentenceimposed in this case be vacated because the government’s recommendationinvolved an improper basis and because the sentencing involved proceduralerrors?



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STATEMENT OF THE CASE

Nature of the Case

This is the direct appeal from Mohamed Mohamud’s conviction after jury trial

for attempted use of a weapon of mass destruction, in violation of 18 U.S.C. §

2332a(a)(2)(A), followed by imposition of a 30-year sentence by the Honorable Garr

M. King, Senior United States District Judge for the District of Oregon.

Course of Proceedings

This case has stretched out for over four years with hundreds of documents

filed and thousands of transcript pages. The case proceeded through pretrial motions

regarding classified material, suppression of evidence, and discovery between the

first appearance on November 29, 2010, until the beginning of the three-week trial

of an entrapment defense on January10, 2013. After the guilty verdict, the initial

sentencing date was continued several times at government request until November

19, 2013, when the government filed a post-trial supplemental notice regarding

warrantless FISA Amendments Act (FAA) electronic surveillance. After the trial

court denied motions related to the FAA notice on June 24, 2014, the trial court

received sentencing materials and held a sentencing hearing, then entered judgment



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on October 6, 2014. The defense filed a timely notice of appeal on October 14, 2014.

I:236.1

After the initial arrest and filings, the proceedings before the district court are

summarized below within the context of the issues raised on appeal. The trial court’s

rulings are the first volume of the Excerpts of Record and the documents and

transcripts related to each issue are gathered in the volumes that follow.

Initial Arrest And Filings: The government arrested Mr. Mohamud on the evening

of Friday, November 26, 2010, and released to the public a press statement and the

36-page criminal complaint that was filed on November 29, 2010. II:237-73, 278.

At the first appearance, Mr. Mohamud was arraigned on a one-count indictment and

detained pending trial. I:1; II:274. The government also filed a notice regarding the

use of the Foreign Intelligence Surveillance Act (FISA), but not use of FAA

surveillance. III:410-11.

The defense filed a motion on December 20, 2010, requesting that the trial

judge enter an order that the government stop making pretrial comments regarding

the merits of the case. After further briefing by the parties (II:302-77), the trial judge

1 References to the Excerpts of Record are by volume number and page.“SER” refers to the Sealed Excerpts of Record. “Tr.” refers to the trial transcripts,which are numbered with the original pagination in separate volumes of the Excerptsof Record.



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entered an opinion and order finding that, on three occasions, the government

violated regulations that bar government attorneys from certain types of pretrial

comment to the press, but denying the defense motion (II:385-87).

I. Entrapment as a matter of law: In the trial memorandum, the defense set

out the grounds for acquittal based on entrapment as a matter of law or, in the

alternative, dismissal for violation of due process. VI:1966-74, 2074-88. The motion

was denied at the close of the government’s case. I:124-26. The defense filed a post-

trial motion for acquittal, which was denied. VI:2848-51, 2872-81; I:132-38.

II. Prosecution closing argument: During the prosecutor ’s closing argument,

the defense objected and was overruled, Tr. 2574-75, then reraised the issue in the

post-trial motion for a new trial, which was denied. VI:2856-57, 2885-87, 2903-04;

I:131, 142-44.

III. Theory of defense instructions: The defense submitted jury instructions on

the theory of defense and briefed the grounds for providing the instructions prior to

trial. VI:2043-44, 2097-99, 2169-70, 2211-17. The trial judge rejected the

instructions and overruled objections to the instruction the court gave. VI:2425-32;

Tr. 2421. Before the court responded to a juror ’s note, the defense objected, then

moved for a mistrial (VI:2787-90), then a new trial (VI:2853-56, 2883-85, 2901-03).

The court denied the motion. I:138-42.



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IV. First Amendment jury instruction and gag order: The defense submitted

a jury instruction on the First Amendment and briefed its relevance prior to trial.

