United States v. Mohamed Mohamud ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30217
Plaintiff-Appellee,
D.C. No.
v. 3:10-cr-00475-KI-1
MOHAMED OSMAN MOHAMUD,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted July 6, 2016
Portland, Oregon
Filed December 5, 2016
Before: Harry Pregerson, Carlos T. Bea,
and John B. Owens, Circuit Judges.
Opinion by Judge Owens
2 UNITED STATES V. MOHAMUD
SUMMARY*
Criminal Law
The panel affirmed Mohamed Osman Mohamud’s
conviction for attempting to detonate a large bomb during the
annual Christmas Tree Lighting Ceremony in downtown
Portland, Oregon, in violation of 18 U.S.C. § 2332a(a)(2)(A).
The panel held that the district court properly rejected
Mohamud’s defense of entrapment as a matter of law. The
panel could not say that no reasonable jury could have
concluded that Mohamud was predisposed to commit the
charged offense. Rejecting Mohamud’s alternative argument
that the case should be dismissed because the government
overreached in its “sting,” the panel wrote that while the
government’s conduct was quite aggressive at times, it fell
short of a due process violation.
The panel held that, under the circumstances of this case,
the district court did not err in denying Mohamud’s motion to
suppress, based on tardy disclosure, information collected
pursuant to § 702 of the Foreign Intelligence Surveillance Act
of 1978. The panel wrote that Mohamud cannot demonstrate
prejudice, and that the district court did not err in finding that
the late disclosure was not due to prosecutorial misconduct.
The panel held that the § 702 acquisition of Mohamud’s
email communications did not violate the Fourth
Amendment. The panel noted that all this case involved was
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. MOHAMUD 3
the targeting of an overseas foreign national under § 702,
through which Mohamud’s email communications were
incidentally collected. The panel held that no warrant was
required to intercept the overseas foreign national’s
communications or to intercept a U.S. person’s
communications incidentally. Assuming that Mohamud had
a Fourth Amendment right in the incidentally collected
communications, the panel held that the search was
reasonable under the Fourth Amendment. The panel wrote
that declassified facts foreclosed the argument that the
discovery in this case strayed from protecting the country
from a terrorist threat into the conduct of foreign affairs.
Because no retention and querying of the incidentally-
collected communications is at issue in this case, an argument
regarding reasonableness was outside the scope of this court’s
review. The panel held that under the third-party doctrine,
Mohamud had a reduced expectation of privacy in his
communications to third parties. The panel held that Foreign
Intelligence Surveillance Court-approved targeting and
minimization procedures, which were followed in practice,
sufficiently protected Mohamud’s privacy interest, in light of
the government’s compelling interest in national security.
COUNSEL
Stephen R. Sady (argued), Chief Deputy Federal Public
Defender; Mark Ahlemeyer, Assistant Federal Public
Defender; Lisa C. Hay, Federal Public Defender; Office of
the Federal Public Defender, Portland, Oregon; Steven Toby
Wax, Portland, Oregon; for Defendant-Appellant.
4 UNITED STATES V. MOHAMUD
Kelly A. Zusman (argued), Appellate Chief; Ethan D. Knight,
Pamala R. Holsinger, and Ryan W. Bounds, Assistant United
States Attorneys; Billy J. Williams, Acting Assistant United
States Attorney; United States Attorney’s Office, Portland,
Oregon; Joseph F. Palmer, Attorney, Appellate Unit; John P.
Carlin, Assistant Attorney General; National Security
Division, United States Department of Justice, Washington,
D.C.; for Plaintiff-Appellee.
Patrick C. Toomey (argued) and Alex Abdo, New York, New
York; Andrew Crocker and Mark Rumold, San Francisco,
California; Mathew W. dos Santos, Portland, Oregon; as and
for Amici Curiae American Civil Liberties Union, American
Civil Liberties Union of Oregon, and Electronic Frontier
Foundation.
Joshua L. Dratel, Law Offices of Joshua L. Dratel P.C., New
York, New York; John D. Cline, Law Office of John D.
Cline, San Francisco, California; for Amicus Curiae National
Association of Criminal Defense Lawyers.
UNITED STATES V. MOHAMUD 5
OPINION
OWENS, Circuit Judge:
Mohamed Osman Mohamud appeals from his conviction
for attempting to detonate a large bomb during the annual
Christmas Tree Lighting Ceremony in Pioneer Courthouse
Square in downtown Portland, Oregon, in violation of
18 U.S.C. § 2332a(a)(2)(A). We have jurisdiction under
28 U.S.C. § 1291, and we affirm.1
I. FACTUAL BACKGROUND
A. Mohamud’s Activities Before Contact with the FBI
In many respects, Mohamud was like any other American
teenager. He liked music, the Los Angeles Lakers, and
hanging out with his friends. Born in Somalia, he immigrated
to the United States at the age of three, and grew up in the
Portland area.
But after a December 2008 incident at London’s
Heathrow Airport, things changed. Believing that airport
security racially profiled him, Mohamud wrote an email in
London stating that it is “the evil zionist-crusader lobbyists
who control the world,” and calling on Allah to send fighters
against them. He also created a new email account while in
London—truthbespoken@googlemail.com. That email
account would play a significant role in the prosecution’s
case.
1
We resolve several of Mohamud’s arguments in a concurrently filed
memorandum disposition.
6 UNITED STATES V. MOHAMUD
In 2009, Mohamud began communicating over the
Internet with Samir Khan, a United States citizen then living
in North Carolina.2 Khan published Jihad Recollections, an
online magazine aimed at English-speaking al-Qaeda
supporters. From February to August 2009, Mohamud and
Khan exchanged roughly 150 emails, with Mohamud using
his truthbespoken email account. Topics included Islamic
law and advice about personal relationships. They also
outlined Mohamud’s support for Osama bin Laden.
During this time period, Mohamud wrote four articles for
Jihad Recollections.3 Among other things, the articles
recommended physical exercise to prepare for war with the
West and analyzed Europe’s vulnerability to a jihadi attack.
Mohamud’s initial drafts of these articles contained more
incendiary content. For example, Mohamud praised the
proficiency of the September 11, 2001, hijackers who “hit
them so fast the Americans became dumbfounded,” the 2008
Mumbai attackers, who were “a great display of quickly
entering the arena of battle and just decimating the kuffar
[unbelievers],” and the fighters in Afghanistan who attacked
landing American helicopters and then “finish[ed] off the
wounded American soldiers.” Mohamud also prayed for
Allah to help the reader “prepar[e] you to meet Allah as a
martyr” and included a photograph of the Twin Towers
burning during the September 11th attacks. Khan removed
2
The September 2011 drone strike in Yemen that killed Anwar al-
Awlaki, an al-Qaeda leader, also killed Khan.
3
Three of the articles were published under the pen name Ibn al-
Mubarak. Mohamud was not credited with publishing the fourth article,
which appeared in Jihad Recollections under a different pseudonym, Abu
Talha.
UNITED STATES V. MOHAMUD 7
this more inflammatory material from the final versions of
Mohamud’s articles. On August 15, 2009, Mohamud
informed Khan that he would no longer write for Jihad
Recollections because he was “going through alot [sic] of
things and i have a lot of things to do.”4
Mohamud also struck up a relationship with Amro Al-Ali,
a Saudi citizen who Mohamud met at a Portland mosque and
who subsequently left the United States.5 On August 31,
2009, Al-Ali sent information to Mohamud at his
truthbespoken email account about an Islamic school in
Yemen. That same day, Mohamud called his father to say
that he was leaving the country. His father begged him to
stay in the United States, but Mohamud told him it was too
late—he had his passport, visa, and ticket ready to go. When
his parents confirmed that his passport was missing, they
feared that Mohamud might return to Somalia, his place of
4
Mohamud also engaged in other pro-jihadi Internet activities. In
June 2009, for example, he posted on a website that he was working on an
“Islam’s [M]ost Wanted List,” which would be a “Black list” of people
who had “offended Allah.”
5
Saudi officials suspected Al-Ali had links to terrorist groups, and
requested an Interpol Red Notice for his arrest. A Red Notice serves as
an international wanted notice and provides information on the
identification of fugitives charged with or convicted of serious crimes.
Although Interpol will not publish requested Red Notices that violate
Interpol’s Constitution, which prohibits the organization from undertaking
any activities of a political, military, religious or racial character, see
Interpol Const., art. 3, Interpol does not independently vet the
governmental request for a Red Notice for its factual and legal
justification. The Red Notice led the FBI to consider Al-Ali a “dangerous
[person] overseas” and to view Mohamud’s communications with Al-Ali
with concern. There was no evidence at trial that Mohamud knew of the
Red Notice, which was non-public, or the FBI’s interest in Al-Ali.
8 UNITED STATES V. MOHAMUD
birth. And when they could not reach Mohamud, they called
the FBI and asked an agent to stop their son from leaving the
country. Eventually, Mohamud’s mother got in touch with
her son, scolded him, and brought him home. Mohamud did
not actually have a visa or plane ticket, and he returned his
passport to his parents. A few days later, Mohamud’s father
called the FBI agent back and told him that Mohamud had
agreed to finish college and would not leave the country until
he graduated. He also explained that his son had wanted to
go to Yemen to study Arabic and Islam. Mohamud’s father
forwarded the FBI an email from his son about a school in
Yemen, which allowed the FBI to identify Mohamud as the
user of the truthbespoken email account.
