United States v. Mohamed Mohamud
666 F. App'x 591
| 9th Cir. | 2016Background
- Mohamed Osman Mohamud was convicted by a jury of attempted use of a weapon of mass destruction in violation of 18 U.S.C. § 2332a(a)(2)(A) and sentenced to 30 years; he appealed.
- Major issues on appeal included the government’s closing argument on entrapment/predisposition, jury instructions and a jury question about entrapment, and multiple evidentiary rulings at trial.
- The government used undercover agents and classified materials; the district court limited disclosure of undercover identities and handled classified material under CIPA and FISA procedures.
- Defense argued selective withholding of classified information, improper ex parte CIPA/FISA proceedings, and erroneous redaction/substitution.
- The defense raised evidentiary challenges (Interpol Red Notice, agent testimony about motives, excluded defense statements, recorded agent outtakes, and agent speculation about defendant’s meaning).
- Mohamud also challenged denial of suppression (attenuation/independent-source issues) and aspects of his sentence (alleged improper sentencing considerations and failure to resolve future dangerousness individually).
Issues
| Issue | Plaintiff's Argument (Mohamud) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Government closing argument on entrapment | Prosecutor treated entrapment as categorically unavailable and misstated law on predisposition | Argument was factual: entrapment unsupported by the facts; prior similar acts relevant to predisposition | No misconduct; permissible to argue entrapment unsupported by facts; prior similar acts may be considered for predisposition |
| Jury instructions and jury question about entrapment | Instructions inadequate and response to jury question biased | Instructions consistent with law and adequately covered defense theory; response to jury question proper | Instructions adequate; court’s answer (consider all evidence) appropriate |
| Use and handling of classified materials (CIPA/FISA) | Government improperly withheld material, selectively declassified, and denied counsel access | Substitutions/summaries satisfied CIPA; ex parte/FISA procedures permissible; clearance doesn't entitle access | District court acted within discretion; CIPA summary adequate; ex parte/FISA approach acceptable |
| Evidentiary rulings (Red Notice, agent testimony, excluded statements, outtakes) | Multiple rulings prejudiced defense: admission of Red Notice/agent motives, exclusion of defense state-of-mind statements, admission of agent speculation, limitations on outtakes | Some evidence was relevant (to rebut targeting claim); limiting instructions given; errors were at most isolated | Some rulings likely erroneous but any errors were cumulatively harmless given the whole record |
| Suppression (fruit of alleged unconstitutional search) | Evidence should be suppressed as fruit of unconstitutional state investigation/FBI conduct | Later national-security investigation evidence came from independent, untainted sources | District court properly denied suppression on attenuation/independent-source grounds; no need to rule on initial Fourth Amendment question |
| Sentencing challenges (unlawful considerations; future dangerousness) | Sentence tainted by government’s recommendation and district court failed to make individualized findings on future dangerousness | Court considered arguments, weighed factors, and provided adequate explanation for 30-year sentence | Sentencing was procedurally sound; court adequately considered individualized factors; sentence affirmed |
Key Cases Cited
- Jacobson v. United States, 503 U.S. 540 (relevance of predisposition to entrapment analysis)
- United States v. Williams, 547 F.3d 1187 (prior similar acts probative of predisposition)
- United States v. Gil, 58 F.3d 1414 (weighing defendant’s confrontation rights against protecting informant identity)
- Roviaro v. United States, 353 U.S. 53 (informant-identity balancing test)
- United States v. Sedaghaty, 728 F.3d 885 (CIPA and disclosure standards)
- United States v. Makhlouta, 790 F.2d 1400 (irrelevance of government agents’ motivations for entrapment analysis)
- United States v. Dean, 980 F.2d 1286 (limits on admitting officer testimony about investigatory motives)
- United States v. Cazares, 788 F.3d 956 (cumulative error doctrine)
- United States v. Gonzalez-Flores, 418 F.3d 1093 (harmless-error waiver by government)
- United States v. Ott, 827 F.2d 473 (FISA ex parte in camera review and due process)