VI:2041, 2099-100, 2217-18. During the hearing on instructions, the trial court ruled

against the instruction and barred mention of the First Amendment (VI:2373-79),

which was also raised and denied in the post-trial motion for a new trial (VI:2870-

71, 2897-99; I:159-61).

V. Non-FISA seizures, searches, and interrogation: The defense filed a

pretrial motion to suppress for violation of the Fourth and Fifth Amendments in

connection with non-FISA seizure and search of the defendant’s personal computer

and federal involvement in an interrogation. IV:595-634. Over objection, the trial

court indicated it would only address the question of independent source without

first determining the constitutional violation. IV:635-46. The defense also raised the

need for a ruling on whether constitutional violations occurred in the context of the

need for a ruling as a trial fact and as a fact predicate to the motion to dismiss for

violation of due process. VI:2011-13, 2118-19. After the post-trial notice of

warrantless electronic surveillance, the defense renewed the request for a ruling

necessary for an assessment of the testimony regarding the reckless or intentional

failure to provide pretrial notice and the independent source question. VII:3172-73.



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The trial court denied all motions for a ruling on the constitutionality of the non-

FISA investigations. I:2, 67-90, 180-82; SER 1-3.

VI. Withholding of classified evidence: During pretrial proceedings, the defense

objected to the failure to provide the names of and other information regarding

undercover operatives, the selective declassification of helpful information in

electronic communications, information regarding Al-Ali; and the adequacy of

substitute evidence required under Brady v. Maryland , 373 U.S. 83 (1963), and

provided through the Classified Information Protection Act (CIPA). V:1300-83,

1460-1537, 1631-50, 1660, 1672-92, 1716-32, 1743, 1752-76, 1779-93; SER 4-69,

173-92. The issues were also raised through the post-trial motions for a new trial.

VI:2861-65, 2868-70, 2892-94, 2896-97. The trial court denied access to classified

evidence. I:44-66, 91-99, 122-24, 127, 152-54, 158-59, 180-82; SER 272-74.

VII. Violation of hearsay and confrontation rights through “state of mind”

testimony: In its pretrial submissions, the defense objected to and moved to exclude

potential hearsay. VI:2145-48, 2291-97, 2347-48, 2458-60, 2483-86. The defense

objected to the trial court’s interpretation and application of evidentiary rules related

to state of mind during trial as set out in Section VII. The issues were also raised in

the post-trial motions for a new trial. VI:2857-59, 2865-68, 2887-89, 2894-96. The



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trial court ruled against the defendant’s objections. I:114-16, 120-21, 128-30, 144-

46, 156-58.

VIII. Violation of pretrial FAA notice requirement: The defense filed a post-trial

motion to dismiss or suppress evidence based on violation of the statute requiring

pretrial notice of the use of evidence derived from the FAA. VII:3083-102, 3176-

93, 3312-25. After a hearing, the trial court issued an opinion denying relief. I:175-

80.

IX. Suppression based on unconstitutional warrantless surveillance under

the FAA: The defense filed post-trial motions for access to classified material and

to suppress based on the unconstitutionality of both the secondary searches and the

overall program for warrantless electronic surveillance. VII:2910-3082, 3103-66,

3203-303, 3330-401. After a hearing, the trial court issued an opinion denying

discovery and relief on the merits. I:162-227.

X. Classified material review: The defense filed motions and objections pretrial

and at trial regarding the district court’s refusal to provide security-cleared counsel

access to documents. I:48; III:448-49; 479-81, 517; IV:631-32; V:1306, 1342, 1639,

1676, 1690, 1729-32; SER 4-6, 45-69, 181-92, 249-54. The filings and objections

specified under seal and sometimes ex parte, why classified material should be

reviewed and produced, either in its entirety or under alternative means of



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production under the Classified Information Protection Act (CIPA). The trial court

denied access to classified material. I:3-23, 25-40, 127, 154-56.