B. Mohamud Attends College and the FBI Initiates
Its Investigation
In September 2009, Mohamud began studying
engineering at Oregon State University in Corvallis, where he
had a “typical” college experience: he had a roommate, made
friends, and attended parties (where he drank alcohol and
used marijuana). His activities and religious principles often
clashed, and in November 2009 he sought advice from a
Muslim website on the difficulties of living a pious life on a
college campus.
After the urgent August 31, 2009 call from Mohamud’s
father, the FBI opened an investigation into Mohamud.
Agents conducted physical and electronic surveillance of
Mohamud, but did not identify any overtly dangerous
communications. The case agent believed that Mohamud’s
communications lacked “the same radical speak that he had
espoused early on when he was communicating with Samir
Khan.” The agent opined that Mohamud had “left behind his
UNITED STATES V. MOHAMUD 9
radical thinking” and was a “pretty manipula[ble], conflicted
kid.”
C. The FBI’s First Direct Contacts with Mohamud
In November 2009, a contractor working undercover for
the FBI—using the alias “Bill Smith”—emailed Mohamud at
his truthbespoken account. Pretending to be an isolated
Muslim in eastern Idaho, the contractor asked Mohamud for
advice on how to get more involved in “the fight” for the
Islamic community, and he stated that he wanted “to help rid
the occupiers from [P]alestine.” Although Mohamud gave
some general advice to move to a community with more
Muslims, take care when talking about such issues online,
and look out for “spies,” he never openly encouraged the
contractor to commit acts of violence. By May 2010, their
email communications had ended.
Mohamud planned to work in Alaska with his college
roommate during the summer of 2010. But when his parents
brought him to the Portland airport, he was not permitted to
fly to Alaska. Instead, FBI agents met with Mohamud and
his parents at the airport and questioned them. When asked,
Mohamud denied having a ticket or visa to travel to Yemen,
or having any interest in jihadi websites. When asked if he
knew anyone in Yemen, he said “Amr,” but provided little
detail. Mohamud made no mention of his Jihad Recollections
articles or similar writings. When Mohamud returned home,
he drafted a “To do list” which included “Find a job,” “Work
till September,” get help from his parents for food and rent,
and “you might have to take less classes” at Oregon State.
10 UNITED STATES V. MOHAMUD
D. Introduction to FBI Undercover Agent “Youssef”
1. The Initial Email Contacts
On June 23, 2010, an FBI undercover agent, using the
alias “Youssef,” emailed Mohamud at his truthbespoken
account and instructed him to set up a new “hushmail” email
account that would be secure and encrypted. Mohamud
responded later that same day: “assalamu alaykum [God be
with you] brother how are you[?]” Two days later, Youssef
emailed Mohamud again:
Wa alaikoom salem. hamdullah i am good
brother thank you for asking. i’m sorry for
the delay in our communication, we’ve been
on the move. jazakallah khairan for
responding so soon. are you still able to help
the brothers? in sha’allah, i’ll hear from you
soon. Salem, Youssef.
Mohamud responded the same day that he was unable to
travel:
i have been betrayed by my family, i was
supposed to travel last year but Allah had
decreed that i stay here longer than my heart
desired. i am trying to find a way to go. i do
not think i will be able to go for a while. i
need to save up and also clear up somethings
[sic]. look for my emails inshallah, i will
contact you when i am able to travel. pray for
me that allah will free my passage from the
lands of the polytheists, peace be upon the
UNITED STATES V. MOHAMUD 11
messenger of Allah, his family and his
companions.
Three days later, on June 28, 2010, Youssef replied that
“Allah (SWT) i’m sure has good reason for you to stay where
you are” and asked to meet Mohamud. About two weeks
later, when Mohamud had still not responded, Youssef sent
a follow-up email. A week later, on July 16, 2010, Mohamud
responded and agreed to meet.
Youssef declined Mohamud’s suggestion to meet at the
local mosque because he wanted to meet privately and “the
kuffar [unbelievers] have eyes and ears in almost all masjids
in the US.” Mohamud responded that he would “have a set
of questions for you when we meet” to “make [s]ure you are
not a spy yourself.” Mohamud also wrote that “amr” (as in
Amro Al-Ali) was the only person who could have given
Youssef his email address, so he would want to know how
Youssef knew Al-Ali as a “precaution.” Youssef praised
Mohamud for thinking about security.
2. The First Meeting with Youssef
On July 30, 2010, Youssef met Mohamud for the first
time in downtown Portland.6 Youssef told Mohamud he was
from an “ihataa” (a religious “council”) and was interviewing
seven people in the United States and Canada for possible
6
Although Youssef was wearing a transmitter and a recording device,
the meeting was not recorded because the battery accidentally had been
drained. An FBI agent listened to their conversation and summarized it
in a report. The agent could not hear the first ten minutes, so he relied on
Youssef to tell him what occurred. Every other in-person meeting
between Mohamud and undercover agents was recorded and proffered as
evidence at trial.
12 UNITED STATES V. MOHAMUD
inclusion in a council project.7 Youssef asked Mohamud
“what he had been doing lately to continue being a good
Muslim.” Mohamud said that he had been writing poetry and
articles for Jihad Recollections. Mohamud asked Youssef
how he got his email address, and Youssef explained that the
council had forwarded it to him.
When asked about travel, Mohamud described his
unsuccessful attempt to go to Alaska. And when asked what
he was “willing to do for the cause,” Youssef testified that
Mohamud said that “originally he had planned to wage war
within the United States,” but then he dreamt that he traveled
to Yemen, received training, and “went to Afghanistan where
he led an army against the kuffar or the unbelievers.”
Youssef asked Mohamud again what he would do for the
cause, and Mohamud responded, “anything.” When offered
five ways to be a good Muslim—(1) pray five times a day;
(2) go to school to learn something that would help the
brothers overseas, such as engineering or medicine; (3) raise
money for the brothers; (4) become operational; or
(5) become a martyr—Mohamud almost immediately picked
“become operational.” Mohamud explained “operational”
meant “doing like the other brothers do when they get a car,
fill it with explosives, park it near a target location, and
detonate the vehicle.” When asked about targets, Mohamud
said he had thought about Washington, D.C., because of all
the government buildings, but admitted he was not familiar
with the area. Youssef told Mohamud to research possible
7
The FBI invented this “council” to serve as a fictional intermediary
between Al-Ali and Youssef because Youssef would not be able to answer
many questions about Al-Ali.
UNITED STATES V. MOHAMUD 13
targets in Portland, and that he had a “brother that could help
him with explosives.”
About four hours after their meeting, Mohamud sent
Youssef an unprompted email with copies of his three articles
published in Jihad Recollections.8 Youssef replied that
Mohamud was “talented.”9
E. Meeting with “Hussein”
A few weeks later, on August 19, 2010, Youssef met with
Mohamud again in downtown Portland and introduced him to
“Hussein,” an undercover FBI agent posing as an al-Qaeda
explosives expert. Youssef described Mohamud as a “jewel
in the rough.” During the meeting, Mohamud told the agents
he admired the Mumbai terrorist attack (in which ten men
stormed buildings in Mumbai, India, and killed 164 people).
About thirty-four minutes into the meeting, Mohamud
told the agents that he wanted to detonate a bomb in Pioneer
Courthouse Square during the annual Christmas Tree
Lighting Ceremony on November 26, 2010, the day after
Thanksgiving. Mohamud explained that he had researched
other potential targets, but this was the best option because:
8
Mohamud also sent Youssef an article he had recently submitted to
Inspire, the successor to Jihad Recollections, observing that: “Much can
be done to hurt the enemy or prepare for Jihad. According to your
circumstances you could perform Jihad against the enemy where you are
currently living by Mumbai style attacks, but my article is directed
towards those brothers waiting to travel to the lands of Jihad rather than
touch upon the issue of attacks within the Western nations.”
9
The undercover agents frequently flattered and praised Mohamud
for his good writing or behavior.
14 UNITED STATES V. MOHAMUD
(1) he could drive a car right into the Square from the street;
(2) many people would be there; (3) nobody expected an
attack in Portland; and (4) security would be light. Mohamud
said that he planned on being in the car when it blew up. The
agents (who were not familiar with Portland) had no input
into Mohamud’s chosen target.
Youssef wanted Mohamud to realize the seriousness of
what he was saying. Mohamud assured them he did. He said
that “since I was fifteen I thought about all this things
before,” and explained:
[I]magine every day we see you know in
Arab, you know, newspapers and news you
know our people are killed you know. So for
us to see that you know it would be a smile
from me to see them in the same. You know,
you know what I like, what makes me happy?
You know, what I like to see? Is when I see
the enemy of Allah then they are you know
their bodies are torn everywhere. . . . That
gives me you know like high hope and
happiness you know.
When Youssef pointed out that there would many women and
children at the event, Mohamud responded:
[I]n general just a huge mass that will, you
know like for them you know to be attacked
in their own element with their families
celebrating their holidays. And then for later
on to be saying this was done for you to
refrain from killing our children, women.
