Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 1 of 256 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. Sady Chief 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 Wax Attorney 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 2 of 256 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 Teenaged Defendant’s Life Constituted Entrapment As A Matter Of Law And Violated Due Process.....................................................................................68 A. Under Jacobson, Religious And Political Beliefs, Even If Alarming And Repugnant, Are Not Equivalent To Predisposition To Commit The Crime Charged, Which Is Measured From The Time Before The First Governmental Contact....................................70 B. Under Sherman, Governmental Sabotage Of Rehabilitation Efforts And Exploitation Of Vulnerabilities Are Unlawful Forms Of Inducement. ....................................................................................74 C. Under Poehlman, Exploitation Of Apparent Vulnerabilities Went Too Far In The Creation Of Crime. ...........................................76 i Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 3 of 256 D. II. III. In The Alternative, The Court Should Dismiss This Case Based On Government Overreaching Under The Due Process Clause. ........78 The Prosecutor’s Closing Argument Violated Due Process By Negating And Misstating The Legal Standard For The Defense Of Entrapment. ........81 A. The Government Argued In Closing That An Individual Cannot Be Entrapped To Commit The Charged Offense. ...............................81 B. The Government Argued In Closing For Conviction Based On Predisposition To Commit Similar Acts. ............................................84 C. The Improper Closing Arguments Violated The Defendant’s Right To Present A Complete Defense And Diluted The Government’s Burden Of Proving Guilt Beyond a Reasonable Doubt. ..................................................................................................86 The Trial Court’s Failure To Provide Adequate Jury Instructions On The Defense Theory Of The Case Violated The Right To A Fair Trial. ......90 A. Despite Proffered Defense Instructions That Were Supported By The Facts And Law, The Trial Court Failed To Instruct The Jury On Essential Aspects Of Entrapment That Supported The Defense Case. ......................................................................................91 1. Predisposition To Commit The Specific Offense Charged. ...................................................................................................91 2. The Meaning Of “Innocent.” ....................................................92 3. “Wherewithal” Or “Capability” To Commit The Charged Crime 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 ii Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 4 of 256 B. The Trial Court’s Response To The Jury’s Note Compounded The Prejudice From Incomplete Instruction On The Entrapment Defense And Violated Due Process By Instructing On The Government’s Theory While Continuing To Deprive The Defense Of Its Theory. ......................................................................100 IV. The Trial Court’s Refusal To Instruct The Jury On The First Amendment, Combined With The Gag Order Barring The Defense From Mentioning The First Amendment In Closing Argument, Violated The Constellation Of Constitutional Rights Guaranteeing The Presentation Of A Complete Defense..........................................................103 V. The Trial Court’s Refusal To Rule On The Constitutionality Of The Government’s Non-FISA Seizures, Searches, and Interrogations Violated Mr. Mohamud’s Constitutional Rights. ........................................107 VI. A. The Trial Court Repeatedly Refused To Rule On The Constitutionality Of Government Conduct. ......................................108 B. The Trial Court’s Refusal To Rule On Whether FBI Agents Acted Unconstitutionally Violated The Fourth Amendment, The Due Process Clause, The Confrontation Clause, And The Fifth And Sixth Amendment Rights To Present A Complete Defense. ....115 The Government And District Court’s Withholding Of Classified Evidence And Information Impermissibly Skewed The Fact-Finding Process, 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 The State Secrets Privilege, CIPA, or FISA, When Doing So Curtails Fundamental Constitutional Rights In A Criminal Trial. .................120 B. Depriving Mr. Mohamud Of The True Identities Of The Undercover Operatives Who Testified Against Him Violated His Rights To Confrontation, Due Process, And Effective Assistance Of Counsel. ........................................................................................125 iii Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 5 of 256 1. The Government Asserted The State Secrets Privilege To Withhold The Names And Backgrounds Of Its Operatives. .................................................................................................126 2. Depriving The Defense Of The True Names Of Two Key Witnesses Violated The Defendant’s Constitutional Rights. .....................................................................................127 C. The District Court’s Denial Of Discovery Regarding, And Testimony From, “Bill Smith” Violated The Fifth And Sixth Amendment Rights To Compulsory Process, Confrontation, And Presentation 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 Material And Its Replacement With Inadequate Substitute Evidence Violated The Right To A Fair Trial. .................................................143 F. The Trial Court’s Refusal To Provide Classified Material Regarding Amro Al-Ali, Either Directly Or In Substitute Form, Violated The Due Process Right To Receive Material In The Possession Of The Government That Is Favorable To The Defense. .............................................................................................147 VII. By Misconstruing And Misapplying The “State Of Mind” Exception To The Hearsay Rule, The District Court Violated The Confrontation Clause, The Right To Compulsory Process, And The Right To A Fair Trial..............................................................................................................148 A. Over Defense Objection, The Court Construed the Hearsay Rule To Allow The Government To Introduce Prejudicial Hearsay Evidence Regarding A Key Figure, Amro Al-Ali, In Violation Of Mr. Mohamud’s Right To Confrontation And To A Fair Trial. ...........................................................................................................150 iv Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 6 of 256 B. Once The Court Allowed Government Witnesses To Testify Regarding Their Investigative “States Of Mind,” The Court Erroneously Restricted Cross-Examination Related To Mental State, Including Motivation And Bias. ..............................................164 C. Over Defense Objection, The Court Allowed Government Witnesses To Testify About What Mr. Mohamud Meant And Was Thinking About In Recorded Statements. .................................169 D. Over Defense Objection, The Court Misconstrued The Hearsay Rule To Exclude Admissible Evidence Of Contemporaneous Communications By Mr. Mohamud That Reflected His Lack Of Predisposition To Commit The Crime Charged. ..............................171 E. The Trial Court’s Repeated And Pervasive Errors Misconstruing And Misapplying The Evidentiary Rules For “State of Mind” Evidence Require Reversal For Violation Of The Hearsay Rule And The Rights To Confrontation, Compulsory Process, And A Fair 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 Products Of Such Surveillance, Or, In The Alternative, The Case Should Be Remanded For A Determination Of The Facts Based On Evidence And An Adversarial Hearing. ..............................................................................178 A. The Statutory Language Requires Pretrial Notice Of The Use Of Evidence Derived From FAA Warrantless Surveillance. .................180 B. Based On The Defense Evidence That The Government Intentionally Or Recklessly Failed To Provide Pretrial Notice Of FAA Warrantless Surveillance, The Trial Court Should Have At Least Suppressed Derivative Evidence. ............................................183 C. In The Alternative, The Trial Court’s Refusal To Hold A Hearing Regarding The Circumstances Of The Statutory And Constitutional Violation Constituted Error Requiring Reversal v Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 7 of 256 And Remand For Fact Findings And Remedial Action Commensurate With The Violation Of Rights..................................187 IX. The Warrantless Retention And Searches Of The Content Of Mr. Mohamud’s Electronic Communications Violated The FISA Amendments Act And The Constitution, Which Should Result In Suppression Of The Resulting Evidence. ....................................................190 A. The Search Of The Content Of Americans’ Communications Violates The FAA Because The Statute Does Not Expressly Authorize The Government To Retain And Later Access Such Electronic Communications That Are “Incidentally” Intercepted While Targeting Foreigners. .............................................................192 B. The Government’s Secondary Searches Of The Content Of An American Citizen’s Electronic Communications Violated The Constitution Because The Intrusions Occurred Without Judicial Review And Other Protection Analogous To The Fourth Amendment’s Warrant Requirement. ...............................................197 C. Acquisition And Retention Of Americans’ Electronic Communications Under The FAA Violates The First And Fourth Amendment As Well As The Separation Of Powers Doctrine. ........201 D. If The Present Record Is Insufficient To Find A Violation Of The Statute Or Constitution, The Court Should Authorize Supplemental Briefing With Defense Access To The Relevant Documents. ........................................................................................210 E. The Court Should Order Suppression Of Evidence And The Result Of Decisions Derived From Electronic Surveillance Conducted 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 Of Counsel. .......................................................................................................216 XI. In The Alternative To Reversal And Remand For A New Trial, The Sentence Imposed In This Case Should Be Vacated Because The vi Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 8 of 256 Government’s Recommendation Involved An Improper Basis And Because The Sentencing Involved Procedural Error. ..................................221 A. [Sealed Supplemental Opening Brief] ..............................................222 B. The Court Should Vacate The Sentence Based On Inter-Related Procedural Errors Involving Failure To Adequately Resolve Controverted Issues, Mischaracterization Of This Court’s Legal Standard Regarding The Terrorism Enhancement, And Inadequate Explanation Of Rulings Regarding Post-Offense Rehabilitation, Imperfect Entrapment, And Future Dangerousness. ..................................................................................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 vii Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 9 of 256 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 viii Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 10 of 256 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 ix Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 11 of 256 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 x Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 12 of 256 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 xi Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 13 of 256 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 xii Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 14 of 256 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 xiii Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 15 of 256 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 xiv Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 16 of 256 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 xv Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 17 of 256 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 xvi Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 18 of 256 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 xvii Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 19 of 256 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 xviii Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 20 of 256 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 xix Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 21 of 256 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 xx Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 22 of 256 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 xxi Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 23 of 256 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 xxii Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 24 of 256 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. 1 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 25 of 256 STATEMENT OF ISSUES I. Under controlling Supreme Court authority, did the government’s extensive intrusion into and influence over the teenaged defendant’s life constitute entrapment as a matter of law and violate due process? II. Did the prosecutor’s closing argument violate due process by negating and misstating the legal standard for the defense of entrapment? III. Did the trial court’s failure to provide adequate jury instructions on the theory of 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 First Amendment in closing argument, violate the constellation of constitutional rights guaranteeing the presentation of a complete defense? V. Did the trial court’s refusal to rule on the constitutionality of the government’s non-FISA seizures, searches, and interrogations violate the Fourth Amendment, the right to confrontation, and the right to present a complete defense? VI. Did the government and district court’s withholding of classified evidence and information impermissibly skew the fact-finding process, violating Mr. Mohamud’s rights to confront his accusers, due process of law, and effective assistance of counsel? VII. By misconstruing and misapplying the “state of mind” exception to the hearsay rule, did the district court violate the confrontation clause, the right to compulsory process, and the right to a fair trial? VIII. Because the government violated the statute requiring pretrial notice of warrantless FISA Amendments Act electronic surveillance, should the government 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? 2 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 26 of 256 IX. Did the warrantless retention and searches of the content of Mr. Mohamud’s electronic communications violate the FISA Amendments Act and the Constitution, requiring suppression of the resulting evidence? X. Did the district court’s handling of classified materials deprive Mr. Mohamud of due process of law and the effective assistance of counsel? XI. In the alternative to reversal and remand for a new trial, should the sentence imposed in this case be vacated because the government’s recommendation involved an improper basis and because the sentencing involved procedural errors? 3 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 27 of 256 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 4 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 28 of 256 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 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 Excerpts of Record. 1 5 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 29 of 256 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 posttrial 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. 6 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 30 of 256 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:287071, 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. 7 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 31 of 256 The trial court denied all motions for a ruling on the constitutionality of the nonFISA 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 8 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 32 of 256 trial court ruled against the defendant’s objections. I:114-16, 120-21, 128-30, 14446, 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, 317693, 3312-25. After a hearing, the trial court issued an opinion denying relief. I:17580. 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 9 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 33 of 256 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:3456599, 3606-93. The presentence report also included specific defense objections to the draft report. SER 381-460. The parties also submitted sealed material (SER 35869, 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. 10 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 34 of 256 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 11 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 35 of 256 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 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. 2 12 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 36 of 256 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 mindset was before the intervention of the FBI by providing you evidence, evidence of things like the defendant’s writings that clearly state his support for violence in the United States and outside the United States. We’re going to provide you evidence of his relationships with known Islamic terrorists, known al-Qaeda terrorists. And, most importantly, we’re going to provide you evidence of the defendant’s own recorded statements, statements that describe his intent and justification for committing 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 13 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 37 of 256 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. 14 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 38 of 256 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 15 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 39 of 256 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,” “funloving,” “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. “[L]ike every immigrant kid, he was going through an identity crisis. Why are we here? Why do we speak different language? Why do women wear different things? Many kids, when we immigrate to this country, they go through what we call an identity crisis. They have to relate to two different cultures, two different beliefs, and they have to fit that.” Tr. 2136. 4 16 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 40 of 256 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. 17 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 41 of 256 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, truthbespoken@google.com, which he used when corresponding with Al-Ali and others he met online. Tr. 1580, 1594. 18 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 42 of 256 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 AsSahab 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. 158586, 1593-94. For example, Mohamed suggested including pictures of the twin towers 19 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 43 of 256 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”). 20 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 44 of 256 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, AlQaeda 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 21 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 45 of 256 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. 22 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 46 of 256 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. 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. 5 23 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 47 of 256 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 give you 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 24 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 48 of 256 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 25 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 49 of 256 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 Agent Henderson did not testify at trial. He was with the FBI for less than three years and left the FBI while Mohamed’s case was still on-going. Tr. 1465. 6 26 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 50 of 256 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 to you. I’m here in the West, as well, but here I am one of the only Muslims around. I want to get more involved in the fight for the Ummah. I want to help rid the occupiers from Palestine. I don’t even 27 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 51 of 256 know if I have the right email for you. Please respond if I do. Salam alaikum. 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 email message from the FBI, Mohamed sought advice on a Muslim website, expressing his confusion about his religion and his drinking, and about people who sent him unwanted internet links. He wrote on November 12, 2009: i wanted to ask some advise as i felt ashamed to ask anyone else in person. I love your website so i decided it was safe to ask you for such advice in such times as ours. i swear by Allah i have become so lost. And i want so badly to be in a muslim land. I keep telling myself that if I lived in a muslim land I would become so pious. But i know that what I need to do is fear Allah and do so over here. Being in University and living on campus hasn’t Bill Smith did not testify at trial, and SA Dodd was permitted, over defense objection, to testify about what was intended by the emails. Tr. 1507; 1512; see Section VI.C below. 7 “Ummah” is an Arabic word generally meaning the “greater Muslim community.” Tr. 1534-35. 8 28 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 52 of 256 helped me too much either. I have fallen in to so many things (ie alcohol and women). My roommate is a muslim but he has nothing but bad effect on me. I want so badly to fear Allah and practice my deen. Advise me and support me in these tough times brother, and i ask that you not include links as everyone seems to do so whenever i ask deen related things. All i need is some soft words to help my heart and supporting advice. Ex. 1002. 12. November 12, 2009 -May 13, 2010: More Bill Smith Emails Mohamed did not receive a response to his plea for “soft words,” but he did receive another email from Bill Smith, one day later: Salam alaikum, brother. There are a few Muslims here in eastern Idaho where I am. I want to find other brothers that think like I do. I want to help bring about our Ummah here in the West. I see in the news that other brothers are trying to fight. I want to, as well. What can I do? Do you know who I can talk to? Can you help? I want to get more involved. Ex. 224-03; Tr. 1503-04. “In the news” at the time of this email was the Fort Hood shooting by a Muslim soldier. Tr. 1541. At the time he authorized this email, SA Dodd did not have a single piece of evidence that Mohamed had ever planned to commit an act of violence in the United States. Tr. 1543. The Bill Smith emails continued to suggest violence in the West to Mohamed. In an email on November 14, Bill Smith stated he was “frustrated” and wanted to “fulfill my purpose and help with what is to come.” Tr. 1506. He hoped to get more people in the West preoccupied with problems, so that “our brothers” in Palestine 29 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 53 of 256 will have a “quickened victory.” Tr. 1505-06; Ex. 226-05. When Mohamed responded to these emails, he sometimes gave advice about security and cautioned about spies. Tr. 1506. In an email on December 1st to Mohamed, Bill Smith again wrote of bringing “the fight to the West.” Tr. 1513; Ex. 226-12. Mohamed did not respond at all to this last email, and a month passed with no communications. On January 1, 2010, having not heard from Mohamed in over a month, Bill Smith sent yet another email suggesting violence in the West: Salam alaikum. What’s going on lately, brother? I’ve been busy. I haven’t heard from you lately. It looks like there’s been some action against the West in the last few weeks. I sometimes wonder who’s getting these guys set up. I can’t tell you how easy it should be to bring any community here in the West to its knees. I think these guys are making things way too complicated. Anyway, I’ll talk to you later. Tr. 1515. SA Dodd testified that the reference to recent “action against the West” was vague and not intended to refer to the underwear bomber plot on the Northwest Airlines flight. Tr. 1567-68. Agent Dodd also explained that “bringing a community to its knees” could mean “kneeling in supplication” and therefore was not a direct reference to violence. Tr. 1516. Between November 2009 and May 2010, Mohamed and Bill Smith exchanged 42 email communications. Def. Ex. 1001 at 1-13. Mohamed never offered to assist Bill Smith in committing acts of violence and never supported Smith’s veiled calls 30 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 54 of 256 for violence. Id. Bill Smith stopped emailing when the FBI started its next phase of investigation, the undercover covert action by agents “Youssef” and “Hussein.” 13. December 3, 2009: E-mail From Al-Ali During the time of the Bill Smith emails, Mohamed also received an email that appeared to be from his former Portland associate, Amro Al-Ali: salamz bro it’s me Amro, I made it 2 OMRA, [praise be to god] if u wanna come, theres a bro that will contact u about the proper paperwork u need 2 come... I cant go online 4 a while, I hope 2 see u soon abu abdallah. Ex. 224-12. Mohamed quickly responded: “Yes, that would be wonderful, just tell me what I need to do [God willing]. always wanted to see the ka’bah.” Ex. 224-13. A responsive email on December 12, 2009, provided a Hotmail e-mail account and password, with the message, “hey check this e-mail.” Tr. 343. A few minutes later, another e-mail, was sent, instructing Mohamed to contact “abdulhadi.” Tr. 344. Based on the IP addresses, the FBI concluded both of Al-Ali’s e-mails were sent from the northwest frontier region of Pakistan. Tr. 343-44. Mohamed would not have known this, however. VI:2346. During his later recorded conversations with the undercover agents, Mohamed continued to express his belief that Al-Ali was in Yemen. Tr. 1110-11. Over the next months, Mohamed tried repeatedly to respond to the email he was given, but was unsuccessful. Tr. 349-52. At the same time that Mohamed told his friend Al-Ali that it would be wonderful to travel overseas to see 31 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 55 of 256 him, he also was making plans to pay his spring semester tuition at OSU. Def. Ex. 1055. 14. The FBI Reacts To Spam Email, The “Beau Stuart” Email, And The Interpol Notice In the Winter of 2009 and Spring of 2010, agents at the FBI were alarmed by several events. First, they obtained an Interpol Red Notice concerning Amro Al-Ali, dated October 2009. Tr. 334. As described in Section VII below, the meaning and accuracy of the notice was contested at trial. Numerous government agents acknowledged, however, that the notice “affected” their decision-making or actions. Tr. 334, 1318. The FBI also was concerned about emails to Mohamed in the Spring of 2010 that turned out to be “spam” emails. Tr. 382-83, 1364-65. The emails referred to electronics, and Mohamed responded as if they were a message for him. Tr. 385. Agent Trousas testified the emails were of “grave concern” to him at the time. Tr. 351. FBI analysts later determined they were spam. Tr. 384-86. The FBI also was alarmed when it reviewed email correspondence between Mohamed and Beau Stuart in January of 2010. Tr. 385. Mr. Stuart, the son of an FBI agent had converted to Islam and moved to Saudi Arabia to teach. Tr. 441-44. Mr. Stuart and Mohamed exchanged numerous emails about traveling abroad, living in a Muslim land, and other benign topics. Tr. 1707-12. Mr. Stuart also helped to 32 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 56 of 256 counsel Mohamed and encouraged him to stay in school and do as well as possible.9 Tr. 1710-11. On January 24, 2010, after Mr. Stuart had written a long email about different experiences he had had in Saudi Arabia and concluded by stating that he was heading to the holy city of Mecca, Mohamed responded: Oh, nice. Make lots of dua [prayer] for me. Make dua that I will be one to open Al Quds and make dua that I will be a martyr in the highest chambers of paradise. Tr. 1706-12; Def. Ex. 1053. The FBI agents reviewing Mohamed’s communications believed this was a reference to Mohamed taking his own life, as in becoming a suicide bomber. Tr. 385 (identifying statements Mohamed “made to Beau Stuart that he wanted to kill himself” as part of the reason for setting up the undercover operation); Tr. 401 (“I was acting on information on the e-mail he sent to Beau Stuart that he wanted to martyr himself.”). At the trial, however, both expert and lay witnesses testified that Mohamed’s response was a common phrase that reflected a larger principle in Islam; namely, The defense was prevented from presenting the innocuous context from previous correspondence when the government first presented the Beau Stuart email to the jury, because the court had sustained and continued to sustain the government’s pretrial hearsay objection. Tr. 444-45, 1010-11. Days later, the court reversed itself and received the full email chain in evidence, but harm from the government’s one-sided presentation had already occurred. See section VII.D. 9 33 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 57 of 256 that to die as a martyr for the sake of one’s religion is the most noble death. Tr. 2186. Dr. Sageman, a renowned terrorism expert, explained that the phrase is like a greeting or salutation from a hadith or proverb and was not concerning. Tr. 2479. OSU student Mohammad Mohamed, who is Muslim, explained that the phrase is equivalent to saying “Pray for me when it’s my time.” Tr. 2186. 15. The FBI Was Given “The Green Light To Target” Mohamed SA Trousas testified that the next undercover operation, with “Youssef” and “Hussein,” was set up in response to the developing evidence: We set up the undercover operation because of his communication with Al-Ali, Samir Khan, the e-mails that he sent out to different e-mails out there, and also the statements he made to Beau Stuart that he wanted to kill himself. Tr. 385. On June 7, 2010, he contacted SA Chan in San Francisco to let him know that “we got the green light to target Mohamed Mohamud utilizing your [undercover operative].” Tr. 398. They planned on “using everything we have on him.” Tr. 398. What they “had” on Mohamed was extensive data from court-authorized electronic surveillance. Tr. 381. They were able to craft the profile for Youssef based on what they knew of Mohamed. Tr. 1342. They knew he was vulnerable to manipulation, that he was studying engineering, that he was religious, that he was shy around authority figures, and that he seemed to need respect. Tr.1342, 1338-39. They designed Youssef’s persona to build rapport through religion. Tr. 1352. 34 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 58 of 256 16. June 14, 2010: Thwarted Trip To Alaska Meanwhile that spring, Mohamed had been planning his summer employment with his roommate, Luis Martinez. Tr. 1862. Mr. Martinez’s father worked in Alaska and agreed to employ the boys at the cannery or on a fishing boat. Tr. 1862. Mohamed’s father, Mr. Barre, approved of the plan. Tr. 2161. He thought it would help his son and keep him busy. Tr. 2161. After Mohamed emailed him with Luis Martinez’s ticket information (Def. Ex. 1011A), Mr. Barre purchased his son’s plane ticket to Alaska. Tr. 2160. Despite what Mohamed later told the undercover agents, at the time the Alaska trip was planned, Mohamed never talked of trying to meet people after Alaska or of trying to get to Yemen from Alaska. Tr. 1863. Mohamed’s parents brought him to the airport on June 14, 2010, to leave for Alaska, but he was not permitted to fly. Tr. 2162. Mohamed and his father were both upset; they felt this was profiling. Tr. 2163-65. The FBI sent two agents to interview Mohamed and his family. Tr. 498-500. Afterwards, Mohamed went home and immediately drafted up a new “To Do” list, which included “Find a job,” “Work till September,” get his parents to help pay for food and rent, and “you might have to take less classes” at OSU. Def. Ex. 1012a, 1012b. He called his roommate and expressed his disappointment that he could not come. Tr. 1883-84. Nine days later, the targeted FBI contact began. 35 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 59 of 256 17. June 23, 2010: New Targeted Undercover Operation Begins With Emails The FBI sent a series of emails to Mohamed in the second phase of their contact. On June 25, 2010, Youssef sent the following message: 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. Tr. 361-62. Mohamed responded that he could not help the brothers because he could no longer travel. Tr. 363. Instead of asking for more contact, Mohamed stated, “I will contact you when I am able to travel.” Id. Youssef responded anyway, telling him that “Allah (SWT) I’m sure has good reason for you to stay where you are,” and asking to meet in person. Tr. 716. About two weeks later, when Mohamed had still not responded, Youssef sent him a followup email to remind him to check his account. Tr. 1353. Another week passed, and only at that point did Mohamed respond and agree to meet with Youssef. Tr. 135354. SA Chan, who helped draft the emails, acknowledged that the FBI did not want to take no for an answer when sending these emails. Tr. 1351. The FBI’s purpose was to set up the face-to-face meeting, and they wanted to “keep going” until they accomplished that. Tr. 1351. 36 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 60 of 256 The emails never state where the sender was from, or who the sender was affiliated with. There is no mention of al-Qaeda, or terrorism, or violence in the emails. Tr. 1139-41; Def. Ex. 1001 at 13-16. Mohamed first offered to meet at the mosque, a public place. Tr. 1356. Only when that was rejected did he agree to meet where the agent chose. Tr. 1357-58. The email from Youssef emphasized that his position “needs to stay private” and mentioned needing to avoid the “eyes and ears” of the unbelievers. Tr. 1357. Mohamed responded in kind, worrying whether the agent was a “spy” and saying he will have some questions for Youssef. Tr. 1359. The agent responded with praise for Mohamed for thinking about security. Tr. 1360. As SA Chan acknowledged, Mohamed did the “same thing that we did,” and then they praised him for it. Tr. 1361. Defense experts Dr. Moghaddam and Dr. Cauffman both testified about how powerful modelling behavior can be in influencing a person, especially a young person. Tr. 2223-26, 2358-61. 18. July 30th: Youssef And The First Undercover Meeting (unrecorded) The first face-to-face meeting between Mohamed and the undercover operative Youssef was not recorded. Tr. 1322. According to Special Agent Galindo, this was a mistake. Tr. 1818. He was in charge of the equipment and did not realize that the recording device accidently turned on the evening before, running the battery 37 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 61 of 256 to empty. Tr.1818-19. The next day, SA Galindo happened to “top off” what he thought was a completely full battery. Tr. 1820. This meant that the recording device was operational for the few minutes when Youssef was putting it on and checking its functioning. Tr. 1820. The recorder has a light that demonstrated when it was working. Tr. 1820. Youssef saw that the recorder was working when he set out to meet Mohamed. Tr. 738. Before they met, the recording stopped. Tr. 1816-21. At the end of the undercover meeting, neither SA Galindo nor anyone else noticed that the recorder’s light was out – the battery being dead – or that the equipment did not have to be turned off. SA Galindo testified that he did not become aware of the problem until three days later, when contacted by a technician. Tr. 1817; 1826. By the time anyone told SA Chan, who had listened to part of the meeting by a transmitter, Tr. 1325, he had already destroyed his notes. Tr. 1347. Only SA Chan’s written report remained as a record of what occurred.10 SA Chan could not hear the first ten minutes of the meeting between Mohamed and Youssef, when they were walking to the hotel where Chan was In looking at his other reports from the case and comparing them to recordings, SA Chan acknowledged that his reports are just summaries and do not always include facts that later seem relevant. Tr. 1363-65, 1371. In addition, SA Chan’s reports might attribute acts to Mohamed when actually the agent directed the action. Tr. 1363. In addition, some of his reports had factual errors, which could be detected when compared with the recording. Tr. 1367; 1369. 10 38 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 62 of 256 stationed. Tr. 1372-73, 1329. For his report, SA Chan relied on Youssef to tell him what had occurred, and he picked the highlights. Tr. 1373-75. In his report, SA Chan did not write anything that Youssef said during the walk; he only reported what Youssef said Mohamed said. Tr. 1145. And what he reported was “small talk” – that Mohamed was a student at Oregon State University, and that on the walk Mohamed “discussed his childhood travels in Somalia and Kenya.” Tr. 1146, 1373. Youssef agreed on cross-examination, however, that, because Mohamed came to the United States when he was three years old, Mohamed’s “discussion” of these early travels was “probably not very lengthy.” Tr. 1146. When confronted with surveillance photos from that ten-minute walk, photos that show Youssef with his mouth open, Youssef acknowledged that he had also been talking during the walk. Tr. 1146-48. In addition, the photos capture Youssef making a particular slicing motion with his hand and arm (Tr. 1149-50), a motion the jury viewed in videos of Youssef when he was being emphatic or giving directions. Tr. 1051, 1057. Youssef agreed that clearly he was speaking and gesturing during the walk. Tr. 1150. Youssef could not remember everything he said and emphasized during this ten minute walk on his first meeting with Mohamed. Tr.1150. He did remember, however, that he told Mohamed he was from the “council,” and he was interviewing 39 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 63 of 256 seven people all over Canada and the United States for a project that would be paid for by the council. Tr. 1151.11 The “council” was a religious entity. Tr. 1144-45. He told Mohamed he was being assessed, as one of seven people. Tr. 1151. Youssef agreed that making this an assessment or interview rather than just a meeting gave a different color to the encounter. Tr. 1153. He acknowledged that SA Chan’s report of the encounter did not mention this fact. Tr. 1153. He could not recall what else was said during the ten minute walk. Tr. 1150-51. He denied that he threatened Mohamed or told him he better be careful, although this was one of the possible tactics that had been discussed in a planning email. Tr. 1143. When Mohamed was told he was being assessed, and was asked what he had done to be a good Muslim, Mohamed talked about his writing. Tr. 1152. Youssef then brought up the topic of travel; Mohamed said he was unable to travel; and Youssef then told him it would be difficult for him to support the cause overseas because he could not fly. Tr. 1152. According to SA Chan’s memory, Youssef said: “Well, you know, it’s pretty obvious that you can’t go overseas, so, you know, what can you do for the cause? What do you want to do for the cause right now?” Tr. 1328. 