XI. Sentencing violations of due process and procedural rules: The parties

filed public sentencing briefs and presented oral argument at sentencing. VIII:3456-

599, 3606-93. The presentence report also included specific defense objections to

the draft report. SER 381-460. The parties also submitted sealed material (SER 358-

69, 373-80), and the court held a brief sealed proceeding before the public sentencing

hearing (SER 461-73; VIII:3634-93). The trial court provided a statement at

sentencing and a non-public statement of reasons. I:228-35; SER 474.

Custody Status

Mr. Mohamud is serving the 30-year sentence imposed in this case at FCI

Victorville with a projected release date of January 26, 2037.



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STATEMENT OF FACTS

Introduction and Overview

On November 26, 2010, a 19-year-old United States citizen, Mohamed

Mohamud, committed a horrific act: he attempted to detonate a weapon of mass

destruction at the Christmas tree lighting ceremony at Portland’s Pioneer Courthouse

Square. He pushed the buttons of a cellphone, twice, believing they would cause the

explosion of a massive, nail-filled bomb capable of eliminating at least two city

blocks. At trial, the government played a video of children and families gathered at

Pioneer Square for the tree-lighting, making vivid the calamity that would have

ensued if the bomb had been real. Tr. 1943; Ex. 240-1, 240-2. The bomb was a fake,

created by the Federal Bureau of Investigation (FBI) as the culmination of a sting

operation they had started over a year earlier.

The defense at trial was entrapment: that the government had induced this

teenager to attempt a crime he was not predisposed to commit. Tr. 283. Before

contact with the undercover FBI agents, there was no evidence that Mohamed had

ever researched how to build a bomb, had ever expressed an interest in detonating a

bomb in the United States, and did not, as the FBI conceded, have any knowledge



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of explosives or the wherewithal to build a bomb. Tr. 483-84, 955.2 The FBI attention

and surveillance in Portland came after his father reached out to the FBI for help in

preventing his son from going overseas. Tr. 1434-39. Almost a year into the FBI

surveillance, and after initiating in-person undercover contact, the FBI opined in an

August 2010 assessment that Mohamed “would not make any attempts to conduct a

terrorist attack without specific direction from the [FBI undercover agents].” Tr.

1675.

The trial testimony revealed that many of the details of the horrific event had

been created by the FBI and then presented to Mohamed as the plan. Two undercover

FBI operatives, known to the defense only as “Hussein” and “Youssef,” directed

many of Mohamed’s actions. Tr. 673-79. The “ bomb” itself was designed entirely

by the FBI. Tr. 1048-49. None of the so-called “ bomb” parts that Mohamed

purchased, at the direction of the FBI, were illegal or dangerous. Tr. 1297. The FBI

chose the size of the bomb (six barrels); the size of the truck, and the size of the

explosion. Tr. 1049. Mohamed had no part in constructing the bomb and did not

2 As the government acknowledged in closing regarding the bomb, “There’s been no suggestion by the Government that the defendant could have done that. None at all.” Tr. 2591.



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know how large the explosion would be. Tr. 1049. And the FBI added the detail of

putting nails in the bomb. Tr. 1065.

The defense and government presented two widely differing theories to the

jury on how Mohamed came to the point, on November 26, 2010, of eagerly

attempting to detonate the bomb. According to the government, before Mohamed

ever came in contact with government agents, he had a “committed, well-developed

ideology” that supported the use of violence in the West, Tr. 2545-47, and he sought

out and was knowingly in contact with al-Qaeda terrorists, Tr. 257, 2544. The

government described in its opening statement the evidence it expected to present:

The Government is going to prove to you what the defendant’s mind-set was before the intervention of the FBI by providing you evidence,evidence of things like the defendant’s writings that clearly state hissupport for violence in the United States and outside the United States.We’re going to provide you evidence of his relationships with knownIslamic terrorists, known al-Qaeda terrorists. And, most importantly,we’re going to provide you evidence of the defendant’s own recordedstatements, statements that describe his intent and justification forcommitting violent acts against non-Muslims, nonbelievers.

