United States v. Mohamed Mohamud
2016 U.S. App. LEXIS 21622
| 9th Cir. | 2016Background
- Mohamed Osman Mohamud, a young Somali‑American, wrote pro‑jihadi articles and exchanged emails with extremist contacts before any FBI involvement; his writings praised past terrorist attacks and advised preparation for jihad.
- After Mohamud communicated with a foreign national of interest, the FBI monitored that contact under FISA § 702, identified Mohamud, and began an investigation including undercover outreach.
- FBI undercover operatives (alias “Youssef” and “Hussein”) met Mohamud, encouraged and rehearsed an attack, supplied inert bomb components and money for tasks, and ran a controlled test explosion; Mohamud selected Pioneer Courthouse Square during the Christmas tree lighting as the target.
- On November 26, 2010, Mohamud helped wire a van containing an inert device and attempted to detonate it by cellphone; he was arrested before any explosion occurred.
- Mohamud was indicted for attempted use of a weapon of mass destruction (18 U.S.C. § 2332a(a)(2)(A)), asserted entrapment and constitutional challenges to § 702 surveillance; jury convicted, district court sentenced to 30 years.
- The Ninth Circuit affirmed, rejecting entrapment as a matter of law, denying a due‑process/"outrageous conduct" dismissal, and holding the § 702‑derived collection and use of Mohamud’s emails did not violate the Fourth Amendment on these facts.
Issues
| Issue | Plaintiff's Argument (Mohamud) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Entrapment as a matter of law | FBI inducement created criminal intent; Mohamud lacked predisposition absent government contact | Mohamud showed predisposition pre‑contact (articles, extremist contacts) and made initial suggestion to become "operational" | Affirmed conviction; sufficient evidence of predisposition to submit to jury |
| Outrageous government conduct / Due process | Undercover praise, religious manipulation and repeated inducement were so extreme they violated fundamental fairness | Investigation probed Mohamud’s volunteered violent intent; conduct did not meet the "extremely high" standard for dismissal | Government conduct did not violate due process; indictment not dismissed |
| Late disclosure of § 702‑derived evidence | Supplemental FISA notice given after trial prejudiced defense and warranted suppression or evidentiary hearing | Late notice resulted from legal reanalysis and self‑correction; no prosecutorial misconduct and no prejudice | District court did not abuse discretion in denying suppression, discovery, or new factfinding |
| Fourth Amendment challenge to § 702 collection | § 702 surveillance and incidental collection of U.S. person communications violated the Fourth Amendment; queries/retention problematic | Surveillance targeted a foreign person abroad; Mohamud’s emails were incidentally collected; targeting/minimization procedures and oversight made acquisition reasonable | As applied here, § 702 acquisition of Mohamud’s emails did not violate the Fourth Amendment |
Key Cases Cited
- Sherman v. United States, 356 U.S. 369 (defendant’s resistance to repeated inducements supported entrapment ruling)
- Jacobson v. United States, 503 U.S. 540 (long‑term government solicitation can show lack of predisposition)
- United States v. Black, 733 F.3d 294 (9th Cir.) (extreme‑conduct dismissal standard for outrageous government conduct)
- United States v. Cromitie, 727 F.3d 194 (2d Cir.) (sting operation probing volunteered terrorist intent does not necessarily violate due process)
- United States v. Williams, 547 F.3d 1187 (9th Cir.) (no entrapment where defendant showed no reluctance)
- United States v. Poehlman, 217 F.3d 692 (9th Cir.) (predisposition analysis; government inducement overcame demonstrated reluctance)
- United States v. Tucker, 133 F.3d 1208 (9th Cir.) (post‑contact statements may be probative of predisposition)
- United States v. Davis, 36 F.3d 1424 (9th Cir.) (standard for reviewing entrapment jury findings)
- Verdugo‑Urquidez v. United States, 494 U.S. 259 (scope of Fourth Amendment protections for non‑resident aliens)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (FISA statutory framework and § 702 context)
- Hudson v. Michigan, 547 U.S. 586 (exclusionary rule as remedy of last resort)
- Davis v. United States, 564 U.S. 229 (good‑faith / exclusionary rule considerations)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (government interest in combating terrorism)
- United States v. Leon, 468 U.S. 897 (good‑faith exception to exclusionary rule)
- Mistretta v. United States, 488 U.S. 361 (delegation/non‑delegation and judicial role considerations)