11 He used the Arabic word for council, “ihataa.” Tr. 552 40 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 64 of 256 At this point, the FBI already knew that what Mohamed had most wanted – before he agreed with his parents to stay in school – was to go overseas. He had written about guarding the “frontier;” he had tried to go to Yemen to study; he had written emails to friends and online about longing to live in a Muslim land. Tr. 521, 1593, 1709; Def. Ex. 1002. He had emailed to Al-Ali saying he wanted to go over there. Tr. Ex. 224-12. He had described online his dreams of marching to the gates of Jerusalem with long hair flowing, leading the mujahideen. Tr. 420. SA Trousas believed in June that Mohamed would try to go to Yemen from Alaska if allowed. Tr. 492. Instead of offering Mohamed the option of getting overseas with a fake passport (as they later did, Tr. 1116), Youssef took travelling overseas away as an option. Tr. 1328. Youssef then asked Mohamed what he would do for the cause. Youssef recalled Mohamed’s response was that he “initially” wanted to wage war, then had a dream about it. Tr. 558. When asked a second time what he would do for the cause, Mohamed, who had been told he was competing among seven people, said “anything.” Tr. 559. Youssef then offered Mohamed five options of what he could do in the United States, and Mohamed picked “operational,” although it was unclear whether he knew 41 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 65 of 256 what that meant. Tr. 889-1157. 12 Whether Youssef encouraged or suggested ideas to Mohamed is not recorded.13 SA Chan acknowledged that, whenever Youssef spoke in Arabic, SA Chan had to rely on Youssef to remember and report accurately, because SA Chan did not speak Arabic. Tr. 1377. What Youssef remembered was that, after he asked Mohamed to explain what “operational” meant to him, Mohamed stated, “I want to be like the brothers, get a car, put explosives in it.” Tr. 1160. Youssef recalled that, after that point, he offered to find someone to help with explosives, and directed Mohamed to “do some research on targets in Portland.” Tr. 1161.14 The five options were: praying, going to school to learn something that would help the cause, raising money, becoming operational, or becoming a martyr. Tr. 560. 12 In other recorded conversations between Youssef and Mohamed, Youssef offered Mohamed “options” but acknowledged that he also intentionally steered Mohamed toward a specific option. When offering Mohamed the option of making a martyr video, for example, Youssef agreed he had his “finger on the scale” and was trying to influence Mohamed to make the video. Tr. 742-43. Even after Mohamed had changed his mind and did not want to make the video, Youssef influenced him and brought him back around. Tr. 744-45. He agreed it was “very easy” to influence Mohamed. Tr. 745. Similarly, at the meeting in September, Youssef also wanted to influence Mohamed to choose the “best option.” Tr. 1122. 13 At the next meeting, which was recorded, Youssef prevented Mohamed from disclosing what they had discussed at this first, unrecorded meeting. Tr. 116163. Youssef interrupted and told Mohamed what they previously discussed “was private.” Tr. 1162. 14 42 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 66 of 256 Youssef had already mentioned to Mohamed the site that later became the target, Pioneer Square. In a phone call right before they first met, Youssef referred to Pioneer Square. Tr. 1385. The reason for the phone call was to confirm their meeting location, which was not at Pioneer Square. Tr. 1384. After meeting with Youssef, and after being told to research some targets, Mohamed picked Pioneer Square. Tr. 808. 19. August 19th: Youssef, Hussein, And The Second Undercover Meeting The FBI organized a second meeting with Mohamed, this time with two undercover operatives. The construct for this meeting was that Youssef and Mohamed would need to “sell” their idea to “Hussein,” who was presented as an explosives expert. Tr. 575. As Youssef explained it: “I’m supposed to be selling Mohamed as a potential martyr to the explosives expert so that the explosives expert will agree or disagree to move forward with creating a bomb for us.” Tr. 575. Youssef flattered Mohamed as he introduced him to Hussein, calling Mohamed a “jewel in the rough.” Tr. 594. He explained at trial that this was a necessary part of the sale: Because I’m sticking to the role that I’m playing. Hussein is, for all intents and purposes, interviewing us. He’s not here to grant us an explosive device. We have to convince him -- I have to convince him that Mohamed was the right person for this particular job. 43 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 67 of 256 Tr. 594. Youssef acknowledged that putting a 19-year old boy in a situation where he had to prove himself created a risk that he would exaggerate. Tr. 1133. The day before this meeting took place, Youssef called Mohamed. Tr. 574. Youssef recalled that the brief call was about “logistics,” Tr. 574, but the call was not recorded. Tr. 1074-75. In later instances, Youssef sometimes coached Mohamed in pre-meeting communications to prepare for the meeting ahead. For example, on August 21, 2010, he told Mohamed by email that the council would “want to know what the plan is, when you started thinking about it, and why you feel it’s justified.” Tr. 1138; Ex. 92. At trial, Youssef and Hussein both recounted what they recalled from the meeting. Tr. 574-616; Tr. 806-815; 904-47. During their testimony, the government and defense also played portions of the video from the meeting. 15 Over defense objection, the agents were permitted to interpret for the jury what Mohamed was thinking during the meeting, as described in Section VII. Youssef reviewed the video and audio of the meeting and recalled that Mohamed had favorably referred to the Mumbai terrorist attack. Tr. 588. Youssef The words spoken during these recordings are not included in the court reporter’s transcripts, but the audio sections are all exhibits. Appendix C lists the exhibits by meeting date. 15 44 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 68 of 256 asked Mohamed to read a poem he had written about martyrs, and he did. Tr. 589. They discussed religion. Tr. 589. Youssef wanted to be sure Mohamed understood that the bombing would be real, there would be kids there. Tr.592. Mohamed had indicated a willingness to use a bomb, Tr. 592, had discussed a rationale behind the attacks, Tr. 594, and Youssef wanted to be sure it felt real. He asked Mohamed what was “in his heart.” Tr. 595. Youssef told Mohamed that he could leave any time, there would be no shame. Tr. 597. At one point, he stood over Mohamed, telling him to “look me in the eyes.” Tr. 598. He wanted to scare Mohamed, to make him realize what he was saying. Tr. 598. Mohamed was not only going to kill children, he was going to kill himself. Tr. 598. Youssef said his words had no effect. Tr. 598. They drove to Pioneer Square, looked at the place the truck would be driven. Tr. 600. Youssef ended the meeting believing that Mohamed was serious. Tr. 616. Hussein explained at trial that he did not know many facts about Mohamed before the meeting. Tr. 906-09. He had not met with Youssef before. Tr. 907. He was unaware of the substance of the unrecorded meeting with Youssef and Mohamed, at which picking a target was discussed. Tr. 904-05. After the meeting ended, Hussein was inadvertently recorded and he can be heard to say “It’s almost too good to be true.” Tr. 954. 45 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 69 of 256 Hussein described the meeting as starting with a meal and small talk. Tr. 80506. He wanted Mohamed to like him and to build rapport. Tr. 806. He recalled that Mohamed said when he was fifteen years old he had a dream about being part of the mujahideen. Tr. 807. When Hussein asked how he could help, Mohamed used the Arabic word for explosives and said he needed a car or a truck. Tr. 808. Youssef directed Mohamed to “explain to him [Hussein] what you explained to me last time.” Tr. 904. After that, Mohamed described the plan to use a bomb at Pioneer Square. Tr. 904. Hussein recalled that Mohamed felt positive, talked about religion, and specifically talked about martyrs and committing a jihadi act. Tr. 811. Hussein gave Mohamed “positive feedback” when he talked about martyrs. Tr. 811. He explained that he was playing his role. Tr. 811. At least two or three times, he told Mohamed that he did not have to do this, there would be no shame if he walked away. Tr. 81113. He wanted to give Mohamed an out, but also to test him to see if he was determined. Tr. 813. After they walked the area at Pioneer Square, Hussein recalled that he informed Mohamed that he would have to consult with others, that it “wasn’t up to him” to decide. Tr. 814-15. His goal was to have Mohamed “go out and think about it,” knowing that Hussein would leave it to “higher ups.” Tr. 815. 46 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 70 of 256 On cross-examination, Hussein recalled that, during this meeting, they asked Mohamed to explain how long he had been “thinking of this,” to which Mohamed gave varied responses. Mohamed asked if they meant how long has he had his faith? Tr. 918-19. The question was repeated, and Mohamed again talked about religion. Tr. 919-20. When asked again, Mohamed said he had been thinking this since he saw Youssef and they had a talk. Tr. 939-40. When asked what he would have done if he had never met the agents, Mohamed said that one of his plans was to go to Yemen, and he had been saving money for an apartment there. Tr. 946-47. He wanted to study, find the “right people,” and learn Arabic. Tr. 946-47, 1109. Hussein and Youssef praised Mohamed during this meeting. Tr. 925, 928, 944. Mohamed discussed United States losses in Afghanistan, how Muslim civilians were being killed. Tr. 928. Hussein added the comment that they were killed “like dogs.” Tr. 928. Mohamed discussed the humiliation of Muslims around the world, and. Tr. 928. Hussein expressed strong feelings of closeness with Mohamed, even in this first meeting, using an Arabic expression to say Mohamed was his brother and as close to him as his “head and eyes.” Tr. 925. After this meeting, Youssef sent Mohamed an email. Tr. 617. The purpose was to get Mohamed to write out his justification for doing this act. Tr. 618. The email read: 47 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 71 of 256 Brother, please do another salat al istikhara and let me know how you feel. A bomb is a very serious matter. I’m going back to the ijitma tomorrow to talk about our conversation. They are going to want to know what the plan is, when you started thinking about the attack and why you feel it is justified. I know the answers to this, but I don’t want to talk for you, and I want you to do the salat first. I take what you said very seriously, and I have to be sure that you feel the same. This attack must come from your heart, dear brother. Tr. 617. 20. Additional Meetings The undercover agents met with Mohamed five more times, until the attempted detonation on November 26, 2010. Each meeting was fully recorded. The meetings occurred on the following dates:  September 7, 2010: Meeting with Youssef and Hussein in Portland;  October 3, 2010: Meeting with Youssef and Hussein in Corvallis;  November 4, 2010: Meeting with Youssef and Hussein in Corvallis area;  November 18, 2010: Meeting in Portland with Youssef and Hussein;  November 23, 2010: Meeting in Corvallis with Hussein;  November 26, 2010 Attempted Pioneer Courthouse Square Bomb. 48 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 72 of 256 Tr. 552-62, 574-616, 625-34, 805-59, 904-47.16 At most meetings, the agents flattered and praised Mohamed for his good writing or behavior. Tr. 729, 822, 828-29, 2358. They gave him tasks to accomplish. Tr. 627, 630, 665, 671, 816, 823. At one meeting they encouraged him to write up the script for what became a video; at a later meeting they filmed the video. Tr. 74053. Hussein spoke in Arabic and used the phrase “God willing” frequently. Tr. 82830. Mohamed fully committed to the bombing plan, providing justifications for the actions and showing no reluctance. Tr. 788, 2484. On September 7, 2010, the goal of the meeting was to steer Mohamed away from his martyrdom plan. As Hussein explained at trial: We were advised with – we needed to steer him away from being – committing martyrdom and killing himself. We did not want him to be out there doing something on his own, and we were asked to steer him away from that and basically to steer him to – to direct him to something a little more where he doesn’t have to kill himself; as an operative for later. Tr. 815. At the meeting, Hussein advised Mohamed that he did not have to go forward with the plan, but he seemed determined. Tr. 815. They gave Mohamed two Appendix C lists the video exhibits played by the government and defense, organized by the meeting date to which they relate. The words of the video are not reproduced in the trial transcripts. 16 49 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 73 of 256 options. Tr. 1121. He chose not to martyr himself, but instead to park and leave the truck bomb, then go overseas. Tr. 1114-22. The agents showed Mohamed an FBI-produced jihadi training video “as a recruitment tool.” Tr. 818. Mohamed said “It’s beautiful.” Tr. 631. The video was intended to show the harsh conditions overseas. It also showed an explosion being triggered by someone with a cellphone. Tr. 818. They also gave Mohamed specific tasks to complete, such as purchasing items. Tr. 816-17. Hussein gave Mohamed $2,800 to get an apartment and buy the items. Tr. 675. They told Mohamed they wanted him to be taken care of and to have enough money. Tr. 769. They walked on Pioneer Square and discussed where to park and the size of the bomb. Tr. 666-67. They painted a picture of how large and destructive the explosion would be. Tr. 667. On October 3, 2010, the agents met with Mohamed to give him more tasks. Tr. 818. He was told to rent a storage shed and an apartment, and also to spend time with his family. Tr. 818-20. Mohamed said that he wanted to move to an Islamic country but his father was opposed. Tr. 822. The agents praised Mohamed for his poetry; Hussein thought his writing was amazing. Tr. 822. Youssef said the word “video” under his breath to Hussein, and then Hussein encouraged Mohamed to start writing. Tr. 747. Youssef suggested a topic: “Your departure from here” and 50 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 74 of 256 suggested the audience could be “to the brothers, to your family.” Tr. 747-48. Mohamed later used this writing in a video that Youssef filmed. Tr. 748. On November 4, 2010, the agents took Mohamed on a car ride to the countryside, where they exploded a test bomb. Tr. 831-32. Mohamed experienced pushing the cellphone buttons and causing the explosion. Tr. 832. Hussein said “God is great” in Arabic when the explosion happened because he was playing the role of a terrorist. Tr. 835. During the car ride to get to the site, Mohamed showed them parking spaces and escape routes he had organized on his computer. Tr. 827. He showed them his Jihad Recollections articles, spoke of his friend Dawlat in Afghanistan, and discussed Inspire magazine. Tr. 836-38. Hussein knew Inspire was a terrorist magazine connected to al-Qaeda. Tr. 838. Hussein advised Mohamed that he did not have to go through with the bombing, but Mohamed seemed to want more. “He wanted to see as many Americans to be dead or injured.” Tr. 836. A week after mentioning Dawlat on November 4, 2010, Mohamed received an email purporting to be from Dawlat that read: Brother, while you wait, you should investigate about Predator B MQ1 and MQ-9 Reaper strike drones and how to down them and their vulnerabilities. You have resources and there are a lot of science brothers in the mosque. Please, help me find something against those toys. They have killed so many brothers before my watching. By the way, Eid Mubarak. May Allah make you firm on His path. 51 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 75 of 256 Tr. 1617. Mohamud responded: “Wa alaykum assalam, don’t worry, brother, I will find you something inshallah. Please do not e-mail this e-mail any longer. If someone replies from now on from this e-mail, it is not me. Remember that. I hope we meet again soon inshallah.” Tr. 1617. On November 18, 2010, the agents spent six hours with Mohamed. Tr. 83957. The purpose was to bring his laptop to Portland and leave it where the FBI could image it. Tr. 847. Hussein hugged Mohamed when they met. Tr. 840. This was eight days before November 26th, and Mohamed seemed excited, as if he could not wait. Tr. 840. He went with Hussein to the storage shed, where he used the code “hajj” – pilgrimage – for the door lock. Tr. 842. In the car, Mohamed talked about his friend Dawlat overseas in Afghanistan. Tr. 844. He showed videos of his research on Pioneer Square. Tr. 845. He showed other videos on his computer, including the video “High Hopes” or “Knowledge is for Acting Upon.” Tr. 851; 1034. Mohamed talked about his friend Shukri and jihad. Tr. 851. He discussed the size of the bomb and said he hoped the nearby mall would collapse. Hussein asked Mohamed if he had any doubts, and he did not. Tr. 851-52. On November 23, 2010, Hussein and Mohamed went to the storage shed. Tr. 854. The purpose was to see the bomb parts. Tr. 854. Mohamed helped load the barrels into Hussein’s car, and put wire and nails in his car. Tr. 857. 52 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 76 of 256 On November 26, 2010, the day of the attempt, Youssef picked Mohamed up at his friends’ house. They drove to home depot to buy reflective vests as part of their disguise, then went to the hotel where the met Hussein. Tr. 1039. As Youssef described the day: Hussein showed up less than an hour after we got to the hotel. And then we drove in my car to go see the van that had all the explosives. It was parked by, I believe, a Comcast building. He looked in it, saw it, and then we got back in the car and we went back to the hotel. At the hotel we ordered some food. We spoke for a little bit. We prayed. And then I dropped him back off at the van. They went towards Pioneer Square. I went past Pioneer Square and parked and waited for them to park their vehicle and then come to my vehicle, after which I drove to Union Station, I believe, dropped myself off there and let Hussein get in the driver’s seat, and he drove underneath an overpass, where Mohamed made the phone call to detonate the explosive. Tr. 1039-40. At trial, the government showed the video of Mohamed in the van, driving to the bomb site. Tr. 1198. Hussein narrated the events of the day and explained that Mohamed was excited and ready. Tr. 1188-1204. When shown the bomb in the truck, Mohamed said it was “beautiful.” Tr. 1192. The morning of the bombing attempt, Mohamed had run into an old friend and told him he was having “the greatest morning of my life.” Tr. 1889. Mohamed was arrested after he pushed the cellphone buttons twice in an attempt to detonate the bomb. Tr. 1403. He kicked at the arresting officers after one made a comment to him. Tr. 377-78. Later at the jail, when speaking with the 53 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 77 of 256 psychiatric nurse, he cried. Tr. 2297. He told the nurse he could not understand “how he had gotten from just being a student to being labeled as a terrorist in jail.” Tr. 2297. 21. Expert Witnesses The government presented expert testimony from Mr. Evan Kohlmann. Tr. 1990-2066. The defense presented testimony from three experts, Dr. Fathali Moghaddam, Tr. 2203-2263, Dr. Elizabeth Cauffman, Tr. 2333-2384, and Dr. Marc Sageman, Tr. 2426-2508. 1. Mr. Evan Kohlmann Mr. Kohlmann is an international terrorism consultant. Tr. 1990. His group collects data about and traces organizations that espouse a jihadi ideology, especially with respect to online activities. Tr. 1994-96. Through his research and academic work, he identified six factors that he considers to be important in identifying characteristics common to people engaged in violent jihadist behavior. Tr. 2011. Mr. Kohlmann reviewed the facts of Mohamed’s case and found that all six factors appeared in the case. Tr. 2118. 2. Dr. Fathali Moghaddam Dr. Moghaddam is a psychology professor at Georgetown University and also teaches about terrorism at such institutes as the Center for Homeland Security and 54 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 78 of 256 Defense. Tr. 2203-04. His particular focus is on the social psychology of situational factors, or context, to help explain the influences on human behavior. Tr. 2209. Dr. Moghaddam testified about social influence and group dynamics, explaining that various famous studies – such as the Zimbardo prison experiment and the Milgram obedience experiment – demonstrated how the power of context could affect behavior and cause otherwise normal people to act in horrific ways. Tr. 2214-17. He reviewed the specific facts of this case, noted stark differences between Mohamed’s pre- and post-contact behavior and expressions, and offered the opinion that the artificial construct created by the FBI and the undercover operatives affected Mohamed’s behavior. Tr. 2245-48. 3. Dr. Elizabeth Cauffman Dr. Cauffman is a psychology professor at the University of California at Irvine specializing in adolescent development. Tr. 2333. She reviewed the interactions between Mohamed and the undercover agents and testified about Mohamed’s apparent immaturity and lack of sophistication. Tr. 2336-43. She further testified about actions by the agents that would be expected to have a significant influence on an adolescent, such as repeated praise and flattery. Tr. 2358-61. Dr. Cauffman also testified generally about characteristics endemic to adolescents such 55 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 79 of 256 as risk-taking, susceptibility to influence, and pretending to be someone they are not. Tr. 2343-44, 2366-73. 4. Dr. Marc Sageman Dr. Marc Sageman is a consultant on political violence who had been one of two CIA agents “running” the Afghan mujahideen against the Soviet Union in the 1980s. Tr. 2427-29. He was also a medical doctor, a forensic psychiatrist, and, at the time of Mohamed’s trial, was working for the United States military to help prevent “insider” terrorist attacks in Afghanistan. Tr. 2427-30. Dr. Sageman had earlier been commissioned by the Air Force to develop a method to distinguish between people who turn to political violence, as opposed to those who espouse similar ideological rhetoric but do not become violent. Tr. 2433-36. Dr. Sageman developed a roughly 65-factor test that he applied to the facts of this case. Tr. 2475. He offered his opinion that, prior to government contact, Mohamed engaged in extremist dialogue like many other Muslim youth but was not a genuine threat in terms of committing a terrorist attack. Tr. 2438-42, 2475-77. SUMMARY OF ARGUMENT On many levels, this case involves fundamental questions regarding the relationship between citizens and their government during times of national alarm. The trial court’s rulings fell far short of assuring fair treatment to a teenager who 56 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 80 of 256 became the focus of a massive and sophisticated governmental investigation that became a high-profile domestic terror case. Dispassionate application of basic constitutional principles, at each level of this prosecution, requires reversal of the conviction because the government went too far in its prosecutive methods and because the trial court did not go far enough in protecting the individual citizen’s rights. Given the extremism and abhorrent speech in which the teen-aged Mr. Mohamud engaged, the application of entrapment as a matter of law may seem counter-intuitive. But careful adherence to Supreme Court precedents places this case beyond the pale when three of the Court’s principles of entrapment are applied: predisposition is measured at the time of the first governmental contact; predisposition is to the crime charged, not other nefarious activities; and post-contact evidence must be viewed as the potential product of the governmental contact. The defense case depended on a very narrow theory: at the time of the first Bill Smith email on November 9, 2009, Mr. Mohamud – for whatever else he was thinking – was not predisposed to engage in an attack in the United States. In fact, after his parents intervened with the FBI, he agreed he would remain in the United States attending college. His post-contact statements and actions, during which he dissembled to the agents about things like his use of drugs and alcohol and his 57 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 81 of 256 willingness to be a martyr, were insufficient as a matter of law to prove beyond a reasonable doubt predisposition to commit the offense charged and lack of inducement. The entrapment principles from Supreme Court cases were obscured from the jury’s full and fair consideration by improper government arguments, failure to provide complete instructions on the defense theory of the case, and unfair restrictions on defense arguments. In its closing arguments, the government repeatedly argued that entrapment did not apply in this kind of case: “An individual simply cannot be entrapped to commit an offense such as this.” Over objection, the prosecutor nullified and denigrated the entrapment defense nine times during the course of its closing arguments. The prosecutor’s arguments also created the impression that proof of undefined “similar conduct” could be substituted for predisposition to commit the crime charged, thereby undercutting the only theory of defense. The prejudice from improper prosecutorial argument was compounded by instructions that omitted critical aspects of the requested defense instructions on the theory of the case. Most prejudicially, the trial court, after correctly ruling prior to trial that Supreme Court authority required proof of predisposition to commit the crime charged, did not define “the crime” in its generic instruction. Despite facts and 58 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 82 of 256 law supporting the defense theories of the case, the trial court refused to instruct that “the crime” meant the crime charged; that “innocent” in the entrapment instruction simply means not otherwise predisposed; that the absence of the defendant’s capability or wherewithal to commit the offense charged was relevant to predisposition; that particular vulnerabilities were relevant in assessing inducement; that evidence after the first governmental contact must be reviewed with care; and that the agents’ states of mind and intent were irrelevant to the question of the effect of their conduct on the defendant. Not only was the jury denied adequate instructions, when a jury note indicated uncertainty about whether predisposition was to the crime charged or a “similar crime as stated by the prosecutor in closing argument,” the trial judge did not simply answer that question, but gave a confusing and unbalanced response that resulted in a verdict of guilty shortly thereafter. The errors from the instructions and improper closing arguments were exacerbated by the trial court’s refusal to instruct that the defendant’s writings, expressions, and beliefs – none of which constituted prohibited speech under Supreme Court authority – were constitutionally protected under the First Amendment. The trial court also entered a gag order prohibiting the defense from mentioning the First Amendment in opening statement or closing argument. The 59 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 83 of 256 errors regarding jury instructions and arguments, separately and cumulatively violated the right to a fair trial. The government met ex parte with the trial judge 15 times during the course of this case, presenting classified materials and argument outside of the normal adversarial process. The defense requests general review of classified proceedings on appeal and questions the adequacy of disclosures. In addition, the district court’s handling of classified material resulted in several known fundamental errors that alone require reversal. The court permitted the two undercover agents to testify at trial regarding their contacts with Mr. Mohamud, most of which were recorded, using false names and without disclosure to the defense of identifying information required for basic investigation. The Supreme Court has stated, “The very starting point in exposing falsehood and bringing out the truth through cross-examination must necessarily be to ask the witness who he is and where he lives.” The defense did not have this starting point. The trial court’s deprivation of the basic tools of cross-examination violated the right to a fair trial. Similarly, the trial court, after first granting discovery regarding Bill Smith, denied defense discovery and ability to call Bill Smith as a witness. Because Bill Smith’s handler was allowed to testify to the meaning of Bill Smith’s emails, the 60 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 84 of 256 trial court’s rulings that kept Bill Smith anonymous violated the rights to confrontation and compulsory process. The trial court’s handling of classified information also resulted in violations of the Brady right to favorable evidence and the Rule 16 right to the defendant’s statements. The defense established the very high likelihood that the government had in its possession many more telephone calls, emails, and text messages than were produced. The government selectively declassified only a portion of those communications, retaining communications that would have been helpful to the defense as showing the absence of intention, preparation, or planning regarding the charged offense. The trial court also refused to order discovery of classified material regarding Amro Al-Ali, a critical character in the government’s narrative, even though a defense expert identified errors in the government’s interpretation of evidence about Al-Ali and indicated that Al-Ali had made statements to Saudi authorities that would have been helpful to the defense. The unfair limitation on defense access to helpful classified material under Brady also infected the single piece of substitute evidence under the Classified Information Protection Act (CIPA) that the defense tried, unsuccessfully, to introduce. Apparently at the trial court’s direction, the government produced a summary hearsay report of an FBI agent regarding governmental assessments that 61 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 85 of 256 “Mr. Mohamud would not make any attempt to conduct a terrorist attack without specific direction from the [undercover operatives].” Despite specific objections to the adequacy of the substitute information, the trial court denied access to witnesses or a more detailed account of the Brady material. Further, when the defense attempted to introduce the summary document in evidence, the court sustained the government’s hearsay objection, even though an adequate substitute for the Brady material would have required a first person declarant. Under this Court’s standard for reviewing the adequacy of CIPA substitutions, the inadequate substitution, as well as the other classified information issues, requires reversal of the conviction. During the trial, the trial court misinterpreted and misapplied the “state of mind” exception to the hearsay rule to allow introduction of a contested law enforcement report – an Interpol notice – identifying key figure Amro Al-Ali as a terrorist recruiter. Government witnesses then were permitted repeatedly to refer to the Interpol notice and to Al-Ali’s alleged status as a terrorist recruiter even though they had no first-hand knowledge and testified based on multiple layers of hearsay within the notice. In violation of the Sixth Amendment, the defense had no ability to confront or cross-examine the out-of-court declarants whose highly prejudicial statements about Al-Ali as an explosives expert and recruiter of terrorists were reflected in the notice. The overruled objections were at first followed by 62 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 86 of 256 instructions to limit the consideration to a sometimes undefined “state of mind,” although the court ultimately continued to allow the hearsay testimony stating, “I’m not going to give a limiting instruction every time state of mind comes up.” The pervasive hearsay testimony regarding a critical fact violated the right of confrontation and requires reversal of the conviction. The trial court’s misinterpretation and misapplication of the “state of mind” exception to hearsay prejudiced Mr. Mohamud throughout the trial. The trial court allowed the undercover operatives to testify about what they thought Mr. Mohamud was thinking and about what he meant during recorded conversations under a “state of mind” theory, while at the same time the court excluded Mr. Mohamud’s contemporaneous communications as self-serving hearsay when correctly offered under Rule 803(3). After allowing FBI officers to testify about their own investigative states of mind, the trial court not only denied discovery necessary to challenge the testimony, the court disallowed cross-examination questions regarding the bases for their testimony. The fundamental misunderstanding of the hearsay rule pervaded the trial, tainted the evidence presented to the jury, and rendered the trial fundamentally unfair under the Fifth and Sixth Amendments. The trial court’s handling of suppression of evidence based on violation of constitutional rights consistently failed to provide adequate hearings and remedies 63 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 87 of 256 despite solid evidence of governmental overreaching. At the outset of the case, the defense asserted that, based on cooperation between local police and the FBI, the government, without judicial authorization, had seized Mr. Mohamud’s personal computer twice, copied the hard drive, and engaged in a shadow interrogation in violation of the Fourth and Fifth Amendments. These asserted constitutional violations occurred seven days before the first Bill Smith email. Despite this Court’s norm of determining the constitutional violation, then determining suppression, the trial judge refused repeatedly to hold a hearing regarding the constitutional violations. Instead, the court held hearings on, and ultimately accepted, the government’s claims that it made no use of the information from the intrusions in designing the sting operation and making other intangible prosecutorial decisions. The trial judge continued to refuse to hold a hearing on the claimed constitutional violations under Brady as a trial fact, as an element of the due process claims regarding the governmental conduct, and as evidence made necessary when the government agents’ testimony regarding the origin of the investigation was proved to be misleading or incomplete by the post-trial disclosure under the FISA Amendments Act (FAA). 64 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 88 of 256 The FAA requires that, prior to trial, the government must provide notice to a United States citizen, who has been subjected to warrantless surveillance under the statute, that evidence “derived” from the electronic communications was going to be used at trial. The government admitted ten months after the trial that, even though the products of FAA surveillance were used at trial, the required pretrial notice was not given. The statutory violation occurred despite the statute’s mandatory language, and despite the specific requests by the defense for evidence of warrantless surveillance that might have led to the use of FISA warrants. While the defense provided evidence regarding the deliberate or reckless nature of the violation, the government provided no explanation other than contradictory claims in its pleadings. Despite this Court’s rule that, in the context of criminal motions, “arguments in briefs are not evidence,” the trial court required no evidence, held no hearing, and provided no remedy other than belated consideration of a motion to suppress. The trial court’s failure to provide a meaningful remedy violated the statute or, in the alternative, requires remand for a hearing on the governmental misconduct. The trial court’s denial of the alternative motion to suppress the products of the FAA surveillance requires the Court to review the radical diminution of privacy rights created by the FAA’s abandonment of traditional protections under FISA and Title III electronic surveillance – privacy rights that require protection through 65 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 89 of 256 judicial review, individualized suspicion, and particularity in the conduct of the surveillance. Because the statute does not on its face authorize degradation of privacy interests in the content of Americans’ electronic communication being implemented under the FAA, the Court should follow the Second Circuit’s lead: as that court struck down bulk collection of telephone metadata as being beyond the authorization of the Patriot Act, this Court should find that the mass retention and accessing of the content of Americans’ emails and telephone calls is beyond the authorization of the FAA. On the constitutional merits of the FAA electronic surveillance, the Court should evaluate the retention and accessing of the content of electronic communications of Americans at two levels. First, while the district court found that a secondary search by querying retained communications of Americans, with no judicial review, “a very close question,” this Court should find the question resolved in the favor of privacy based on the precedent leading to the Supreme Court’s holding in Riley v. California, 134 S.Ct. 2473 (2014). Just as the lawful possession of a cell phone does not allow the electronic search of data contained in the phone, so should the possession of electronic communications of Americans – even assuming the government has lawful possession as incidental to collection of foreign 66 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 90 of 256 communications – not allow access to the content of Americans’ electronic communications without judicial authorization. The programmatic acquisition and retention of Americans’ communications alone would violate the basic Fourth Amendment rule that, once the justification for governmental intrusion no longer applies, any further intrusion requires an independent Fourth Amendment justification. Here, once the government knows or should know that Americans’ electronic communications are involved, the justification for seizing the communication – the lack of Fourth Amendment rights in foreign-to-foreign communications – no longer exists. The FAA violates a range of First and Fourth Amendment rights and the separation of powers doctrine because there is no provision for individualized judicial review, no requirements of specificity as to the person searched or the facility accessed, and no level of required suspicion. For any exception to the warrant requirement to apply, there must be rigorously and narrowly defined circumstances related to primary concerns for foreign national security involving foreign powers or agents of foreign powers. No such narrowing occurs under the FAA as construed by the government, resulting in unreasonable searches and seizures that are electronic analogues to the general warrants of colonial times. 