Tr. 257-58. In closing, the government argued it had proven beyond a reasonable

doubt that Mohamed was predisposed to commit this crime and was not induced by

the agents. Tr. 2539-40.

The defense, on the other hand, presented evidence that, while Mohamed, as

a 17-year-old, had concededly written inflammatory articles and was influenced by



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and enamored of jihadi websites, he was a young man going through an identity

crisis with shifting interests. He had never suggested bringing violence to the United

States; he was not violent himself; and he had moved away from his radical ideas

and was attending college and making plans for future employment, including a

summer of work in Alaska. At most, what Mohamed had longed to do before

enrolling in college was to go overseas, to join his friends in a Muslim country, to

study, and to give unspecified support to the “ brothers” overseas.

Only after November 9, 2009, when the FBI began sending him emails

encouraging violent action in the West; later thwarted his plans to travel; then sent a

mysterious, charismatic older man (“Youssef ”) to mentor him, flatter him, and urge

him to choose action in the United States, did Mohamed express a willingness to

commit an act of domestic terrorism. The FBI then, during the three months after

Mohamed first agreed to detonate a bomb, took actions to make sure he “stay[ed] on

course and follow[ed] the plan he came up with.” Tr. 778. In short, the defense

argued that the government, in its zeal to protect against terrorists, had in fact used

al-Qaeda-like tactics to manipulate a confused young man and to cause him to

participate in an attempted act of domestic terrorism.



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1. Mohamed’s Background And Upbringing

Mohamed Osman Mohamud was born in war-torn and impoverished Somalia,

on August 11, 1991. Tr. 2131-32, 2145, 2299. His father, Osman Mohamed Barre,

emigrated to the United States as a refuge in 1993, and Mohamed and his mother

followed about a year later. Tr. 2132-33, Although “malnourished” and “suffering,”

mother and son were “happy” to have arrived in the United States. Tr. 2133. The

family was “grateful to America” for taking them in, and the parents worked hard to

create a new life for their family, which would eventually expand to include a

daughter (Muna) and another son (Younis). Tr. 2133-34, 2141. As his father would

tell the FBI during later questioning, “We’re proud to be American.” Tr. 2149.

Reports about Mohamed from the time of his arrival in the United States until

his early teen years showed nothing out of the ordinary for an immigrant youngster.

See, e.g., Tr. 2136, 2277-78. He read Harry Potter books, attended local public

schools, and quickly learned English. Tr. 2136. He was a Lakers fan. Tr. 2136. He

had a diverse group of friends and was well liked by his peers. Tr. 2144-45, 2285.

His family attended the local mosque, where they socialized with others in the

Muslim community. Tr. 2137. During his sophomore year in high school, Mohamed



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won an award for a poem he wrote about the reasons he loved Oregon. Id .3 Childhood

friends and former teachers testified at trial that Mohamed was “goofy,” “fun-

loving,” “very friendly,” and “a great kid.” Tr. 2277-79, 2288, 2291.

As a young teenager, Mohamed began to experience what his father described

as an ordinary, teenage “identity crisis.” Tr. 2136.4 He had questions about his

religion and his culture. Id . Although his father did not know it, Mohamed began

searching to understand his religion on the internet. Tr. 713, 2157. He came in

contact with extremist websites, and through those websites, he became very

familiar with the extremist language of the pro-jihadi internet community. Tr. 714.

2. Association With Amro Al-Ali

Through the local mosque in Portland, Mohamed became acquainted with

Amro Al-Ali, an 18-year-old college student from Saudi Arabia, who came to

Portland in January of 2008 to study. Tr. 426-27, 2137. Al-Ali had a valid student

visa and flew into and out of the United States without incident. Tr. 426-27. Al-Ali

3 Defense Exhibit 1007B is a video of the young Mohamed reciting his poem.

4

“[L]ike every immigrant kid, he was going through an identity crisis. Whyare we here? Why do we speak different language? Why do women wear differentthings? Many kids, when we immigrate to this country, they go through what we callan identity crisis. They have to relate to two different cultures, two different beliefs,and they have to fit that.” Tr. 2136.