UNITED STATES V. MOHAMUD 15
The agents told Mohamud there was “no shame” in not
going through with his plan. They reminded him that “[w]ith
us you always have a choice.” When asked what he would
have done if he had not met the agents, Mohamud said that he
had planned to leave the country, “find the right people,” “be
somewhere they cannot capture you,” and meet up with Al-
Ali. The three then walked to Pioneer Courthouse Square,
where Mohamud detailed the proposed attack.
Two days later, Youssef emailed Mohamud that he and
Hussein would present Mohamud’s plan to the “council.” He
also asked Mohamud to explain his rationale for the attack, as
“a bomb is a very serious matter.” Mohamud replied that he
had prayed for guidance and that his faith “was sky high for
no apparent reason,” which he saw as a sign “that the traffic[]
[l]ight is green lol.”
F. Youssef and Hussein Test Mohamud’s Resolve
On September 7, 2010, Youssef and Hussein met again
with Mohamud. They convinced Mohamud not to martyr
himself (i.e., to detonate the bomb remotely), and offered to
help him leave the country after the bombing. They also
advised that he did not have to go forward with the plan. The
agents showed Mohamud an FBI-produced mock jihadi
training video, which included an explosion being triggered
by cell phone. Mohamud said the video was “beautiful.”
To test his resolve, the agents gave Mohamud $2,800 to
carry out specific tasks: purchase a list of bomb components,
decide where to park the van with the bomb, and rent his own
16 UNITED STATES V. MOHAMUD
apartment.10 On October 3, 2010, they again met with
Mohamud and told him to rent a storage unit for the van.
Mohamud completed these tasks.
G. The Test Bomb
On November 4, 2010, Mohamud, Youssef, and Hussein
drove to the Oregon countryside to explode a test bomb. On
the drive, when asked what he wanted to do once he was
overseas, Mohamud first said he wanted to learn Arabic, and
later that he wanted to learn “the inside and out of weaponry”
and “bomb-making.” When asked whether he saw himself
teaching, he said he also wanted to teach “special operations,”
and specialize in “making the enemies you know afraid.”
During this conversation, Mohamud stated that “these people
who live in this country are the most evil people on earth.”
Hussein again advised that Mohamud did not have to go
through with the bombing. Mohamud ignored him, instead
commenting on the irony of the term “Black Friday,” the day
after Thanksgiving. When asked if he had told anybody
about the plan, Mohamud responded that his image was “just
a college student” and “nobody even knows that I have you
know, that I’m inclined toward jihad, or even towards even
like being Islamic.”
To test the bomb, Mohamud pushed buttons on a cell
phone, which appeared to trigger an explosion, though an FBI
agent actually detonated the bomb. After the explosion,
Mohamud said “God is great” in Arabic, that he felt “good,”
10
Youssef explained that the FBI did not want Mohamud to have a
roommate because it would be easier to maintain surveillance and reduce
the chance that Mohamud would take matters into his own hands.
UNITED STATES V. MOHAMUD 17
and that the bomb test was “just motivation for me.” When
Youssef and Hussein asked if he had ever seen dead bodies,
Mohamud responded that he thought it was “awesome” when
people were jumping from skyscrapers during the September
11th attacks.
On the ride home, Youssef suggested that Mohamud
make a “good-bye” video to explain his actions because it
could be “inspirational.”11 Mohamud ultimately agreed and
wrote a script for the video using topics Youssef suggested.
Mohamud made the video later that day, and explained
that this is a “message . . . to those who have wronged
themselves.” He described the “dark day” that was coming,
and said that no one would be safe “for as long as you
threaten our security.” He said that living in the United States
“is a sin,” and urged that Muslim parents living in the West
not do what his did to him—that is, not “hold others back
from completing their obligation” to Allah. Mohamud
finished by reading his own poem that extolled the virtues of
Muslims and jihad, and ended with a call to:
Carry on oh brothers, and march on ahead to
meet your creator and lie on silk beds, and the
martyrs don’t die, so don’t say they’re
dead. . . . Explode on these kuffar
[unbelievers]. Alleviate our pain. Assassinate
their leaders, commanders, and chiefs. From
your brother to his brother a poem in brief.
11
On cross-examination, Youssef agreed that he had his “finger on
the scale” and was trying to influence Mohamud to make the video, and
that Mohamud initially wanted to wait to make the video until he was
abroad.
18 UNITED STATES V. MOHAMUD
H. The Final Countdown
About a week after the test bomb, Mohamud exchanged
emails with a friend in Afghanistan. On November 13, 2010,
the friend asked Mohamud to “investigate” predator and
reaper strike drones to figure out “how to down them.” On
November 17, 2010, Mohamud responded: “[D]on’t worry,
brother, I will find you something inshallah. Please do not e-
mail this email any longer. If someone replies from now on
from this e-mail is not me, Remember that. I hope we meet
again soon inshallah.”
On November 18, 2010, an excited Mohamud met with
Youssef and Hussein for six hours. They went to the storage
unit Mohamud had rented, which he had selected in part
because there were no surveillance cameras. The three then
drove to a hotel in Portland, where Mohamud showed the
agents potential parking spots he had researched on his
computer. Next, they walked to Pioneer Courthouse Square
to discuss the plan further.
During the November 18th meeting, Youssef asked:
“What’s a victory gonna be for you?” Mohamud replied:
“Try to get most, the most casualties.” Mohamud thought the
bombing would get a lot of publicity because “America’s
boasting it so ‘oh we haven’t been attacked since 9/11.’”
Hussein asked Mohamud if he had any doubts about the
bombing. He did not.
On November 23, 2010, Mohamud and Hussein went to
the storage unit to see the bomb parts. Mohamud helped load
purported bomb parts into Hussein’s car, including barrels,
wires, and nails. Mohamud also provided Hussein with items
for their disguises to pose as water workers.
UNITED STATES V. MOHAMUD 19
On November 25, 2010, Thanksgiving Day, Mohamud
drove to Portland and spent the day with friends. His friends
said he seemed “happy,” although at dinner he became
“reserved.” They all went shopping at an outlet mall that
night.
I. “Black Friday”—November 26, 2010
Early the next morning, on November 26th, Mohamud ran
into a friend and told him that “I’m having the greatest
morning of my life.” Around noon, Youssef picked up
Mohamud and they drove to a store to buy reflective vests as
part of their disguises. Then they met up with Hussein in
downtown Portland. Mohamud appeared “happy” and
“excited.”
The three drove about a mile to the parked van. When
shown the “bomb” in the back of the van (which an FBI agent
had constructed to look real but which was, in fact, inert),
Mohamud said it was “beautiful.” They returned to their
hotel, ate, talked, and prayed. Shortly before 5:00 p.m., the
three drove to the van. Youssef dropped off Mohamud and
Hussein, then drove to a pre-arranged meeting location a few
blocks west of Pioneer Courthouse Square.
Hussein and Mohamud drove the van to Pioneer
Courthouse Square. Before exiting the van, Hussein told
Mohamud to connect the wires for the detonator to work.
Mohamud did so, and then they walked several blocks to join
Youssef in his car. The three drove toward a train station,
dropped off Youssef, and then Hussein and Mohamud parked
a few blocks from the station.
20 UNITED STATES V. MOHAMUD
Mohamud pulled out the cell phone and Hussein read him
the number to dial to detonate the bomb. When Mohamud
dialed the number and nothing happened, Hussein suggested
that they step out of the car for better reception—the arrest
signal. Mohamud was dialing the number into the cell phone
a second time when FBI agents arrested them both. Hussein
was shouting “Allahu Akbar! [God is great]” as he was being
arrested. Mohamud was quiet initially, but during transport
he began to kick and had to be restrained. Later, when
speaking with the jail’s psychiatric nurse, Mohamud cried
and said he could not understand “how he had gotten from
just being a student to being labeled a terrorist in jail.”
Agents found an undated email printout from Al-Ali in
Mohamud’s wallet. A search of Mohamud’s computer
revealed videos of the 2007 and 2008 Portland Christmas
Tree Lighting Ceremonies, as well as an al-Qaeda video, an
audio file titled “No Peace with the Jews,” and numerous
references to the word “jihad.” In a notebook found in his
apartment, Mohamud had written: “Non Muslims are the
eternal enemies of Islam and they must be subdued and
humiliated.” He also described the need to “mistrust”
everyone and to act normal “to secure myself from the FBI.”
II. PROCEDURAL HISTORY
A. Indictment and Trial
A one-count indictment charged Mohamud with
attempted use of a weapon of mass destruction in violation of
18 U.S.C. § 2332a(a)(2)(A). After several years of pretrial
litigation and review of immense discovery (including
considerable litigation under the Classified Information
Procedures Act, 18 U.S.C. app. 3), trial began in January
UNITED STATES V. MOHAMUD 21
2013 and lasted thirteen days. Both sides called numerous
witnesses, and the cross-examinations were sharp and
thorough.
There was no dispute that Mohamud had tried to blow up
Pioneer Courthouse Square while it was filled with people.