67 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 91 of 256 The sentencing proceedings were fundamentally flawed. First, as elaborated under seal, the government’s recommendation was tainted by improper considerations. Second, the trial court, despite extensive briefing and evidence on lack of future dangerousness and post-offense rehabilitation, failed to provide a procedurally reasonable sentence. The trial judge did not adequately resolve controverted issues, misapplied this Court’s precedent, and inadequately explained its rulings. If the Court upholds the conviction, the case should be remanded for an evidentiary hearing and resentencing. ARGUMENT I. Under Controlling Supreme Court Authority, The Government’s Extensive Intrusion Into And Influence Over The Teenaged Defendant’s Life Constituted Entrapment As A Matter Of Law And Violated Due Process. The governmental involvement in creation and encouragement of criminal acts in this case appears to be unprecedented. Among the unique attributes of the sting operation that resulted in Mr. Mohamud’s arrest are:  The government engaged in months of electronic surveillance of Mr. Mohamud when he was only 17 years old, learning intimate details about his religious, political, and personal life;  Right after Mr. Mohamud turned 18, when his parents asked the FBI for help, the government withheld information and then undercut the parents’ arrangement with their son that he defer traveling abroad until after his college studies; 68 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 92 of 256  The government utilized the no-fly list to intrude into Mr. Mohamud’s life by preventing him from pursuing a summer job opportunity in Alaska, then followed up that intervention by having an undercover operative initiate communication with him; and  In the absence of any expressed desire by Mr. Mohamud to carry out violence in the United States, the government first initiated email contact with him encouraging violence in the West, then – after he declined an invitation to help the “brothers” because he could not travel – suggested that “Allah has a purpose for you here.” In two cases, involving much less governmental involvement, the Supreme Court held that prosecutions must result in acquittal as a matter of law where the government encouraged crime, even though the charged individuals were demonstrating interest in pornography and drugs: Jacobson v. United States, 503 U.S. 540, 549 (1992), and Sherman v. United States, 356 U.S. 369 (1958). The opinions in Jacobson and Sherman, as elaborated by this Court in United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000), establish the critical distinction that the court below failed to recognize: the difference between predisposition to commit the crime charged and the potential that a vulnerable person could with encouragement commit a crime. Contrary to the methodology of these three governing cases, the 69 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 93 of 256 trial court denied relief based largely upon evidence generated after the government contact.17 A. Under Jacobson, Religious And Political Beliefs, Even If Alarming And Repugnant, Are Not Equivalent To Predisposition To Commit The Crime Charged, Which Is Measured From The Time Before The First Governmental Contact. The Jacobson case involved communications directly analogous to the governmental emails promoting unlawful action in the present case. 503 U.S. at 54347. In Jacobson, the government sent correspondence by mail to a defendant who had solicited pornography entitled Bare Boys I and II from an adult bookstore. The correspondence subtly encouraged, and ultimately resulted in, the defendant purchasing child pornography. The defendant did not claim to be virtuous. Rather he asserted that his activity before any government contact did not demonstrate his predisposition to commit the charged crime. The Supreme Court found entrapment as a matter of law. The predisposition the government must prove beyond a reasonable doubt is not to general mischief or even other crimes: the predisposition must be “to commit The standard of review on entrapment as a matter of law is whether, viewing the evidence in the light most favorable to the government, no reasonable jury could have found in favor of the government as to inducement or lack of predisposition. Poehlman, 217 F.3d at 698. 17 70 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 94 of 256 the crime charged.” Jacobson, 503 U.S. at 551 n.3. An important holding of Jacobson is that the target’s lack of predisposition does not require that the individual’s mind be pure. “[E]vidence that merely indicates a generic inclination to act within a broad range, not all of which is criminal, is of little probative value in establishing predisposition.” Jacobson, 503 U.S. at 550. Repugnant beliefs, like Mr. Jacobson’s interest in pictures of naked boys, or Mr. Mohamud’s sympathy with terrorist ideology, does not provide the measure for predisposition. Id. at 551 (“[T]he fact that petitioner legally ordered and received the Bare Boys magazines does little to further the Government’s burden of proving that petitioner was predisposed to commit a criminal act.”). A predisposition to political or religious rhetoric, like the “predisposition to view photographs of preteen sex and a willingness to promote a given agenda by supporting lobbying organizations,” “hardly support[s] an inference” that the individual would commit the crime charged. Id. “[A] person’s inclinations and ‘fantasies’” – in sex, politics, and religion – “‘are his own and beyond the reach of the government.’” Id. at 551-52 (citations omitted). Jacobson also holds that predisposition is measured from the time before the first government contact: “[T]he prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being 71 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 95 of 256 approached by Government agents.” 503 U.S. at 549. In Jacobson, the government “not only excited petitioner’s interest in sexually explicit materials banned by law but also exerted substantial pressure on petitioner to obtain and read such material as part of a fight against censorship and the infringement of individual rights.” Id. at 552. Similarly, the government agents in this case championed the need for action in the West to support oppressed co-religionists worldwide. In both cases, a “ready response to these solicitations cannot be enough to establish beyond reasonable doubt that he was predisposed, prior to the Government acts intended to create predisposition, to commit the crime . . . .” Id. at 553. “Law enforcement officials go too far when they ‘implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.’” Id. (emphasis in original) (citing Sorrells v. United States, 287 U.S. 435 (1932)). The crime charged in the present case is attempted use of a weapon of mass destruction against any person or property within the United States, in violation of 18 U.S.C. § 2332a(a)(2). Mr. Mohamud’s internet and associational activity before the government contact constituted protected First Amendment activity. See Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969) (First Amendment protects expression unless both the intent of the speaker and the tendency of the words is to 72 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 96 of 256 produce or incite an imminent lawless act, one likely to occur). As found in the presentence report adopted by the court, there is no evidence that Mr. Mohamud had planned – or even contemplated – to commit an attack in the United States involving a weapon of mass destruction prior to government influence. VIII:3609 (“there is no evidence Mohamud had previously researched, planned, or intended to carry out a domestic attack” until the FBI “offered Mohamud the means and opportunity to become ‘operational’ within the United States.”); SER 389. Mr. Mohamud did not act on the initial series of emails from Bill Smith, as Mr. Jacobson did not initially seek illegal child pornography, nor did Mr. Mohamud respond at first to Yussef’s first email. In fact, he told Yussef he could not help the “brothers” because he could not travel, to which Yussef responded, “Allah has good reason for you to stay where you are.” Tr. 716. “[P]roof that petitioner engaged in legal conduct and possessed certain generalized personal inclinations is not sufficient evidence to prove beyond a reasonable doubt that he would have been predisposed to commit the crime charged independent of the Government’s coaxing.” Id. As in Jacobson, the government communications in this case unlawfully induced illegal conduct by normalizing reprehensible actions a step beyond the defendant’s previously expressed inclinations and beliefs. 73 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 97 of 256 B. Under Sherman, Governmental Sabotage Of Rehabilitation Efforts And Exploitation Of Vulnerabilities Are Unlawful Forms Of Inducement. In addition to and in conjunction with Jacobson, the government actions in this case support entry of judgment of acquittal under Sherman v. United States, 356 U.S. 369 (1958). In that case, the government informant met Mr. Sherman during the course of Mr. Sherman’s efforts to receive treatment for his narcotics addiction. Sherman, 356 U.S. at 371. Mr. Sherman was involved in buying drugs, had prior convictions for both possessing and selling drugs, and, when asked, stated he knew of “a good source of narcotics.” Id. After initial reluctance, Mr. Sherman purchased drugs, shared them with the informant, and set up several more sales, which ultimately resulted in arrest and prosecution. The Court found entrapment as a matter of law. The Court explained that Mr. Sherman’s prior convictions were insufficient to prove his predisposition to sell narcotics given his efforts at rehabilitation: “[W]e must assume from the record he was trying to overcome the narcotics habit at the time.” Sherman, 356 U.S. at 37576. The Court held that the prohibition on “implant[ing] in the mind of an innocent person the disposition to commit the alleged offense and induce its commission” is not limited to people without vulnerabilities and vices. Id. at 372. Despite Mr. Sherman’s deep involvement in drug activity, the Court reversed the conviction 74 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 98 of 256 because “the Government play[ed] on the weaknesses of an innocent party and beguile[d] him into committing crimes he otherwise would not have attempted.” Id. at 376. Just as Mr. Sherman had entered into treatment and was attempting to recover from his addiction before the government intervention, so had Mr. Mohamud abandoned his attempts to live abroad and agreed with his parents to complete his college education in the United States. Yet the government derailed his college plan and thwarted his summer job in Alaska by placing Mr. Mohamud on the No-Fly list. The government’s intervention in what was effectively his parents’ rehabilitative program unlawfully capitalized on his known vulnerabilities. The Court in Sherman re-emphasized that predisposition must be shown as to the offense charged and is unconcerned with other law violations: “There is no evidence that petitioner himself was in the trade.” Id. at 375. Similarly, there is no evidence that Mr. Mohamud was planning domestic terrorism, even if he sought to join extremists abroad before his parents’ intervention. And the Court in Sherman further confirmed that criminal actions after the government inducement began are irrelevant to predisposition for entrapment purposes: It makes no difference that the sales for which petitioner was convicted occurred after a series of sales. They were not independent acts subsequent to the inducement but part of the course of conduct which was the product of the inducement. 75 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 99 of 256 Id. at 375. Similarly, Mr. Mohamud’s actions after the government intervened were not independent acts but the products of inducement. As in Sherman, Mr. Mohamud initially deflected and ignored suggestions regarding action in America. The evidence established that, despite continued interest in extremism, Mr. Mohamud was “conflicted” and “manipulable,” as supported by his embrace of college life and the uncontroverted assessments of his religious leader and the FBI case agent. The government’s strong-handed interference unlawfully induced his later actions. C. Under Poehlman, Exploitation Of Apparent Vulnerabilities Went Too Far In The Creation Of Crime. In Poehlman, this Court followed Supreme Court authority on entrapment as a matter of law in the context of sex trafficking of a minor. Again, the defendant was not virtuous and had deep flaws. “[L]onely and depressed,” he trawled the internet, receiving rebukes for deviant sexual suggestions he made on-line. Poehlman, 217 F.3d at 695. He eventually received responsive emails from undercover agents that went beyond what he was initially looking for and proposed sex with children. Id. at 695-96. After initial hesitancy, Mr. Poehlman agreed to act as a sexual tutor for his correspondent’s children, sending explicit emails, buying gifts, and traveling with the intent to sexually abuse the children. Id. at 696. Upon arriving at the designated hotel room, Mr. Poehlman met the purported parent, saw pictures of the purported 76 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 100 of 256 children, and entered a room to have unlawful sex with the children, at which point the sting was revealed and Mr. Poehlman was arrested. This Court found entrapment as a matter of law. Poehlman, 217 F.3d at 705. As with Jacobson and Sherman, the holding in Poehlman compels acquittal in the present case. Mr. Mohamud, like the other targets, was vulnerable to inducement but was not predisposed to commit the crime charged. Mr. Mohamud had no wherewithal or capacity to commit the offense. The government’s tailored persuasion induced an individual with marginal and deviate interests that had not ripened into a present intention to commit the crime charged. The activities after inducement began were the products of government activity, and hence not relevant to establishing predisposition. Poehlman, 217 F.3d at 703 (“[T]he relevant time frame for assessing a defendant’s disposition comes before he has any contact with government agents, which is doubtless why it’s called predisposition.”) (emphasis in original). Because controlling precedent from the Supreme Court and this Court prohibits government action that preys on vulnerable individuals, thwarts their rehabilitation, and induces them to commit crimes, this Court should reverse the conviction based on entrapment as a matter of law. 77 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 101 of 256 D. In The Alternative, The Court Should Dismiss This Case Based On Government Overreaching Under The Due Process Clause. Under the due process clause, a prosecution resulting from complete fabrication of a crime or excessive governmental overreaching should be dismissed with prejudice. United States v. McClelland, 72 F.3d 717, 721 n.1 (9th Cir. 1995).18 The standard for a due process violation differs from entrapment as a matter of law in its focus on the government activity as opposed to predisposition: Although cases of improper government coercion are similar to entrapment cases, there are two differences between them. First, “a successful due process defense must be predicated on intolerable government conduct which goes beyond that necessary to sustain an entrapment defense.” . . . Second, a finding that the defendant was predisposed to commit a crime precludes a successful entrapment defense, but not a government coercion claim or any other claim of outrageous government conduct. . . When determining whether government conduct was outrageous, the court considers the government’s behavior, not the defendant’s mental state or predisposition. Id. (citations omitted). A number of factors strongly support dismissal:  Prolonged surveillance of a juvenile: The government engaged in intrusive monitoring of Mr. Mohamud’s electronic communications when he was 17-years-old, failing to intervene either directly or through his parents even though the government This Court reviews the district court’s denial of the motion to dismiss de novo with deference to any facts found that are not clearly erroneous. McClelland, 72 F.3d at 721. 18 78 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 102 of 256 knew he was communicating with skilled and dangerous propagandists;  Interference with familial relations: The government directly interfered with Mr. Mohamud’s parents’ efforts to keep him in school and focused on his future as a civil engineer, failed to provide assistance when requested, and blocked the parentally supported summer job, instead recruiting Mr. Mohamud to “help the brothers”;  Abuse of faith and psychological manipulation of a young person: The government exploited Mr. Mohamud’s religious faith to an extraordinary degree, even claiming that God had a purpose for him to remain in the United States and “help the brothers,” and used sophisticated psychological manipulation by flattery, rewards, political justifications, and other extreme measures directed at a teenager;  Knowledge of vulnerability: The government became aware of Mr. Mohamud’s vulnerability to suggestion through its longterm surveillance showing him to be lonely, depressed, and conflicted, and, through statements from his father and an informant at Mr. Mohamud’s mosque to the FBI, that he was immature and easily influenced;  Lack of wherewithal: The government knew Mr. Mohamud had no capability to commit the crime charged on his own and provided the directions and means for the offense to occur.  Constitutional violations during the course of the same investigation: Government investigators violated the Fourth Amendment in seizing and searching Mr. Mohamud’s computer beyond the scope of any voluntary consent and submitted him to a ruse interrogation in violation of the Self-Incrimination Clause of the Fifth Amendment;  Destruction or failure to preserve evidence: The government failed to record the critical first face-to-face meeting on July 30, 79 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 103 of 256 2010, destroyed written notes of that meeting, failed to record a ten-minute telephone conversation with the undercover agent on August 28, 2010, and turned off the video recording so there is no film of the time leading up to the arrest on November 26, 2010;  Violation of pretrial publicity regulations: The Attorney General made prejudicial pretrial comments to the media that the district court found constituted a breach of 28 C.F.R. § 50.2;  Violation of the requirements for notice of warrantless surveillance: The government failed to provide pretrial notice of warrantless surveillance, despite mandatory statutes and express requests by the defense. Under the totality of the circumstances, the government went too far. It implemented a massive operation to derail a suggestible teenager from rehabilitation and manipulated him to commit a crime not otherwise contemplated or possible. The government agents’ justification for capitalizing on Mr. Mohamud’s religious confusion and vulnerabilities – “I’m playing al-Qaeda recruiter and…that’s basically what you do” – succinctly captures why reversal of this conviction is imperative. Tr. 828-29; 2054. The law does not – and should not – allow the United States government to manipulate its vulnerable citizens in this manner. The overall government abuses in this case undermine the legitimacy of the prosecution and warrant dismissal under the Due Process Clause. 80 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 104 of 256 II. The Prosecutor’s Closing Argument Violated Due Process By Negating And Misstating The Legal Standard For The Defense Of Entrapment. In this extraordinarily sensitive case, the government presented two impermissible themes for closing argument: that common sense precluded entrapment from being an available defense; and that the standard for predisposition was willingness to commit “similar acts.” The first theme urged the jury to effectively nullify the entrapment defense by treating it as categorically unavailable for the offense charged, while the second theme diluted the government’s burden to prove predisposition to commit the crime charged. By negating the only theory of defense and diluting the burden of proof, the improper arguments “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).19 A. The Government Argued In Closing That An Individual Cannot Be Entrapped To Commit The Charged Offense. The government’s closing argument began and ended with the proposition that nobody could be entrapped to commit the type of offense charged in the Whether closing argument constitutes misconduct is reviewed de novo. United States v. Perlaza, 439 F.3d 1149, 1169 n.22 (9th Cir. 2006) (citing United States v. Santiago, 46 F.3d 885, 892 (9th Cir. 1995)). 19 81 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 105 of 256 indictment. The prosecutor started out: “[T]here is an element of common sense you should consider as you begin your deliberations, and that is this: An individual simply cannot be entrapped to commit an offense such as this.” Tr. 2539 (emphasis added). Throughout the argument, the prosecutor continued to ask the jury to treat the defense as categorically unavailable:  “[T]here’s simply no inducement, because this is the type of offense that one commits only because they wholeheartedly want to.” (Tr. 2542);  “There is nothing a government agent can do or did do to persuade someone to take the lives of these people.” (Tr. 2542);  “[I]n the larger context, getting back to that common sense argument, could someone be entrapped to commit an offense like this? That tells you the answer is no.” (Tr. 2571). At the mid-morning break, the defense objected to the argument and called for the judge to correct the improper argument: The government started its closing by saying an individual cannot be entrapped to commit this offense. That’s absolutely wrong under the law. That needs correction, because that’s what the jury is here to decide. Tr. 2574. The trial judge declined to correct the argument. Tr. 2575-76 (“[M]y general response to these kind of objections on closing arguments is that you’ll have the opportunity to respond to that. If you feel that he has miscited the law in some 82 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 106 of 256 fashion, you have the instructions to tell the jury. I don’t agree with you that he was stating the law erroneously.”). In rebuttal argument, the prosecution repeated its categorical pronouncement that no one could be entrapped to commit the charged offense:  “What government conduct would cause an otherwise innocent person to do this offense? So we’re talking about what’s called an objective standard, but it is what did the government do, what could the government do to cause an otherwise average, lawabiding innocent person to do this?” (Tr. 2671);  “What did the agents do, what could the agents do to make a person push the button in this matter.” (Tr. 2671-72);  “There is nothing that could be done to persuade a person to do this.” (Tr. 2672);  “[T]his is not a situation where a person could be entrapped. It’s not a situation where someone could be persuaded to do such a remarkable thing.” (Tr. 2675);  “[T]here is simply nothing that can be done to induce someone, to persuade someone to commit a remarkable offense like this, and it is remarkable and sad.” (Tr. 2677-78). The prosecutor’s closing argument effectively urged the jury to nullify the instructions on entrapment because the entrapment defense should be considered categorically unavailable. 83 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 107 of 256 B. The Government Argued In Closing For Conviction Based On Predisposition To Commit Similar Acts. During pretrial litigation, the trial court ruled that, to overcome the entrapment defense, the government needed to prove beyond a reasonable doubt predisposition to attempt to use a weapon of mass destruction in the United States, rejecting the government’s argument that predisposition to similar conduct sufficed: MR. SADY: And I’m hoping that what I understood the Court was ruling was that in adopting the Ninth Circuit instruction, the crime refers to the crime charged, not similar crimes, which was the nature of our objection. THE COURT: It is the crime charged. VI:2429; see VI:2431 (“[T]he instruction is going to be in the language of the [model instruction], and ‘commit the crime’ refers to the crime set forth in the indictment.”).20 After finding there would be no Rule 404(b) evidence of prior bad acts, the court left the parties to argue regarding evidence of similar conduct or willingness to engage in similar conduct as evidence of predisposition to commit crime the charged. VI:2432. In closing, with no Rule 404(b) evidence, and no The government’s proposed instruction had edited the model instruction to include: “A defendant is predisposed to commit the crime charged if you find evidence near enough in kind to support an inference that his purpose included offenses of the sort charged.” VI:1915. 20 84 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 108 of 256 definition of “similar acts,” the prosecutor conflated proof of predisposition and willingness to commit similar acts: And the Government in this case is showing you and will show you that this defendant was predisposed to commit this offense. That doesn’t mean that we are suggesting or arguing that this defendant had decided to commit this precise act before he met the undercover agents, but, rather, there was a willingness on his part to commit similar acts. And that is the type of evidence that also can be used to show predisposition. Tr. 2540-41 (emphasis added); see also Tr. 2550 (arguing that emails reflecting an intent to travel for training expressed “this willingness to commit these sorts of violent acts” (emphasis added)). The government admitted that “there’s been no suggestion that the defendant was building a bomb before he met [the agents],” but argued, “That’s not the point in the context of the law.” Tr. 2572. In a confusing passage in rebuttal, the government continued to conflate predisposition to commit the offense charged and willingness to engage in “similar conduct”: Now, the Government has to show, separate and apart from inducement, if you conclude one and not the other, whether or not this defendant was predisposed to do this, predisposed to commit the offense that’s charged. But in doing that, the Government can show evidence of a willingness to engage in similar conduct. Tr. at 2672; see also Tr. at 2588 (“[F]or years before [the defendant] was willing to do similar things, was already there.”). 85 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 109 of 256 Based on the prosecutor’s argument, the jurors submitted a note requesting clarification about what “the crime” referred to: We are looking for clarification of Instruction #18 if possible Where it states “the crime,” does that refer strictly to the crime as stated in the indictment, or could it include “a similar” crime as stated by the prosecution in closing statements. VI:2846 (emphasis added). The prosecutor’s closing argument’s distortion of the legal standard, in conjunction with the repeated nullification arguments, requires reversal of the conviction. C. The Improper Closing Arguments Violated The Defendant’s Right To Present A Complete Defense And Diluted The Government’s Burden Of Proving Guilt Beyond a Reasonable Doubt. Where prosecutorial closing arguments demean basic constitutional rights, the improper argument requires reversal of the conviction unless harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 609, 614 (1965). A defendant has a fundamental constitutional right to a fair opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 687-90 (1986); accord Holmes v. South Carolina, 547 U.S. 319, 324 (2006). Closing argument that misstates the law or denigrates an available defense constitutes reversible error. United Staes v. Segna, 555 F.2d 226, 231-32 (9th Cir. 1977) (prosecutor argued incorrect presumption of sanity); see Hanna v. Price, 245 Fed. Appx. 538, 544 (6th Cir. 2007) (prosecution 86 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 110 of 256 disparaged mental responsibility defense). Closing argument is also improper if it urges “the jury to decide the matter based on factors other than those it is instructed,” Sandoval v. Calderon, 241 F.3d 765, 776 (9th Cir. 2001), or if it dilutes or shifts the burden of proof, Perlaza, 439 F.3d at 1170-71. In this case, the prosecutor repeatedly and emphatically denigrated the entrapment defense by arguing that no one could be entrapped to do what Mr. Mohamud did. In effect, the prosecutor called for the jury to nullify the entrapment defense and decide the case based on policy factors outside the evidence and outside the instructions. Policy factors are improper bases for the jury’s verdict: “The amelioration of society’s woes is far too heavy a burden for the individual criminal defendant to bear.” United States v. Leon-Reyes, 177 F.3d 816, 822 (9th Cir. 1999) (quoting United States v. Koon, 34 F.3d 1416, 1443 (9th Cir. 1994) (quoting United States v. Monaghan, 741 F2d 1434, 1441 (D.C. Cir. 1984)). In addition, the prosecutor’s argument misled the jurors about the government’s burden to prove Mr. Mohamud’s predisposition to commit the specific offense charged beyond a reasonable doubt by suggesting that proving his predisposition to commit “similar acts” would suffice. The government’s arguments negating the availability of the entrapment defense and diluting the burden of proof regarding predisposition were not harmless 87 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 111 of 256 beyond a reasonable doubt. United States v. Weatherspoon, 410 F.3d 1142, 1145-46 (9th Cir. 2005) (“Analysis of a claim of prosecutorial misconduct focuses on its asserted impropriety and substantial prejudicial effect.”) (citing United States v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir.1988)). Mr. Mohamud relied entirely on the entrapment defense and presented substantial evidence from which a jury could have found that the government failed to meet its burden to disprove entrapment beyond a reasonable doubt. In Segna, this Court overturned a conviction on plain error review when a prosecutor’s argument diluted the burden of proof regarding the insanity defense by arguing a presumption of sanity, even though the Court’s instructions were correct. 555 F.2d at 231. In Segna, as in the present case, the improper argument undermined the only defense raised in a close case. As in Segna, the effect of allowing the government to argue that one simply cannot be entrapped to commit the offense “was to shift the burden of proof and to deprive [the defendant] of the reasonable doubt standard.” Segna, 555 F.2d at 230; see also United States v. SandovalGonzalez, 642 F.3d 717, 726-27 (9th Cir. 2011) (prosecutor’s incorrect statement of law that was not adequately corrected constituted constitutional error); accord Perlaza, 439 F.3d at 1169-73. 88 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 112 of 256 Although the defense objected regarding the nullification argument, the trial court overruled the objection and, therefore, gave no curative instructions. See United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990) (even with curative instructions, reversal required where they were insufficient to dispel the harm from vouching). Because the government claimed – in essence – that entrapment does not apply in terror cases, the risk of prejudice was especially high because a “prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.” United States v. Young, 470 U.S. 1, 18–19 (1985) (citing Berger v. United States, 295 U.S. 78, 88–89 (1935)). Further, the jury’s note established prejudice from the argument about predisposition to commit similar acts, because it established that the jury was substantially confused about the predisposition standard. See United States v. Branson, 756 F.2d 752, 754 (9th Cir. 1985) (jury note inquiring regarding inference from defendant’s silence established that comment on silence was not harmless).21 As elaborated in Section III.B, the trial court’s response to the note not only failed to remedy the erroneous view attributed to the prosecutor’s closing argument, the instruction created separate due process issues by providing government theory of the case with no countervailing elaboration of the defense theory of the case. 21 89 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 113 of 256 III. The Trial Court’s Failure To Provide Adequate Jury Instructions On The Defense Theory Of The Case Violated The Right To A Fair Trial. The criminally accused have “a constitutional right to have the jury instructed according to [their] theory of the case,” “provided that the requested instruction is supported by law and has some foundation in the evidence.” United States v. Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011) (citing United States v. Johnson, 459 F.3d 990, 993 (9th Cir.2006), and United States v. Bello-Bahena, 411 F.3d 1083, 1088–89 (9th Cir.2005)).22 A “district court’s failure to give a defendant’s requested instruction that is supported by law and has some foundation in the evidence warrants per se reversal unless other instructions, in their entirety, adequately cover that defense theory.” Id. (citations and quotation marks omitted). In this case, the trial court’s refusal to provide six requested instructions on the entrapment defense, separately and cumulatively, requires reversal. Each instruction was supported by governing precedent and had an evidentiary foundation, and the vague substitute instruction was insufficient to cover the law pertaining to the defense theory of the case. Further, the court’s answer to the jury’s question about “If the defendant’s theory of defense is supported by the evidence, we review de novo whether the district court’s instructions adequately cover it.” BelloBahena, 411 F.3d at 1089. 22 90 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 114 of 256 the entrapment defense was unresponsive, incomplete, and unbalanced in favor of the prosecution. A. Despite Proffered Defense Instructions That Were Supported By The Facts And Law, The Trial Court Failed To Instruct The Jury On Essential Aspects Of Entrapment That Supported The Defense Case. The trial judge refused to give six requested defense instructions that sought to tailor, explain, and supplement aspects of the generic model entrapment instruction. As a result, the jury was never provided a sufficient understanding of entrapment law to assess the complete theory of defense based on the facts developed at trial. See Crane, 476 U.S. at 690 (“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense’”) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). 1. Predisposition To Commit The Specific Offense Charged. Prior to trial, the judge ruled that the government was required to prove predisposition to commit the specific offense charged: attempted use of a weapon of mass destruction in the United States. VI:2431. On the basis of that ruling, the defense requested an instruction articulating the government’s burden to prove that “Mr. Mohamud was predisposed to commit the specific crime charged” before being first contacted by government agents. VI:2043. Over objection, the trial judge 91 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 115 of 256 refused to instruct the jury consistently with its ruling and, instead, instructed only that the government had to prove predisposition “to commit the crime.” VI:2830. Without an instruction as to the narrow requirement of predisposition, which was the central point of the defense, the government was free to argue that predisposition to commit similar acts would suffice, leaving the defense to try to persuade the jury that predisposition to do other bad things was insufficient. The jury’s note demonstrated that the court’s vague substitute instruction did not adequately inform the jury what was meant by predisposition to commit “the crime” in the context of this case. 2. The Meaning Of “Innocent.” The Ninth Circuit’s model entrapment instruction states that, in considering inducement, the jury may consider “any government conduct creating a substantial risk that an otherwise innocent person would commit an offense[.]” United States Courts for the Ninth Circuit, Manual of Model Criminal Jury Instructions § 6.2 (2010) (emphasis added). The defense requested that the court replace “innocent” with “not otherwise predisposed.” VI:2044. The defense also requested a clarifying instruction that a person need not be “innocent” in the dictionary sense in order to be induced to commit the crime: You should only consider whether Mr. Mohamud was predisposed to commit the specific crime charged. It is not a test of whether a person 92 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 116 of 256 is inclined toward criminality generally or inclined to do other acts that have not been charged in the indictment. VI:2043. The defense instruction stated how “innocent” is used in Jacobson and Poehlman. VI:1980-82. The trial court rejected the defense’s requested instruction and instructed the jury only that inducement should be assessed based on “an otherwise innocent person.” Refusing to instruct the jury on the specialized meaning of “innocent” in the context of this entrapment case significantly compromised the defense. Mr. Mohamud admittedly did not meet the synonyms for and dictionary definitions of “innocent” – which would include “pristine,” “blameless,” “angelic,” “immaculate,” “irreproachable,” and “faultless.” He expressed extreme and noxious views and engaged in underage drinking and use of illicit drugs. The jury was not guided away from erroneously assessing predisposition and inducement with the dictionary meaning of “innocent” in mind, rather than properly considering whether the defendant was predisposed to commit the specific act charged in the indictment. The prosecutor capitalized on the ambiguity, using the word “innocent” in its vernacular sense seven times in closing argument. Under the facts of this case, the failure to qualify what “innocent” means in the entrapment context constituted reversible error. 93 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 117 of 256 3. “Wherewithal” Or “Capability” To Commit The Charged Crime Without Government Assistance. This Court has held that a defendant’s ability to commit the charged crime without government assistance is relevant to the predisposition analysis. United States v. Thickstun, 110 F.3d 1394, 1398 (9th Cir. 1997) (a “person’s ability to commit a crime may illustrate her predisposition to do so”), Poehlman, 217 F.3d at 698; see IV:2181-83 (contrasting this Court’s treatment of “wherewithal” as evidence of lack of predisposition with the Seventh Circuit’s treatment as a separate element apart from predisposition and inducement). The defense requested the following instruction: “In determining whether a person was predisposed to commit the specific crime charged before being approached by government agents, you may consider the following: the person’s wherewithal, or capability, to have committed the crime charged without the assistance of government agents . . . .” VI:2043; see VI:2769 (“[I]f you find that Mr. Mohamud lacked any wherewithal, or capability, to commit the crime charged without the assistance of government agents, you may consider that as evidence that he was not predisposed to commit the crime charged.”). Although the instruction was supported by law and included the holding of this Court’s precedent, the trial court refused to give it. A major defense theme was that a person predisposed to attempt to use a weapon of mass destruction in the United States would likely have taken, or shown 94 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 118 of 256 the ability to take, some preliminary steps in preparation – steps that were entirely absent in the case – such as efforts to learn the needed technical skills, internet research regarding where or how to buy necessary materials, or steps to gain sufficient funds to commit such a crime. The government conceded that Mr. Mohamud did not have the wherewithal or capability to commit the crime for which he was arrested. VI:2071 (“Defendant was not the kind of lone-wolf extremist who could have purchased or built an 1800-pound truck bomb on his own, however.”). The trial court’s refusal to instruct the jury on consideration of such evidence in determining predisposition deprived the defense of a powerful aspect of its theory of the case. 4. Vulnerability To Inducement. A defendant’s vulnerability to inducement is relevant to assessing entrapment. United States v. Sandoval-Mendoza, 472 F.3d 645, 656 (9th Cir. 2006) (“medical expert opinion testimony showing that a medical condition renders a person unusually vulnerable to inducement is highly relevant to an entrapment defense.”). The defense requested that the jury be instructed that it may consider evidence of Mr. Mohamud’s vulnerability to government influence: The defense contends that Mr. Mohamud was particularly vulnerable to the FBI’s influence due to a number of factors including but not limited to his youth, his family problems, his conflicted feelings regarding his religion, and his identity issues. In analyzing 95 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 119 of 256 predisposition, you may consider any evidence showing that Mr. Mohamud was particularly vulnerable to inducement. You may conclude that, the more vulnerable an individual is, the more likely agreement to participate in the crime charged was the product of inducement and not predisposition. VI:2769; see also VI:2170. The law and the evidence supported an instruction on Mr. Mohamud’s vulnerability to influence, but the court refused to instruct the jury on how heightened vulnerability may be considered in the context of an entrapment defense. 