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left Portland on June 28, 2008. Tr. 428. He had not been arrested or designated or

charged with any terrorism-related activity at the time he left, and the government

presented no evidence at trial of any terrorist writings, statements, or activities of

Al-Ali in the United States. Tr. 437.

Mohamed maintained sporadic email contact with Al-Ali after he left Oregon,

at least some of which the government collected. Ex. 224. No emails refer to

terrorism or al-Qaeda. Ex. 224. Instead, the emails cover religious subjects and

include information from Al-Ali about an Islamic school, Dar ul-Hadith, in Yemen.

Tr. 2027-28. A government expert testified that this school was founded by a Muslim

cleric who was an avid supporter of violent jihad, and that the school had a reputation

as a location where individuals could contact violent jihadis. Id . None of this

information is stated in the email, however, and the government presented no

evidence that Mohamed knew of it. In August 2009, Mohamed told his father about

Al-Ali and the school in Yemen and expressed a desire to go there. Tr. 2146-54.

The government presented evidence, based on an IP address, that emails

attributed to Amro Al-Ali came from Pakistan. Tr. 341-42. Mohamed’s statements

during the recorded undercover proceedings indicated he believed Al-Ali was in

Yemen and had been there for a year. Tr. 1110-11.



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Before trial, the government characterized Al-Ali as “key” to its case against

Mohamed. Tr. 2352. In its opening statement, the government referred to Al-Ali as

an “al-Qaeda recruiter ” and presented him as one of the “known al-Qaeda terrorists”

connected to Mohamed that demonstrated Mohamed’s predisposition to commit this

offense. Tr. 258, 262. Over defense objection, numerous government witnesses

characterized Al-Ali as a “terrorist” or referred to an Interpol notice that allegedly

confirmed Al-Ali to be an al-Qaeda recruiter. Tr. 334, 539, 1317, 1605. The

contested trial proceedings regarding Al-Ali, including the trial court’s limits on the

substantive use of testimony regarding him, are set out in full in Section VII.

3. Trip To London

In December 2008, Mohamed and his family traveled to London for a family

funeral. Tr. 2138-39. At the airport, Mohamed was stopped and questioned by

security. Tr. 2138. He later wrote in an email to his friends how angry he was about

the perceived racial profiling at the airport and blamed the “evil Zionist-crusader

lobbyists who control the world.” Tr. 1578. He called on Allah to bring his fighters

against these unbelievers. Tr. 1578. While in London, Mohamed established a new

email account, [email protected], which he used when corresponding

with Al-Ali and others he met online. Tr. 1580, 1594.



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4. On-Line Contact With Samir Khan

One of the on-line contacts Mohamed made in 2009 was with Samir Khan, an

American citizen living in North Carolina. Tr. 354-55. Mr. Khan openly

administered an extremist jihadi website and published an on-line magazine, Jihad

Recollections. Tr. 355. From February into August 2009, Mohamed, then 17 years

old, exchanged over 150 emails with Mr. Khan. Tr. 403-04; Ex. 223. He assumed a

false, on-line persona in his emails, pretending to be a college student (he was a high

school senior) and claiming to work making magazines. Tr. 407. He sought advice

about personal relationships with his family and friends, and about Islamic law. Tr.

405, 409. At Mr. Khan’s suggestion, Mohamed chose a pen name to use for future

writing: Ibn al-Mubarak, a noted poet. Tr. 404.

