United States v. Mahamud Said Omar
786 F.3d 1104
| 8th Cir. | 2015Background
- Mahamud Said Omar was indicted on five counts including providing material support to terrorists and to a designated foreign terrorist organization, and conspiracy to murder/kidnap/maim abroad; convicted after a jury trial and sentenced to 240 months.
- Three witnesses (Hassan, Isse, Ahmed) made pretrial photographic identifications of Omar—each shown series of photos one-at-a-time and each identified Omar (known as “Sharif”) without hesitation; some photos were shown to witnesses multiple times and sometimes after the witness mentioned the name “Sharif.”
- A magistrate judge recommended suppression of the identifications, finding the procedure impermissibly suggestive (analogizing to single-photograph ID and noting repeated displays), but the district court denied suppression, finding the witnesses sufficiently familiar with Omar.
- The Government used FISA-obtained electronic surveillance material; after the Attorney General certified that disclosure would harm national security, the district court conducted an in camera, ex parte review and denied Omar’s motion to disclose or suppress the FISA materials; appellate court reviewed the materials as well.
- Trial evidence showed Omar stayed at an al Shabaab safe house, admitted intent to join al Shabaab, helped others travel to Somalia, and provided money; an expert witness testified about al Shabaab’s links to al Qaeda and jihadist activity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of in-court IDs given pretrial photo procedure | Omar: pretrial procedure was impermissibly suggestive (single-photo effect; repeated displays) creating high risk of misidentification | Govt/District: photos shown as part of multi-photo series; witnesses were familiar with Omar; identifications were reliable | Affirmed: procedure not impermissibly suggestive; even if suggestive, witnesses already familiar with Omar so no substantial likelihood of misidentification |
| Disclosure of FISA materials | Omar: entitled to disclosure/adversary hearing to challenge surveillance legality | Govt: AG certification triggers §1806(f) in camera/ex parte review; disclosure only if necessary; national security harms | Affirmed: district court did not abuse discretion in denying disclosure; appellate court reviewed materials and found nondisclosure appropriate |
| Probable cause for FISA authorization | Omar: FISA probable-cause showing insufficient (asks for de novo review) | Govt: FISA probable cause established (court may apply deferential review) | Affirmed: reviewing court found FISA probable cause existed under any standard of review |
| Admissibility of expert testimony linking al Shabaab to al Qaeda/jihad | Omar: testimony was irrelevant or unfairly prejudicial under Rules 401/403 | Govt: testimony showed public ties and notoriety of al Shabaab relevant to Omar’s knowledge; testimony was factual and not inflammatory | Affirmed: testimony was relevant to knowledge element and not unfairly prejudicial; no abuse of discretion |
Key Cases Cited
- Simmons v. United States, 390 U.S. 377 (identification at trial after suggestive pretrial ID requires showing of substantial likelihood of misidentification)
- Manson v. Brathwaite, 432 U.S. 98 (factors for reliability of identification)
- Perry v. New Hampshire, 565 U.S. 228 (2012) (pretrial suggestiveness threshold; if suggestive, assess likelihood of misidentification)
- Neil v. Biggers, 409 U.S. 188 (factors for assessing witness reliability at confrontation)
- United States v. Patterson, 20 F.3d 801 (8th Cir. 1994) (single-photograph displays can be impermissibly suggestive)
- United States v. Isa, 923 F.2d 1300 (8th Cir. 1991) (FISA §1806(f) disclosure is exceptional; appellate review of in camera materials)
- United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011) (abuse-of-discretion review of FISA disclosure decisions)
- United States v. Damrah, 412 F.3d 618 (6th Cir. 2005) (FISA disclosure review standard and process)
- United States v. Dobbs, 449 F.3d 904 (8th Cir. 2006) (familiarity of witness mitigates concerns about suggestive ID procedures)
- United States v. Anderson, 783 F.3d 727 (8th Cir. 2015) (standard for reversing evidentiary rulings; Rule 403 prejudice analysis)