5. Evaluation Of Post-Contact Evidence Of Predisposition. The Jacobson and Poehlman decisions both expressed the need for caution in evaluating evidence developed after contact with government agents because the statements and actions of the target are inevitably influenced by the interactions with the agents. Jacobson, 503 U.S. at 552 (the “strong arguable inference” is that actions taken after government began “waving the banner of individual rights” did not demonstrate predisposition); Poehlman, 217 F.3d at 704-05 (“[O]nly those [postcontact] statements that indicate a state of mind untainted by the inducement are relevant to show predisposition.”). The defense twice requested that the trial judge instruct the jury to consider post-contact evidence of predisposition only if it is untainted by the government influence: The defense contends that a substantial part of the government’s predisposition evidence post-dates – or comes after – the date of the 96 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 120 of 256 government’s first contact with and influence on Mr. Mohamud. For example, Mr. Mohamud’s statements to undercover operatives may have been exaggerated or otherwise influenced by his earlier interactions with government agents. In considering the weight of predisposition evidence that occurs after the date of first contact, you should consider whether – and to what extent – the evidence itself is the product of the government’s actions. VI:2769. With respect to any evidence that has been admitted to show predisposition, it is important to remember that if that evidence arose after government agents contacted Mr. Mohamud, the evidence should only be considered by you if: (1) Mr. Mohamud’s actions or statements are untainted by any government inducement; and (2) The actions or statements reflect on Mr. Mohamud’s disposition prior to him having been contacted by government agents. VI:2169 (citing Poehlman, 217 F. 3d at 704-05). In this case, the government relied heavily on post-governmental contact evidence to show pre-contact disposition. The government put on evidence that the Bill Smith emails and the initial contacts from the undercover agents were attempts to assess Mr. Mohamud. A fortiori, despite blanket surveillance, the government had been unable to determine Mr. Mohmud’s predisposition. Because Mr. Mohamud was interacting with characters formulated to inspire his admiration and desire to please, instructing the jury on how to properly assess Mr. Mohamud’s response to 97 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 121 of 256 those contacts was critical to the defense. Without an instruction advising the jury to cautiously consider that evidence, the government was free to spend the bulk of its closing argument focusing on the statements made and the actions taken long after the government contacts began, most prominently that the fact he pushed the button meant he must have been predisposed. 6. The Government Agents’ State Of Mind. The trial court refused to instruct the jury that the government agents’ state of mind was irrelevant to entrapment. At trial, the government attempted to inject into the case the agents’ “state of mind” to prove their reasons for investigating and that they had good intentions. The defense, while cross-examining about the manner in which the sting was conducted, disclaimed any obligation to establish that the agents acted in bad faith. Tr. 2602-04 (closing argument asserting that testimony about why FBI agents took certain actions makes no difference on predisposition and inducement). The defense requested the following instruction to remove the agents’ state of mind from consideration: The defense contends that the effect on Mr. Mohamud of the government’s conduct in this case induced him, regardless of the agent’s state of mind. In determining whether government agents induced Mr. Mohamud to commit the crime, you should not consider the agents’ state of mind or intent. The question before you is not what the agents were trying to do; the question is the inducing effect of the 98 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 122 of 256 agents’ conduct on Mr. Mohamud. Even very subtle pressure or influences can have the effect of inducing an individual to commit a crime that he otherwise would not have committed. VI:2769-70. Without this instruction, the jurors were free to decide the case based on the agents’ good intentions, or they could even have found that the lack of intent to entrap the defendant precluded a finding of inducement. Instead of giving the defense’s six case-specific, tailored instructions, the trial judge relied on this Court’s model instruction. A model instruction is not an approved version of what is required in an individual case in light of the specific facts and the defense theory of the case. This Court has repeatedly reversed convictions based on model instructions that, either in the individual case or in general, failed to adequately guide the jury’s deliberations. Trial courts have an obligation to customize the instructions to cover the wide range of issues necessary to guide the jury’s deliberations, including assessing the complete theory of defense. Especially given the controversial nature of this case, evidence that created a high risk of unfair prejudice, and the sometimes counterintuitive and nuanced law of entrapment, the instructional errors, separately and cumulatively, require vacation of the conviction and remand for retrial. 99 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 123 of 256 B. The Trial Court’s Response To The Jury’s Note Compounded The Prejudice From Incomplete Instruction On The Entrapment Defense And Violated Due Process By Instructing On The Government’s Theory While Continuing To Deprive The Defense Of Its Theory. During deliberations, the jury sent a note indicating that the jury did not understand the basic question: predisposed to what? The jury instructions on entrapment repeatedly referred to “the crime” or “the offense” without qualification. VI:2830-31. The jury asked: Where it states “the crime”, does that refer strictly to the crime as stated in the indictment, or could it include “a similar” crime as stated by the prosecutor in closing statement? VI:2846. At the hearing regarding the note, the defense, consistently with the pretrial ruling, requested that answer should be “‘commit the crime’ refers to the crime set forth in the indictment.” Tr. 2694, 2695-96. The government agreed, but requested the addition of, “However, the jury may consider evidence of similar conduct or willingness to engage in similar conduct as evidence of predisposition.” Tr. 2694. The defense objected to the court doing anything other than answering the question the jury asked, rather than commenting on the evidence or explaining the government’s “similar conduct” argument. Tr. 2696. The defense also pointed out the unfairness of including government 100 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 124 of 256 arguments but not defense arguments as a reason not to single out the similar conduct argument. Tr. 2697-98. After a ten-minute recess, the trial court declared its intention to provide an instruction that began by approving of consideration of similar conduct evidence. The jury may consider evidence of similar conduct or willingness to engage in similar conduct, along with all the evidence, in deciding if the defendant was predisposed to commit the crime set forth in the indictment. Please review all of Instruction No. 18. Tr. 2699. The defense objected that the response did not directly answer the question, constituted inappropriate comment on the government’s argument, and unfairly omitted the defense factors that should be considered. Tr. 2699-2700. After the trial court noted the exception, the defense expressed concern that the response would not “clearly tell them the answer to the question” and requested the court at least flip the order so the first answer stated the “crime is the crime charged in the indictment.” Tr. 2700-01. The court declined to change the response. Tr. 2701. After the court sent the response to the jury (VI:2847), the defense filed a motion to withdraw the answer or grant a mistrial, which was summarily denied. VI:2787-90; I:131. “When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.” United States v. Frega, 179 F.3d 793, 809 (9th Cir. 1999) (citing Bollenbach v. United States, 326 U.S. 607, 612 (1946)). The response to the jury note did quite the opposite of providing concrete accuracy. The instruction 101 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 125 of 256 did not directly answer the question about what “the crime” referred to. Instead of simply stating that “the crime” means the crime charged in the indictment, the response volunteered information about what evidence the jury may consider in determining predisposition, even though the jury had not asked about that. Aside from failing to adequately guide the jury’s deliberations on predisposition, the response to the jury’s note implicated the due process requirement of equal treatment under the law. Tr. 2788-90. The court directed the jury’s attention to the relevance of pro-prosecution arguments while denying comparable instructions about the relevance of evidence requested by the defense. See Wardius v. Oregon, 412 U.S. 470, 477-78 (1973) (discovery statute either construed to provide reciprocal right to defendant or it violated due process). With no instruction regarding the factors developed in the case law such as vulnerability, wherewithal, and post-contact influence, and how those factors should be assessed, the trial court chose to instruct the jury that it could consider evidence of “similar conduct,” which the government had argued. In effect, the court instructed the jury on consideration of government-favorable evidence but declined to instruct the jury on consideration of defense-favorable evidence. In doing so, the trial court failed to provide the balance and reciprocal rights required for a fair trial. 102 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 126 of 256 IV. The Trial Court’s Refusal To Instruct The Jury On The First Amendment, Combined With The Gag Order Barring The Defense From Mentioning The First Amendment In Closing Argument, Violated The Constellation Of Constitutional Rights Guaranteeing The Presentation Of A Complete Defense. The government relied heavily on evidence of Mr. Mohamud’s inflammatory emails, magazine articles, and internet activity for the purpose of proving his predisposition to commit the specific crime charged. The defense identified a pervasive concern at trial that the prejudicial nature of the expressions would invite the jurors to convict Mr. Mohamud for his beliefs and expressions without fairly judging the question of predisposition. VI:1982 (“The great – perhaps insurmountable – challenge of this case is for the jury to deliberate on the basis of predisposition for the charged crime, not on an improper basis”); VI:1986-88. The defense argued that the First Amendment-protected expressions had low probative value when not directly related to domestic acts of terrorism, and that a jury instruction was necessary to assure the jury did not react emotionally to the expressions and punish Mr. Mohamud for his views, rather than determine whether he was predisposed to commit the crime charged. VI:2376-77.23 This Court reviews de novo key issues that arise under the First Amendment and conducts an independent review of the facts. Berger v. City of Seattle, 569 F.3d 1029, 1035 (9th CIr. 2009)(en banc). 23 103 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 127 of 256 The defense requested the following instruction to inform the jury that Mr. Mohamud’s speech was constitutionally protected: Mr. Mohamud also is not on trial for any opinions or beliefs, whether religious, political or otherwise, that he may have expressed orally or in writing. As all Americans do, Mr. Mohamud has a constitutional right to think, read, and express opinions as he wishes. The First Amendment guarantees the rights to freedom of speech, freedom of religion, and freedom of association to all persons in the United States. VI:2040. The defense relied on this Court’s supportive precedent. VI:2217 (citing United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985) (Kennedy, J.); United States v. Smith, 555 F.2d 249, 252 n.1 (9th Cir. 1977) (Blumenfeld, D.J., concurring)). The jury instruction was necessary to avoid a conviction based on unpopular First Amendment-protected activity rather than on the facts of the case. VI:1980-81, 2128, 2374-77. The trial judge refused to provide the requested instruction on the basis that it would “confuse” the jury and that the First Amendment protection of the speech was “not relevant.” VI:2377. “[I]t will absolutely confuse the jury. And it’s not – in my view, it’s not relevant that it’s protected by the First Amendment.”). The court asked the defense attorney to explain the relevance, indicating that the court might not “allow you to raise the First Amendment with the jury.” VI:2376. After the defense explained the argument that a person should not be punished for what they read or write, the trial judge barred reference to the First Amendment in opening statement 104 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 128 of 256 and closing argument. VI:2378, 2379; see also I:159 (noting prohibition on “arguments about the First Amendment”). The court ultimately provided an instruction that, with no mention of the First Amendment, stated, “The defendant is also not on trial for any opinion or beliefs, whether religious, political or otherwise that he may have expressed orally or in writing.” VI:2826. “Where there is some evidence . . . that the purpose of the speaker or the tendency of his words are directed to ideas or consequences remote from the commission of the criminal act, a defense based on the First Amendment is a legitimate matter for the jury’s consideration.” Freeman, 761 F.2d at 551. In this case, the core of the defense response to the avalanche of abhorrent political and religious expressions presented by the government was that the “purpose” and “tendency” of Mr. Mohamud’s words did not establish that he was predisposed to commit domestic terrorism, the specific crime charged. Tr. 284. The defense provided abundant evidence throughout the trial, including expert evidence regarding juvenile posturing and the discursive community on jihadi websites, to argue that the purpose and effect of Mr. Mohamud’s words was remote from the crime actually charged. The trial judge’s refusal to provide the jury with an instruction on the First Amendment undermined the defendant’s ability to present the complete theory of 105 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 129 of 256 the defense, as guaranteed by the Fifth and Sixth Amendments. Crane, 476 U.S. at 687-90. Although the court instructed the jury that the words and writings were not the basis for the prosecution, the instruction made no mention of the affirmative, constitutionally-protected right to speech, beliefs, and expressions, which was especially necessary in the entrapment context. The jurors should have been instructed that the Constitution affirmatively prohibited them from punishing Mr. Mohamud for his protected speech. Without that distinction, the trial judge failed to provide the jury with the guidance needed to draw the distinction between a teenager’s exuberant embrace of extreme political and religious views, and the government’s burden of proving predisposition to commit the specific crime charged. The instructional error was exacerbated by the gag order that barred defense counsel from articulating the affirmative First Amendment rights at stake. “[D]enying an accused the right to make final arguments on his theory of the defense denies him the right to assistance of counsel” and the right to present a defense, and relieves the government of its burden of proof. Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 1999) (citing Herring v. New York, 422 U.S. 853, 862 (1975)). In Conde, the trial judge in a “kidnapping for robbery” case barred the defense from arguing in closing that no robbery occurred. This Court held that the limitation “violated the 106 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 130 of 256 defendant’s fundamental right to assistance of counsel and right to present a defense, and it relieved the prosecution of its burden to prove its case beyond a reasonable doubt.” Id. at 739; see also United States v. Miguel, 338 F.3d 995, 1001 (9th Cir. 2003) (reversible error to limit argument regarding theory of defense supported by the evidence); United States v. Kellington, 217 F.3d 1084, 1101 (9th Cir. 2000) (new trial properly granted because preventing counsel from arguing the importance of expert testimony in closing violated the rights to counsel and to present a defense). Similarly, in the present case, the trial court precluded argument that the First Amendment protected Mr. Mohamud’s speech, writings, and religious and political beliefs. The denial of the First Amendment instruction and the limitation on closing argument denied Mr. Mohamud the component of his defense that the jurors were constitutionally prohibited from punishing Mr. Mohamud’s expressions, regardless of their repugnance. V. The Trial Court’s Refusal To Rule On The Constitutionality Of The Government’s Non-FISA Seizures, Searches, and Interrogations Violated Mr. Mohamud’s Constitutional Rights. Days before the government first initiated contact with Mr. Mohamud through the “Bill Smith” emails, FBI agents seized and copied his personal computer, searched his cell phone, and interrogated Mr. Mohamud under the guise of a local law enforcement investigation. But the trial court never ruled on the constitutionality 107 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 131 of 256 of those actions. Instead, relying on the government’s assertions that it would not use any resulting evidence at trial, and accepting the testimony of government agents who claimed that none of the information they gained had any impact on their continued investigation of Mr. Mohamud, the trial court denied the defendant’s motion to suppress without ever deciding whether the government actors had violated the Constitution. The trial court continued to refuse to rule on the constitutionality of the government’s actions when the defense requested a ruling to use as a trial fact and as a fact supporting its motion to dismiss for a violation of due process. The trial court’s refusal to rule on the constitutionality of the government’s actions violated a panoply of constitutional rights necessary to a fair trial and requires reversal.24 A. The Trial Court Repeatedly Refused To Rule On The Constitutionality Of Government Conduct. On November 2, 2009, Mr. Mohamud participated in a polygraph examination conducted by Oregon State Police officers who were investigating sexual contact between Mr. Mohamud and another university student. IV:670-71. Unbeknownst to The denial of an evidentiary hearing is reviewed for abuse of discretion. United States v. Mazzarella, No. 12-10171, 2015 WL 1769677, *3 (9th Cir. Apr. 20, 2015). Constitutional rulings and mixed questions of fact and law that implicate constitutional rights are reviewed de novo. Berger, 569 F.3d at 1035. 24 108 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 132 of 256 Mr. Mohamud, FBI agents were secretly observing his interview. IV:745. The agents had directed the state police officers to ask Mr. Mohamud, “at the minimum,” about Somalia, “to see what his opinions were on the country and whether he wanted to go back.” IV:788. During the interview, Mr. Mohamud shared with the police “a lot of background information.” IV:674-75. As part of the local law enforcement investigation, Mr. Mohamud had given the police consent to search his personal computer and cell phone to “make sure he was not researching date rape drugs.” IV:600, 613. At the FBI’s direction, the local computer forensic examiner, Detective Williams, created a mirror image of the computer’s hard drive. IV:678-79. The FBI also asked Williams to search the computer for key terms like “Yemen.” IV:853. On December 29, 2009, the FBI requested and received four folders copied from Mr. Mohamud’s computer hard drive. IV:680. The folders contained hours of audio and video recordings including an extremist lecture by Anwar al-Awlaki, hundreds of photographs of Mr. Mohamud and his friends, and twelve of Mr. Mohamud’s personal documents. IV:681, 765, 832, 897-98, 950-52. According to the government, all of the files that it received from Mr. Mohamud’s computer dated from the two-week period between October 19, 2009, and November 2, 2009. IV:681. The FBI also copied all of the names and 109 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 133 of 256 phone numbers from Mr. Mohamud’s cell phone contacts. IV:678. Mr. Mohamud was exonerated of any wrongdoing in the local investigation. IV:744. The defense filed a motion to suppress evidence derived from the federal intrusion into the local investigation. IV:595-612. The defense argued that the FBI’s search and seizure exceeded the scope of the consent, which is “generally defined by its expressed object.” Florida v. Jimeno, 500 U.S. 248, 251 (1991); IV:602. Courts have directly applied Jimeno to require suppression of computer searches that exceed the stated purpose of the request for consent. See, e.g., United States v. Richardson, 583 F. Supp. 2d 694, 715, 718-19 (W.D. Pa. 2008); IV:603. Further, this Court has repeatedly held that consent is not voluntary when obtained by ruse regarding the nature of the investigation. United States v. Bosse, 898 F.2d 113, 115 (9th Cir. 1990); United States v. Rothman, 492 F.2d 1260, 1265 (9th Cir. 1973); IV:606-07. Here, the defense argued that the FBI’s taking a full copy of Mr. Mohamud’s hard drive exceeded the scope of his limited consent and that, in any event, his consent was involuntary because it was obtained by ruse. IV:606-07. For the same reasons, the defense argued that Mr. Mohamud’s statements during the FBI-directed interrogation were involuntary because they were obtained by ruse regarding the purpose of the interview. IV:608-09 (citing Doody v. Ryan, 649 F.3d 986, 1008 (9th 110 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 134 of 256 Cir. 2011) (en banc) (applying consent law to voluntariness); Pollard v. Galaza, 290 F.3d 1030, 1035 (9th Cir. 2002) (misrepresentation of nature or purpose of interview considered in deciding voluntariness). Instead of ruling on the constitutionality of the government conduct, the trial court accepted the government’s assurance that it would not use the intangible products of the searches, seizures, and interrogations at trial, IV:617, and limited its consideration to whether the government’s later investigative steps had an independent source. I:2 (“The court does not want to address whether the government violated defendant’s Fourth and Fifth Amendment rights when obtaining the disputed evidence unless the court first determines that the subsequent investigation was tainted by evidence obtained through the Oregon State Police, and evidence obtained in the subsequent investigation did not have an independent source.”); I:68-69. The defense objected to that procedure on the basis that the primary illegality had to be established in order to evaluate the independent source question. IV:643-46. Over objection, the trial court held a two-day hearing on the question of independent source. IV:659-888. The government’s witnesses confirmed that information learned in the state investigation had been included in a report and placed in the central case file. IV:673, 720-21. They further confirmed, generally, 111 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 135 of 256 that having access to more information is beneficial to any investigation and that investigative decisions depend on the entirety of the circumstances. IV:730, 780, 843. But the agents testified that the information learned in the state investigation was largely duplicative of what they already knew about defendant and that it did not affect any investigative decisions. IV:709-10, 790, 824. During the hearing, the court repeatedly sustained objections to defense questions that the government represented would elicit classified information, including questions about the topics discussed during a January 5, 2010, terrorism working group meeting between the FBI and the Oregon State Police, IV:708-09, the nature of the investigation of Mr. Mohamud prior to November 2, 2009, IV:735, 754-55, when the investigation commenced, IV:756, and what information the government possessed prior to that time. IV:769-70. Although the defense had previously requested that security-cleared defense counsel be permitted to participate in hearing testimony on classified topics, IV:631-34, the court sustained all of the government’s national security objections and permitted the government to provide any classified answers to the defense questions to the court ex parte, without adversarial testing. I:69. After the initial two-day hearing, the defense learned from a forensic evaluation of Mr. Mohamud’s hard drive that the government’s evidence about the 112 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 136 of 256 contents of the computer was incomplete. IV:890. The case agent had failed to include twelve files containing Mr. Mohamud’s personal documents. IV:893. The defense forensic investigation also revealed that the computer held numerous other activity records for the month preceding October 19, 2009, which would have been easily accessible. IV:891. The defense moved to supplement the motion to suppress with the new information about the computer search. IV:889-98. After initially opposing the motion and asserting that the FBI had been unaware of those files, IV:900-01, the government later withdrew its objection and conceded that the FBI did, in fact, receive the twelve personal documents that the defense had identified, but had omitted those files from the hearing evidence. IV:924. The case agent testified at a supplemental hearing and explained that his initial testimony had been inadvertently incomplete because he had not compared the government’s exhibit with the original files received. IV:966. He continued to assert that no information learned in the state investigation had any effect on the FBI’s operation. IV:968-69. In addition to the motion to supplement based on the computer search, the defense also filed a second motion to supplement based on hearing evidence from a state police detective that, at the request of the FBI, he seized Mr. Mohamud’s computer on a second occasion and provided it to the FBI for an unknown purpose. IV:859-60, 912. The government had never disclosed the second computer seizure 113 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 137 of 256 to the defense. IV:913. The government opposed the second motion to supplement “[b]ecause of the lack of any evidence in the record that a search ever occurred or that there is any evidence to suppress[.]” IV:1050. At a further hearing, the government did not dispute the testimony that the computer had been seized a second time to give the FBI access, but argued that no evidence established that “there’s any taint or derivative use” from the second seizure. IV:1078. The trial court issued a written opinion denying the motion to suppress, I:6788, finding that, even if the information learned in the computer search and interrogation provided additional investigative context, it did not tend “significantly to direct” the FBI’s conduct. I:80. After the trial court issued its opinion, the government provided to the defense additional discovery containing at least two emails that apparently demonstrated use of the results of the state investigation to profile Mr. Mohamud. One email described Mr. Mohamud as “a pretty manipulable/conflicted kid,” who wanted to “have it both ways, live the hard ruling Islamic life and the college party scene at the same time.” IV:1268. The defense asserted that the email, sent two weeks after the state interrogation, likely reflected Mr. Mohamud’s statements during the state interrogation that his parents would “freak out” if they learned of his drug and alcohol use. IV:1271. Another email from an agent involved in the investigation of Mr. Mohamud expressly mentioned his 114 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 138 of 256 demeanor during the state interrogation while discussing Mr. Mohamud’s tendency to be “very shy in the presence of older people and/or the police[.]” IV:1272. The trial court declined to reconsider its ruling. As trial approached, the defense again requested that the trial court rule on the constitutionality of the government’s conduct, asserting that the illegality of the conduct was a trial fact supporting the entrapment defense and impeaching the integrity of the government’s investigation. IV:2011-12. The defense later requested a ruling on the constitutionality of the conduct as support for his motion to dismiss on due process grounds, VI:1973, and to assess the government’s evidence regarding the reckless or intentional failure to provide pretrial notice of additional warrantless surveillance. VII:3172-73. On each occasion, the trial court refused to rule on whether the government agents had violated the Constitution. B. The Trial Court’s Refusal To Rule On Whether FBI Agents Acted Unconstitutionally Violated The Fourth Amendment, The Due Process Clause, The Confrontation Clause, And The Fifth And Sixth Amendment Rights To Present A Complete Defense. The trial judge lacked discretion to refuse to rule on the constitutionality of the government conduct. The exclusionary rule bars the introduction of “derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the 115 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 139 of 256 point at which the connection with the unlawful search becomes so attenuated as to dissipate the taint.” Mazzarella, 2015 WL 1769677 at *7 (9th Cir. Apr. 20, 2015) (citing Murray v. United States, 487 U.S. 533, 536-37 (1988)). To prevent exclusion of evidence under the independent source doctrine, the government has the burden to prove both that the information illegally obtained was not used in the investigation, and that the government actors would have taken the same investigative steps without that information. Murray, 487 U.S. at 542-43; United States v. Duran-Orozco, 192 F.3d 1277, 1281 (9th Cir. 1277) (remanding for district court to hold an evidentiary hearing to determine what officers would have done if they had not conducted an illegal search). In a simple scenario involving a single government action resulting in the discovery of physical evidence, a district court might permissibly conclude that there is no need to determine the legality of the primary action before applying the independent source doctrine. This case involves far more complex questions that can only be fairly answered after the court has held an evidentiary hearing determining the full extent of the primary illegal conduct, then addressing the fruits of the unlawful activity, which is the norm. See Mazzarella, 2015 WL 1769677 at *7 (the district court first determines “whether a search within the meaning of the Fourth Amendment occurred” and then determines “what trial evidence, if any, was the fruit 116 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 140 of 256 of an unlawful search such that it should have been suppressed”). The scope of the illegal conduct would inform the likelihood that information would be put to an intangible use. In this case, the district court could not fully assess the credibility of the government agents without determining whether they had been willing to violate the Constitution in their investigation of Mr. Mohamud. Given the severe restrictions on defense access to classified materials, the agents’ credibility was crucial in assessing their claims not to have used the computer hard drive, the interrogation answers, or other unknown products of the illegal conduct in intangible ways such as creating a personality profile, adapting the sting to Mr. Mohamud’s known vulnerabilities, making later decisions such as the Bill Smith contacts, and continuing to “assess” the target. Further, given the FBI agents’ inaccurate or incomplete testimony, the fact that government actors were willing to violate the Constitution to gain what it they contended was useless and duplicative information would be highly relevant to the court’s credibility assessment. Apart from the motion to suppress and application of the Fourth Amendment’s exclusionary rule, the trial court’s refusal to rule on whether the government actors violated the Constitution infringed on Mr. Mohamud’s right to present a defense because it prevented him from using that fact at trial to impeach the integrity of the 117 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 141 of 256 government’s investigation. See Kyles v. Whitley, 514 U.S. 419, 445, 448-49 (1995) (evidence that could be used to attack the integrity of the investigation is subject to Brady disclosure obligations). As a result, the FBI team involved in Mr. Mohamud’s surveillance and eventual sting was able to present itself in a false light to the jury. A legal ruling that the actions were unconstitutional would have allowed the defense to impeach the agents’ testimony about their investigative state of mind – pure and professional by their account. Further, a legal ruling that the agents went too far in searching their target’s most private possessions in violation of the Fourth and Fifth Amendments would have supported the defense claim that they went too far in setting up Mr. Mohamud, as claimed by the defense. But without that legal ruling, the defense was unable to present the evidence of unconstitutional activity without the unacceptable risk that the jury would ultimately believe the actions were lawful and would, in the process, learn unfairly prejudicial information about Mr. Mohamud’s personal life. See Jackson v. Denno, 378 U.S. 368, 394 (1964) (holding that court, not jury, must decide voluntariness of confession). For the same reasons, a ruling on the constitutionality of the government conduct would also have provided needed context for the defendant’s motion to dismiss based on government overreaching as well as the post-trial motions regarding failure to give notice of warrantless surveillance under the FISA 118 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 142 of 256 Amendments Act. The refusal to rule deprived the defense of key arguments, violating a range of constitutional rights necessary to a fair trial including the right to present a complete defense, to confront witnesses, and to compel the production of favorable evidence. VI. The Government And District Court’s Withholding Of Classified Evidence And Information Impermissibly Skewed The Fact-Finding Process, Violating Mr. Mohamud’s Rights To Confront His Accusers, Due Process Of Law, And Effective Assistance Of Counsel. The government’s extended electronic surveillance and in-person investigations of Mr. Mohamud generated a vast quantity of evidence relevant to entrapment. But by asserting that evidence was exempt from disclosure under the state secrets privilege, its analogue under the Foreign Intelligence Surveillance Act (FISA),25 and the Classified Information Procedures Act (CIPA),26 and by engaging in a process of selective declassification, the government withheld much of that evidence from the defense. The result was an unfairly skewed trial that violated Mr. 25 50 U.S.C. §§ 1806(f). 26 18 U.S.C. App. III §§ 1-12. 119 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 143 of 256 Mohamud’s Fifth Amendment right to due process and his Sixth Amendment rights of confrontation and the effective assistance of counsel.27 A. The Government Cannot Withhold Material Evidence Under The State Secrets Privilege, CIPA, or FISA, When Doing So Curtails Fundamental Constitutional Rights In A Criminal Trial. The state secrets privilege, which underlies CIPA and has an analogue in FISA, was first fully articulated by the Supreme Court in Reynolds v. United States, a civil case in which the Court held that the executive could refuse to disclose evidence on the ground that disclosure would reveal military secrets that could harm the national interest. 345 U.S. 1, 10-11 (1953). The opinion explicitly declined to extend the privilege to criminal cases: The rationale of the criminal case is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to the defense. Reynolds, 345 U.S. at 12 (emphasis added). When the government is concerned about national security in the context of a criminal prosecution, the Constitution requires that it make a choice – proceed with The constitutional and statutory issues should be reviewed de novo. Berger, 569 F.3d at 1035. 27 120 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 144 of 256 the case and disclose the material it has held as secret, or dismiss the case. Jencks v. United States, 353 U.S. 657, 672 (1957). This principle was restated in Alderman v. United States, 394 U.S. 165, 184 (1969), in the context of disclosure of surveillance records, and Roviaro v. United States, 353 U.S. 53, 61, 65 n.15 (1957), in the context of the informer’s privilege. Relying on the privilege to withhold relevant evidence in a criminal trial impermissibly trenches upon fundamental constitutional rights. United States v. Nixon, 418 U.S. 683, 712 (1974). Subsequent to these decisions, Congress enacted the CIPA and FISA. Both statutes contain provisions that permit the government to participate in ex parte proceedings and to withhold some classified information from the defense. 