Mohamed wrote four articles for Jihad Recollections between February and

June 2009. Ex. 232. The articles provided advice on staying in shape without weights

in order to prepare for jihad and on staying mentally fit for the frontier; praised As-

Sahab media as an outlet for al-Qaeda; and analyzed Europe’s potential vulnerability

to a jihadi attack. Tr. 423-25, 1598, 2252. Each was pro-jihadi, and several had

highly inflammatory content that Mr. Khan removed before publishing. Tr. 1585-

86, 1593-94. For example, Mohamed suggested including pictures of the twin towers



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in flames in one article, and, in another, he praised overseas al-Qaeda fighters who

shot down an American helicopter, then “finished off ” the soldiers. Tr. 1586-94.

In addition to writing his own articles, Mohamed took an active role in editing

articles written by others and suggesting content. He approved the “stance” of Jihad

Recollections as supporting Osama Bin Laden, and described the magazine in an

email as “officially an American al-Qaeda magazine, laugh out loud.” Tr. 1592. He

sent emails expressing eagerness for the next issue. Tr. 424. But then, on August 15,

2009, he emailed Mr. Khan that he would not write for the up-coming edition as

previously planned, and that he “was going through a lot of things.” Tr. 425. That

was the last communication of any type between Mohamed – who had just turned

18 years old – and Mr. Khan. Tr. 425.

During the trial, the government referred repeatedly to Samir Khan as a

“terrorist” and described Mohamed as being in contact with this “terrorist.” Tr. 257,

260, 263, 1443, 1540, 2377, 2544. Yet during this entire period of their

communication, Mr. Khan was living openly in the United States and the

government presented no evidence that he had been accused of any terrorist

activities. Tr. 440-41. Instead, Mr. Khan exercised his First Amendment right to

publish controversial and hateful political expressions. Tr. 415-16 (Jihad

Recollections “shouldn’t push the limits of what’s permissible”).



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Mr. Khan flew out of the United States, apparently not on any No-Fly list,

sometime after Mohamed ceased communicating with him. Tr. 440-41. According

to testimony at the trial, he later joined a Yemeni-based terrorist organization, Al-

Qaeda in the Arabian Peninsula (AQAP), and became a key media propagandist for

them. Tr. 2020-21. About a year after Mohamed’s arrest, Mr. Khan was killed by an

American drone strike that was targeting another AQAP member. Id . The

government presented no evidence that Mohamed was in contact with Samir Khan

after his last email in August 2009.

5. Other On-Line Contacts

Mohamed also sometimes wrote posts on the web-site “Dawn of the Ummah

(DWTU)” and other similar internet sites. Tr. 2102-05. A government expert

characterized this forum as one that supported violent jihad. Tr. 2105. In June of

2009, Mohamed wrote that he was working on a project to publish the names of all

the Danish cartoonists and others who had “offended Allah.” Tr. 2109. The list was

intended to be like the FBI most wanted list; he wrote, “I’ll put a disclaimer on it,

but anyone can do with it whatever they please.” Tr. 2110-12. The government

expert testified at trial that posting on such web forums was indicative of a person

trying to “self-recruit,” Tr. 2097, while the defense expert testified that such vitriol



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was common “nasty trash talk ” being done by many on Islamic websites and was

not an indication that someone would turn to violence. Tr. 2434.

6.

August 31, 2009: His Father Calls The FBI When Mohamed Plans To

Leave The U.S.

On the same day that Al-Ali sent Mohamed the email with the information

about the religious school, Mohamed called his father, Osman Barre, to say he was

leaving the country. Tr. 2146. Mr. Barre felt his son was “too young and immature”

and asked him to wait. When Mr. Barre and his wife discovered that Mohamed had

taken his passport, they panicked. Tr. 2305-06. The Barres had heard stories about

Somali youth being “ brainwashed,” returning to Somalia, and dying in the fighting

there. Tr. 2306, 2147. When they could not reach Mohamed on his phone, Mr. Barre

turned to the phone directory and called the FBI, asking whether they could help him

stop his son from leaving the country. Id . The FBI asked to meet with Mr. Barre.

