United States v. Mohamed Mohamud , 666 F. App'x 591 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 05 2016
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-30217
Plaintiff-Appellee, D.C. No. 3:10-cr-00475-KI-1
v.
MEMORANDUM*
MOHAMED OSMAN MOHAMUD,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted July 6, 2016
Portland, Oregon
Before: PREGERSON, BEA, and OWENS, Circuit Judges.
Mohamed Osman Mohamud appeals from his jury conviction and thirty-year
sentence for attempted use of a weapon of mass destruction within the United
States, in violation of 18 U.S.C. § 2332a(a)(2)(A). As the parties are familiar with
the facts, we do not recount them here. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
§ 1291, and we affirm.1
1. Mohamud challenges the government’s closing argument. Specifically,
Mohamud contends that the government treated the entrapment defense as
categorically unavailable by arguing that, based on the jury’s own “common
sense,” an individual could not be entrapped to commit the charged offense. There
was nothing improper about the government arguing that entrapment was
unsupported by the facts because common sense suggested that someone could not
be induced to commit a crime of this magnitude. The government did not imply
that entrapment was unavailable as a matter of law.
Mohamud also contends that the government misstated the law, and diluted
its burden of proof, by implying that predisposition to commit “similar acts”
sufficed to prove predisposition to commit the charged offense. Although
“evidence that merely indicates a generic inclination to act within a broad range . . .
is of little probative value in establishing predisposition,” Jacobson v. United
States, 503 U.S. 540, 550 (1992), evidence of prior similar acts may be relevant to
show predisposition. See United States v. Williams, 547 F.3d 1187, 1198 (9th Cir.
2008) (holding that the defendant was not entrapped as a matter of law into dealing
1
A concurrently filed opinion, United States v. Mohamud, __ F.3d __ (9th
Cir. 2016), addresses Mohamud’s other arguments.
2
cocaine in part because his prior bank robbery and illegal gun sales “suggest[ed]
that he was predisposed to this type of criminal activity”). Therefore, it was not
improper for the government to argue that the jury could consider evidence of
Mohamud’s willingness to commit prior similar acts.
2. Contrary to Mohamud’s contention, the district court provided adequate
jury instructions. The instructions were consistent with case law and sufficiently
encompassed the defense’s theory of the case. See United States v. Whittemore,
776 F.3d 1074, 1078, 1080 (9th Cir. 2015) (Although “[a] defendant is entitled to
have the judge instruct the jury on his theory of defense, provided that it is
supported by law and has some foundation in the evidence,” he is “not entitled to
the instructions of his choice.” (citation omitted)). The district court also did not
err in its response to a jury question about the entrapment instruction. See United
States v. Verduzco, 373 F.3d 1022, 1030 n.3 (9th Cir. 2004) (setting forth standard
of review). The response instructed the jury to consider “all” the evidence, and did
not unfairly favor the prosecution’s evidence over the defense’s evidence.
3. Mohamud challenges the withholding and handling of classified materials
under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3.
After reviewing the classified record, we are not persuaded by Mohamud’s
arguments regarding the classified materials.
3
The district court acted within its discretion in excluding information about
the true identities of FBI undercover agents “Youssef” and “Hussein” and FBI
undercover contractor “Bill Smith.” See United States v. Gil, 58 F.3d 1414, 1421
(9th Cir. 1995) (explaining that a court “must weigh the defendants’ rights to
confront the government’s witnesses against the government’s interest in not
compromising investigations and in protecting the informant’s identity” (citing
Roviaro v. United States, 353 U.S. 53, 60-62 (1957))). The district court also acted
within its discretion in declining to make “Bill Smith” available as a witness at
trial. See id.
In addition, the challenged substitution adequately satisfied CIPA’s
requirement that the summary “provide the defendant with substantially the same
ability to make his defense as would disclosure of the specific classified
information.” 18 U.S.C. app. 3, § 6(c)(1); see also id. § 4. The classified record
does not support that the government “selectively declassified” materials, thereby
gaining an unfair advantage at trial. The classified record also does not support
that discoverable information which was “relevant and helpful” to the defense was
withheld, including information regarding Amro Al-Ali. United States v.
Sedaghaty, 728 F.3d 885, 904 (9th Cir. 2013) (quoting Roviaro, 353 U.S. at 60-
61).