50 U.S.C. § 1806(f) (FISA); 18 U.S.C. App. III § 4 (CIPA). Those provisions must be read in light of the Supreme Court’s repeated admonitions that national security interests cannot be permitted to trump a defendant’s constitutional rights in a criminal prosecution. Merck & Co. v. Reynolds, 130 S. Ct. 1784, 1795 (2010) (“We normally assume that, when Congress enacts statutes, it is aware of the relevant judicial precedent.”); see United States v. Sarkissian, 841 F.2d 959, 966 (9th Cir. 1988) (“we assume arguendo that the enactment of CIPA does not affect the validity of Reynolds”). Incorporating into CIPA and FISA the “disclose-or-dismiss” rule from the state secrets context is also compelled by the doctrine of constitutional 121 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 145 of 256 avoidance, which directs that statutes be construed in a manner that avoids serious constitutional issues. See Clark v. Martinez, 543 U.S. 371, 380-81 (2005); Zadvydas v. Davis, 533 U.S. 678, 689 (2001). The “fundamental purpose” of CIPA “is to protect []and restrict [] the discovery of classified information in a way that does not impair the defendant’s right to a fair trial.” United States v. Dumeisi, 424 F.3d 566, 578 (7th Cir. 2005) (quoting United States v. O’Hara, 301 F.3d 563, 568 (7th Cir. 2002)); see United States v. Sedaghaty, 728 F.3d 885, 903 (9th Cir. 2013). This Court has held that the state secrets privilege applies in CIPA cases. United States v. Klimavicius-Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998). However, CIPA does not provide a basis for the government to avoid its discovery obligations. United States v. Pickard, 236 F. Supp. 2d 1204, 1209 (D. Kan. 2002) (“CIPA does not create any new right of or limits on discovery . . . .”); see also United States v. Mejia, 448 F.3d 436, 455 (D.C. Cir. 2006) (same). In debating the statute, Congress confirmed that CIPA “rests on the presumption that the defendant should not stand in a worse position, because of the fact that classified information is involved, than he would without [CIPA].” S. Rep. No. 96-823, at 9 (1980), reprinted in 1980 U.S.C.C.A.N. 4294, 4302. In Sedaghaty, the Court summarized the analysis that district courts are to employ when considering a government motion to withhold discovery under CIPA. 122 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 146 of 256 728 F.3d at 904-05. First, the court is to determine whether the information “is discoverable at all.” Id. If so, the court is to determine if the government has made a proper claim of privilege. Id. Then the court is to determine if the information “is relevant and helpful to the defense….” Id. Finally, the court is to “determine the terms of discovery if any.” Id. The analysis parallels the analysis set out in Rovario for disclosing informant identities. Mejia, 448 F.3d at 455 (quoting United States v. Yunis, 867 F.3d 617, 623 (D.C. Cir. 1989)). Applying the Roviaro analysis in the national security context, district courts are permitted to balance a defendant’s need for information against national security concerns. Sarkissian, 841 F.2d at 965.28 When, however, the evidence at issue is material to the defense, that is, relevant and helpful to the defense, the balance should be struck in favor of the defendant. Aref, 533 F.3d at 79 (relying on Reynolds and Roviaro). “Helpful” information includes information that does not reach the level of Brady material. See, e.g., Aref, 533 F.3d at 80; Mejia, 448 F.3d at 456-57. Rather, The defense preserved below, and does so again on appeal, the claim that the obligation to provide effective representation to the defendant constitutes a “need to know,” so that, under governing Supreme Court precedent, security-cleared counsel should be permitted access to helpful classified information and to participate in proceedings under CIPA and FISA without balancing. But see Klimavicius-Viloria, 144 F.3d at 1261-62. 28 123 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 147 of 256 helpful can mean “useful to counter the government’s case or to bolster a defense.” Aref, 533 F.3d at 80 (internal quotation and citation omitted). Disclosure under CIPA parallels Fed. R. Crim. P. 16(d)(1)’s provisions for issuing protective orders. Aref, 533 F.3d at 78; Sarkissian, 841 F.2d at 965 (“Congress intended [CIPA] to clarify the court’s powers under Fed. R. Crim. P. 16(d)(1) to deny or restrict discovery in order to protect national security.”); see also Klimavicius-Viloria, 144 F.3d at 1261 (recognizing that CIPA and Fed. R. Crim. P. 16(d)(1) contain similar language). CIPA contains no provision for completely withholding the substance of discovery from the defendant. Rather, the court may authorize the government: to delete specified items of classified information from documents to be made available to the defendant through discovery . . . , to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. 18 U.S.C. App. III § 4; see Sedaghaty, 728 F.3d at 907 (conviction reversed because the summary of classified information was distorted and incomplete); United States v. Moussaoui, 591 F.3d 263, 281-83 (4th Cir. 2010) (approving provision of classified information to cleared defense counsel pursuant to a protective order). In this case, the district court’s rulings impermissibly allowed the government to completely withhold evidence in key areas in violation of Mr. Mohamud’s 124 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 148 of 256 constitutional rights. The government asserted the state secrets privilege to withhold the true identities and backgrounds of its operatives, who were percipient witnesses to, and key participants in, the alleged plot. The government engaged in a process of selective declassification of some of the information in its possession, enabling the government to use a trove of formerly classified information while denying access to information favorable to Mr. Mohamud. The government also provided an inadequate substitute for Brady material regarding exculpatory law enforcement assessments and denied the defense access to classified exculpatory material regarding Amro Al-Ali. B. Depriving Mr. Mohamud Of The True Identities Of The Undercover Operatives Who Testified Against Him Violated His Rights To Confrontation, Due Process, And Effective Assistance Of Counsel. One of the few factual disputes at trial involved the first meeting between Mr. Mohamud and one of the government operatives, known to the defense only as Youssef, which occurred on July 30, 2010. Notwithstanding its prolonged utilization of electronic tools to surveil and to record Mr. Mohamud’s activities, the first and critical meeting was not recorded.29 The government contended that, at the meeting, The government explained that it intended to record the meeting but was not able to as the result of equipment malfunction and operator error. Tr. 1815-21. 29 125 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 149 of 256 Mr. Mohamud independently chose, without inducement, to become operational and select a target in Portland. Mr. Mohamud disputed how the subject was raised and contended that he was induced. Thus, the operative Youssef was a percipient witness to critical events, and the jury’s determination of what occurred during that first meeting depended on his credibility. Effective confrontation to test his credibility was not possible, however, because the government invoked the state secrets privilege and CIPA to withhold from the defense the names and background information for Youssef and the other undercover operatives. Withholding the identities also crippled the defense from effectively cross-examining another operative, Hussein, on his claimed “state of mind.” 1. The Government Asserted The State Secrets Privilege To Withhold The Names And Backgrounds Of Its Operatives. Many months before trial, the government advised counsel that it would be providing the names and backgrounds of its operatives in discovery. V:1347, 1358, 1507; VI:1940. Closer to trial, the government filed a motion for a protective order in which it advised the defense and the court that the FBI considered the names of its operatives to be classified information. VI:1939-58. The government invoked the Several phone calls between Youssef and Mr. Mohamud also went unrecorded. DEf. Ex. 1001 at 24, 26, 46. 126 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 150 of 256 state secrets privilege and CIPA to withhold all law enforcement operatives’ names and background information from the defense. The government also filed a motion ex parte and under seal under CIPA. VI:1940, 2063. The government sought nine limitations on disclosure of the operatives’ identities, including use of pseudonyms, prohibition of questioning about identifying information, testimony under light disguise, entry to the courthouse through a non-public door, exclusion of the public from the courtroom, public viewing in a separate room via video feed with faces pixilated, and no recording of the operatives. VI:1944-45. While the defense agreed to some of the proposed protocols, the court granted the motion in its entirety. I:97-99. Consistent with the protective order, the government provided Mr. Mohamud sanitized versions of the backgrounds of the operatives, including only general information about the operatives, for example that Youssef was born in a foreign country and had worked for the FBI for 8.5 years. Tr. 535, 538; see also Tr. 883. 2. Depriving The Defense Of The True Names Of Two Key Witnesses Violated The Defendant’s Constitutional Rights. “[T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” Pointer v. Texas, 380 U.S. 400, 405 (1975). Cross-examination 127 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 151 of 256 is the “greatest legal engine ever invented for the discovery of truth.” Lilly v. Virginia, 527 U.S. 116, 124 (1999) (quoting California v. Green, 399 U.S. 149, 158 (1970)). The name and address of the witness is the basic starting point for effective cross-examination: [T]he very starting point in exposing falsehood and bringing out the truth through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself. Smith v. Illinois, 390 U.S. 129, 131-32 (1968) (emphasis added) (internal quotation marks omitted). In Smith, the Supreme Court reversed the conviction when the trial court did not allow the defendant to ask the government informer his true name and address, even though “there was not, to be sure, a complete denial of all right of cross-examination.” Id. at 130-31. Denial of cross-examination on the fundamental subject of identity is inherently prejudicial: Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. . . . To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. 128 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 152 of 256 Id. at 132 (quoting Alford v. United States, 282 U.S. 687, 694 (1931)). Applying the Roviaro analysis, this Court has uniformly held that the government can protect witness identities from disclosure only when it can establish clear evidence of an actual threat. See United States v. Ordonez, 737 F.2d 793, 809 (9th Cir. 1984) (potential danger cannot support non-disclosure of percipient witness who had direct contact with defendant in alleged criminal activity); United States v. Hernandez, 608 F.2d 741, 744-45 (9th Cir. 1979); United States v. Rangel, 534 F.2d 147 (9th Cir. 1976). In addition, the courts have carefully distinguished between situations in which the witness was a percipient witness who had contact with the defendant, as opposed to one whose involvement was more peripheral. For example, in United States v. Ramos-Cruz, the court upheld a ruling against disclosure because the witnesses “proffered no evidence directly involving Ramos-Cruz or his activities.” 667 F.3d 487, 500 (4th Cir. 2012). District courts should balance the government’s interests in protecting its witnesses with the defendant’s right to confrontation. In United States v. Sterling, the court affirmed a trial court’s protective order that allowed the government witnesses to testify using pseudonyms, but required the government to provide defense counsel with the witnesses’ true names and permitted defense investigation. 724 F.3d 482, 516-17 (4th Cir. 2013). Of additional relevance here, the court noted 129 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 153 of 256 that there was no showing by the government that the “defendant” or “defense counsel” posed an actual threat to the safety of the witnesses. Id.; accord United States v. Celis, 608 F.3d 818, 830-32 (D.C. Cir. 2010). The ruling in United States v. El-Mazain, is similarly instructive. 664 F.3d 467, 492-93 (5th Cir. 2011). There, the court upheld a district court order allowing two Israeli security officers to testify using pseudonyms without the defense learning their true identities. There, unlike here, the officers were not percipient witnesses; rather, they testified as experts. Id. at 492. There, unlike here, there was a clear record of actual threats. Id. There, unlike here, the government provided the defense extensive information (20 volumes) on which the experts based their opinions, permitting questions about the officers’ background, training, experience, education, and potential grounds for bias. Id. at 492. The court also found it significant that the officers’ true names were classified in such a way that their disclosure would not have led to development of any meaningful information for cross-examination. Id. at 493. Here, by contrast, the operatives had worked under their true names for prolonged periods, which could have provided useful information for crossexamination. SER 180-81, Tr. 535, 883-84. Depriving Mr. Mohamud of the true names and background information for the law enforcement operatives violated his constitutional rights. In support of non- 130 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 154 of 256 disclosure, the government submitted a declaration from Andrew McCabe, Assistant Director of Counter Terrorism of the FBI, asserting that the proposed protections were appropriate for two reasons: the general safety of the operatives and their continued effectiveness. VI:2002-07. The declaration regarding safety was purely speculative and generic. Id. There is no indication that counsel or Mr. Mohamud posed any threat to the government operatives. Indeed, by the time of trial, the prosecutors and agents of the FBI had met with Mr. Mohamud on multiple occasions. Assistant Director McCabe’s generic declaration did not meet the strict requirement that identity can only be concealed where threat was “actual,” and not mere “conjecture. United States v. Palermo, 410 F.2d 468, 472 (7th Cir. 1969). Moreover, while the desire to allow undercover operatives to continue other investigations may support closure of a courtroom or use of a screen, it should not be sufficient to deny a defendant the identity of a percipient witness. See, e.g., United States v. Lucas, 932 F.2d 1210, 1216 (8th Cir. 1991). Although the government provided sanitized resumes, the resumes were completely inadequate for cross-examination because they did not provide any basis to establish the witnesses’ potential biases and other indicia of unreliability. As detailed in a sealed submission, what would have been useful was the ability to investigate areas such as the type of policing Youssef had engaged in, the transcripts 131 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 155 of 256 of prior hearings or trials, the interrelation of his activities in this case with those in other cases, and the general background vulnerabilities of any witness. SER 173-81. Another avenue of cross-examination denied to Mr. Mohamud involved the repeated testimony from Youssef and government’s FBI agent witnesses that certain things they had done were “standard” or “typical” or based on experience in other operations. Tr. 537-38. Because Mr. Mohamud was denied information on other undercover operations in which the operatives had been involved he was unable to test those assertions. Perhaps most prejudicial was Agent Chan’s testimony, over objection, that “the overwhelming majority of the cases where [the FIB] targeted subjects did not lead to criminal prosecutions.” Tr. 1314. The constitutional violation from the state secrets privilege is particularly perverse here because Mr. Mohamud’s defense team had discovered the true identity and background information of one of the operatives before the government advised in late October that their names and backgrounds were classified. SER 180-81, 227. Although two of Mr. Mohamud’s counsel held security clearances, the district court and the government refused to allow the use of the information. SER 227-36, 27274; I:97-99. The protective order entered by the court explicitly prohibited counsel from asking the operatives any questions about “identifying information.” I:97. While the operatives’ identities may have been considered classified for their work 132 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 156 of 256 on this case, the defense had discovered that work on other cases was not considered classified. This case presents a unique situation in which counsel knew of traditional avenues of investigation and questioning but were prevented from pursuing them by application of the state secrets privilege. As a result, counsel were unable to fulfill their constitutional obligation to provide effective assistance to Mr. Mohamud. The protective order was fatally overbroad because it went too far in protecting the identities of the operatives at the expense of guaranteeing Mr. Mohamud a fair trial. Most of the identified risks from public disclosure of the operatives’ identities were alleviated by provisions of the protective order with which the defense agreed. But by refusing any disclosure of the operatives’ true identities and limiting all questioning about their backgrounds, the protective order failed to strike the proper constitutional balance. C. The District Court’s Denial Of Discovery Regarding, And Testimony From, “Bill Smith” Violated The Fifth And Sixth Amendment Rights To Compulsory Process, Confrontation, And Presentation Of The Complete Theory Of The Defense. Bill Smith played a key but invisible role in the attempt to present the entrapment defense. From the outset of the case, the government first failed to disclose his existence, then claimed his participation was unrelated to this case. V:1365-67. The trial court at first indicated discovery regarding Bill Smith would be appropriate. V:1406-07. On April 17, 2012, in response to briefing, the district 133 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 157 of 256 court ordered the disclosure of Bill Smith’s real name and “whatever information you’d want if you were investigating this to determine what involvement Bill Smith had.” V:1566. On May 6, 2012, the government held its fifth ex parte session with the trial court.V:1518-19. On May 8, 2012, the district court reversed course, finding that, under United States v. Henderson, 241 F.3d 638, 645 (9th Cir. 2000), the informant’s privilege provided a limited basis to withhold the identity of a confidential informant. I:20-21. On May 23, 2012, the defense filed a motion to reconsider, pointing out that the government had not previously raised the informer’s privilege, that such a privilege did not apply, and, if it did apply, the balance of interests favored disclosure. V:1616. The defense cited the infringement on Mr. Mohamud’s constitutional rights to due process, confrontation, and compulsory process. V:162025. In response, the government claimed that Bill Smith’s emails “speak for themselves,” V:1656, which the district court adopted as the reason for denying reconsideration. I:39.30 The trial court held an ex parte hearing with Bill Smith and asked questions provided by the defense, which provides the material that this Court should review in evaluating the defense claim. I:38; IV:1071. 30 134 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 158 of 256 At trial, the government decided the Bill Smith emails needed to be explained to the jury. Rather than calling Bill Smith, his handler, Special Agent Jason Dodd, testified to their meaning despite objection to second-hand information. V:1623-24. Over repeated objections, SA Dodd spun the meaning of the emails in favor of the government and against the defense. Tr. 1516, 1542-43, 1554. Because of the denial of discovery, the defense was unable to effectively cross-examine and impeach the testimony of SA Dodd, nor could the defense call Bill Smith to impeach SA Dodd and to put a face on the person normalizing aggression against the West. In Pennsylvania v. Ritchie, the Supreme Court stated that “[o]ur cases establish, at a minimum, that criminal defendants have the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.” 480 U.S. 39 56 (1987). Further, the Sixth Amendment assures the right to secure the opportunity of cross-examination to demonstrate the adverse witness’s potential biases and motivations. Davis v. Alaska, 415 U.S. 308, 315-16 (1974); Larson, 495 F.3d at 1102. Once the trial judge overruled the defense objection to SA Dodd’s testimony, thereby abandoning the previous ruling that the emails speak for themselves, the testimony of Bill Smith became essential as an affirmative counternarrative, as impeachment of SA Dodd’s dubious testimony about the emails, and as 135 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 159 of 256 part of the complete theory of the defense that massive and sophisticated resources were brought to bear against a vulnerable teenager. 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. Most of the government’s classified information to which Mr. Mohamud sought access appears to have been derived from electronic surveillance of his emails, phone calls, text messages, and computer use under FISA and the FAA. The government selectively declassified the products of this electronic surveillance, producing some of the conversations, but leaving the rest classified, apparently without going through the CIPA process for producing still-classified material. The lower court’s acquiescence in this selective disclosure of classified material gave the government an unfair advantage that violated Mr. Mohamud’s right to due process. Although the due process implications of selective declassification appear to raise questions of first impression, the governing principle is clear: due process requires an even-handed approach to disclosure and the government’s use of its powers. In Wardius, the Court held that a discovery statute could not constitutionally impose a notice requirement on the defense without a reciprocal obligation on the government. 412 U.S. at 476-79. In United States v. Straub, this Court held that the government could not constitutionally obtain an unfair advantage by selective 136 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 160 of 256 immunization of witnesses unless the court provided the defense witness with similar immunity. 538 F.3d 1147, 1158-62 (9th Cir. 1991). The foregoing principles equally apply to the use and withholding of classified evidence. Under Executive Order 13526, each agency that possesses information is authorized to determine whether to label it “classified” and, thereby, limit access. 75 Fed. Reg. 707 (Dec. 29, 2009). Each agency is similarly authorized to determine what it chooses to declassify and when it will do so. Id. Under Wardius and Straub, declassification decisions must be even-handed. Based on telephone and email records procured by the defense, the government produced a mere fraction of the total communications intercepted over the course of the investigation. SER 63-66.31 For example, between December 2009 and November 2010, Mr. Mohamud sent or received 11,634 text messages, but the government provided access to only 1,954 of those messages. SER 64. Similarly, Mr. Mohamud made or received 4,147 phone calls during that time period, but the government produced only 775. Id. In total, the government withheld access to approximately 83 percent of the material that defense investigation reveals would While Mr. Mohamud had access to his telephone bills, so he could determine the number of calls or texts made or received, he had no access to any content in the absence of the government’s disclosure of the fruits of its surveillance. SER 64. 31 137 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 161 of 256 have been seized during the eleven-month period that the government acknowledged intercepting Mr. Mohamud’s communications. Id. In selecting which surveillance records to disclose, the government did not follow objective parameters, such as providing all communications within certain dates or between certain persons. The selection appeared to be based on the government’s choice and did not always include the contextual communications of the party with whom Mr. Mohamud was communicating. Throughout the discovery process and at trial, Mr. Mohamud objected to the unfairness inherent in the government’s control over and selective disclosure of the electronic surveillance results. He not only invoked Brady but asserted the Rule 16 right to his own recorded statements recognized by this Court in United States v. Bailleaux, 685 F.2d 1105, 1113-15 (9th Cir. 1982). Surveillance provided contemporaneous insights into Mr. Mohamud’s activities and state of mind during the time frame covered by the trial. The defense needed the same access as the government to the daily record of what Mr. Mohamud was doing during that time. By showing that he was not researching about bombs, picking United States targets, texting about violence, and solely viewing jihadi websites, but was in fact surfing a wide range of internet sites, the defense could have provided the jury with more complete evidence to assess Mr. Mohamud’s lack of predisposition toward 138 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 162 of 256 domestic terrorism. The number of text messages and phone calls – out of the total number of such communications – that deal with alcohol, drugs, and parties, or that involve discussions of efforts to study abroad or work in Alaska, should have been available to provide critical support to the defense theory of the case. None of the texts, emails, or telephone calls that were produced involve planning or contemplation of the use of a weapon of mass destruction in the United States. At the same time, the national security concerns in this context are extraordinarily limited. Mr. Mohamud and the friends and relatives with whom he communicated possessed no classified information. Any concerns about disclosure of the details of the sting operation dissipated upon Mr. Mohamud’s arrest and the attendant publicity. The government’s refusal to declassify all of Mr. Mohamud’s communications, or at least those similar to the communications that were disclosed, skewed the presentation of evidence at trial and violated Due Process. For example, two of the critical subjects in this case on which the government presented extensive evidence were Mr. Mohamud’s discussion of traveling to Yemen to study and his plans to work in Alaska, but the government failed to disclose all communications surrounding those subjects. Tr. 498-502, 539, 1434-36, 2026-27. The government disclosed emails between Mr. Mohamud and Amro Al-Ali in August 2009 on the 139 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 163 of 256 subject of attending school in Yemen. SER 5. Other emails between Mr. Mohamud and Mr. Al-Ali were not disclosed. SER 5. With respect to Alaska and the No Fly action, Mr. Mohamud made or received 24 text messages on the date he was stopped at the airport, none of which were produced. SER 5-6. About a month later, Mr. Mohamud also exchanged at least 42 communications with a former roommate about Alaska and his plans for the future but only 27 were produced. SER 6. The government argued that both the discussion of study in Yemen and the trip to Alaska were sinister. Tr. 262, 492, 1732, 2553, 2560. Mr. Mohamud continues to believe that the undisclosed communications providing context for the communications on those dates would have supported his defense of entrapment. The government’s selective declassification severely impacted the jury’s assessment of Mr. Mohamud’s state of mind on several other critical dates as well. The time period shortly before and after the time of the first government contact on November 9, 2009, was critical to the question of predisposition. No text messages were produced from the dates between November 9 and November 20, 2009. Ex. 1016 at 2-3. Another date on which the government focused was January 24, 2010, the day of the Beau Stuart alleged “martyr” email. 140 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 164 of 256 The prejudice suffered by Mr. Mohamud at trial based on the skewed picture of his communications was heightened when the government sought to gain advantage based on its own lack of production. At trial, the defense offered an exhibit that compiled Mr. Mohamud’s text messages in chronological order so the jury could view any material presented by the government in the context of what Mr. Mohamud was actually doing on a given day. Def. Ex. 1016; Tr. 2264. Because the defense could only include communication content that it had received from the government, and because the government only provided a small fraction of the total text messages, the exhibit was necessarily an incomplete picture of Mr. Mohamud’s activities. Despite being the cause of the incompleteness, the government sought to cast doubt on the exhibit by eliciting testimony from its case agent that context and completeness are critical when reviewing such communications: Q: And context is really helpful when you can see the three or four messages on either side of a particular statement? A: Absolutely. Tr. 1808. Mr. Mohamud’s exchange of text messages with another young Muslim male, Mr. Wado, further demonstrated the government’s unfair advantage from selective disclosure. Mr. Mohamud’s texts to Mr. Wado included vague references to schools abroad, and could have been given a sinister interpretation without their full context. 141 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 165 of 256 Because the government would not disclose remaining text messages, the defense was forced to call Mr. Wado as a witness to attempt to provide the context. He testified the texts were not about violence or jihad, but he could not recall specific responses. Tr. 2267-69. The jury should have had the texts, and the defense should not have had to rely on uncorroborated memory. The government also exploited its information advantage by implying that a printed email from Amro Al-Ali “found on Mohamud” when he was arrested demonstrated that Mr. Mohamud showed up at the bomb site planning to contact AlAli. Tr. 282 (referencing email in opening); Tr.2593 (referencing email in closing). The email contained contact information for Mr. Al-Ali in Yemen and said, “Let me know your arrival date.” Tr. 282, 1237-38. The implication that this was a recent communication was entirely unfair. Although the email was undated, from its physical appearance, it was clear that the email was old, and that Mohamud had it “on his person when arrested” only because his wallet was stuffed with papers Mr. Mohmud had accumulated. Tr. 1246-47 (the email is creased from being folded); Tr. 1242-47 (listing numerous receipts, notes and other papers in MM’s wallet). Moreover, the email has a Google copyright date at the bottom of 2009 (Tr. 1247), further indicating it was printed more than a year before his arrest. Although the government conceded that the case agent did not know the date of the email, the 142 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 166 of 256 government elicited testimony that the email had a time on it, suggesting that Mr. Mohamud printed the email hours before the planned detonation. Tr. 2034 (“It just says 3:44 a.m., four hours ago.”). The defense attempted during closing to counter the false impressions about the email, but without full context, the many threads of the evidence could not easily be pulled together. In order to combat the government’s “double life” argument, Mr. Mohamud needed to be able to show the jury the totality of his life. Ironically, the extremely intrusive extent of the government’s surveillance could have made that possible. Armed with the totality of the surveillance, Mr. Mohamud would have been able to establish how extensive his non-fundamentalist and future-oriented activities were. He would have been able to show the jury that, despite some inflammatory rhetoric online or in a fraction of emails, the overwhelming majority of his communications and daily activities were those of a relatively normal, teenaged college student. The abuse of the declassification process and the skewing of the fact-finding process resulted in a fundamental unfairness and requires the granting of a new trial. E. The Failure To Allow Discovery Of Classified Brady Material And Its Replacement With Inadequate Substitute Evidence Violated The Right To A Fair Trial. The government provided two unclassified summaries of classified information following the district court’s review of the classified material under 143 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 167 of 256 CIPA. SER 45-52. One of the summaries was highly exculpatory, containing government assessments of Mr. Mohamud that went to the heart of both the predisposition and inducement elements of entrapment. SER 51. The CIPA summary evidence, a FBI 302 report prepared in July 2012 by then-case agent Ryan Dwyer, reported hearsay observations and opinions of other FBI agents from an unspecified date in August 2010, and from October 5, 2010, and November 10, 2010: Mr. Mohamud “would not make any attempts to conduct a terrorist attack without specific direction from the UCEs.” The report, which did not go to the jury based on the government’s hearsay objection, went on to state that Mr. Mohamud “did not know how to conduct [a car bomb-style] attack.” SER 51. In Sedaghaty, this Court reversed a conviction based in part on its review of a summary provided under CIPA that both distorted the actual evidence and was incomplete. 728 F.3d at 903-07. The Court should reach the same result after reviewing the classified information here. As in Sedaghaty, the defense was able to point to a number of deficiencies that appeared on the face of the document that rendered it inadequate and unfair. SER 46-50. The defense pointed out the difference between the specificity of the October 5 and November 10 dates and the vague reference to “August.” The exact date in August was critical because the defense needed to know whether the assessment of Mr. Mohamud’s willingness to act 144 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 168 of 256 independently was made before or after important contacts with the undercover agents that occurred during that month. The report is exculpatory in itself, providing an argument for lack of predisposition nine months after the first government contact with Mr. Mohamud. If based on observations after the first recorded face-to-face meeting, it is even more so. Additionally, SA Dwyer’s report did not specify how many agents shared the assessment of Mr. Mohamud. The report referenced at least two authors or sets of authors – “Portland” and the FBI “Counterterrorism Division.” There could well have been multiple FBI agents, supervisors, or prosecutors who reached the same conclusion. Mr. Mohamud was entitled to let the jury know how many agents formed the opinions related in SA Dwyer’s hearsay report. The content of the summarized assessment about Mr. Mohamud’s inclination to act on his own was also insufficient. The report states that the “available information supported [the] theory” that Mr. Mohamud would take no action without specific direction. The summary report included no such comment with respect to Mr. Mohamud’s capability of taking independent action. He was entitled to all information the FBI knew from its classified surveillance about his lack of knowledge and research regarding bomb-making and the absence of efforts to construct a bomb. 145 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 169 of 256 The harm to Mr. Mohamud was even greater than that suffered by Mr. Sedaghaty because the government took full advantage of its failure to produce the original material and the percipient witnesses at trial. The government introduced the content of the report by having its trial case agent, who was not the case agent or even deeply involved in the case at the relevant times, testify derisively and negatively about its content. Tr. 1628. The defense attempted to introduce the assessment itself, but the trial court sustained the government’s hearsay objections. Tr. 1679, 1788-90, 1801. The testimony implied that the assessment was based primarily, perhaps exclusively, on the observations of the undercover operatives, rather than on assessments by intelligence agents. Tr. 1628-29, 1673-78. The summary report did not permit Mr. Mohamud to identify the actual percipient witnesses and holders of the opinions, call them as witnesses, and ask them the basis of their conclusions. Upon review of the classified information, the Court should find that the substitute evidence, especially when excluded as defense evidence, constituted an inadequate substitution for the underlying classified information, which requires reversal of the conviction. 146 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 170 of 256 F. The Trial Court’s Refusal To Provide Classified Material Regarding Amro Al-Ali, Either Directly Or In Substitute Form, Violated The Due Process Right To Receive Material In The Possession Of The Government That Is Favorable To The Defense. The government made Amro Al-Ali a critical character in its narrative, all the while keeping from the defense the means to contradict a narrative that the defense believed – and believes – was factually incorrect. While the admission of hearsay evidence regarding Al-Ali, and the defense attempts to rebut that evidence, is addressed in the next section, this section addresses the trial court’s refusal to order discovery of classified material about Al-Ali in violation of Mr. Mohamud’s right to a fair trial. Throughout trial preparation, the defense sought information about Al-Ali, including the results of Al-Ali’s Saudi interrogations, as well as the information underlying two Interpol notices about him. V:1318, 1480-81, 1529-30; VI:2595. That information was never provided. Thus, the government witnesses were able to testify free from effective cross-examination about reasonable inferences to be gathered from the Interpol notices, while the defense was hampered from discovering whether the original Arabic content of the notice contradicted the inference drawn from its ambiguous English translation that Al-Ali was an al-Qaeda recruiter and explosives expert. Most importantly, the district court failed to provide 147 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 171 of 256 access to any report based on the Saudi interrogation of Al-Ali, despite insight from a security-cleared defense expert that the report was available to United States actors and that it was exculpatory.32 The failure to provide access to basic discovery regarding the source of the government’s evidence left the defense unable to answer the government’s case and resulted in a profoundly unfair trial. VII. By Misconstruing And Misapplying The “State Of Mind” Exception To The Hearsay Rule, The District Court Violated The Confrontation Clause, The Right To Compulsory Process, And The Right To A Fair Trial. Misconstruction of the hearsay rules relating to “state of mind” pervaded the trial of this case. Throughout the trial, the government was allowed to present, over objection, testimony regarding an Interpol notice that appeared to describe one of Mr. Mohamud’s associates, Amro Al-Ali, as a known terrorist and a recruiter for Al Qaeda. The Interpol notice was not admissible under the narrow hearsay exception for “a statement of the declarant’s then-existing state of mind[.]” Fed. R. Evid. 803(3). Nor was it admissible for the asserted nonhearsay purpose of explaining why the government operatives targeted Mr. Mohamud for investigation. To the extent that the existence of the notice had any relevance to explain the “course of As set out in the following section, the trial court cut off questioning of a qualified counter-terrorism expert, Dr. Marc Sageman, about Al-Ali. 32 148 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 172 of 256 investigation,” full admission of the content of the notice exceeded any permissible purpose. The government’s reliance on the notice as substantive evidence, without an opportunity to cross-examine the declarant, violated Mr. Mohamud’s Sixth Amendment right to confront his accusers. The improper admission of testimony derived from the Interpol notice to establish the agents’ investigative state of mind was exacerbated when the trial court repeatedly limited defense cross-examination about the government witnesses’ bias. The trial court further abused the state of mind hearsay rules by permitting undercover operatives to testify regarding what Mr. Mohamud meant during recorded conversations. At the same time, the trial court refused to admit statements in emails by Mr. Mohamud, excluding them as self-serving hearsay instead of admitting them as reflecting Mr. Mohamud’s contemporaneous state of mind. See United States v. Partyka, 561 F.2d 118, 125 (8th Cir. 1977) (finding error in exclusion of contemporaneous statements in an entrapment case because they “were not self-serving declarations about a past attitude or state of mind, but were manifestations of his present state of mind”). 