In the meantime, Mrs. Barre made contact with Mohamed, picked him up at

a local school playground, scolded him, and brought him home. Tr. 2306-08. He did

not have a ticket or visa, and turned his passport over to his parents. Tr. 2148.

Mr. Barre met with Special Agent DeLong of the FBI, as agreed. Tr. 2148-49.

When the agent explained he was from the Joint Terrorism Task Force, Mr. Barre

was taken aback and expressed that his family had nothing to hide and were nothing

but grateful to America for taking in the family when they had nowhere else to go.



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Tr. 2149-50. Mr. Barre provided information about Mohamed, and he later

forwarded to SA DeLong the email from Mohamed about the school in Yemen. Tr.

2150, 2153. Mr. Barre did not know that Mohamed had altered the email, removing

Al-Ali’s email address and forwarding it away from his own truthbespoken email

account. Tr. 1603-04. The email provided by Mohamed’s father gave the Portland

FBI a link to tie Mohamed to an on-going FBI investigation of Samir Khan. Tr.

1438-39.

SA DeLong told Mr. Barre, “[t]here’s nothing we can do” to stop Mohamed

from going abroad, given that Mohamed was an adult. Tr. 2151; 1435. Mr. Barre

responded that Mohamed “might be an adult, but he’s still a child and immature.”

Tr. 2151.5 The FBI did not impart any of the information they knew to the Barres

about Mohamed’s earlier online contacts with extremists. Tr. 1439. At trial, Mr.

Barre expressed frustration with this withholding of information and stated that, if

he had been told, he would have contacted counselors and elders in the Muslim and

Somali communities who could have reached out and steered Mohamed away from

the extremist mentality. Tr. 2155.

5 An FBI source at a local mosque later confirmed this view of Mohamed,telling them he was “looking for evidence” and “easily influenced.” Tr. 399.



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That night, Mr. and Mrs. Barre sat down with Mohamed. Tr. 2151. Mohamed

said his actions were just talk and “it’s a fluke” and that he “was not going

anywhere.” Tr. 2151. Mohamed said he had thought about going to school in Yemen

to learn Arabic and about Islam, and that he had heard about it from a college kid

named Amro he had met at the local mosque. Tr. 2151-53. Mr. Barre expressed the

following to Mohamed:

I left my home country because of violence. I brought you here to giveyou a life of prosperity, and we are here, and you are going to be here

with us and go to college, and we were going to support you to do that.

Tr. 2152. Mr. Barre told Mohamed that if he wanted to go abroad to learn Arabic

and about Islam, he could do so with the family’s support after he finished school in

the United States and was “mature enough” to “know wrong or right.” Tr. 2154. The

family agreed to support Mohamed’s college tuition needs, and the family agreed

that he would enroll in Oregon State University (OSU) and pursue a degree in

engineering. Id .

7. Mohamed Starts His Freshman Year At Oregon State University

In September 2009, Mohamed moved to the OSU campus in Corvallis. His

freshman roommate, Luis Martinez, and a number of his other associates from

school testified at trial, describing him as a “really fun guy to be around,” Tr. 2405,

an outgoing, friendly, and social student. Tr. 1858, 1871-74, 2178. His friends



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included individuals from a wide variety of ethnic and religious backgrounds. Tr.

2405. No one described him as violent or heard him condone violence against the

United States. Tr. 2410.

During his freshman year, Mohamed began binge drinking and using

marijuana. Tr. 458. Although he was involved socially in many activities, including

the African Students Association, Tr. 2178, he also expressed feelings of loneliness

or being lost. A Somali-American junior at OSU, Mohammad Mohamed, tried to act

as a mentor to Mohamed, acknowledging that, when he was a freshman, he did not

have a person to “guide him along.” Tr. 2177. He and Mohamed spoke about

religion, about what it was like when he, Mohammad, had lived in a Muslim country,

and about other daily college events. Tr. 2177-81. Mohamed’s text messages

reflected a busy college life of socializing, studying, and drinking. Ex. 1016.

