United States v. Hinda Dhirane, 896 F.3d 295

Background

Muna Osman Jama and Hinda Osman Dhirane (naturalized U.S. citizens born in Somalia) participated in online Somali diaspora chat rooms (including a private “Group of Fifteen”) and solicited, collected, and transmitted monthly funds to contacts in Nairobi and Hargeisa between 2011–2013.
Funds were transmitted primarily to coconspirators Fardowsa Jama Mohamed (Nairobi) and Barira Hassan Abdullahi (Hargeisa); district court found those recipients used funds for al-Shabaab safehouses, vehicles, and support services.
Government surveillance evidence was obtained under FISA warrants; the Attorney General submitted a declaration that disclosure would harm national security, so the district court reviewed the classified materials ex parte and in camera and denied the defendants’ suppression motion.
After a bench trial, the district court found both defendants guilty of conspiring to provide and of providing material support to al-Shabaab in violation of 18 U.S.C. § 2339B; sentences: Jama 144 months, Dhirane 132 months.
On appeal the defendants challenged: (1) denial of access to FISA materials and the ex parte/in camera review process; (2) the district court’s creation of a multi-factor “part of” test for determining whether recipients were part of a foreign terrorist organization; and (3) application of a two-level Sentencing Guidelines enhancement, U.S.S.G. § 2M5.3(b)(1)(E).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether FISA’s ex parte/in camera review and denial of counsel access violated the adversary system	Gov't: FISA balances national security and defendants’ rights; statute authorizes in camera/ex parte review and limited disclosure	Jama & Dhirane: Denial of counsel (despite clearances) deprived them of adversarial review and a Franks hearing	Affirmed: FISA procedures are constitutional; court may review classified materials ex parte/in camera and deny disclosure unless necessary
Whether defendants were entitled to a Franks-style adversarial hearing on FISA affidavits	Gov't: §1806(f) permits judge to decide necessity of hearing given national-security affidavits and executive input	Defs: Without access to materials counsel cannot identify falsehoods or obtain Franks hearing	Held: FISA’s process (judge’s review with executive input) suffices; no constitutional Franks entitlement that overrides FISA safeguards
Whether §2339B requires that recipients be “part of” the designated foreign terrorist organization	Gov't: Liability requires providing material support to an FTO or one the defendant knew engaged in terrorism; support to associated persons suffices	Defs: District court invented a novel “part of” definition and seven-factor test, adding an element and creating vagueness/due process problems	Held: Rejected the new element critique — §2339B does not require recipients be ‘‘part of’’ an FTO; convictions stand because defendants knowingly collected and sent money intended for al-Shabaab
Whether Sentencing Guidelines enhancement U.S.S.G. §2M5.3(b)(1)(E) was improperly applied	Gov't: Enhancement applies where defendant intended/knows/reasonably believed support would assist violent acts by the FTO	Defs: Enhancement requires proof support was meant for a specific violent act; district court lacked sufficient linkage	Held: Enhancement proper — proof defendants coordinated fundraising to meet al-Shabaab’s military needs satisfied intent/knowledge/reason-to-believe standard

Key Cases Cited

Dennis v. United States, 384 U.S. 855 (1966) (noting role of advocates in identifying useful defense material)
Franks v. Delaware, 438 U.S. 154 (1978) (requires a defendant to make a prima facie showing to obtain an evidentiary hearing on a warrant affidavit)
Kaley v. United States, 571 U.S. 320 (2014) (adversary procedures are not always required for probable-cause determinations)
Taglianetti v. United States, 394 U.S. 316 (1969) (full adversary proceedings not always required for electronic-surveillance issues)
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (knowledge that an organization is connected to terrorism suffices for §2339B; material support, including funds, furthers terrorist activity)
United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987) (upholding FISA procedures as reasonable)
United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011) (same)
United States v. Damrah, 412 F.3d 618 (6th Cir. 2005) (same)
United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982) (same)
United States v. Daoud, 755 F.3d 479 (7th Cir. 2014) (discussing judge’s in camera review and whether disclosure of classified materials is necessary to adjudicate a Franks challenge)