149 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 173 of 256 During the trial, the judge acknowledged having difficulty interpreting and applying the hearsay rules relating to “state of mind” evidence.33 The overall effect of the errors, alone and in combination, requires reversal of the conviction.34 A. Over Defense Objection, The Court Construed the Hearsay Rule To Allow The Government To Introduce Prejudicial Hearsay Evidence Regarding A Key Figure, Amro Al-Ali, In Violation Of Mr. Mohamud’s Right To Confrontation And To A Fair Trial. Under the government’s theory, Mr. Mohamud’s connection to Amro Al-Ali was “integral” to proving his predisposition to commit this offense. VI:2593; see VI:2532 (referring to Al-Ali as “a key piece of the government’s case.”). In its opening statement, the government highlighted Mr. Mohamud’s connection to Al- The trial judge acknowledged that he found nothing in the evidence code to be as “frustrating” as the hearsay rule. Tr. 1796. On the tenth day of trial, after having admitted the government’s “state of mind” evidence over defense hearsay objections numerous times, and after repeatedly excluding defense evidence of Mr. Mohamud’s state of mind (at one point stating that “I don’t think you can show the state of mind of [the defendant]”) (Tr. 1762), the judge appeared to recognize there was a problem: “It appears that I or we or somebody are confusing two different things that are both called state of mind.” Tr. 1796. 33 Whether the district court correctly construed the hearsay rule is a question of law reviewed de novo. United States v. Alvarez, 358 F.3d 1194, 1214 (9th Cir. 2004). A violation of the Confrontation Clause is reviewed de novo. United States v. Larson, 495 F.3d 1094, 1101 (9th Cir.2007) (en banc). When the district court admits evidence in violation of the Confrontation Clause, the conviction must be reversed unless the government can show that the error was harmless beyond a reasonable doubt. Id. 34 150 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 174 of 256 Ali, then characterized Al-Ali as someone who was “wanted by the Saudi government” and an “al-Qaeda recruiter.” Tr. 262. Trial testimony, however, established that Al-Ali was an 18-year-old college student from Saudi Arabia, studying under a visa in Portland, Oregon, before he left in June 2008 to go study in Yemen. Tr. 426-27. Mr. Mohamud knew Al-Ali as a student in Oregon, and his limited email contact with Al-Ali after he left Oregon reflected the same immature glamorization of jihad and life abroad that prompted him to write for Jihad Recollections, not sophisticated contact with a known Al-Qaeda recruiter. (See Ex. 224). The government’s only evidence of Al-Ali’s alleged al-Qaeda terrorist connections came from two Interpol “Red Notices” from 2009 and 2011. SER 20508; Ex. 80. The Interpol notices contained assertions of an unnamed declarant based on unknown sources that: Al-Ali was known to be connected to a fugitive wanted by Saudi Arabian authorities who is an expert in manufacturing explosives and in facilitating the movement of extremists inside Saudi Arabia. He also helped Al Qaeda division in Yemen and other countries by providing them with foreign fighters to carry out terrorist attacks against western and tourist interests. Ex. 80; SER 206. The exhibit also contained a photo of a person purported to be AlAli. 151 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 175 of 256 The defense objected pretrial to the admission of the Interpol notices, arguing that the documents were hearsay not within any exception, that their introduction would violate Mr. Mohamud’s right of confrontation, and that, because Mr. Mohamud had never seen the Interpol notices, they had no bearing on his mental state. VI:2145-48.35 The defense also pointed to evidence from pretrial proceedings that the FBI’s characterization of Al-Ali was incorrect because the “He” in the second sentence of the Interpol notice referred to the fugitive described in the first sentence of the notice, not Al-Ali. VI:2598; Tr. 1426. At the pretrial hearing, the government argued for the first time that the Interpol notices were relevant to the mental state of the government agents who were investigating Mr. Mohamud, and admissible to explain why they had targeted him for the sting operation in 2010. VI:2495-97. The defense had filed a pretrial motion in limine to prevent hearsay from being placed before the jury through “course of the investigation” testimony. VI:2483-86. Referring specifically to the Interpol notice, the defense argued that the government could not explain the background of an investigation through otherwise inadmissible hearsay evidence. VI:2591, 2594. The defense, among its other objections, noted that the same rule explicitly excepted police reports like Interpol notices, citing Fed. R. Evid. 803(8) (excluding, “in a criminal case, a matter observed by law-enforcement personnel”). VI:2147. 35 152 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 176 of 256 The court ruled that the exhibit was admissible because the government was entitled to explain the genesis of its investigation. VI:2597; see also VI:2643 (clarifying that the 2009 notice was not admitted for its truth, but “only as to the mental state of the investigating agents, period.”). The defense repeated its objections, emphasizing the Confrontation Clause violation that would ensue from admitting prejudicial and inaccurate out-of-court statements without the defense being able to “cross-examine the person that is claiming that Al-Ali is a terrorist.” VI:2597-98. The court suggested the defense could “cross-examine on that,” without acknowledging that the witnesses who made the relevant statements would not be available for cross-examination. VI:2598.36 Throughout the trial, the government exceeded the court’s “state of mind” ruling and repeatedly introduced the hearsay from the Interpol notice in a manner that portrayed Al-Ali as a known terrorist and al-Qaeda recruiter. Beginning in its opening statement, the government affirmatively told the jury that Al-Ali was an alQaeda recruiter: “Al-Ali had been identified by the FBI as wanted by the Saudi At the next hearing, the government withdrew the 2011 Interpol notice, agreeing that, because it was issued after the defendant’s arrest, it was not relevant to the agents’ mental state. VI:2642-43. But the government did not remove the 2011 Interpol Notice from Exhibit 80 before it was given to the jury. See Ex. 80 at 3-4. 36 153 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 177 of 256 government because he was recruiting Westerners as fighters for Al-Qaeda. He was an Al-Qaeda recruiter.” Tr. 262. The government continued the trend with its first witness. Within minutes of starting his testimony, Special Agent Trousas, apparently relying on the Interpol notice, testified that Mr. Mohamud was “in contact with some dangerous people overseas” including Al-Ali. Tr. 332-33.37 When asked by the government what specific information about Al-Ali he had “that affected his decision-making,” the agent testified: Mr. Al-Ali was on the Interpol list. There was a red Notice for him. He was wanted by Saudi Authorities . . . . The FBI had an open investigation. Tr. 334. The government was permitted to ask the agent, over defense objection, why the authorities wanted Al-Ali and “how that affected your thinking,” eliciting the response “[f]or terrorist and related activities.” Tr. 334. The agent later Before SA Trousas testified, the defense clarified on the record that his knowledge of Amro Al-Ali derived solely from the Interpol notices and from AlAli’s emails. Tr. 325. The government’s agreement eliminated the need for a preliminary hearing on the basis for this lay witness’s testimony, as the defense had requested in a written motion. VI:2736. The emails do not provide a separate basis for proving the assertions in the Interpol notice because they contain no reference to al-Qaeda. Ex. 224. Moreover, the contents of the emails were also hearsay, as the defense noted in written objections. VI:2293, 2460. During trial, the court granted the defense a standing hearsay objection to all of the Al-Ali emails. Tr. 328. 37 154 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 178 of 256 elaborated for the jury that the Interpol notice charged Al-Ali with “links to terrorist organizations and connections to a fugitive who is an expert in explosives manufacturing.” Tr. 491. After the recess, in an effort to enforce the court’s ruling that the Interpol notice was admissible only as relevant to the agent’s mental state, the defense requested a limiting instruction. Tr. 527-28. The defense also repeated the Confrontation Clause, relevance, and hearsay objections to allowing the evidence in at all, noting that the agent’s “mental state is not relevant in the way the government has put forward.” Tr. 528. The court acknowledged concern with “attorneys trying to push through an awful lot under the state of mind exception, when in fact they are getting in evidence for the truth of the matter,” but seemed to indicate concern with the defendant’s statements or emails, not with the government’s evidence. Tr. 52829. The court agreed to give the limiting instruction. Tr. 532. The government again injected hearsay from the Interpol notice into the case during testimony by the undercover operative, Youssef. After Youssef testified that he knew Mohamud “was in contact with a known terrorist in Yemen,” and suggested that the terrorist was Amro Al-Ali (Tr. 539, 541), the defense asked for a hearing outside the presence of the jury to inquire into the basis for those statements, noting that they appeared to be based on the hearsay contained in the Interpol notice. Tr. 155 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 179 of 256 586. The court took up the request the following day, and the government argued that the statements had not been offered for their truth: As a practical matter, to substantively address the concern, that witness is not saying that for the truth. He’s saying that, much like Agent Trousas, because it affected his decision-making. I think his testimony to the jury about, “Why are you sending emails? What is your sense of urgency,” is based on his state of mind about Mr. Al-Ali and his interactions with the defendant, and we’re not going to argue later on that this agent said he was a terrorist, therefore he is. It’s they’re acting this way because of this concern. Tr. 640. The defense reiterated its objection to admission of the hearsay for that purpose and requested a limiting instruction, which the court refused to give: “I’m not going to give a limiting instruction every time state of mind comes up. We’ve given enough at this point.” Tr. 639-42. The government continued to elicit the same, objectionable hearsay through witness after witness. The court permitted undercover operative “Hussein,” over defense objection, to state that Al-Ali was “al-Qaeda related.” Tr. 1015. SA Chan was permitted to testify, over defense objection, that he had been told that Mr. Mohamud “was an associate, a friend of Amro Al-Ali, who was a known al-Qaeda facilitator.” Tr. 1317-18. As in other instances, the court overruled the defense hearsay objection based on the government’s assertion that “[s]tate of mind . . to show why this agent acted in June 2010” was a proper ground for admission. Tr. 1317-18. 156 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 180 of 256 On the eighth day of the trial, the government sought to lay the foundation for introducing the actual Interpol notice in evidence under the same “state of mind exception” it had persuaded the court to adopt. Tr. 1417. The defense argued that the document was unreliable and asked for a hearing outside the presence of the jury. Tr. 1417-19. The court repeated its prior ruling that “Exhibit 80 is allowed for the mental state of the FBI agents” and “is admissible if the government authenticates.” Tr. 1419-20. The government presented testimony of Nicholas Johnson, a program management analyst at Interpol, that Exhibit 80 was an authentic copy of documents kept in the same manner as other documents at Interpol. Tr. 1423. Under defense questioning, Mr. Johnson agreed that the document was likely an English translation from the original Arabic, that he was “not certain” who the alleged Al-Qaeda recruiter was in the second sentence of the notice, Al-Ali or the fugitive, and that the offense for which Al-Ali was sought had a one year maximum punishment. Tr. 1426. The defense argued the exhibit was unreliable and should not go to the jury. Tr. 1430. The government offered the exhibit, Tr. 1430, and the court received it “for state of mind” of the agents. Tr. 1431. Despite the court’s clear limit on use of the Interpol notice, the government’s case agent included the Interpol notice in his lengthy “summary for the jury that will 157 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 181 of 256 help identify the specific evidence and put it in context.” Tr. 1575. The written reference to the Interpol notice had been removed from the summary timeline (Ex. 263) before it was shown to the jury based on a defense objection, Tr. 1410, but the agent nevertheless referred to the Interpol notice in his testimony as he walked through the timeline: And then in October the Red Notice notifying us that Al-Ali was a wanted terrorist from Saudi Arabia came out. Tr. 1605. Because the case agent had testified that the Interpol notice was “evidence” against Mr. Mohamud, the defense cross-examined the agent about its ambiguities and reliability. Tr. 1778-83. The defense later requested a renewed limiting instruction on the use of the Interpol notice for state of mind only, Tr. 1804, which the court gave: You have heard and seen evidence about Government Exhibit 80, the Interpol notice. I instruct you that this evidence is admitted only for the limited purpose of what effect it had on the mental state of the agents who reviewed it and not for the truth of the matter asserted therein. You must consider it for that purpose and for no other purpose. Tr. 1989. Finally, the government introduced the hearsay from the 2011 Interpol notice into evidence through its expert witness, Mr. Kohlmann. Because Mr. Kohlmann had not been part of the investigating team, his state of mind could have no relevance to the “course of investigation” in the case. Nevertheless, over defense objection, 158 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 182 of 256 Mr. Kohlmann introduced the facts from the 2011 notice while testifying that Mr. Mohamud had “connections” with “known extremist individuals or terrorists.” Tr. 2032. When Mr. Kohlmann started testifying about the content of the 2011 Interpol notice, the defense objected – “relevance based on time” – in that Mr. Mohamud had been arrested in 2010. Tr. 2032. The court overruled the objection after the government argued that the evidence went to “the pool of his knowledge about this person.” Tr. 2032-33. The witness continued: THE WITNESS: In January 2011 the – the Interior Ministry of the Kingdom of Saudi Arabia issued a list of 47 individuals who were considered to be most wanted al-Qaeda terrorist suspects on the loose considered to be imminent threats and sought by the Interior Ministry for questioning and potentially for adjudication in a court. One of the individuals on that list was Amro Suleiman Al-Ali. According to information that was provided to Interpol by the Kingdom of Saudi Arabia, Mr. Al-Ali was alleged to have traveled to Pakistan to receive training in explosives. MR. WAX: Objection. Hearsay. THE COURT: Overruled. Mr. Kohlmann, go ahead. THE WITNESS: Thank you, Your Honor. Mr. Al-Ali reportedly traveled to Yemen – or, excuse me, to Afghanistan – excuse me, Pakistan to receive training in explosives, as well as to provide financing to al-Qaeda, and, according to the Interior Ministry, was also involved in recruiting Americans and other Westerners to join alQaeda. Tr. 2033. 159 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 183 of 256 The government continued to improperly rely on the Interpol notice for a nonstate-of-mind purpose during questioning of defense witnesses. Professor Moghaddam, for example, testified for the defense about the importance of understanding the context in which people act. Tr. 2213-17. On cross-examination, the government asked: Q: And also, in looking at context, shouldn’t we also look at his relationship with Amro Al-Ali, who was an al-Qaeda recruiter? Tr. 2260. The defense objected and moved to strike. Tr. 2260. The court allowed the government to rephrase the question: THE COURT: Go ahead. Rephrase your question. BY MS. HOLSINGER: (continuing). Q: Also in this context, we should consider the defendant’s contact with Amro Al-Ali, who the FBI believed to be an al-Qaeda recruiter, correct? Tr. 2261. The government employed the same tactic while cross-examining one of Mr. Mohamud’s college acquaintances, asking, over defense objection, if he knew that Mr. Mohamud “had secret email addresses that he only used for certain Islamic terrorists?” Tr. 2190. Answer: No. By the twelfth day of trial, because unsubstantiated claims that Al-Ali was a terrorist and al-Qaeda recruiter had so permeated the evidence, the defense informed the government that they would ask their terrorism expert to discuss the meaning of 160 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 184 of 256 the Interpol notices to show that the FBI’s understanding of them was incorrect. Tr. 2327. The government objected, explaining to the court that “[o]f course, the Government is only offering [Exhibit 80] for the state of mind of the agents involved, not for the truth.” Tr. 2327-28. After further argument, the defense was permitted to present the testimony of a counter-terrorism expert, Dr. Marc Sageman. Dr. Sageman is a Harvard graduate with both a medical degree and a doctorate in political sociology. Tr. 2428. He had worked for the Central Intelligence Agency for seven years, stationed in South Asia, and had taught courses on the social psychology of political violence. Tr. 2428-29, 31. After September 11, 2001, his focus shifted to terrorism, specifically, studying why some individuals turn to violent terrorism while others do not. Tr. 2433-34. Dr. Sageman had provided extensive expert services on counter-terrorism to the United States government, including the State Department, Congress, the CIA, and the FBI, and to foreign governments. Tr. 2435-36. He had most recently been working in Afghanistan, providing recommendations to mitigate the heavy casualties that had been suffered from “green-on-blue” insider attacks. Tr. 2427. Dr. Sageman testified that he routinely reviews and analyzes intelligence documents in his work, and that he had read “close to a hundred” intelligence reports about Al-Ali and the other fugitive named in the 2009 Interpol notice. Tr. 2467, 161 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 185 of 256 2470. Dr. Sageman testified definitively, based on his intelligence experience and review of open source documents, that the second sentence of the October Interpol notice referred to the other fugitive, not Al-Ali, and that Exhibit 80 did not establish a basis for believing that Al-Ali was an al-Qaeda recruiter. Tr. 2471. However, the trial court cut Dr. Sageman’s testimony short, stating before the jury “I do not believe that he has the background to testify on this subject of who was who in this. Go on to another subject, Counsel.” Tr. 2471. Almost every major government witness during trial had testified to their belief that Al-Ali was a terrorist and an al-Qaeda recruiter, but the testimony was purportedly not admitted for its truth. By closing argument the government had not introduced any substantive evidence that Al-Ali was a terrorist or al-Qaeda recruiter during the time relevant to this case. Undeterred, the government continued to use the “state of mind” hearsay ruling in closing to suggest to the jury that Al-Ali was an al-Qaeda terrorist. For example, in discussing evidence that Al-Ali had sent an email to Mr. Mohamud, the government described the FBI’s “concern” regarding “a known terrorist”: And you heard testimony that this caused concern amongst the agents of the FBI that were looking at this case who knew some of this information and now believed, from their perspective, that a known terrorist was reaching out to this defendant with an invitation to travel. Tr. 2557. 162 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 186 of 256 Moreover, the government used the Interpol notice substantively in its closing argument by showing the jury a picture taken directly from the October 2009 Interpol notice and linking it to a May 2009 email sent by Mr. Mohamud to a group of contacts that included Al-Ali. Tr. 2549, 2575-76. At the break, the defense objected: Your Honor, the second issue: on its time line, which is being shown in this courtroom, related to a May 2009 email, the Government showed a photograph of a young man in a turban with the improper implication that that was Amr Al-Ali. That’s a photograph taken from the Interpol notice. Government’s Exhibit 80. That Interpol notice was not admitted for its truth, only admitted for the effect on the agent’s state of mind. We ask the Court to instruct the jury it was improper for the Government to show a photo of a young man in a turban with the implication that that was Amr Al-Ali. There’s no evidence of that, and that should be stricken. Tr. 2575. The Court overruled the objection: “I don’t believe there’s anything inappropriate, at least that I can tell at this point.” Tr. 2576-77. No limiting instruction was given to the jury to counteract the government’s substantive use of the image taken directly from the Interpol notice.38 The trial ended with the government in rebuttal again invoking Al-Ali as a terrorist, noting that Mr. Mohamud had received a “December 3rd e-mail from Amro Unlike in United States v. May, 622 F.2d 1000, 1008 (9th Cir. 1980), the government here did not make the person who took the photograph available for cross-examination. The government’s substantive use of the photograph to depict Al-Ali violated the Court’s limiting order because the photograph was a nonverbal statement by the person who attached it to the Interpol notice that it depicted Al-Ali. 38 163 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 187 of 256 Al-Ali, a person the FBI at that point believed was in fact a terrorist . . . .” Tr. 267677. B. Once The Court Allowed Government Witnesses To Testify Regarding Their Investigative “States Of Mind,” The Court Erroneously Restricted Cross-Examination Related To Mental State, Including Motivation And Bias. Because the court had repeatedly ruled for the government that the mental state of its agents was relevant, the defense sought to cross-examine them about their mental state, including motivation and bias.39 Some of the agents had testified that they were “assessing” Mr. Mohamud and were not intent on building a case to prosecute him. Tr. 804; 813. Part of the contrary evidence available to the defense were the “outtakes” – the inadvertent recordings of the government agents when they had not turned off the recording devices after leaving meetings with Mr. Mohamud. See, e.g., Tr. 902-03. The outtakes provided a candid, contemporaneous snapshot of what the agents were thinking, feeling, and saying. The government objected to use of the outtakes based on hearsay and relevance. VI:2478-82. The defense described for the court in writing (SER 32-35), then at a pretrial hearing, which portions of the outtakes would be relevant: The defense had earlier agreed, arguing that the undercover operatives should not be permitted to testify because the videos of the interactions should speak for themselves. VI:2283. 39 164 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 188 of 256  “[T]he agents’ statements that certain actions, quote, might be a problem in front of the jury”;  “[T]he sections where the agents talk about the roles they are adopting”;  “[T]he sections where the agents say that Mr. Mohamud has bonded with the agents, and they’re approving that”;  “[T]he promises of rewards”;  “[The] sections where the agents discuss their glee at the fact that the defendant is done for, meaning what kind of sentence he would get”;  “[The] sections where the agents talk about whether Washington was going to consider this operation sexy enough.” VI:2577-78. The defense argued that the outtakes were admissible to demonstrate bias and inducement: All of those, Your Honor, are relevant to show bias and they’re relevant to show the inducement. They’re not coming in for the truth of the matter asserted. The defense does not care if Washington actually thought the operation was sexy. What we care about is that the operatives themselves are expressing that bias. ***** I believe the defense is entitled to show what kind of bias drove this investigation, what was the central idea behind it; and we can do that through these outtakes. Now, they’re not being offered for the truth of the matter asserted. Whether the agent actually was going to get a book deal or not is not relevant. We don’t know. That’s not for the truth. It’s the agent believing that this is what was going to be accomplished for him as a result of this fantastic exercise that he’s engaged in. VI:2578. The court deferred ruling. VI:2579. 165 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 189 of 256 During trial, the defense sought to use the outtakes to cross-examine a witness, but the government objected based on hearsay. Tr. 870. The defense explained that the outtakes were not hearsay: MR. WAX: Well, the Government’s position has been, in its questioning of its witnesses, that this was an assessment, that all of these meetings were an assessment. Both of the operatives have testified that they were seeking to determine whether or not Mohamed would go forward. The reality, as we perceive it, is that the Government, from the outset, had what I will call a prosecution agenda and that the FBI, as a whole, was not engaged in an assessment; that the FBI, as a whole, was setting in motion an operation that was designed to end in a prosecution. The statements of the agents, both the ones made directly by this agent, other statements made in this agent’s presence, that he acknowledged and ratified, and in the one instance where he said that the speaker was his good luck charm, he liked to have him around. It seems to me it’s direct evidence of the Government’s plan. And the Government has put into issue the motive of its agents. You may recall when we started on this issue with respect to the Bill Smith matter the Court took the position that the intent of the agents was not relevant and that was one of the reasons why we were not permitted to have access to the information about Smith. But the Government now is making the intent of its agents, the intent of the investigation as a whole, a center point of its case. It did it in opening, and it has done it with Trousas, Youssef, and Hussein. Tr. 871-872. The defense further argued that the tone of voice on the tapes was important, noting that the excitement expressed could not be reproduced by questions. Tr. 875. The court treated the outtakes as prior inconsistent statements 166 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 190 of 256 and ruled that the defense could play the tapes only if the witness denied making the statement. Tr. 881; compare SER 33 with Tr. 955-56. The defense then questioned various witnesses about the bias revealed in the outtakes, but was not permitted to play any of the tapes for the jury. Tr. 913-916, 1310; see also Tr. 2521-22 (sustaining government objection to defense exhibit reflecting agent’s then-existing state of mind.) The court also prevented the defense from asking undercover operative Youssef about his possible motivation to make the crime more egregious in order to minimize the risk of having to testify at trial. Tr. 1166. Evidence had already been presented that someone in the FBI planned the size of the bomb, picked the components of the bomb, and suggested including nails, which would fly out to harm the children. Tr. 1064-65; 1283-93. Youssef had admitted that he did not want to testify publicly because doing so would impair his ability to continue working undercover. Tr. 1164-65. The defense was prevented, however, from asking Youssef whether he personally had attempted to make the crime “so large and so emotional” in order to inhibit the defendant from going to trial. Tr. 1166. The court cut off questioning and informed the defense that those questions were “completely improper.” Tr. 1166. 167 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 191 of 256 When the government presented testimony about the Bill Smith emails, the government was permitted, over defense objection, to inquire into the FBI agent’s intent in crafting the emails. Tr. 1507, 1512.40 The government ended its direct examination with a question about good intentions: “And did you ever tell [Bill Smith] to try to implant the defendant’s mind with some intent to commit a violent act here?” Tr. 1528. Yet when the defense sought to ask whether the emails could have had an unintended effect, particularly in light of the defendant’s youth and trend away from radical ideas, the court sustained the government’s objections: MS. HAY: Your Honor, the witness was allowed to testify about his intent and his purpose, and I'd like to examine him on whether his intent matters. I think that's a valid line of questioning. THE COURT: Whether his intent matters is not an issue at this point. The issue is what happened, what was done, what was said. Tr. 1532, 1529-33. 41 40 The questions on intent continued. Tr. 1513-17. The defense’s ability to confront the agents regarding their states of minds was also impaired by pretrial rulings that barred discovery regarding the agents’ meetings before and after their interactions with Mr. Mohamud (V:1534-35; I:22) and regarding bias based on the FBI’s interest in persuading Portland to rejoin the Joint Terrorism Task Force (V:1484-86,1512-12, 1532-34, 1591-97; I:22). The trial court denied a renewed request for pre- and post-meeting information during trial. I:115-16. 41 168 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 192 of 256 C. Over Defense Objection, The Court Allowed Government Witnesses To Testify About What Mr. Mohamud Meant And Was Thinking About In Recorded Statements. The government successfully invoked the misconstrued “state of mind exception” to introduce testimony from government operatives about what Mr. Mohamud was thinking during recorded conversations. As examples, the government elicited, over defense objection, undercover operative Youssef’s speculation about what the defendant wanted, Tr. 593, why the defendant was crying, Tr. 615, and whether the defendant was serious and not all talk, Tr. 611. The defense requested and received a “standing objection to this witness’s continued interpretation of the defendant’s mental state.” Tr. 611. Similarly, the government elicited, over defense objection, Hussein’s speculation about what the defendant was thinking or meant. Tr. 821, 828. The court admitted the testimony as relevant to “state of mind.” Tr. 821. For example, after Hussein testified that Mr. Mohamud said his parents did not believe in what he was doing, the government asked for Hussein’s interpretation of what Mr. Mohamud meant: Q: And when you say they didn’t believe in what he was doing, what did you think he meant by that? MR. WAX: Objection. THE COURT: Overruled. 169 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 193 of 256 THE WITNESS: He wanted to commit a terrorist act. He wanted to place a device at Pioneer Square. MR. WAX: Your Honor, I’ll object and ask that that be stricken. THE COURT: Overruled. He’s asking for his state of mind. He’s giving his state of mind. Go ahead. Tr. 821. The government similarly elicited highly prejudicial speculation about what the agent believed one of Mr. Mohamud’s friends was doing: Q: And based on what he told you and – about Dawlat, what did you believe that Dawlat was doing from Afghanistan? MR. WAX: Objection. Speculation. THE COURT: He’s asking for his state of mind. Overruled. THE WITNESS: Well, as he spoke about Dawlat and the book they used to read, which is Al Mulk Deici, which talks about basically trade craft and what you do to evade being caught, to me, he’s there as a jihadi to kill American soldiers. Tr. 837. The court’s ruling that the evidence was being allowed because “[h]e’s asking for his state of mind,” may well have led the jury to believe that the agent was authorized to interpret the defendant’s state of mind. Tr. 821, 837. The prejudice from the improper testimony was thus doubled: the content of the agent’s speculation was inflammatory, and the court added its imprimatur to the agent’s interpretative abilities. 170 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 194 of 256 Hussein was also permitted to speculate that when Mr. Mohamud talked of “jihad,” he meant joining a terrorist organization: Q: And in the context [Mohamud] was talking to you about jihad and Shukri, what did you believe he meant by “jihad” in that context? MR. WAX: Objection. THE COURT: I’ll allow it for his state of mind, the witness’s state of mind, at the time. THE WITNESS: To me, that’s where individually he was trying – he was talking, the defendant, to let him go to Somalia to commit to join the As Sahab organization, which is a terrorist organization. That’s what I got from the conversation; that it was helping him to do something like that. Tr. 851; see also Tr. 1025, 1322. D. Over Defense Objection, The Court Misconstrued The Hearsay Rule To Exclude Admissible Evidence Of Contemporaneous Communications By Mr. Mohamud That Reflected His Lack Of Predisposition To Commit The Crime Charged. The trial court continued to misconstrue the “state of mind” exception to exclude emails that should have been admissible as to the defendant’s state of mind. The court permitted the government to selectively present defendant’s communications as admissions of a party opponent reflecting a nefarious state of mind. See Ex. 224, 225 (emails). But the court rejected off-setting communications offered by the defense that reflected an exculpatory state of mind, finding that the contemporaneous statements constituted self-serving hearsay. Tr. 447, 1762-1768. 171 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 195 of 256 For example, the court sustained the government’s objection to emails from the defendant to his father, in which the topic of going to school was discussed, which the defense offered to demonstrate that the defendant was thinking about going to school. Tr. 1758-60. Another email contained the Yemen class schedule. Tr. 1764. The state of mind hearsay exception, properly construed, would allow the admission of these documents as a then-existing state of mind or plan, and the documents should have been admitted for their truth. E. The Trial Court’s Repeated And Pervasive Errors Misconstruing And Misapplying The Evidentiary Rules For “State of Mind” Evidence Require Reversal For Violation Of The Hearsay Rule And The Rights To Confrontation, Compulsory Process, And A Fair Trial. Hearsay is generally inadmissible unless it falls within a hearsay exception. Fed. R. Evid. 802. The hearsay exception for state of mind evidence, Rule 803(3) allows the admission of a declarant’s out-of-court statement for its truth, if relevant to the declarant’s then-existing state of mind or mental or emotional condition. Fed.R.Evid. 803(3) (“A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) . . . but not including a statement of memory or belief to prove the fact remembered or believed[.]”); see United States v. Faust, 850 F.2d 575, 585 (9th Cir. 1988) (“In order to determine admissibility under this rule a court must 172 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 196 of 256 examine three factors: contemporaneousness, chance for reflection, and relevance.”). The Interpol notice about Amro Al-Ali plainly did not qualify for admission under Rule 803(3). None of the trial witnesses was the declarant of the notice, nor did the notice contain a statement of any of the witnesses’ then-existing state of mind, such as motive, intent, or plan. The rule does not allow a law enforcement officer to prove his own state of mind through another person’s hearsay. The Interpol notice also did not qualify for admission as nonhearsay; that is, the statements were not admissible to prove a relevant fact other than the truth of the matter asserted in the statement. Fed. R. Evid. 801. The government argued that the statements were being offered not to show that Al-Ali was a wanted terrorist, but to demonstrate the reason for the initiation of the investigation. In United States v. Silva, Judge Easterbrook explained that allowing officers to “narrate the course of their investigations, and thus spread before juries damning information that is not subject to cross-examination” would “eviscerate the constitutional right to confront and cross-examine one’s accusers.” 380 F.3d 1018, 1019-20 (7th Cir. 2004). This Circuit adopted Judge Easterbrook’s approach, recognizing the potential for harm in allowing “course of investigation” testimony that places inadmissible 173 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 197 of 256 hearsay before the jury. Ocampo v. Vail, 649 F.3d 1098, 1100, 1110 (9th Cir. 2011) (citing Silva, 380 F.3d at 1020). The reason for targeting a suspect is irrelevant: We do not find that the evidence introduced to show the government’s motive in setting the trap is in any way relevant to proving the elements of the counts charged. While the jurors may have been curious as to why the inspectors began their operation, enlightenment on this matter had no probative value. United States v. Lamberty, 778 F.2d 59, 61 (1st Cir. 1985); see also United States v. Sallins, 993 F.2d 344, 346-47 (3d Cir. 1993); United States v. Novak, 918 F.2d 107, 109 (10th Cir. 1990). The hearsay statements contained within the Interpol notice should not have been admitted for the purpose of proving the genesis of the investigation or any other aspect of the government witnesses’ mental states. As the government agreed early in the proceedings regarding Bill Smith emails, the intentions and motivations of its agent were irrelevant to any of the issues at trial. VI:1656. The mental state of the government agents was irrelevant to assessing Mr. Mohamud’s predisposition or to determining whether their interactions with him induced Mr. Mohamud to commit the charged crime. Thus, the Interpol notice was not relevant to any nonhearsay purpose. See United States v. Dean, 980 F.2d 1286, 1288 (9th Cir. 1992) (reversing conviction because out-of-court statements admitted to prove why the officer went to the defendant’s mobile home were not probative of any relevant fact). 