The spirited (and supportable) defense was entrapment—
Mohamud, a teenager with no criminal record, had neither the
means nor the intent to commit domestic terrorism until he
became involved with the undercover FBI contractor (Bill
Smith) and FBI agents (Youssef and Hussein). The
government countered that Mohamud’s actions before any
contact with the FBI—including his Jihad Recollections
articles—as well as his readiness to commit such a horrific
act of violence proved that he had the necessary
predisposition to commit the crime. After the close of
evidence and argument, the jury returned a guilty verdict,
rejecting the entrapment defense.
B. Post-Trial Motions
Mohamud challenged his conviction on numerous
grounds. He cited Sherman v. United States, 356 U.S. 369
(1958), to argue that the government had entrapped him as a
matter of law. Mohamud contended that he had intended to
complete college in the United States, and only the FBI’s
aggressive and coercive actions had led him down the
bombing path. The district court rejected that argument,
pointing to evidence that before any contact with the FBI,
Mohamud: (1) originally planned to wage war in the United
States until a dream refocused him on Yemen; (2) wrote
articles for Jihad Recollections which advised how best to
prepare to carry out “jihad” on non-believers; and (3) had
lengthy email conversations with men that the FBI believed
22 UNITED STATES V. MOHAMUD
promoted terrorism. The court also highlighted that
Mohamud never showed any reluctance (unlike the defendant
in Sherman), and only thirteen minutes after meeting Youssef
in person, he said that he wanted to become “operational” by
using a car bomb.
After the verdict (but before sentencing), the government
filed a supplemental notice that it had “offered into evidence
or otherwise used or disclosed in proceedings, including at
trial” information derived from information collected
pursuant to § 702 of the Foreign Intelligence Surveillance Act
of 1978 (“FISA”), 50 U.S.C. § 1881a (hereinafter referred to
as “§ 702”).12 Mohamud argued that this late notice
warranted suppression of this evidence (and any fruits
thereof). The government countered that FISA did not
provide for suppression in these circumstances, and in any
case, there was no substantial prejudice, as the district court
could conduct a post-trial suppression analysis. The district
court agreed, finding no misconduct in the late disclosure,
and that Mohamud had suffered no prejudice from the
delayed disclosure.
Mohamud also argued that suppression was warranted
because § 702 violates the First and Fourth Amendments, as
well as the separation of powers doctrine.13 As a threshold
12
Section 702 was added to by the FISA Amendments Act of 2008,
Pub. L. No. 110-261, 122 Stat. 2436, and was amended by the USA
FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268.
13
Here, Mohamud contended that U.S. Foreign Intelligence
Surveillance Court (“FISC”) review of targeting and minimization
procedures under § 702 amounts to “providing a non-judicial advisory
opinion” and authorizes a rule-making role for judges in violation of the
non-delegation doctrine.
UNITED STATES V. MOHAMUD 23
matter, the district court first held that § 702 did not
“interfere[] with the prerogatives of another branch of
government beyond requiring the executive branch to
conform to the statute.” It also reasoned that because the
FISC either approves or denies the requested acquisition (and
electronic communication service providers must follow the
directives or challenge them), its opinions are not advisory.
The court then explained that Mohamud had not raised an
independent First Amendment claim, because motions to
suppress based on First Amendment violations are analyzed
under the Fourth Amendment.
Finally, the district court held that § 702 does not violate
the Fourth Amendment. The court reasoned that § 702
surveillance does not trigger the Fourth Amendment’s
warrant requirement because U.S. persons’ data is collected
only incidentally, but even if it did, no warrant would be
required because the foreign intelligence exception would
apply.14 The court then balanced the government’s interests
in the search against the intrusions on Mohamud’s privacy,
and held that the § 702 collection here was reasonable under
the Fourth Amendment.
C. Sentencing
The Sentencing Guidelines called for a life sentence. The
government recommended a sentence of forty years’
imprisonment, whereas Mohamud urged a sentence of ten
years’ imprisonment.
14
The district court further held that subsequent querying of § 702-
acquired data, without obtaining an additional search warrant, would also
be constitutional, though it was “a very close question.”
24 UNITED STATES V. MOHAMUD
During the sentencing hearing, the district court
acknowledged that, although the jury had rejected the
entrapment defense, Youssef and Hussein “imperfect[ly]”
entrapped Mohamud through their frequent praise and
religious references, especially considering his youth. But the
“horrific” nature of the intended crime, which would have
resulted “in a great deal of death and mutilation,” still
warranted a sentence of thirty years’ imprisonment.
III. DISCUSSION
A. Standard of Review
We review the district court’s ruling on a motion for
acquittal de novo. See United States v. Sanchez, 639 F.3d
1201, 1203 (9th Cir. 2011). When a defendant pursues an
entrapment defense, we “should not disturb the jury’s finding
unless, viewing the evidence in the light most favorable to the
government, no reasonable jury could have concluded that the
defendant[] [was] predisposed to commit the charged
offenses.” United States v. Davis, 36 F.3d 1424, 1430 (9th
Cir. 1994). We review the denial of a motion to dismiss
based on a violation of constitutional rights de novo. United
States v. Brobst, 558 F.3d 982, 994 (9th Cir. 2009).
We review de novo the denial of a motion to suppress
evidence, but underlying factual findings are reviewed for
clear error. United States v. Crawford, 372 F.3d 1048, 1053
(9th Cir. 2004) (en banc). We review for an abuse of
discretion a district court’s decision whether to use its
supervisory powers—in this case, the supervisory power to
decide whether to suppress evidence as a sanction for the
government’s late supplemental FISA notice. United States
v. Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011). Discovery
UNITED STATES V. MOHAMUD 25
rulings and the denial of an evidentiary hearing are also
reviewed for an abuse of discretion. United States v.
Mazzarella, 784 F.3d 532, 537 (9th Cir. 2015).
We review de novo the constitutionality of a statute.
United States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir.
2010).
B. Entrapment as a Matter of Law
As the district court stated at sentencing, the defense
made a solid case for entrapment. But the jury rejected that
defense, and found Mohamud guilty despite the actions and
encouragement of Youssef and Hussein and the
communications (and attempted communications) from other
government agents. And in light of that verdict, Mohamud
has a steep hill to climb. “To establish entrapment as a matter
of law, the defendant must point to undisputed evidence
making it patently clear that an otherwise innocent person
was induced to commit the illegal act by trickery, persuasion,
or fraud of a government agent.” United States v. Smith,
802 F.2d 1119, 1124 (9th Cir. 1986); see also United States
v. Williams, 547 F.3d 1187, 1197 (9th Cir. 2008).
To avoid a finding of entrapment, the government must
prove that: (1) Mohamud was predisposed to commit the
crime before government agents contacted him, or
(2) government agents did not induce him to commit the
crime. United States v. McClelland, 72 F.3d 717, 722 (9th
Cir. 1995). We focus our inquiry on Mohamud’s
predisposition.
When evaluating predisposition, we often analyze five
factors: (1) the character and reputation of the defendant;
26 UNITED STATES V. MOHAMUD
(2) whether the government made the initial suggestion of
criminal activity; (3) whether the defendant engaged in the
activity for profit; (4) whether the defendant showed any
reluctance; and (5) the nature of the government’s
inducement. Id. “Although none of these factors is
controlling, the defendant’s reluctance to engage in the
criminal activity is the most important.” Id.
We can assume that factors (1), (3), and (5) are in
Mohamud’s favor. The second factor—whether the
government made the initial suggestion of criminal activity—
weighs against Mohamud. Although Youssef discussed with
Mohamud five options of how to be a good Muslim,
including the option to become “operational,” Mohamud—
not Youssef—made the initial suggestion to fill a car with
explosives near a target location. Mohamud also told
Youssef that he wanted to “wage war” within the United
States before Youssef mentioned the possibility of an
“operational” role. The government can rely upon
Mohamud’s statements to prove predisposition even though
he made them after the initial contact by the government.
United States v. Tucker, 133 F.3d 1208, 1217 (9th Cir.
1998).15 Here, Mohamud discussed placing explosives in
vehicles near target locations after the government’s initial
15
In Tucker, a jury convicted the defendant of extortion and filing
false tax returns. This court affirmed his conviction and sentence, and
rejected his argument that the evidence proved entrapment as a matter of
law. This court considered statements made by the defendant even after
the initial contact between the defendant and the government, noting that
“[t]o prove the defendant’s predisposition, the government can rely upon
evidence occurring after the initial contact with a government agent.”
Tucker, 133 F.3d at 1217.
UNITED STATES V. MOHAMUD 27
contact with him but before Youssef suggested criminal
activity. The second factor therefore weighs against
Mohamud.
The fourth and “most important” factor also weighs
overwhelmingly in the government’s favor. The government
initiated its contact with Mohamud in November 2009 with
the Bill Smith emails, and the more aggressive Youssef and
Hussein operation began in June 2010. Despite being
provided numerous opportunities to deviate from or terminate
the plan, Mohamud never displayed any reluctance in going
through with a horrific attack that would have killed and
maimed countless people, including young children. Indeed,
he expressed great enthusiasm in seeing it through. He
picked the target—the Pioneer Courthouse Square Christmas
Tree Lighting Ceremony—and planned where the van
containing the explosives would be parked. He praised the
terror attack in Mumbai, described the victims jumping from
the Twin Towers on September 11th as “awesome,” and
stated that he would be “happy” to see the bodies of “enemies
of Allah” torn apart.
