United States v. Sami Osmakac
868 F.3d 937
| 11th Cir. | 2017Background
- Sami Osmakac, a naturalized U.S. citizen, was investigated by the FBI under FISA beginning December 2010 for expressing Islamist extremist views and planning retaliatory attacks after Bin Laden’s death; an undercover operation captured his acquisition of weapons and bomb components.
- Recorded meetings with an FBI confidential source (CS) and an undercover agent (“Amir”) show Osmakac sought machine guns, grenades, a suicide vest, and car‑bomb capability, made martyrdom videos, and attempted to transfer an inert car bomb into his vehicle on January 7, 2012, when he was arrested.
- A federal jury convicted Osmakac of attempting to use weapons of mass destruction in violation of 18 U.S.C. § 2332a(a)(2) and possessing an unregistered firearm under 26 U.S.C. §§ 5861(d), 5871; the district court sentenced him to 480 months (Count 1) and 120 months (Count 2), concurrent.
- Osmakac sought disclosure of FISA applications, orders, and related classified materials; the district court reviewed them in camera/ex parte, found compliance with FISA, and denied disclosure as unnecessary to assess legality.
- At trial the prosecutor misstated that the jury should not consider lack of certain evidence (FBI reports/surveillance logs); defense objected, judge gave a curative instruction stating reasonable doubt may arise from lack of evidence, and denied a mistrial.
- On sentencing Osmakac argued government sentencing‑factor manipulation/entrapment because agents supplied weapons and explosives; the court applied Guidelines (offense level capped at 43, CHC VI) and denied a downward departure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Disclosure of nondisclosed FISA materials | Osmakac: district court erred by not producing FISA applications/orders and related materials necessary to challenge legality of surveillance | Government: produced FISA‑derived evidence permitted by statute; classified materials would harm national security; disclosure not necessary to assess legality | Affirmed — court reviewed FISA materials in camera/ex parte, found statutory requirements met, and held disclosure not necessary; no abuse of discretion (FISA §§1806/1825 procedures followed) |
| Confrontation Clause | Osmakac: denial of FISA materials abrogated Sixth Amendment confrontation/cross‑examination rights | Government: Confrontation Clause does not provide pretrial discovery; defendant had full opportunity to cross‑examine witnesses at trial | Affirmed — even if considered, no violation: right satisfied by opportunity for cross‑examination; claim waived but alternatively meritless |
| Prosecutorial misconduct in closing | Osmakac: prosecutor’s statement that jury should not consider missing FBI reports prejudiced trial and warranted mistrial | Government: remark was isolated and inadvertent; district court’s curative instruction cured any prejudice; strong trial evidence supports verdict | Affirmed — misstatement was isolated; court’s instruction that lack of evidence may give rise to reasonable doubt cured error; no reversible prejudice |
| Sentencing‑factor manipulation / sentencing entrapment | Osmakac: government introduced weapons-of-mass-destruction elements to increase Guidelines exposure and sentence; warrants remand for departure | Government: defendant introduced and escalated WMD elements; government warnings and repeated opportunities to desist; no extraordinary misconduct | Affirmed — record shows Osmakac initiated and escalated WMD plans; no plain error and no extraordinary government misconduct warranting reduction |
Key Cases Cited
- United States v. Badia, 827 F.2d 1458 (11th Cir.) (standard reviewing district court FISA disclosure decision)
- United States v. Campa, 529 F.3d 980 (11th Cir.) (FISA applications and certifications receive minimal scrutiny)
- United States v. Frazier, 387 F.3d 1244 (11th Cir.) (abuse‑of‑discretion standard explained)
- United States v. El‑Mezain, 664 F.3d 467 (5th Cir.) (FISA probable‑cause standard discussion)
- United States v. Abu‑Jihaad, 630 F.3d 102 (2d Cir.) (no due process denial where disclosure not necessary to assess FISA legality)
- United States v. Sanchez, 138 F.3d 1410 (11th Cir.) (rejecting sentencing‑entrapment downward departure)
- United States v. Ciszkowski, 492 F.3d 1264 (11th Cir.) (extraordinary misconduct required for sentencing reduction)
- United States v. Haile, 685 F.3d 1211 (11th Cir.) (sentencing‑factor manipulation framework)
- United States v. Bohannon, 476 F.3d 1246 (11th Cir.) (government conduct in sting operations and sentencing)
- United States v. Lopez, 590 F.3d 1238 (11th Cir.) (curative jury instruction and presumption jury follows it)