174 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 198 of 256 Even if the agents’ mistaken belief that Al-Ali was an al-Qaeda recruiter during late 2009 were relevant to any fact at trial, the government’s heavy reliance on the Interpol notice, along with its theory that Al-Ali was integral to the case, gave the evidence impermissible substantive effect. By repeatedly eliciting testimony that numerous government agents were highly concerned about Al-Ali because they believed he was an al-Qaeda recruiter, the evidence clearly and unmistakably communicated to the jury that Al-Ali was, in fact, an al-Qaeda recruiter. Admission in evidence of both the physical document, Exhibit 80, and of the testimony of agents repeating the contents of Exhibit 80, violated the Sixth Amendment because Mr. Mohamud had no opportunity to cross-examine the declarant of the out-of-court statements. Ocampo, 649 F.3d at 1113 (admitting police officer’s testimony about the substance of unavailable witness’s testimonial statements violated the Confrontation Clause). The district court’s suggestion that the defense could cross-examine the government’s witnesses was meaningless, because the declarant or declarants at the source of the Interpol notice were not present. The opportunity to cross-examine an in-court witness about the statements of an absent witness is “no substitute for the direct confrontation guaranteed by the Sixth Amendment.” Id. 175 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 199 of 256 The fact that the court at times provided limiting instructions to restrict use of the Interpol notice does not resolve either the hearsay or confrontation problem, both because the government ignored the restrictions and because, at some point, the mass of information admitted about Al-Ali as an al-Qaeda terrorist would have become impossible for the jury to compartmentalize as instructed. In some contexts, even clear limiting instructions are no substitute for a defendants’ constitutional right of cross-examination. Bruton v. United States, 391 U.S. 123, 135 (1968). The Supreme Court has identified misuse of the state of mind exception as one of the areas where “[d]iscrimination so subtle is a feat beyond the compass of ordinary minds.” Shepard v. United States, 290 U.S. 96, 104 (1933). As in Shepard, parsing the substantive truth of the Interpol notice from its supposed permissible purpose for the investigative state of mind “was a filament too fine to be disentangled by a jury.” Id. Once the government placed the good faith and investigative state of mind of its agents at issue, the trial court erred by restricting the defense’s ability to admit the contemporaneous statements in the “outtakes” to demonstrate that the agents had a personal stake in the outcome of the case. Evidence of a witness’s bias is “almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.” United States v. Abel, 469 U.S. 45, 52 (1984). 176 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 200 of 256 Bias may be proved by extrinsic evidence. United States v. McCoy, 23 F.3d 216, 217 (9th Cir. 1994). The agents’ statements that the defense sought to admit demonstrated that they were self-interested in the outcome of the investigation and motivated both to aggrandize the planned crime and ensure that Mr. Mohamud followed through with it. Permitting government witnesses to speculate about Mr. Mohamud’s state of mind further violated the evidentiary rules for “state of mind” evidence. The court admitted highly prejudicial testimony that Mr. Mohamud “wanted to commit a terrorist act,” “place a device at Pioneer Square,” and “join a terrorist organization” and that that his friend was in Afghanistan to “kill American soldiers.” Tr. 821, 837, 851. But those statements were not admissible. The law enforcement witnesses did not have any basis to testify about what Mr. Mohamud thought, and to the extent the court admitted the testimony to establish the witnesses’ state of mind, it was both confusing and irrelevant. The government repeatedly invoked the “state of mind exception” when the defense raised hearsay objections at trial, and the court overruled defense hearsay objections on this basis, then misapplied the same rule to bar the defense’s affirmative evidence and to prevent effective cross-examination of the government witnesses. Even after the court acknowledged confusion regarding the “state of 177 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 201 of 256 mind” exception, Tr. 1796, the court continued to overrule defense objections on the same basis. To add to the unfairness, the court excluded some of defendant’s communications that contained his contemporaneous statements. Those statements were the most direct evidence of the defendant’s state of mind during the course of the undercover operation. They were strongly probative of his lack of predisposition to commit the crime charged and necessary to counter-balance the government’s selective use of his communications. The trial court’s misconstruction of the state of mind hearsay rules to admit prosecution-favorable evidence and exclude defense-favorable evidence requires reversal under the rules of evidence, the Confrontation Clause, and the Due Process Clause. 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 Products Of Such Surveillance, Or, In The Alternative, The Case Should Be Remanded For A Determination Of The Facts Based On Evidence And An Adversarial Hearing. Congress required prosecutors, in the context of the most sensitive intersection between individual privacy and national security, to provide notice prior to trial that evidence “derived” from warrantless surveillance would be utilized. 50 U.S.C. § 1806(c). The government failed to provide such discovery in this case, even though the defense repeatedly and explicitly requested such information, and even 178 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 202 of 256 though “derived” has well-established meaning under the exclusionary rule. Despite the prima facie case for intentional prosecutorial withholding of notice, the government presented no evidence to explain its flagrant violation of the notice statute. Nonetheless, the trial judge denied any meaningful relief. The trial court should have at least granted suppression of evidence derived from the FAA warrantless surveillance to remedy the notice violation and to discourage future transgressions. At a minimum, this Court’s precedent requires an adversarial hearing regarding the government’s statements in pleadings regarding its failure to provide pretrial notice. The lower court’s refusal to impose any consequence – to even require evidence on why the government violated the statute – reduced the statute’s notice provision to a meaningless form of words. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920) (failure to apply exclusionary rule would reduce the Fourth Amendment to a mere “form of words.”).42 The constitutional and statutory construction issues are reviewed de novo. Berger, 569 F.3d at 1035; Collins v. Gee West Seattle, 631 F.3d 1001, 1004 (9th Cir. 2011). 42 179 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 203 of 256 A. The Statutory Language Requires Pretrial Notice Of The Use Of Evidence Derived From FAA Warrantless Surveillance. The notice statute requires that “the aggrieved person and the court” must be told prior to trial when evidence “derived” from FAA warrantless surveillance is used at trial: (c) Notification by United States Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information. 50 U.S.C. § 1806(c) (emphasis added). The FAA incorporates the § 1806(c) mandatory notice requirement to cover surveillance activity under § 702 of the FAA – 50 U.S.C. § 1881a – by a cross-reference that is explicit and mandatory. 50 U.S.C. § 1881e(a) (“Information acquired from an acquisition conducted under section 1881a of this title shall be deemed to be information acquired from an electronic surveillance pursuant to subchapter I for purposes of section 1806 of this title,…”); see Alabama v. Bozeman, 533 U.S. 146, 153 (2001) (Congress’s use of “shall” “is 180 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 204 of 256 ordinarily ‘the language of command.’”) (quoting Anderson v. Yungkau, 329 U.S. 482, 485 (1947)). Despite the pretrial notice statute, the initial notice in this case provided no reference to FAA warrantless surveillance under § 702. III:410-11. The government’s post-trial notice concedes that the products of § 702 surveillance were introduced at trial and otherwise used. VII:2907-08. Prior to trial, the defense explicitly requested discovery regarding warrantless surveillance because “the existence of any pre-FISA surveillance must be determined in order to litigate any FISA procedures as fruits of potential warrantless intrusions.” III:443. Despite the direct request, the government provided no previous discovery that FAA warrantless surveillance occurred in this case. Thus, the government in the post-trial notice admitted that evidence was “derived from” § 702 surveillance and, necessarily, that the government had failed to follow the statutory requirement that pretrial notice be provided regarding “any information obtained or derived” from § 702 surveillance. The use of the phrase “obtained or derived” in § 1806(c) unequivocally refers to the fruit of the poisonous tree doctrine, which in turn includes warrantless surveillance used to obtain a later warrant for surveillance. United States v. Giordano, 416 U.S. 505, 533 (1974) (suppressing later electronic surveillance as “derivative evidence” from earlier illegal wiretapping); Chandler v. U.S. Army, 125 181 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 205 of 256 F.3d 1296, 1304 (9th Cir. 1997) (in a civil wiretap case, “the statutory phrase ‘evidence derived therefrom’ imports the fruit of the poisonous tree doctrine used in search and seizure cases.”). The context of the statute also links “derived” to the fruit of the poisonous tree doctrine because the statute requires suppression where evidence is “derived” from surveillance that was “not lawfully authorized or conducted.” 50 U.S.C. § 1806(g). Derivative evidence includes statements, tangible evidence, and decisions that are “an indirect result of the unlawful search,” which applies to later use to obtain a warrant. Murray, 487 U.S. at 536-37. The pretrial notice statute protects core constitutional interests underlying the due process right to notice and an opportunity to be heard. See United States v. Chun, 503 F.2d 533, 537-38 (9th Cir. 1974) (discussing Title III notice). The FAA pretrial notice also serves statutory purposes such as imposing judicial supervision and control over the uses of electronic surveillance, providing aggrieved individuals an adequate opportunity to challenge unlawful surveillance, reducing the threat of completely surreptitious surveillance, deterring abusive electronic surveillance, and assuring the public that surveillance techniques are fairly employed. Id. at 539. By systematically violating the notice requirement in this case and others since 2008, the government undermined these constitutional and statutory interests. 182 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 206 of 256 B. Based On The Defense Evidence That The Government Intentionally Or Recklessly Failed To Provide Pretrial Notice Of FAA Warrantless Surveillance, The Trial Court Should Have At Least Suppressed Derivative Evidence. On February 26, 2013, shortly after the verdict in this case, the Supreme Court decided Clapper v. Amnesty International based in part on the Solicitor General’s representation that claims about the validity of the FAA would be resolved in the context of criminal cases based on the notice requirement in § 1806(c). 133 S. Ct. 1138, 1154 (2013) (“if the Government intends to use or disclose information obtained or derived from a § 1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawful ness of the acquisition.”) (emphasis added). Up to that time, no criminal defendant had ever received notice of FAA surveillance since the statute’s enactment in 2008. Based on the record in Clapper and a series of journalistic disclosures based on sources in the Department of Justice, it became apparent that the Solicitor General’s representations to the Court had been in error because the pretrial notice statute was being interpreted not to apply where the fruit of the poisonous tree was a FISA warrant.43 The defense in the present case – the second case in which such See Patrick Toomey & Brett Max Kaufman, The Notice Paradox: Secret Surveillance, Criminal Defendants, & The Right To Notice, 54 Santa Clara L. Rev. 43 183 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 207 of 256 notice was provided – submitted to the trial court the public record of the sequence of events that ultimately resulted in the Attorney General’s announcement that cases, including the present case, were being reexamined for compliance with the statute. VII:2925-29, 3089-90. The public information indicated that “there was no legal basis for a previous practice of not disclosing links” to FAA warrantless surveillance. VII:3090 (quoting Charlie Savage, Door May Open for Challenge to Secret Wiretaps, N.Y. Times, Oct. 16, 2013). The defense also provided the trial judge with the pretrial record of specific requests for evidence of “warrantless surveillance as a basis for FISA requests” (VII:2963-65), and the government’s incorrect assurances that all discovery obligations had been met (VII:2965-67). On the basis of the statutory violation and the apparently deliberate withholding of notice, the defense moved for suppression or dismissal of the indictment. VII:3083-102. The government represented to the trial judge in pleadings that “the Department had not considered the particular question,” while at the same time asserting that the prosecutors “acted in accordance with the Department’s then-current standard practice” that FAA notice need not be given 843, 866-72 (2015) (detailing the public controversy that led to the Department of Justice’s abandonment of the National Security Division’s policy of withholding notice of FAA surveillance from criminal defendants). 184 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 208 of 256 when FISA warrants were derived from warrantless FAA surveillance. VII:2996-97. The trial judge found no contradiction in those statements and decided that affidavits or other evidence was not needed because this was not a situation “where the law supports presumptions based on a prima facie case.” I:176. Although the trial judge recognized that, under its supervisory and statutory authority, the remedies of dismissal or suppression were available, the court denied any relief for the failure to provide pretrial notice other than holding a belated suppression hearing with no defense access to classified material. In doing so, the trial court misconstrued the statute to be toothless. Regardless of supervisory power, the notice statute should be interpreted to include remedies of dismissal or suppression for knowing and reckless violations. The trial court ignored precedent directly finding that “[t]he proper remedy [for failure to comply with the notice provision] is exclusion under Title III or FISA, a remedy which is triggered when the government seeks to introduce evidence in a covered proceeding.” In re Grand Jury Subpoena (T-112), 597 F.3d 189, 201 (4th Cir. 2010). Further, the legislative history links the notice provision to a trilogy of Supreme Court cases that put the government to a pretrial choice: where the court believes disclosure is necessary but the government does not want to disclose, the government must choose – “either disclose the material or forgo the use of the 185 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 209 of 256 surveillance-based evidence.” S. Rep. 95-701 at 65 (1978); accord Alderman, 394 U.S. at 181 (disclose national security warrantless surveillance or dismiss); Jencks, 353 U.S. at 672 (disclose national security witness statements or dismiss); Roviaro, 353 U.S. at 61 & 65 n.15 (disclose informant’s identity or dismiss). The trial court’s determination that there is no meaningful statutory remedy for a deliberate or reckless violation of the notice statute except a post-trial motion to suppress rendered the pretrial notice requirement illusory. Most cases are resolved with guilty pleas and, for the few trials, judges are inevitably less inclined to grant suppression and a new trial or dismissal after a jury has returned a guilty verdict. Where the prosecutor does not want to disclose but is obligated to do so – whether by court order or by statutory obligation – the only way for the statute to be enforceable is to include a statutory remedy for knowing and reckless violations. The government’s secret suppression of pretrial notice, apparently based on an untenable reading of the statute, thwarted the purposes of the statute for years. The Court on the present record should construe the statute to at least require suppression, if not dismissal, based on the unrebutted evidence of deliberate or reckless withholding of notice. By requiring only a post-trial suppression motion, the trial court left the prosecution no worse off for deliberately or recklessly refusing 186 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 210 of 256 to comply with the requirement of providing pretrial notice of warrantless surveillance. C. In The Alternative, The Trial Court’s Refusal To Hold A Hearing Regarding The Circumstances Of The Statutory And Constitutional Violation Constituted Error Requiring Reversal And Remand For Fact Findings And Remedial Action Commensurate With The Violation Of Rights. Governmental violation of a discovery statute designed to protect individual rights, whether a reckless error or a systematic failing, is no small thing. The trial court’s ruling undervalued the principles behind the congressional requirement of pretrial notice by requiring no evidence to explain the government’s violation of the pretrial notice statute. In the context of criminal motions, “arguments in briefs are not evidence.” Comstock v. Humphries, No. 14-15311, 2015 WL 2214647, *6 (9th Cir. May 11, 2014). The trial court ignored this Court’s methodology for determining prosecutorial misconduct and calibrating potential remedies. The trial court possessed supervisory power “to implement a remedy for violation of a recognized statutory or constitutional right; to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; and to deter future illegal conduct.” United States v. Chapman, 524 F.3d 1073, 1085 (9th Cir. 2008) (quoting United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991)). The “flagrant” prosecutorial behavior that can warrant 187 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 211 of 256 dismissal of the indictment includes “reckless disregard for the prosecution’s constitutional obligations.” Id. Given the explicit defense discovery requests, the decision to withhold notice was, at some level, made by government officials making conscious choices. To assess the underlying governmental conduct, this Court requires a factual determination of the reason for discovery violations. United States v. HernandezMeza, 720 F.3d 760, 769 (9th Cir. 2013) (remanding for determination whether Rule 16 violation was “deliberate” because, “[i]f the government willfully withheld the certificate, then it should be precluded from introducing the document at any retrial of [the defendant], or perhaps even suffer a dismissal of the indictment with prejudice.”) (citing United Sates v. Kojayan, 8 F.3d 1315, 1325 (9th Cir. 1993)). Without evidence, the trial court had no basis for judging whether the prosecutors’ decision to withhold notice – despite the express defense requests for notice of warrantless surveillance – constituted deliberate or reckless conduct, which is a predicate for determining the appropriate remedy. See Mazzarella, 2015 WL 1769677 at *7-8 (evidentiary hearing necessary to determine predicate facts regarding potential Brady and Fourth Amendment violations). Nor can the purposes of deterrence be properly calibrated where the misconduct is – in essence – rewarded without even the need for an explanation. See Chapman, 524 F.3d at 1087-88 188 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 212 of 256 (prosecutor’s unwillingness to “own up to” misconduct appropriate factor supporting dismissal of the indictment). Basic procedural due process requires that controverted facts be subjected to a meaningful hearing. Matthews v. Eldridge, 424 U.S. 319, 333-35 (1976). The defense established a prima facie case that the prosecutorial decision to withhold notice of requested discovery was knowing and intentional – at the very least reckless, which the Supreme Court considers as the functional equivalent of intentional in the context of constitutional violations. See Franks v. Delaware, 438 U.S. 154, 155-58 (1978) (“knowingly and intentionally, or with reckless disregard for the truth”). The trial court’s ruling based on vague, conclusory, and contradictory statements in pleadings – with no evidentiary support – ignored journalistic statements attributed to Department of Justice sources, the inferences from the timing of the disclosures, and the express pretrial requests for notice by the defense. In the criminal context, the defendant had a procedural right to discovery and a meaningful hearing regarding the prosecutorial conduct that violated his statutory – and constitutional – right to pretrial notice. 189 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 213 of 256 IX. The Warrantless Retention And Searches Of The Content Of Mr. Mohamud’s Electronic Communications Violated The FISA Amendments Act And The Constitution, Which Should Result In Suppression Of The Resulting Evidence. Seven years after the FAA’s enactment, this Court will have the first opportunity for appellate review of the FAA’s meaning and constitutionality. Under the FAA, once the executive branch reasonably believes a person is a non-United States citizen and is located outside the United States, the government may – by compelled assistance from electronic service providers – intercept all electronic communications the individual engages in so long as a significant purpose of the acquisition is for obtaining foreign intelligence information. 50 U.S.C. § 1881a(a) and (b).44 The government justification for the lack of traditional warrant protections is based on jurisdiction – a foreigner abroad is not covered by the Fourth Amendment. For the government, that is essentially the end of the matter in terms of any constitutional analysis. Even when the result of such targeting is that the government intercepts massive amounts of communications by individuals who are covered by the Fourth Amendment, such as American citizens who communicate with non-citizens located abroad, the government deems the citizens’ communications as “incidentally” 44 The full text of 50 U.S.C. § 1881a is set out as Appendix A. 190 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 214 of 256 collected and not subject to Fourth Amendment protections. As a result, the government has construed the FAA to permit the following: the government can retain massive numbers of Americans’ communications, can store them in a database, and can later query that database using the name or identifying information of an American citizen, then access the content of Americans’ communications. Other than the FISA Court approving non-case-specific targeting and minimization procedures on a yearly basis, no judicial review or individualized suspicion is required before the government intercepts, retains, and accesses American’s electronic communications. Although the defense in this case has been barred from learning anything about the process of interception or the evidence acquired, the government’s pleadings and the district court’s opinion indicate that the above process resulted in the contents of Mr. Mohamud’s electronic communications being seized and searched without judicial review and used in this criminal prosecution. The FAA’s overall structure for retaining American communications violates the First and Fourth Amendments as well as the separation of powers doctrine. Before addressing the FAA’s overall constitutionality, the Court’s determination of the lawfulness of the secondary search – the accessing of communication content – may be dispositive. 191 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 215 of 256 The trial court indicated that the defendant’s “most persuasive argument” related to the question whether “subsequent querying of the information after acquisition is a search requiring a warrant under the Fourth Amendment.” I:213. The trial court indicated that the government “allowed queries with U.S. person identifiers” with no judicial review. I:215-16. The trial court found the constitutionality of the warrantless secondary search procedures “a very close question.” I:216. Under governing rules of statutory construction, this Court should interpret the FAA, which does not expressly authorize searches of the content of Americans’ communications, to bar such intrusions without individualized judicial review. If not so interpreted, the secondary search violated the Constitution under the reasoning of Riley v. California, 134 S. Ct. 2473 (2014).45 A. The Search Of The Content Of Americans’ Communications Violates The FAA Because The Statute Does Not Expressly Authorize The Government To Retain And Later Access Such Electronic Communications That Are “Incidentally” Intercepted While Targeting Foreigners. The FISA and the FAA are directed at gathering foreign intelligence. The FAA purports to exclude intentional targeting of Americans, but is silent as to what happens when the interception of foreigners’ communications also captures massive The constitutional and statutory construction issues are reviewed de novo. Berger, 569 F.3d at 1035; Collins, 631 F.3d at 1004. 45 192 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 216 of 256 numbers of American communications. The statute also provides no guidance on how those American communications should be treated once they are identified as involving United States persons. As a matter of statutory interpretation, the FAA should be construed to prohibit retention and accessing of the content of American communications without some level of individualized judicial review. Unlike the FAA, FISA generally requires a specific order approved by the FISA Court whenever the government seeks to acquire, for foreign intelligence purposes, the contents of electronic communication where an American citizen is involved. 50 U.S.C. § 1805(a)(4). Such an order is similar to a traditional warrant in that it requires specificity as to the target, the facility accessed, the duration of the surveillance, as well as a determination of probable cause that the person is a foreign power or an agent of a foreign power. 50 U.S.C. §§ 1805(a)(2) and (c)(1). All that changed with the FAA. The FAA does not require the government to seek judicial approval of any particular targeting decision. Nor does the statute require the government to make any sort of probable cause showing. Instead, the FAA merely limits the government to “targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” 50 U.S.C. § 1881a(b). The minimization procedures include no additional direction, simply referencing the minimization procedures under FISA and directing that they 193 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 217 of 256 be adapted “as appropriate” to the new targeting directive of subsection (a). 50 U.S.C. § 1881a(e). The effect of the FAA has been to break all connection with the original FISA rationale and framework for electronic surveillance for foreign national security purposes. In Keith, where the Court required warrants for electronic surveillance in domestic national security cases, the Court suggested that acquisition through Title III-type procedures, which include individualized judicial review, may well be constitutional. United States v. U.S. Dist. Court for the E. Dist. of Mich., 407 U.S. 297, 323-24 (1972) (Keith); see In re Directives, 551 F.3d 1004, 1013 (FISA Ct. Rev. 2008) (“the more a set of procedures resembles those associated with the traditional warrant requirements, the more easily it can be determined those procedures are within constitutional bounds.”). FISA implemented that suggestion. The rationale for accessing American communications under the FAA depends on a fundamentally different premise: the acquisitions were intended to target foreigners’ communications, so American communications are acquired incidentally. Despite the lack of explicit statutory authorization, the government claims its agents can retain and later query a database containing Americans’ electronic communications that are incidentally acquired without protections analogous to judicial review of a search warrant, such as those found in traditional 194 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 218 of 256 FISA orders. This Court should hold that the FAA does not authorize circumvention of the normal limits on search and seizure of the contents of American communications. When the government acquires the electronic communications of American citizens, the statutory silence must be filled with traditional protections for American communications before the government can access their content. The face of the statute does not authorize retention of American communications, nor does it authorize querying and accessing the content of American communications. The lack of explicit congressional authorization for such a radical departure from respect for personal privacy renders the retention and accessing of Mr. Mohamud’s electronic communications unlawful for violation of the statute. See ACLU v. Clapper, No. 14-42-CV, 2015 WL 2097814 (2d Cir. May 7, 2015) (bulk collection program of telephone metadata was unlawful because not authorized by Section 215 of the Patriot Act). The governmental retention and accessing of the content of American communications involves even greater privacy intrusions than the collection of metadata in Clapper – and both intrusions are authorized nowhere in the respective statutes. As in Clapper, the “sheer volume of information sought is staggering,” and the quality of the information seized – here the content of emails and phone calls – militates against statutory authorization in the absence of explicit congressional language. Id. at *20-22. Because there is no 195 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 219 of 256 clear statement from Congress authorizing searches of American content, this Court should interpret the FAA to institute no greater derogation of customary liberties than “clearly and unmistakably” required by the law makers’ language. Hamdi v. Rumsfeld, 542 U.S. 507, 544 (2004) (quoting Ex parte Endo, 323 U.S. 283, 300 (1944)). Such statutory construction would avoid the serious constitutional problems created by retention and accessing of Americans’ telephone calls, emails, and text messages. See Zadvydas v. Davis, 533 U.S. 678, 689 (2001); United States v. Buckland, 289 F.3d 558, 564 ( 9th Cir. 2002) (en banc). The shock that greeted the Snowden revelations regarding the scope of the government’s electronic surveillance of Americans derived from the absence of explicit statutory authorization for retention and subsequent searches of American communications. Just as the indefinite detention statute in Zadvydas was construed to incorporate a six month limit, and as Buckland construed the Controlled Substances Act to require jury determination of drug quantity, the Court should construe the FAA to incorporate Fourth Amendment analogues for the content of American communications that are missing in the present case in order to avoid serious constitutional problems. 196 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 220 of 256 B. The Government’s Secondary Searches Of The Content Of An American Citizen’s Electronic Communications Violated The Constitution Because The Intrusions Occurred Without Judicial Review And Other Protection Analogous To The Fourth Amendment’s Warrant Requirement. The government claims that, once an electronic communication is collected and lawfully in the government’s possession, a subsequent examination of the communication’s content is not a search. VII:3142 (“subsequently querying that information isn’t a search under the Fourth Amendment, it’s information already in the government’s custody.”).46 Thus, by “targeting” and intercepting a foreigner’s communications (which are not protected by the Fourth Amendment), the government reasons that retention of any “incidentally” seized Americans’ communications, compilation of those intercepts in a database, and accessing the content of American communications is permissible without judicial review. This government theory runs counter to fundamental Fourth Amendment principles that require that “[t]he scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry v. Ohio, 392 U.S. 1, 19 (1968) (quoting Warden v. Hayden, 387 U.S. 294, 310 (1967) Citing the government’s expressed position before the Privacy and Civil Liberties Oversight Board, an independent bipartisan agency within the executive branch. See VII:3116. 46 197 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 221 of 256 (Fortas, J., concurring)). Incremental intrusions into protected privacy areas require independent Fourth Amendment justification for additional searches or seizures. See, e.g., Rodriguez v. United States, 135 S. Ct. 1609, 1614-15 (2015) (prolongation of detention after purpose completed required Fourth Amendment justification); Florida v. Jimeno, 500 U.S. 248, 251 (1991) (warrantless search must be limited to objectively reasonable scope of consent); Arizona v. Hicks, 480 U.S. 321, 326-29 (1987) (emergency justification for entry of home did not permit movement of stereo to read identification number beyond plain view). The Supreme Court recently applied this basic principle to electronic data in holding that the government’s lawful possession of a cell phone, seized incident to arrest, required a warrant, or an exception to the warrant requirement, before the government could search the electronic content of the phone. Riley, 134 S. Ct. at 2493-94; see also Sedaghaty, 728 F.3d at 910-13 (expansion of a computer search beyond the scope of the warrant violated the Fourth Amendment); United States v. Mulder, 808 F.2d 1346, 1348 (9th Cir. 1987) (pills lawfully in government possession required warrant for testing); United States v. Young, 573 F.3d 711, 72021 (9th Cir. 2009) (closed containers lawfully in government possession required warrant to search contents); United States v. Crist, 627 F.Supp.2d 575, 585 (M.D. 198 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 222 of 256 Pa. 2012) (search of hard drive using EnCase required warrant to extend the scope of the private search of computer lawfully in government possession). The additional search beyond the initial dragnet seizure and retention of Mr. Mohamud’s emails and telephone calls as part of the capture of international communications – even if assumed to be lawful – requires additional Fourth Amendment justification because the communications are easily identified as belonging to an American and require additional intrusions to access their content. Alderman, 394 U.S. at 177; Katz, 389 U.S. at 353; United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010). “[T]he broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards.” Keith, 407 U.S. at 313. Electronic surveillance requires compliance with the “basic command of the Fourth Amendment before the innermost secrets of one’s home or office are invaded.” Berger, 388 U.S. at 63. Once the government knew or should have known that the electronic communications involved a United States citizen, the initial justification for the seizure evaporated, and further intrusion by querying the retained communications constituted an additional search that required an independent justification. See United States v. Song Ja Cha, 597 F.3d 995, 999-1000 (9th Cir. 2010) (“Of course, 199 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 223 of 256 a seizure reasonable at its inception. . . may become unreasonable as a result of its duration or for other reasons.”) (quoting Segura v. United States, 468 U.S. 796, 812 (1984)). At the point the government conducted the further intrusion involving a United States citizen, the initial justification for the seizure – lack of Fourth Amendment protection for foreigners abroad – no longer provided a reason not to fully apply the Fourth Amendment’s protection of Americans and their electronic communications. Just as in Riley the Supreme Court held that a warrant or other well-established justification was required to access the content of the lawfully seized smart phone, the government’s accessing of the contents of an American citizen’s communications constituted a further search beyond the initial seizure of one of millions of communications potentially between parties neither of whom were American citizens. Once the government knew or should have known that the electronic communications involved a United States person, the additional warrantless invasion of privacy required suppression for violation of the Constitution. 200 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 224 of 256 C. Acquisition And Retention Of Americans’ Electronic Communications Under The FAA Violates The First And Fourth Amendment As Well As The Separation Of Powers Doctrine. Apart from the secondary search, the large-scale collection and retention of American communications pursuant to the FAA violated the First and Fourth Amendment as well as the separation of powers doctrine:  under the Fourth Amendment, as in the electronic surveillance statute in Berger v. New York, 388 U.S. 41, 44 (1967), “the language of the statute is too broad in its sweep,” failing to implement the minimal safeguards to prevent warrantless, unreasonable searches and seizures of Americans’ electronic communications;  under the First Amendment, the statute’s breadth and vagueness chill the exercise of rights by millions of Americans in their use of electronic communications;  under the separation of powers, § 702 institutionalizes an administrative, law-making role for judges that violates Article III of the Constitution and undermines judicial neutrality. In the context of domestic national security, the Supreme Court requires a warrant under the Fourth Amendment before the government engages in mass collection, retention, accessing, and dissemination of Americans’ electronic communications. See Keith, 409 U.S. at 313 (warrantless domestic surveillance for national security purposes violates the Fourth Amendment); Berger, 388 U.S. at 44 (statute that authorized electronic surveillance under judicial supervision violated the Fourth 201 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 225 of 256 Amendment because it “permits a trespassory invasion of the home or office, by general warrant, contrary to the command of the Fourth Amendment.”). The Court’s assessment of § 702’s constitutionality should take into account other constitutional interests that are closely related to the Fourth Amendment. Where searches and seizures involve First Amendment protected materials – here, communications implicating association, religion, press, and speech rights – the Fourth Amendment must “be applied with ‘scrupulous exactitude.’” See Armstrong v. Asselin, 734 F.3d 984, 993-94 (9th Cir. 2013) (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978)). The Supreme Court recognized the danger that warrantless surveillance in the name of national security would chill constitutionally protected speech: National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of “ordinary” crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech . . . . The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society. Keith, 407 U.S. at 313-14. 202 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 226 of 256 The intrusions in this case also implicate the separation of powers doctrine, which inheres in the structure of checks and balances created by the first three Articles of the Constitution: The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government. The independent check upon executive discretion is not satisfied, as the Government argues, by ‘extremely limited’ postsurveillance judicial review. Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions. Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights. Keith, 407 U.S. at 317-18 (emphasis added) (footnotes and citations omitted). The intimate personal facts revealed by the government’s perusal of one’s electronic communications also infringe on the liberty protected by the Due Process Clause. Compare Berger, 388 U.S. at 63 (“Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices.”), with Lawrence v. Texas, 539 U.S. 558, 562 (2003) (“Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”). The FAA implements an unprecedented degradation of privacy protections for American’s electronic communications. When compared against the array of protections inherent in the Fourth Amendment’s warrant requirement, the FAA 203 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 227 of 256 includes on its face none of the protections against, or even analogous amelioration of, unchecked executive branch authority to intrude into Americans’ electronic communications. The FAA’s general search authority  fails to provide judicial review of specific instances of searches and seizures of Americans’ personal communications;  fails to require probable cause, or any level of suspicion, before the government can search, seize, retain, and later access those communications;  fails to require specificity regarding the individual targeted by – or the facility to be accessed during – the electronic surveillance;  limits the FISA court’s authority to insist upon, and eliminates its authority to supervise, instance-specific privacy-intrusion minimization procedures;  provides no accountability regarding surveillance of individual Americans’ electronic communications. The Warrant Clause presupposes a number of measures that are addressed and accommodated under FISA and the Title III wiretap statute, none of which appear in the FAA. VII:3121. In the absence of a warrant, governmental searches and seizures are per se unreasonable unless within “specifically established and well delineated exceptions to the warrant requirement.” Gant v. Arizona, 556 U.S. 332, 338 (2009) (citing Katz, 389 U.S. at 357). The Supreme Court has never held that a national security exception strips Americans of protection under the Fourth Amendment’s warrant 204 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 228 of 256 requirement. Even assuming such an exception exists, the seizures and searches of international communications in this case go far beyond any permissible limits. Fourth Amendment exceptions must be “zealously and carefully drawn” to pass constitutional muster. Georgia v. Randolph, 547 U.S. 103, 109 (2006) (quoting Jones v. United States, 357 U.S. 493, 494 (1958)). In FISA, the exception for “electronic surveillance without a court order” includes surveillance directed at foreign powers and includes the limitation that “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.” 50 U.S.C. § 1802(a)(1)(B). Where a foreign intelligence exception has been recognized, it has been recognized as “narrowly drawn.” See United States v. Bin Laden, 126 F.Supp.2d 264, 277 (S.D.N.Y. 2000) (“the warrant exception adopted by this Court is narrowly drawn to include only those overseas searches, authorized by the President (or his delegate, the Attorney General), which are conducted primarily for foreign intelligence purposes and which target foreign powers or their agents.”) (citing United States v. Truong, 629 F.2d 908, 915-17 (4th Cir. 1980)). The Executive Branch should be excused from securing a warrant “only when the surveillance is conducted ‘primarily’ for foreign intelligence reasons” and when “the object of the 205 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 229 of 256 search or the surveillance is a foreign power, its agents or collaborators.” Troung, 629 F.2d 915 (emphasis added). In In re Sealed Cases, the FISA Review Court, in conducting an ex parte review of whether the FISA Court inappropriately created a “wall” between national security investigation and national security crimes, focused on the narrow scope of the foreign intelligence surveillance. 710 F.3d 717 (FISA Rev. Ct. 2002). The FISA court had to find “probable cause to believe that . . . the target of the electronic surveillance is a foreign power or an agent of a foreign power, meaning a group engaged in international terrorism or activities in preparation for terrorism.” Sealed Cases, 310 F.3d at 722; see Zweibon v. Mitchell, 516 F.2d 594, 613-14 (D.C. Cir. 1975) (en banc) (absent exigent circumstances, foreign national security electronic surveillance of domestic individuals, who were neither agents of nor acting in collaboration with a foreign power, required a judicial warrant). The face of the FAA includes no limits on surveillance to information regarding potential attack, sabotage, and clandestine intelligence activities. In areas outside of core zones of privacy, government searches and seizures can be deemed reasonable based on a balancing of the intrusion against the government’s need. Terry, 372 U.S. at 21-23 (stop and frisk on a public street based on reasonable suspicion based on articulable facts); Camara v. Municipal Court, 387 206 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 230 of 256 U.S. 523, 534-535 (1967) (administrative searches for housing safety violations). The Court should only weigh reasonableness of intrusions based on less than probable cause when the searches “occur in certain clearly defined places which by their public nature give rise to reduced expectations of privacy.” United States v. Winsor, 846 F.3d 1569, 1576 (9th Cir. 1988) (en banc). Because Americans’ private communications are within the core zone of privacy, such a reasonableness analysis is inappropriate. The Supreme Court in Keith noted the type of balancing that might pass constitutional muster by analogy to administrative warrants in Camera: Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection. It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of [the wiretap statute] but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e.g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in [the wiretap statute]. Id. at 323 (emphasis added). Congress responded by creating a warrant under FISA that “may vary” from traditional Fourth Amendment requisites, but retained many 207 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 231 of 256 analogs to such protection. The individualized procedures required for FISA surveillance – which include particularity, individualized suspicion, and direct judicial oversight – may well pass constitutional muster. Section 702, however, falls far short of even those lesser standards. For the contents of Americans’ communications, any balancing of interests has already been performed by the Constitution: a particularized warrant, based on probable cause, is necessary for the government to collect and read the content of, or listen to, Americans’ private conversations. The § 702 programs are unprecedented in terms of the broad scope of the collections and the lack of any particularized suspicion to support the massive acquisition and retention of Americans’ communications. The minimization provisions of 50 USC § 1881a also do not provide adequate protection to Americans because they do not provide adequate standards and supervision for gathering, retention, query, dissemination, and use of Americans’ communications. Congress recognized that it could only allow warrantless surveillance of the type permitted under § 702 on foreign nationals outside the United States. The statute purportedly seeks to provide protection to Americans through minimization procedures set out in subsection (e). That subsection, however, has no substantive content. Rather, it refers to 50 USC §§ 1801(h) and 208 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 232 of 256 1821(4). Review of those subsections reveals that they provide no meaningful protection. The deficiencies in subsection 1801(h) are readily apparent. At the outset, subsection (h)(1) requires the adoption of minimization procedures that are “designed in light of the purpose and technique of the particular surveillance.” That subsection then concludes with a prohibition on dissemination, only limiting dissemination to what is “consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence.” The exclusions from and limits on the minimization procedures swallow the rule. As long as the Attorney General believes that information about a United States person has some bearing on foreign intelligence, the executive branch can do anything with it. There is no individualized judicial oversight regarding the accessing of American communications under the FAA. The judicial participation in designing administrative procedures is neither a judicial branch function nor the result of an appropriate legislative delegation. See Mistretta v. United States, 488 U.S. 361, 385 (1989) (“The judicial power of the United States is limited to ‘Cases’ and ‘Controversies”); Morrison v. Olson, 487 U.S. 654, 677 (1988) (“As a general rule, we have broadly stated that ‘executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the 209 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 233 of 256 Constitution.’”) (citations omitted). Because the minimization procedures are weak, ineffective, and illusory, the statute, to the extent it authorizes retention and accessing of American communications, is unreasonable and unconstitutional, effectively authorizing general warrants to seize and to read private emails and listen to Americans’ telephone calls in violation of the First and Fourth Amendments and the separation of powers doctrine. D. If The Present Record Is Insufficient To Find A Violation Of The Statute Or Constitution, The Court Should Authorize Supplemental Briefing With Defense Access To The Relevant Documents. In addressing the novel and complex issues surrounding the FAA, the trial court operated without defense participation regarding the classified material. After the government provided the post-trial notice regarding warrantless surveillance, the defense moved again for access to the relevant classified material pursuant to 50 U.S.C. § 1806(f). VII:2910-84. Congress provided in § 1806(f) that, in deciding motions based on classified materials, “the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” This Court should exercise its authority under 28 U.S.C. § 2106 to reverse the denial of access and authorize supplemental briefing. 210 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 234 of 256 The district court applied an overly-restrictive legal standard in denying discovery. The district court denied the initial discovery motion (I:162-70), then, in denying the motion to suppress, the court interpreted “necessary” in § 1806(f) “to be much closer to ‘essential’ than to helpful.” I:224-26. Applying its “essential” standard, the court rejected the defense argument that the legislative history anticipated defense participation based on a limited showing of need. Citing the legislative history as quoted by this Court, the court denied discovery because “I have seen ‘no indications of possible misrepresentation of fact, vague identification of the persons to be surveilled, or surveillance records which include a significant amount of non-foreign intelligence information, or any other factors that would indicate a need for disclosure’ here.” I:226 (citing United States v. Ott, 827 F.2d 473, 477 (9th Cir. 1987)). This Court should reject the district court’s “essential” standard for disclosure. Since FISA was enacted in 1978, no defense attorney has been given access as anticipated in § 1806(f). Congress expected more: “in some cases” no disclosure would be made, while in “other cases” disclosure would be considered “necessary” for the types of reasons referenced in Ott. S.Rep. 604(i), 95th Cong., 1st Sess. 5859, reprinted in 1978 U.S.C.C.A.N. 3904, 3959-60; see S. Rep. 701, 95th Cong., 1st Sess. 64-65, reprinted in 1978 U.S.C.C.A.N. 3973, 4033-34. The trial court’s 211 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 235 of 256 “essential” interpretation of § 1806(f) basically forecloses any defense participation under any circumstances. This Court should reassess the trial court’s decision applying the looser definition of “necessary” that the legislative history and statutory context support. CT&IA v. FCC, 330 F.3d 502, 510 (D.C. Cir. 2003) (courts have frequently interpreted the word “necessary” “to mean less than absolutely essential, and have explicitly found that a measure may be ‘necessary’ even though acceptable alternatives have not been exhausted.”). In this case, the defense established an extraordinary pattern of government violations – both involving Mr. Mohamud and in declassified material regarding related programs. Most obviously, the government violated the pretrial notice statute in this case. Further, public documents demonstrated a history of non-compliance with FISA and other rules. VII:2936-39. FISA’s purpose of balancing civil liberties against national security forecloses the complete shutout of defense participation resulting from the application of the “essential” standard in this case. See In re Kevork, 788 F.2d 566, 569 (9th Cir. 1986) (FISA “was intended to strike a sound balance between the need for such surveillance and the protection of civil liberties.”). An issue as important as the privacy of the electronic communications of all Americans who use telephones and email deserves full adversarial litigation. VII:2951 (“As both technology and the law have evolved over time, however, the 212 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 236 of 256 FISC is sometimes presented with novel and complex issues of law. The resolution of such issues would benefit from an adversary proceeding.”) (quoting The President’s Review Group on Intelligence and Communications Technology, Liberty and Security in a Changing World, 203 (Dec. 12, 2013)). The defense arguments are made with the consciousness that they are sub-par because of counsel’s ignorance. See VII:3116 (“Basically, this motion seeks suppression of unknown evidence and other uses of information gathered at unknown times by unknown means by unknown persons and agencies operating under unknown protocols.”). Without knowing what the government did and how it was done, some arguments miss the target, others cannot be aimed with care. See United States v. Nixon, 418 U.S. 683, 709 (1974). The issues surrounding the FAA both legally and technologically are novel and complex. See Clapper, 2015 WL 2097814, at *35 (Sack, J., concurring) (“As the need for adversary inquiry is increased by the complexity of the issues presented for adjudication, and by the consequent inadequacy of ex parte procedures as a means for their accurate resolution, the displacement of well-informed advocacy necessarily becomes less justifiable.”) (citing Alderman, 394 U.S. at 184). The resolution of the competing interests of individual privacy of Americans and the government’s interest in foreign intelligence information arguably shapes the world 213 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 237 of 256 in which the next generation will grow up. The arguments should not be made with the defense – the advocate for the individual citizen – shut out, as they were in the district court. This Court should reverse the order denying defense access to classified documents and transcripts of the classified proceedings and order supplemental briefing based on defense access to the full record below. E. The Court Should Order Suppression Of Evidence And The Result Of Decisions Derived From Electronic Surveillance Conducted In Violation Of The Statute And The Constitution. The violation of statute, as well as the violation of an array of constitutional protections, require suppression under the FISA statute and the Constitution. 50 U.S.C. § 1806(g); Murray v. United States, 487 U.S. 533, 536-37 (1988)). The district court provided an alternative ground for denying relief based on the good faith exception to the exclusionary rule. I:218-23. This Court should reject that position for three reasons. First, the statutory suppression remedy, which predated the judicial creation of the good faith exception, should be considered to require suppression in light of the Supreme Court’s opinion in Clapper. The Court relied on criminal defendants to keep the statute from being insulated from constitutional review. Clapper, 133 S. Ct. at 1154. This reasoning implicitly meant that, in the denial of standing for civil plaintiffs, criminal defendants would have reason to challenge the FAA, whether it 214 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 238 of 256 was unlawfully “authorized or conducted.” 150 U.S.C. § 1806(g). If challenging the FAA had no remedy, the Clapper reasoning would be fundamentally undermined. The good faith exception also does not apply because the statute does not explicitly authorize the challenged conduct. In Illinois v. Krull, a statute expressly authorized searches of business records of auto dealers. 480 U.S. 340, 343 (1987). Unlike that statute, the FAA provides no instruction telling government agents that it is lawful to retain and to later query and access the contents of American communications. The expansion of the statute to accessing content of American communications constitutes executive action for which the purposes of the exclusionary rule are well served. Third, as a matter of the statute’s plain meaning, if the surveillance was “not lawfully authorized or conducted,” the evidence “obtained or derived from” the electronic surveillance “shall” be suppressed under § 1806(g). Whether the executive branch applied the statute in an unconstitutional manner or whether the statute is unconstitutional, the electronic surveillance was neither lawfully authorized nor conducted. See ACLU Found. of S. Cal. v. Barr, 952 F.2d 457, 465 (D.C. Cir. 1991) (“The Constitution is law” as FISA uses that term); H. Rep. No. 951283 at 92-93 (1978) (in reviewing a motion to suppress FISA evidence, the trial court “is also free to review the constitutionality of the law itself.”). As with Title III 215 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 239 of 256 wiretaps, violation of the statute as well as constitutional violations result in suppression under the fruit of the poisonous tree doctrine. Giordano, 416 U.S. at 524-32. The language and legislative history of the FISA statutory exclusionary rule – which preceded the existence of the good faith exception – does not include a good faith exception. See United States v. Rice, 478 F.3d 704, 711-14 (6th Cir. 2007) (“The language and legislative history of Title III strongly militate against engrafting the good-faith exception into Title III warrants.”). The statutory exclusionary rule applies without qualification and must result in the suppression of all information obtained through the warrantless surveillance and all derivative actions and evidence. X. The District Court’s Handling Of Classified Materials Deprived Mr. Mohamud Of Due Process Of Law And The Effective Assistance Of Counsel. Pursuant to CIPA, the government filed at least 16 in camera, ex parte, under seal filings with the district court. IV:1265; V:1362, 1381, 1460, 1462, 1496, 1518, 1614, 1670, 1714, 1777; VI:2063, 2076; VII:3021, 3302; VIII:3601. There were also some unknown number of in camera, ex parte, under seal hearings (e.g., IV:658), and an unknown number of classified opinions and orders (e.g., I:66, 171). The defense has highlighted in this section particular discovery and other disputes that 216 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 240 of 256 may relate to the CIPA filings or opinions to guide this Court’s review of the classified material. However, the defense does not know what the government produced (or failed to produce) to the district court, what took place during any hearings, and what rulings the court ultimately made. The defense asks this Court for plenary review of all decisions based on undisclosed classified material. The following issues address classified material the defense believes to be exculpatory but which was not provided to the defense. To the extent the Court concludes such material was not provided to the district court, the Court should direct the government to supplement the record. Failure to require production of surveillance directed at Mr. Mohamud’s computer and his internet activity: The defense provided strong circumstantial evidence that the government placed software such as the known FBI virus termed CIPAV or other similar surveillance programs on Mr. Mohamud’s computer, by which the government may have monitored his activities and activated the computer’s camera to spy on him. SER 32-39. The outtakes indicated that the FBI had extraordinary and intimate access to Mr. Mohamud’s private life. SER 34-35, 38-39. The existence of any such super-intrusive surveillance would support the defense theory regarding the absence of acts related to domestic terrorism and the FBI’s highly developed ability to customize the sting. 217 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 241 of 256 Failure to provide discovery and adequate review regarding Section 215 surveillance: The defense moved for suppression of derivative information from surveillance of phone call data under the section 215 program (VI:3056, 3154-58, 3400-01), which has been found unlawful both as a misinterpretation of the statutory authorization and as implicating Fourth Amendment protected privacy. Clapper, 2015 WL 2097814 at *28; Klayman v. Obama, 957 F. Supp. 2d 1, 30-34 (D.D.C. 2013). The defense also requested affirmative evidence from the program as it related to Mr. Mohamud’s calls as including exculpatory information. The trial court, after receiving extensive classified submissions from the government, neither ruled publicly on the Fourth Amendment issue nor provided the requested exculpatory information. Failure to provide discovery regarding FISA warrants to support Franks hearings: The trial court refused to provide defense access to information adequate for a determination whether reckless or intentional false statements or material omissions provided grounds for motions to controvert under Franks v. Delaware, 438 U.S. 154 (1978). I:4, 14-18, 164-70; VI:3157-61. Under Franks, even in the context of national security, the defense provided abundant evidence to at least controvert the executive branch’s submissions in support of FISA warrants. III:44344, 561. The failure to provide FAA pretrial notice alone should constitute a 218 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 242 of 256 sufficient showing for a motion to controvert, as do the specific investigation and general failings regarding FISA activities. VII:2955-62. In United States v. Daoud, the concurring judge expressed concern that classification issues made Franks a dead letter in national security cases. 755 F.3d 479, 486-96 (7th Cir. 2014) (Rovner, J., concurring). If there is ever a case where, without discovery, a sufficient showing to controvert affidavits was made, this is it. If there is ever a case where there is need for full adversary proceedings with defense discovery, this is it. Review of the FISA warrants based on “agent of a foreign power”: In addition reviewing the warrants under Franks, the Court should carefully review the trial court’s finding regarding the “agent of a foreign power” requirement for issuance of FISA warrants. I:15-18. The Court’s review should include enforcement of the prohibition against determining that a person is an agent “solely upon the basis of activities protected by the first amendment to the Constitution of the United States.” 50 U.S.C. § 1805(a)(2)(A). Contact with other agents of the government and information about Bill Smith: The defense repeatedly requested information about any government agents in contact with Mr. Mohamud. V:1477, 1483-84, 1753-56. The district court’s rulings and in camera interview of Bill Smith should be analyzed in light of the defense’s desire to call him as a witness, and the government’s questioning of proxy witness 219 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 243 of 256 SA Dodd, who presented subjective reasons for why Bill Smith wrote certain things in his emails. Further, the Court should carefully assess whether Bill Smith was actually the first government agent in contact with Mr. Mohamud. The defense raised this issue repeatedly in pretrial discovery requests (V:1477, 1483-84), and then again at the start of trial when the government produced an FBI internal email showing that a “Confidential Human Source” appeared to be in direct contact with Mr. Mohamud in the Fall of 2009. V:1754-55. Failure to provide discovery regarding Mr. Mohamud’s placement on the NoFly list: The FBI’s use of the No-Fly list to thwart Mr. Mohamud’s summer plans to work in Alaska, which was the immediate, followed-up with contact by Youssef, provided strong potential for Brady materials. V:1489-91. The Court should review any classified material about Mr. Mohamud’s placement on the list, the timing of such events, the rationale behind it, and the interplay between that placement and the ultimate sting operation. At the least, if the rationale related to a belief that Mr. Mohamud desired to travel abroad, this would have been exculpatory in light of the defense theory that the government removed that option from Mr. Mohamud and, instead, encouraged a domestic attack. 220 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 244 of 256 XI. In The Alternative To Reversal And Remand For A New Trial, The Sentence Imposed In This Case Should Be Vacated Because The Government’s Recommendation Involved An Improper Basis And Because The Sentencing Involved Procedural Error. A troubled American teenager was subjected to massive surveillance, then exposed to undercover agents who encouraged extremism and enabled antisocial behavior while giving it a veneer of religious justification. In what amounted to a social experiment to see how far the teenager would go, the government consciously decided not to arrest him for drug-related activity, not to arrange the sting around foreign travel – where his maximum sentence would be fifteen years – but to encourage a spectacular act of domestic terrorism. When the edifice of undercover support for the crime vanished with his arrest, the then-19-year-old began a journey toward redemption for his bad acts, publicly renouncing violence, engaging in years of study and introspection, and providing valuable assistance to the government. Two extremely well-qualified psychiatrists, who conducted extensive interviews with him, provided uncontroverted formal opinions that his participation in extremism was part of adolescent conflicts and that, given his four years of maturation and reflection, he presented a low risk of recidivism. The defense provided examples of similar sting cases where the sentencing range – often with government agreement – was between ten and 30 years’ incarceration. Nevertheless, the government recommended 40 years in prison, based 221 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 245 of 256 in part on unlawful considerations. The trial judge then imposed a sentence to 30 years in prison, failing to adequately decide controverted facts and explain its rulings, basing the sentence on a premise that violated the Supreme Court’s directives regarding individualized sentencing. If the conviction stands, the Court should vacate the sentence and remand for a new sentencing hearing. A. [Sealed Supplemental Opening Brief] B. The Court Should Vacate The Sentence Based On InterRelated Procedural Errors Involving Failure To Adequately Resolve Controverted Issues, Mischaracterization Of This Court’s Legal Standard Regarding The Terrorism Enhancement, And Inadequate Explanation Of Rulings Regarding Post-Offense Rehabilitation, Imperfect Entrapment, And Future Dangerousness. The Supreme Court’s central directive for federal sentencing requires individualized consideration of every defendant. United States v. Pepper, 131 S. Ct. 1229, 1239-40 (2011) (“It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.”) (quoting Koon v. United States, 518 U.S. 81, 113 (1996)). The existence of post-offense rehabilitation is an especially important consideration because it touches many sentencing factors, including evaluation of the individual, the need to deter the defendant and protect 222 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 246 of 256 the public, and to “critically inform” the overarching duty to impose a sentence sufficient but not greater than necessary to accomplish the purposes of sentencing under 18 U.S.C. § 3553(a). Pepper, 131 S. Ct. at 1242-43; Gall v. United States, 552 U.S. 38, 59 (2007) (“Gall’s self-motivated rehabilitation . . . lends strong support to the conclusion that imprisonment was not necessary to deter Gall from engaging in future criminal conduct or to protect the public from his future criminal acts”). Based on this legal superstructure, the defense sentencing presentation focused on Mr. Mohamud’s sincere remorse, his post-offense rehabilitation, his actions that demonstrated renunciation of violence, and the psychiatric reports that established that he constituted a very low danger of future dangerousness. VIII:3493. Despite this focus, the sentencing court imposed sentence without deciding critical questions raised regarding post-offense actions and rehabilitation and the risk of future dangerousness. VIII:3684-87; SER 474. Instead, the court imposed sentence under a legal analysis that created what amounted to an almost irrebuttable presumption of a high risk of future dangerousness.47 This Court reviews de novo “strict” compliance with Rule 32’s requirement that controverted issues be resolved. United States v. Houston, 217 F.3d 1204, 120607 (9th Cir. 2000). “Where the defendant raises specific, nonfrivolous argument tethered to a relevant [18 U.S.C.] 3553(a) factor,” this Court provides plenary review for whether the sentencing court’s failure to adequately explain its rulings constituted legal error. United States v. Trujillo, 713 F.3d 1003, 1009-10 (9th Cir. 47 223 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 247 of 256 Despite abundant evidence of this particular defendant’s lack of future dangerousness, the sentencing judge interpreted this Court as having placed terror defendants beyond the individualized sentencing requirements of Gall and Pepper: “The Ninth Circuit recognizes that terrorists, even those with no prior criminal behavior, are unique among criminal in the likelihood of recidivism, the difficulty of rehabilitation, and the need for incapacitation.” VIII:3687. In quoting from this Court’s decision in United States v. Ressam, 679 F.3d 1069, 1091 (9th Cir. 2012), the trial court failed to recognize that Mr. Ressam, unlike Mr. Mohamud, acted without any government involvement and had terrorist training and ability. 48 The sentencing court must determine any controverted matter that will be considered at sentencing and that may affect the ultimate disposition. Fed. R. Crim. P. 32(i)(3)(B); see Houston, 217 F.3d at 1208; United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc). Well aware that future dangerousness would be in the forefront of the sentencing judge’s mind, the defense presented an 2013). A district court by definition abuses its sentencing discretion when it makes an error of law. Koon, 518 U.S. at 100. The next line in this Court’s quotation referenced “a heightened risk of future dangerousness due to his Al-Qaeda training.” Id. at 1091 (quoting United States v. Jayyousi, 657 F.3d 1085, 1117 (11th Cir.2011)). In contrast, in the present case, Mr. Mohamud could not have acted independently and had no ability to act without help. 48 224 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 248 of 256 extraordinary amount of information on the question of future dangerousness, including Mr. Mohamud’s concrete and public actions renouncing his behavior, to counter the terror enhancement under U.S.S.G. § 3A1.4. VIII:3493, 3606, 3659. The trial court received Mr. Mohamud’s four-year reading list and his letter to the court detailing his change in thinking and his deep regret and shame for his actions. VIII:3595-99, 3559-61. Most importantly, two psychiatrists with impeccable credentials found him a low risk of future dangerousness after spending many hours with Mr. Mohamud utilizing psychological testing and reviewing the complete record of the offense and his personal background. VIII:3571-93. Dr. Marc Sageman, a government counter-terrorism expert who conducts risk assessments for federal agencies and New York City, provided a detailed report that stated Mr. Mohamud is “at very low risk of being dangerous in the future, both in the criminal and political sense.” VIII:3593. Dr. Mark Kinzie, a professor at Oregon Health Sciences University with over 40 years of experience as a psychiatrist, also provided a report detailing the bases for his assessment of his low risk of future dangerousness. VIII:3572-73. The very low risk of future dangerousness was a critical fact upon which no contrary evidence was presented. The defense provided numerous reasons the terrorism enhancement from Criminal History Category I to VI was inapplicable to the present case because, 225 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 249 of 256 under U.S.S.G.§ 4.A1.3(b)(1), “reliable information indicates that the defendant’s criminal history category substantially over-represents….the likelihood that the defendant will commit other crimes.” VIII:3534-37. In light of the extremely reliable psychiatric testimony and the totality of the sentencing presentation, departure was encouraged under § 4A1.3. See Koon, 518 U.S. at 94-95 (departure grounds mentioned in the Guidelines are “encouraged”). The defense provided precedent supporting such a departure. VIII:3534-35 (citing cases). The low risk of future dangerousness was supported by amenability to drug and alcohol treatment, which the court did not address, as well as imperfect entrapment, which the court only said “weighs slightly in the favor” of the defendant with no further explanation. VIII:3685; SER 476.49 Despite the over-representation of the terrorism enhancement being argued at length, the court said no more than it was “not persuaded by defendant’s argument to reject the terrorism enhancement.” VIII:3685. The sentencing judge’s treatment of the terrorism enhancement and postoffense rehabilitation failed to provide the reasoning and factual support necessary to sustain the ruling. The sentencing judge must provide a sufficient record regarding the reasons for rejecting the claim that the terrorism enhancement was over- Under Koon, this Court’s recognition of imperfect entrapment constitutes an encouraged ground for departure. VIII:3519-20 (citing cases). 49 226 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 250 of 256 representative under U.S.S.G. § 4A1.3 and other departure grounds in order for this Court to provide appellate review. Gall v. United States, 552 U.S. 38, 50 (2007) (the sentencing judge must provide an adequate explanation “to allow for meaningful appellate review and to promote the perception of fair sentencing.”); United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (“it would be procedural error for a district court…to fail to adequately explain the sentence selected.”). A sentencing judge’s explanation also “assures reviewing courts (and the public) that the sentencing process is a reasoned process” and helps the process to evolve. Rita v. United States, 551 U.S. 338, 357 (2007). The failure to explain the rejection of the § 4A1.3 departure provides this Court no basis for meaningful review and creates an appearance of unfairness, especially in light of all the evidence of low risk of future dangerousness. The only remark by the sentencing judge on post-offense rehabilitation related to Mr. Mohamud’s letters, which the court hoped reflected “a true change of heart, but there’s no real way to tell.” VIII:3685. Although the court’s post-sentencing statement of reasons mentions the psychological reports, the overall sentencing presentation, including post-offense actions and rehabilitation and very low risk of future dangerousness, were not addressed and resolved as required by Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure. See SER 476. Instead, the 227 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 251 of 256 court appeared to interpret this Court’s Ressam opinion to trump those critical sentencing factors based on terrorists being different, with no connection to the basis for departure under § 4A1.3 or the other grounds for departure and variance argued by the defense. Id. The sentencing court’s failure to decide controverted facts and to correctly apply this Court’s precedent should be vacated with the instruction to resentence without viewing the charge as defining the risk of future dangerousness. In Ressam, this Court had no occasion to address the type of extraordinary mitigation presented in this case. The defendant in Ressam acted independently of the government and was a seasoned operative for al Qaeda. Nothing close to psychiatric opinions of low risk and elements of government involvement in the offense were present, which the trial judge treated as a minor consideration, instead of a fundamental distinction from Ressam. The sentencing judge erred as a matter of law in attributing to this Court an expansion of its precedent that, if interpreted as read by the judge in this case, would violate the Supreme Court’s repeated injunctions that individualized sentencing must be the final rule. Further, the court failed to rule, or to adequately address, the facts relevant to imposition of sentence under the Guidelines and this Court’s sentencing law. Despite submission of an alternative calculation of the Guidelines to reach a range of 121- 228 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 252 of 256 151 months (VIII:3547), the trial court did not make adequate rulings on the predicate facts and departure grounds fully raised by the defense submissions. The Supreme Court’s requirement of individualized sentencing, based on fair resolution of controverted facts and legal arguments, is especially pronounced where, as here, a teenager has engaged in four years of introspection and self-education, with his sincerity proven by assistance to the government and offers to help educate others against following his path. See Gall, 552 U.S. at 58 (“[I]t was not unreasonable for the District Judge to view Gall’s immaturity at the time of the offense as a mitigating factor, and his later behavior as a sign that he had matured and would not engage in such impetuous and ill-considered conduct in the future.”). 5. Conclusion For the foregoing reasons and those stated in the sealed supplemental brief, the Court should reverse the conviction and remand for an order of dismissal or for 229 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 253 of 256 a new trial, or, in the alternative, the sentence should be vacated with a remand for evidentiary hearings, or a hearing on resentencing. Respectfully submitted this 27th day of May, 2015. /s/ Stephen R. Sady Stephen R. Sady Chief Deputy Federal Public Defender /s/ Lisa Hay Lisa Hay Federal Public Defender /s/ Mark Ahlemeyer Mark Ahlemeyer Assistant Federal Public Defender /s/ Steven Toby Wax Steven Toby Wax Attorney at Law Elizabeth G. Daily Research & Writing Attorney 230 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 254 of 256 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MOHAMED OSMAN MOHAMUD, Defendant-Appellant. ) ) ) ) ) ) ) ) ) CA No. 14-30217 ____________________ STATEMENT OF RELATED CASES ___________________ I, Stephen R. Sady, undersigned counsel of record for defendant-appellant, Mohamed Osman Mohamud, state pursuant to the Ninth Circuit Court of Appeals Rule 28-2.6, that I know of no other cases that should be deemed related. Dated this 27th day of May, 2015. /s/ Stephen R. Sady Stephen R. Sady Attorney for Defendant-Appellant 231 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 255 of 256 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MOHAMED OSMAN MOHAMUD, Defendant-Appellant. ) ) ) ) ) ) ) ) ) CA No. 14-30217 ____________________ CERTIFICATE OF COMPLIANCE ___________________ Pursuant to Fed. R. App. P. 32(a)(7)(B), I certify that: 1. This brief is accompanied by a motion for leave to file an oversize brief pursuant to Circuit Rule 32-2 and, including the separately filed sealed portion, is 230 pages, excluding the portions exempted by Fed. R.App. P. 32(a)(7)(B)(iii), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). Dated this 27th day of May, 2015. /s/ Stephen R. Sady Stephen R. Sady Attorney for Defendant-Appellant 232 Case: 14-30217, 05/27/2015, ID: 9552081, DktEntry: 15-2, Page 256 of 256 CERTIFICATE OF SERVICE I hereby certify that on May 27, 2015, I electronically filed the foregoing Opening Brief of Appellant with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. /s/ Jill C. Dozark Jill C. Dozark 233