The complete lack of reluctance on Mohamud’s part to
participate in the bombing—indeed, his immediate zeal to see
it through—separates this case from those in which courts
have found defendants entrapped as a matter of law. For
example, in Jacobson v. United States, 503 U.S. 540, 553
(1992), Jacobson was not predisposed in part because “[t]he
evidence that [Jacobson] was ready and willing to commit the
offense came only after the Government had devoted 2 ½
years to convincing him that he had or should have the right
to engage in the very behavior proscribed by law.” In
Sherman, a government informant approached the defendant,
a recovering drug addict, and asked for narcotics, ostensibly
28 UNITED STATES V. MOHAMUD
because the informant was not responding to treatment.
356 U.S. at 371. The defendant resisted—“[f]rom the first,
[he] tried to avoid the issue.” Id. Only “after a number of
repetitions of the request, predicated on [the informant’s]
presumed suffering, did [the defendant] finally acquiesce.”
Id.; see also id. at 373 (“One request was not enough, for . . .
additional ones were necessary to overcome, first, [the
defendant’s] refusal, then his evasiveness, and then his
hesitancy in order to achieve capitulation.”). And in United
States v. Poehlman, 217 F.3d 692 (9th Cir. 2000), the
government agent aggressively pushed the idea of sexual
activities with children on an uninterested defendant until
eventually he gave in:
While Poehlman’s reluctance might have been
borne of caution . . . the fact remains that
Poehlman’s earliest messages (which would
be most indicative of his pre-existing state of
mind) provide no support for the
government’s case on predisposition. To the
contrary, Poehlman’s reluctance forced [the
agent] to become more aggressive in her
suggestions . . . .
Id. at 704; see also id. at 695–97. At least as to this factor,
this case is more akin to Williams, in which we held that the
defendant was not entrapped as a matter of law in part
because “[t]here is no evidence that [the defendant] expressed
any reluctance about the robbery that needed to be ‘overcome
by repeated government inducement or persuasion.’ The
evidence indicated that [he] was ready and willing at all times
to participate in the robbery.” 547 F.3d at 1198 (citation
omitted).
UNITED STATES V. MOHAMUD 29
Mohamud argues that his actions after the Bill Smith
emails are irrelevant for entrapment purposes, as they were
tainted by the government’s overwhelming inducement. And
with those post-Bill Smith actions set aside, the argument
goes, there was insufficient evidence for the jury to conclude
that he had the necessary predisposition to commit this crime.
This is wrong for two reasons.
First, although “only those statements that indicate a state
of mind untainted by the inducement are relevant to show
predisposition,” statements made after the inducement which
make “clear that [Mohamud] would have committed the
offense even without the inducement” are evidence of
predisposition. Poehlman, 217 F.3d at 704–05. This would
include Mohamud’s statements that he made about the
“awesome” terrorist attacks in Mumbai and on September
11th, and that he had been thinking about these “things” since
he was fifteen years old. And a reasonable jury could infer
that his decisions to become “operational” and blow
something up the first time he met Youssef (and later, to
choose Pioneer Courthouse Square at its most crowded time)
were evidence that his predisposition existed long before FBI
contractor Bill Smith emailed him.
Second, even if there were a rigid wall between pre- and
post-inducement, there was sufficient evidence for a
reasonable jury to reject the entrapment defense. Mohamud’s
Jihad Recollections articles—both the draft and final
versions—provided ample evidence of his predisposition to
carry out the charged crime. In those articles, he, among
other things, coached people on how to prepare themselves
physically to attack and kill their Western enemies, and
saluted those in Afghanistan who “finish[ed] off” wounded
American soldiers. Although these articles may come across
30 UNITED STATES V. MOHAMUD
as a teenager trying to talk tough, they were enough to
support the jury’s finding, and for us to conclude that
Mohamud was not the “otherwise innocent person” that the
entrapment-as-a-matter-of-law doctrine requires. Smith,
802 F.2d at 1124; cf. United States v. Cromitie, 727 F.3d 194,
207–08 (2d Cir. 2013) (holding that the defendant in a similar
case was not entrapped as a matter of law, and observing that
“potential terrorists who are available to be recruited by Al
Qaeda or similar groups” may not have necessarily already
formed a specific plan, but “[t]heir predisposition is to have
a state of mind that inclines them to inflict harm on the
United States, be willing to die like a martyr, be receptive to
a recruiter’s presentation, . . . and welcome an invitation to
participate”).
In addition, the jury learned of Mohamud’s
correspondence with Al-Ali, which began months before the
first contact from Bill Smith. The jury also learned of
Mohamud’s desire to go abroad and study at the Islamic
school in Yemen that Al-Ali recommended to him. A
government expert testified that this school was founded by
a Muslim cleric who supported jihad and that it served as a
“stepping stone” to violent jihad, especially for people from
the West. As detailed above, the same day that Al-Ali told
Mohamud about the school in Yemen, Mohamud apparently
made plans to leave the United States. Though Mohamud
ultimately remained in the country, the jury could have
reasonably interpreted his attempt as evidence of a
predisposition to commit the crime charged. Further,
Mohamud continued to demonstrate interest in attending the
school in his December 2009 emails to Al-Ali, which
occurred after the Bill Smith emails.
UNITED STATES V. MOHAMUD 31
In sum, viewing the evidence in the light most favorable
to the government, we cannot say that “no reasonable jury
could have concluded that [Mohamud was] predisposed to
commit the charged offense[].” Davis, 36 F.3d at 1430. We
therefore conclude that the district court properly rejected his
defense of entrapment as a matter of law.
Mohamud’s alternative argument that we should dismiss
this case because the government overreached in its “sting”
and violated due process also fails. While the government’s
conduct in this case was quite aggressive at times, it fell short
of a due process violation.
In United States v. Black, we made clear that
“[d]ismissing an indictment for outrageous government
conduct . . . is limited to extreme cases in which the
defendant can demonstrate that the government’s conduct
violates fundamental fairness and is so grossly shocking and
so outrageous as to violate the universal sense of justice.”
733 F.3d 294, 302 (9th Cir. 2013) (citation and internal
quotation marks omitted). This is an “extremely high
standard.” Id.; see also United States v. Pedrin, 797 F.3d
792, 797 (9th Cir. 2015) (“[I]n assessing whether the
government’s conduct was ‘outrageous,’ the relevant question
is what the government knew when it was setting up the sting,
not what it learned later.”). For example, we have denied
challenges to sting operations involving armed robberies of
phony drug stash houses which necessarily put law
enforcement and the defendant in grave peril. See Black,
733 F.3d at 302; Williams, 547 F.3d at 1200–01. Mohamud
argues that the six factors for evaluating outrageous
32 UNITED STATES V. MOHAMUD
government conduct set out in Black favor dismissal of the
indictment.16 We disagree.
In Cromitie, a comparable Second Circuit case, the
defendant was convicted of planning and attempting to carry
out domestic terrorism offenses. 727 F.3d at 199–204. The
defendant claimed that the government’s conduct in
persuading him to commit the charged offenses violated due
process. Id. at 217. The Second Circuit held that it did not.
Even though the government “invented all of the details of
the scheme,” the defendant’s express desire to “do something
to America” and “die like a martyr” was sufficient to justify
the government’s testing of how far he would go. Id. at 219.
Like Mohamud, Cromitie argued that the government took
advantage of his religious affiliation, but the court explained
that a government agent “is entitled to probe the attitudes” of
an individual who “volunteers that he wants to ‘do something
to America’ . . . to learn whether his religious views have
impelled him toward the violent brand of radical Islam that
poses a dire threat to the United States.” Id. at 219–20.
16
These factors are analyzed collectively in determining whether
government conduct is outrageous: “(1) known criminal characteristics of
the defendants; (2) individualized suspicion of the defendants; (3) the
government’s role in creating the crime of conviction; (4) the
government’s encouragement of the defendants to commit the offense
conduct; (5) the nature of the government’s participation in the offense
conduct; and (6) the nature of the crime being pursued and necessity for
the actions taken in light of the nature of the criminal enterprise at issue.”
Black, 733 F.3d at 303. The first three are relevant to how the government
set up the sting, the fourth and fifth analyze the government’s role in the
sting, and the last relates to the justification for the operation. Id. at
303–04.
 UNITED STATES V. MOHAMUD 33
Cromitie further claimed that the government had violated
due process because a government informant had exploited
his relationship with Cromitie to “manipulate Cromitie into
agreeing to the planned attacks”; the court cited our precedent
indicating that “the ‘illusory cultivation of emotional
intimacy’ does not exceed due process limits.” Id. at 220
(quoting United States v. Simpson, 813 F.2d 1462, 1467 (9th
Cir. 1987)). Even considering certain monetary benefits
offered by the government informant—including $250,000
cash, a barbershop valued at $70,000, a new BMW, and a
two-week vacation—the court held that the overall operation
did not rise to the level of a due process violation. Id.