8.

FBI Surveillance In The Fall Of 2009

Unbeknownst to Mohamed, the FBI went with him to college. They conducted

physical surveillance, videotaping Mohamed with his friends at the college cafeteria.

Tr. 1459-60; Ex. 1016. They also conducted electronic surveillance, capturing all of

his text messages, phone calls, emails and internet searches. Tr. 381, 1442. The case

agent at the time, SA DeLong, felt that Mohamed’s communications did not have

“the same radical speak that he had espoused early on, when he was communicating



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with Samir Khan.” Tr. 1443. On October 27, 2009, SA DeLong wrote an email to

his supervisors on the case, recording his observations about Mohamed. Tr. 1451.

He explained that, since Mohamed had started college, “for the most part he has left

behind his radical thinking.” Tr. 1452. Mohamed was not expressing the same views

he had expressed in Jihad Recollections. Tr. 1453.

Similarly, on November 16, 2009, SA DeLong wrote an email describing

Mohamed as a “ pretty manipulable, conflicted kid.” Tr. 1466. The agent had

reviewed the Jihad Recollections articles and saw them as representing the “hard

ruling Islamic life,” but he did not see the same mindset reflected in Mohamed’s

communications now that he had started college. Tr. 1466-67.

9. The Portland FBI Transfers Mohamed’s Case

Because Mohamed was attending college in Corvallis, the Portland FBI began

transferring his case to Eugene, where a new case agent, Chris Henderson, took over.

Tr. 1464-65.6 At this point, there were at least four government agencies or offices

investigating or interested in Mohamed: the Portland FBI, the Eugene FBI, the San

Francisco FBI, and the Charlotte, North Carolina FBI, which had been investigating

Samir Khan. Tr. 1315, 1434-42. There appeared to be a lack of communication

6 Agent Henderson did not testify at trial. He was with the FBI for less thanthree years and left the FBI while Mohamed’s case was still on-going. Tr. 1465.



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between the offices. For example, Special Agent Dodd testified at trial that he

received authorization from SA DeLong to begin an online undercover investigation

of Mohamed, Tr. 1494, but SA DeLong could not recall anything about that. Tr.

1447; 1449. SA Dodd began the emails to Mohamed (the “Bill Smith” emails), just

as the case was transferred to Eugene. Tr. 1499. SA Dodd testified that he also

communicated with Chris Henderson in Eugene about the emails, but the timing was

not clear. Tr. 1500.

Similarly, Special Agent Chan from San Francisco testified that he had

authorization, in November of 2009, to start on-line covert contact with Mohamed.

Tr. 1315. His operative twice attempted contact but was “unsuccessful,” in that he

did not receive a response from Mohamed. Tr. 1316. SA Chan did not know about

Bill Smith’s efforts. Tr. 1316. In fact, he only learned about Bill Smith’s

involvement in contacting Mohamed after Mohamed’s arrest. Tr. 1316.

10. November 9, 2009: The “Bill Smith” Emails Begin

Under the supervision of SA Dodd, the first Bill Smith email was sent

November 9th and read:

Brother, I saw – I saw a post you wrote a while back in the Google

group. I think it was called the hijrah group. I wanted to talk some toyou. I’m here in the West, as well, but here I am one of the onlyMuslims around. I want to get more involved in the fight for theUmmah. I want to help rid the occupiers from Palestine. I don’t even



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know if I have the right email for you. Please respond if I do. Salamalaikum.

Ex. 226-01; Tr. 1501. “Bill Smith” was a paid FBI contractor under the supervision

of SA Dodd. Tr. 1495.7 Mohamed responded back the next day that he did not “fully

understand” the question but invited Bill Smith to ask more. Ex. 226-02. Mohamed

did not reciprocate or say that he, too, wanted to be involved in the “fight for the

Ummah.”8

11.

November 12, 2009: Mohamed Expresses Confusion

Before he received the second covert ema