Although Mohamud may have been more vulnerable than
Cromitie, the government’s questionable actions in that case
far exceeded anything here.
In light of the extremely high standard set out in Black,
we hold that the government’s conduct here did not violate
due process.
C. Late Notice Of § 702-Derived Evidence
FISA requires the government to “notify the aggrieved
person and the court” prior to trial when it intends to use at
trial evidence “obtained or derived from electronic
surveillance” pursuant to FISA. 50 U.S.C. § 1806(c); see
also 50 U.S.C. § 1881e(a) (stating that information acquired
under § 702 is subject to the notice requirement in § 1806(c)).
The government provided a supplemental notice regarding
evidence derived under § 702 after the trial concluded.
Mohamud argues that this late disclosure mandates
suppression, or at a minimum, discovery and an evidentiary
hearing to explore the tardy disclosure.
34 UNITED STATES V. MOHAMUD
In answering this question, we must keep two principles
in mind. First, “[s]uppression of evidence . . . has always
been our last resort, not our first impulse.” Hudson v.
Michigan, 547 U.S. 586, 591 (2006); see also Davis v. United
States, 564 U.S. 229, 237 (2011) (“For exclusion to be
appropriate, the deterrence benefits of suppression must
outweigh its heavy costs.”); Sanchez-Llamas v. Oregon,
548 U.S. 331, 347 (2006) (“[T]he exclusionary rule is not a
remedy we apply lightly.”). Second, Congress has the power
to authorize suppression for statutory violations, as it has
done elsewhere in FISA. See 50 U.S.C. §§ 1806(g), 1825(h),
1845(g) (FISA); see also 18 U.S.C. § 2518(10)(a) (Title III
wiretap). However, Congress has not mandated suppression
as a remedy for late disclosure of a FISA notice, and, indeed,
it apparently anticipated the possibility of post-trial
notification. See 50 U.S.C. § 1806(e) (providing that a
motion to suppress “unlawfully acquired” or nonconforming
information “shall be made before the trial . . . unless . . . the
person was not aware of the grounds of the motion”). These
two principles strongly suggest that automatic suppression is
not a required remedy for delayed FISA disclosure.
And in any case, Mohamud cannot demonstrate how the
late disclosure prejudiced him. As the district court
explained, it fully evaluated the § 702-derived evidence as if
the motion had been brought before trial. This put Mohamud
in the same position he would have been in if the government
had provided timely notice.
Moreover, the district court found that the late disclosure
was not due to “prosecutorial misconduct.” Rather, the
government had changed its legal opinion about when
evidence could be considered “derived from” § 702
surveillance, performed another review of this case, and
UNITED STATES V. MOHAMUD 35
provided the late supplemental notice on its own initiative.
Our review of the unclassified and classified record supports
that the district court did not clearly err in finding no
prosecutorial misconduct.17
As the district court recognized, it had the power to
suppress evidence, or even dismiss the indictment or grant a
new trial, under its supervisory and statutory authority. See
Stinson, 647 F.3d at 1210 (stating that a court may exercise
its supervisory powers “to remedy a constitutional or
statutory violation; to protect judicial integrity by ensuring
that a conviction rests on appropriate considerations validly
before a jury; or to deter future illegal conduct” (citation
omitted)); see also Fed. R. Crim. P. 16(d)(2). However, the
district court determined that suppression as a sanction for the
late supplemental FISA notice was not warranted here, and
we agree.
We conclude that, under the circumstances of this case,
the district court did not err in denying Mohamud’s motion to
suppress premised on the late supplemental FISA notice.18
17
We do not reach whether suppression is necessary as a deterrent in
light of the government’s apparent self-correction of its practices. See
United States v. Dreyer, 804 F.3d 1266, 1280 (9th Cir. 2015) (en banc).
18
We also conclude that the district court did not abuse its discretion
in denying discovery and an evidentiary hearing to explore the
government’s late disclosure. Mohamud’s reliance on United States v.
Hernandez-Meza, 720 F.3d 760, 769 (9th Cir. 2013), is misplaced because
the record here does not “suggest[] that the government may have
deliberately withheld” the supplemental FISA notice. Therefore, we
decline Mohamud’s alternative request to remand for further fact finding.
36 UNITED STATES V. MOHAMUD
D. Section 702 Collection of Mohamud’s Email
Communications
1. Legal Background
In 1978, Congress enacted FISA “to authorize and
regulate certain governmental electronic surveillance of
communications for foreign intelligence purposes.” Clapper
v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143 (2013) (citing
50 U.S.C. § 1801 et seq.). To do so, the government must
obtain a FISA warrant from the FISC. Id. The FISA Court
of Review assesses any denials by the FISC of applications
for electronic surveillance. Id.
Thirty years later, Congress enacted § 702 as part of the
FISA Amendments Act of 2008. 50 U.S.C. § 1881a. Section
702 “supplements pre-existing FISA authority by creating a
new framework under which the Government may seek the
FISC’s authorization of certain foreign intelligence
surveillance targeting the communications of non-U.S.
persons located abroad.” Clapper, 133 S. Ct. at 1144.
“Unlike traditional FISA surveillance, § [702] does not
require the Government to demonstrate probable cause that
the target of the electronic surveillance is a foreign power or
agent of a foreign power.” Id. “And, unlike traditional FISA,
§ [702] does not require the Government to specify the nature
and location of each of the particular facilities or places at
which the electronic surveillance will occur.” Id. Instead,
§ 702 mandates that the government obtain the FISC’s
“approval of ‘targeting’ procedures, ‘minimization’
procedures, and a governmental certification regarding
proposed surveillance.” Id. at 1145 (quoting 50 U.S.C.
§ 1881a(a), (c)(1), (i)(2), (i)(3)).
UNITED STATES V. MOHAMUD 37
2. No Fourth Amendment Violation
Although § 702 potentially raises complex statutory and
constitutional issues, this case does not. As explained below,
the initial collection of Mohamud’s email communications
did not involve so-called “upstreaming” or targeting of
Mohamud under § 702, more controversial methods of
collecting information.19 It also did not involve the retention
and querying of incidentally collected communications. All
this case involved was the targeting of a foreign national
under § 702, through which Mohamud’s email
communications were incidentally collected. Confined to the
particular facts of this case, we hold that the § 702 acquisition
of Mohamud’s email communications did not violate the
Fourth Amendment.20
At our request post-argument, the government
declassified certain facts about Mohamud’s surveillance.
Through the monitoring of a foreign national’s email account,
19
Under “upstream” collection, entire streams of Internet traffic
flowing across major U.S. networks are acquired and searched, as opposed
to “PRISM” collection, under which particular user accounts are
monitored, and communications to or from those accounts are collected,
including communications with U.S. persons. See, e.g., Privacy & Civil
Liberties Oversight Board (“PCLOB”), Report on the Surveillance
Program Operated Pursuant to Section 702 of the Foreign Intelligence
Surveillance Act (July 2, 2014), at 7 (hereinafter “PCLOB Report”); see
also id. at 33–41 (comparing PRISM and upstream collection).
20
In light of our holding, we do not reach the question of whether the
good faith exception to the exclusionary rule provides an independent
basis to affirm the district court’s denial of Mohamud’s motion to
suppress. See generally Davis, 564 U.S. at 240–42; Illinois v. Krull,
480 U.S. 340, 349–55 (1987); United States v. Leon, 468 U.S. 897, 925
(1984).
38 UNITED STATES V. MOHAMUD
the United States government learned that Mohamud was in
contact with that foreign national, who was located overseas.
This contact—a limited number of emails between Mohamud
and the foreign national—was used to obtain a FISA warrant
to surveil Mohamud and his activities. None of these emails
was introduced at trial.21 We permitted the parties to file
supplemental briefs to address the facts offered in the post-
argument disclosure.
a. No Warrant Required to Intercept
Overseas Foreign National’s
Communications or to Intercept U.S.
Person’s Communications Incidentally
As a threshold matter, “the Fourth Amendment does not
apply to searches and seizures by the United States against a
non-resident alien in a foreign country.” United States v.
21
We address only Mohamud’s as-applied challenge. See United
States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a
legislative Act is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.”). Though he
also purports to challenge § 702 facially, citing City of Los Angeles v.
Patel, 135 S. Ct. 2443, 2451 (2015), Mohamud does not explain why
techniques not employed in this case would require suppression of the
evidence gathered here. We do not read Patel to permit courts, in a
criminal prosecution, to suppress evidence based on a Fourth Amendment
challenge to techniques not employed in a particular case. See, e.g.,
United States v. Posey, 864 F.2d 1487, 1491 (9th Cir. 1989) (“[W]e think
it clear that appellant may not make a facial challenge to the FISA without
arguing that the particular surveillance against him violated the Fourth
Amendment. . . . Even if he is correct that the FISA’s language might be
applied in ways that violate the Fourth Amendment, he must show that the
particular search in his case violated the Fourth Amendment. Appellant
cannot invalidate his own conviction on the argument that others’ rights
are threatened by FISA.” (emphasis in original)).
UNITED STATES V. MOHAMUD 39
Zakharov, 468 F.3d 1171, 1179 (9th Cir. 2006) (citing United
States v. Verdugo-Urquidez, 494 U.S. 259, 274–75 (1990));
see also Verdugo-Urquidez, 494 U.S. at 274–75 (“At the time
of the search, [respondent] was a citizen and resident of
Mexico with no voluntary attachment to the United States,
and the place searched was located in Mexico. Under these
circumstances, the Fourth Amendment has no application.”).
Thus, the government’s monitoring of the overseas foreign
national’s email fell outside the Fourth Amendment.
Mohamud argues that under Verdugo-Urquidez, the
location of the search matters, and that here, the searches took
place in the United States.22 Indeed, the government
acknowledges that “collection from service providers under
Section 702 takes place within the United States.” Yet, as
one court put it, “what matters here is the location of the
target,” and not where the government literally obtained the
electronic data. United States v. Hasbajrami, No. 11-CR-
623, 2016 WL 1029500, at *9 n.15 (E.D.N.Y. Mar. 8, 2016)
(emphasis in original); see also Kris & Wilson, National
Security Investigations & Prosecutions § 17:3 (2016) (“For
non-U.S. person targets, there is no probable-cause
requirement; the only thing that matters is [ ]the
government’s reasonable belief about[ ] the target’s
location.”).
Consistent with Verdugo-Urquidez and our precedent, we
hold that this particular type of non-upstream collection—
22
Mohamud also argues that the targeted foreign national may have
had sufficient “voluntary connection[s]” to the United States for the
Fourth Amendment to apply. See Verdugo-Urquidez, 494 U.S. at 271,
273. We have reviewed the classified record, and are satisfied that is not
the case here.
40 UNITED STATES V. MOHAMUD
where a search was not directed at a U.S. person’s
communications, though some were incidentally swept up in
it—does not require a warrant, because the search was
targeted at a non-U.S. person with no Fourth Amendment
right.
The FISA Review Court in In re Directives Pursuant to
Section 105B of FISA, similarly applied this principle,
holding that “incidental collections occurring as a result of
constitutionally permissible acquisitions do not render those
acquisitions unlawful.” 551 F.3d 1004, 1015 (FISA Ct. Rev.
2008); see also United States v. Donovan, 429 U.S. 413, 436
n.24 (1977) (holding that a Title III wiretap warrant is not
made unconstitutional by “failure to identify every individual
who could be expected to be overheard,” but “the complete
absence of prior judicial authorization would make an
intercept unlawful”); United States v. Bin Laden, 126 F.
Supp. 2d 264, 280 (S.D.N.Y 2000) (explaining that “in the
Title III context, incidental interception of a person’s
conversations during an otherwise lawful surveillance” does
not violate the Fourth Amendment).
Mohamud and Amici23 urge us not to apply this
“incidental overhear” approach. First, Amici contend that
surveillance of U.S. persons’ communications under § 702 is
not “incidental” because the monitoring of communications
between foreign targets and U.S. persons was specifically
contemplated and to some degree desired. We agree that
such communications were anticipated. As the Privacy and
Civil Liberties Oversight Board found with respect to PRISM
collection, “[t]he collection of communications to and from
23
Amici are the American Civil Liberties Union, American Civil
Liberties Union of Oregon, and the Electronic Frontier Foundation.
UNITED STATES V. MOHAMUD 41
a target inevitably returns communications in which non-
targets are on the other end, some of whom will be U.S.
persons. Such ‘incidental’ collection of communications is
not accidental, nor is it inadvertent.” PCLOB Report at 82;
see also Laura K. Donohue, Section 702 and the Collection
of International Telephone and Internet Content, 38 Harv.
J.L. & Pub. Pol’y 117, 159–64, 259–62 (2015) (discussing the
relative volume and intrusiveness of surveillance authorized
under § 702). The fact that the government knew some U.S.
persons’ communications would be swept up during foreign
intelligence gathering does not make such collection any
more unlawful in this context than in the Title III or
traditional FISA context.
Mohamud and Amici also contend that the “sheer amount
of ‘incidental’ collection” separates § 702 from prior cases
where courts have found such collection permissible. We
agree with the district court’s observation that the most
troubling aspect of this “incidental” collection is not whether
such collection was anticipated, but rather its volume, which
is vast, not de minimis. See PCLOB Report at 114 (“The term
‘incidental’ is appropriate because such collection is not
accidental or inadvertent, but rather is an anticipated
collateral result of monitoring an overseas target. But the
term should not be understood to suggest that such collection
is infrequent or that it is an inconsequential part of the
Section 702 program.”). This quantity distinguishes § 702
collection from Title III and traditional FISA interceptions.
However, the mere fact that more communications are being
collected incidentally does not make it unconstitutional to
apply the same approach to § 702 collection, though it does
42 UNITED STATES V. MOHAMUD
increase the importance of minimization procedures once the
communications are collected.24
Additionally, Mohamud and Amici contend that prior
cases upholding incidental collection involved prior judicial
review or a “narrowly drawn exception to the warrant
requirement,” as opposed to the collection here. See, e.g.,
United States v. Kahn, 415 U.S. 143, 156–57 (1974)
(upholding interception of communications of a woman that
were incidentally collected under a wiretap order targeting
her husband); United States v. Figueroa, 757 F.2d 466,
473–75 (2d Cir. 1985) (holding that wiretap order was not
made unconstitutional by permitting interception of
conversations of “others as yet unknown”); see also United
States v. Martin, 599 F.2d 880, 884–85 (9th Cir. 1979)
(holding that the Fourth Amendment does not require wiretap
application to show probable cause that non-targeted
individual named as a “probable converser” committed a
crime), overruled on other grounds by United States v. De
Bright, 730 F.2d 1255 (9th Cir. 1984) (en banc). However,
the searches in those cases targeted United States citizens and
took place within the United States, so a warrant was required
for the initial search to be constitutionally permissible. But
“the guiding principle behind them applies with equal force
here: when surveillance is lawful in the first place—whether
it is the domestic surveillance of U.S. persons pursuant to a
warrant, or the warrantless surveillance of non-U.S. persons
who are abroad—the incidental interception of non-targeted
U.S. persons’ communications with the targeted persons is
also lawful.” Hasbajrami, 2016 WL 1029500, at *9.
24
To the extent that Amici argue that the incidental overhear doctrine
permits the unconstitutional and widespread retention and querying of the
incidentally collected information, that issue is not before us.
UNITED STATES V. MOHAMUD 43
For these reasons, and because the target of the
surveillance was a non-U.S. person located outside of the
United States at the time of the surveillance, the government
was not required to obtain a search warrant to collect
Mohamud’s email communications with the overseas foreign
national as an incident to its lawful search of the foreign
national’s email.25
b. Collection of Mohamud’s Emails was
Reasonable
Assuming that Mohamud had a Fourth Amendment right
in the incidentally collected communications, the search at
issue was reasonable under the Fourth Amendment.26
“Even if a warrant is not required, a search is not beyond
Fourth Amendment scrutiny; for it must be reasonable in its
scope and manner of execution.” Maryland v. King, 133 S.
25
Because the incidental collection excepts this search from the
Fourth Amendment’s warrant requirement, we need not address any
“foreign intelligence exception.”
26
It is unclear whether Mohamud had a right to bar use of these
incidentally-collected communications in evidence against him on the
basis that the communications were seized in violation of the Fourth
Amendment. Commentators suggest that he does, so we will assume that
here. See, e.g., Orin S. Kerr, The Fourth Amendment and the Global
Internet, 67 Stan. L. Rev. 285, 313–14 (2015) (“Communicating with a
person who lacks Fourth Amendment rights should not waive the rights
of the person who has those rights. The Fourth Amendment should
continue to fully protect the U.S. person who communicates with those
lacking Fourth Amendment rights.”); PCLOB Report at 94 (“The
government has acknowledged that the Fourth Amendment rights of U.S.
persons are affected when their communications are acquired under
Section 702 incidentally or otherwise[.]”).
44 UNITED STATES V. MOHAMUD
Ct. 1958, 1970 (2013). In deciding reasonableness, we
examine the totality of the circumstances and weigh “‘the
promotion of legitimate governmental interests’ against ‘the
degree to which [the search] intrudes upon an individual’s
privacy.’” Id. (quoting Wyoming v. Houghton, 526 U.S. 295,
300 (1999)). We agree with the district court that under these
circumstances, the search was reasonable under the Fourth
Amendment.
i. Government Interest
“[T]he Government’s interest in combating terrorism is
an urgent objective of the highest order.” Holder v.
Humanitarian Law Project, 561 U.S. 1, 28 (2010). Neither
Mohamud nor Amici challenge this. Instead, they argue that
(1) the statutory definition of “foreign intelligence
information” in § 702 is overbroad because it is not confined
to national security information but also includes “the
conduct of [] foreign affairs”27; and (2) even if national
security justifies the initial acquisition, it is unreasonable to
then retain and later search U.S. persons’ § 702-acquired
communications without a warrant.
The declassified facts foreclose both arguments. First, as
the district court observed, “the discovery in this case all
concerned protecting the country from a terrorist threat and
did not stray into the broader category of the conduct of
foreign affairs.” Thus, we need not determine whether the
collection of foreign affairs communications is reasonable.
Similarly, the second argument is also outside the scope of
our review, as no such retention and querying is at issue in
this case.
27
See 50 U.S.C. §§ 1801(e)(2)(b), 1881(a).
UNITED STATES V. MOHAMUD 45
ii. Mohamud’s Privacy Interest
The parties agree that Mohamud had some expectation of
privacy in his electronic communications, but disagree as to
the strength of his interest. The government argues that U.S.
persons have a limited expectation of privacy when
communicating electronically with non-U.S. persons located
outside the United States because of the Fourth Amendment’s
“third-party” doctrine—that a person’s privacy interest is
diminished where he or she reveals information to a third
party, even in confidence. Mohamud contends that the
voluntary disclosure of information to third parties does not
reduce the expectation of privacy. The district court
determined that under the third-party doctrine, Mohamud had
a reduced expectation of privacy in his communications to
third parties. We agree.
With respect to a U.S. person’s privacy interest, we treat
emails as letters. See, e.g., [Redacted], 2011 WL 10945618,
at *26 (FISA Ct. Oct. 3, 2011) (“Whether they are transmitted
by letter, telephone or e-mail, a person’s private
communications are akin to personal papers.”); United States
v. Warshak, 631 F.3d 266, 285–86 (6th Cir. 2010) (“Given
the fundamental similarities between email and traditional
forms of communication, it would defy common sense to
afford emails lesser Fourth Amendment protection.”).
Accordingly, until electronic communications reach the
recipient, they retain the same level of privacy interest as if
they were still in the home. See, e.g., United States v. Van
Leeuwen, 397 U.S. 249, 251 (1970).
But as with letters, “[a] person’s reasonable expectation
of privacy may be diminished in ‘transmissions over the
Internet or e-mail that have already arrived at the recipient.’”
46 UNITED STATES V. MOHAMUD
United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir.
2007) (quoting United States v. Lifshitz, 369 F.3d 173, 190
(2d Cir. 2004) (citing Guest v. Leis, 255 F.3d 325, 333 (6th
Cir. 2001))); see also Guest, 255 F.3d at 333 (“[Users] would
lose a legitimate expectation of privacy in an e-mail that had
already reached its recipient; at this moment, the e-mailer
would be analogous to a letter-writer, whose ‘expectation of
privacy ordinarily terminates upon delivery’ of the letter.”
(citation omitted)).
It is true that prior case law contemplates a diminished
expectation of privacy due to the risk that the recipient will
reveal the communication, not that the government will be
monitoring the communication unbeknownst to the third
party. See, e.g., United States v. Miller, 425 U.S. 435, 443
(1976); United States v. White, 401 U.S. 745, 752 (1971);
Hoffa v. United States, 385 U.S. 293, 302 (1966). While
these cases do not address the question of government
interception, the communications at issue here had been sent
to a third party, which reduces Mohamud’s privacy interest at
least somewhat, if perhaps not as much as if the foreign
national had turned them over to the government voluntarily.
See also Hasbajrami, 2016 WL 1029500 at *11 & n.18
(observing same distinction).
Thus, Mohamud’s interest in the privacy of his
communications received by the overseas foreign national is
diminished.
iii. Privacy Protecting Measures
An important component of the reasonableness inquiry is
whether the FISC-approved targeting and minimization
measures sufficiently protect the privacy interests of U.S.
UNITED STATES V. MOHAMUD 47
persons. Targeting and minimization procedures govern,
respectively, who may be targeted for surveillance and how
intercepted communications are to be retained and
disseminated.
In brief, targeting procedures must be “reasonably
designed” to “ensure that any acquisition authorized under
[the certification] is limited to targeting persons reasonably
believed to be located outside the United States” and to
“prevent the intentional acquisition of any communication as
to which the sender and all intended recipients are known at
the time of the acquisition to be located in the United States.”
50 U.S.C. § 1881a(d)(1). Among other requirements,
minimization procedures must be “reasonably designed” “to
minimize the acquisition and retention, and prohibit the
dissemination, of nonpublicly available information
concerning unconsenting United States persons consistent
with the need of the United States to obtain, produce, and
disseminate foreign intelligence information.” 50 U.S.C.
§§ 1801(h)(1), 1881a(e)(1).
After evaluating the protections detailed in § 702 and the
classified minimization procedures, the district court
concluded that as applied to Mohamud, § 702 is reasonable
under the Fourth Amendment. Based on our review of the
classified record, we agree that the applicable targeting and
minimization procedures, which were followed in practice,
sufficiently protected Mohamud’s privacy interest.
The government also contends that certain oversight
procedures provide an important check on Executive Branch
actions. For example, § 702 requires the Attorney General
(“AG”) and Director of National Intelligence (“DNI”) to
certify, among other things, that (1) a significant purpose of
48 UNITED STATES V. MOHAMUD
the acquisition is to obtain foreign intelligence information,
(2) they have adopted guidelines to ensure compliance with
the statutory limitations in § 702(b), and (3) the targeting and
minimization procedures and guidelines are consistent with
the Fourth Amendment. 50 U.S.C § 1881a(g)(2)(A); see also
id. § 1881a(g)(1)(B) (providing that if the AG and DNI
determine that “time does not permit the submission of a
certification under this subsection prior to the implementation
of an authorization under subsection (a)” they shall submit
the certification “as soon as practicable but in no event later
than 7 days after such determination is made”). Further, the
AG and DNI must periodically assess whether the
government is complying with FISC-approved targeting and
minimization procedures and guidelines, which adds further
oversight and privacy protections. See 50 U.S.C. § 1881a(i).
While Executive Branch certification contributes some
degree of further protection, it does not weigh heavily.
Typically in the Fourth Amendment context, review from a
neutral magistrate is considered the appropriate check on the
Executive, which otherwise may be motivated by its interest
in carrying out its duties. See, e.g., Leon, 468 U.S. at 913–14
(explaining that in obtaining a search warrant, a neutral
magistrate is “a more reliable safeguard against improper
searches than the hurried judgment of a law enforcement
officer ‘engaged in the often competitive enterprise of
ferreting out crime’” (citation omitted)). Under these
circumstances, where the only judicial review comes in the
form of the FISC reviewing the adequacy of procedures, this
type of internal oversight does not provide a robust safeguard.
The government notes that in In re Sealed Case, 310 F.3d
717, 739 (FISA Ct. Rev. 2002), the FISA Review Court
observed that Congress recognized that certification by the
AG in the traditional FISA context would “‘assure [ ] written
UNITED STATES V. MOHAMUD 49
accountability within the Executive Branch’ and provide ‘an
internal check on Executive Branch arbitrariness.’” (citation
omitted). However, as described above, § 702 differs in
important ways from traditional FISA, and a mechanism that
might provide additional protections above and beyond those
already employed in a traditional FISA context provides far
less assurance and accountability in the § 702 context, which
lacks those baseline protections. See also Clapper, 133 S. Ct.
at 1144–45.
Accordingly, although we do not place great weight on
the oversight procedures, under the totality of the
circumstances, we conclude that the applied targeting and
minimization procedures adequately protected Mohamud’s
diminished privacy interest, in light of the government’s
compelling interest in national security.
In sum, even assuming Mohamud had a Fourth
Amendment right in the incidentally collected
communications, the search was reasonable. Thus, we hold
that the application of § 702 did not violate the Fourth
Amendment under the particular facts of this case.28
28
We also agree with the district court that the FISC survives
separation of powers and non-delegation challenges, as FISC review of
§ 702 surveillance applications does not “interfere[] with the prerogatives
of another branch of government beyond requiring the executive branch
to conform to the statute,” and is “central to the mission of the judiciary”
as it is similar to “the review of search warrants and wiretap applications.”
See Mistretta v. United States, 488 U.S. 361, 388 (1989). Further, we
agree with the district court that FISC opinions are not advisory because
the FISC either approves or denies the requested acquisition (and
electronic communication service providers must follow the directives or
challenge them). See 50 U.S.C. § 1881a(h), (i)(2). Finally, the district
court correctly rejected Mohamud’s First Amendment challenge, as
motions to suppress based on First Amendment violations are analyzed
50 UNITED STATES V. MOHAMUD
IV. CONCLUSION
Many young people think and say alarming things that
they later disavow, and we will never know if Mohamud—a
young man with promise—would have carried out a mass
attack absent the FBI’s involvement. But some “promising”
young people—Charles Whitman, Timothy McVeigh, and
James Holmes, to name a few from a tragically long
list—take the next step, leading to horrific consequences.
While technology makes it easier to capture the thoughts of
these individuals, it also makes it easier for them to commit
terrible crimes. Here, the evidence supported the jury’s
verdict, and the government’s surveillance, investigation, and
prosecution of Mohamud were consistent with constitutional
and statutory requirements.
AFFIRMED.
under the Fourth Amendment. See, e.g., United States v. Mayer, 503 F.3d
740, 747 (9th Cir. 2007) (where a party alleges that a criminal
investigation violated the First Amendment rights of a third party, “we
have held that the Fourth Amendment provides the relevant benchmark”
(emphasis in original)); United States v. Aguilar, 883 F.2d 662, 697 (9th
Cir. 1989).