4
Further, the district court did not abuse its discretion by using ex parte
proceedings for classified materials and denying Mohamud’s security-cleared
counsel access to classified materials and proceedings. See id. at 908-09 (rejecting
the defendant’s challenge to ex parte CIPA procedures and stating that “the simple
fact that defense counsel held security clearances does not mean that the attorneys
were entitled to access the government’s classified filings”).
4. Mohamud challenges a number of the district court’s evidentiary rulings.
Although the district court likely did make several erroneous evidentiary rulings,
any error was cumulatively harmless.
First, Mohamud contends that the district court erred in admitting an Interpol
“Red Notice” seeking the arrest of Amro Al-Ali. See Gov’t Exhibit 80. He
similarly argues that it was error to admit various FBI agents’ testimony explaining
how their knowledge of the Red Notice and Al-Ali’s status affected their targeting
and investigation of Mohamud. Generally, evidence of agents’ motivations or
justifications for an investigation are irrelevant, even where entrapment is at issue.
See United States v. Makhlouta, 790 F.2d 1400, 1402 (9th Cir. 1986) (explaining
that under the entrapment standard, “it is not the state of mind of the government
agent that is important; . . . it is the predisposition of the defendant . . . that counts”
(first alteration in original) (citation and internal quotation marks omitted)); see
5
also United States v. Dean, 980 F.2d 1286, 1288 (9th Cir. 1992) (out-of-court
statements which were probative of why officer took certain actions were
inadmissible because they did “not bear on any issue involving the elements of the
charged offense”). However, as the defense argued that the government targeted
Mohamud because he was young and vulnerable, evidence that the government
instead investigated him because of his communications with a “known terrorist”
was relevant under Federal Rule of Evidence 401.2 Nonetheless, only the
testimony of the agents who actually directed the investigation was relevant to
rebut Mohamud’s “targeting” arguments; the comparable testimony of the
undercover agents was not relevant, nor was the Red Notice itself.3 Further, in
several instances the government used this evidence for the truth of the matter
asserted, rather than its effect on the agents.
Second, Mohamud argues that the district court erroneously restricted his
cross-examination of the FBI agents’ bias and motivation by treating inadvertently
recorded government agent “outtakes” as prior inconsistent statements under
2
“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence
in determining the action.” Fed. R. Evid. 401.
3
Because the Red Notice was admitted for a non-hearsay use, it did not
violate Mohamud’s right to confrontation. See United States v. Wahchumwah, 710
F.3d 862, 871 (9th Cir. 2012).
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Federal Rule of Evidence 613. It is not clear that the court abused its discretion in
so ruling, no error was by itself prejudicial, and any such errors were not
cumulatively prejudicial. Mohamud was permitted to question the agents about the
statements, and the only evidence excluded was the agents’ tone of voice on the
recording.
Third, Mohamud contends that the district court erred in permitting
government witnesses to testify about what they believed Mohamud “meant” or
was “thinking” in some of his recorded statements. We agree that the witnesses’
speculation as to what Mohamud “meant” was not relevant under Rule 401.
Finally, Mohamud argues that the district court erred in excluding certain of
his contemporaneous communications that reflected a lack of predisposition to
commit the crime charged.4 Such statements were admissible under Federal Rule
of Evidence 803(3) as indicative of Mohamud’s then-existing state of mind, and it
was likely error to exclude them. The government’s cited authority is not to the
contrary. Cf. United States v. Sayakhom, 186 F.3d 928, 937 (9th Cir.), amended by
197 F.3d 959 (9th Cir. 1999) (holding that the defendant’s statements were not
admissible because they were statements of belief to prove the fact believed, which
4
Mohamud was permitted to introduce some evidence of his
contemporaneous state of mind, but some statements were excluded.
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are inadmissible under the terms of Rule 803(3)).
With respect to cumulative error, “[t]here are some cases where the
cumulative effect of multiple errors may so prejudice a defendant as to require
reversal, even though no single trial error examined in isolation is sufficiently
prejudicial to warrant reversal.” United States v. Cazares, 788 F.3d 956, 990 (9th
Cir. 2015). We consider here any error related to: (1) admitting the Red Notice
and the undercover agents’ related testimony,5 and any improper hearsay use of the
Red Notice; (2) excluding the recorded government agent “outtakes”; (3) allowing
the agents to speculate about what Mohamud meant in certain recorded statements;
and (4) excluding some of Mohamud’s contemporaneous statements.
As a preliminary matter, the government failed to argue that the evidentiary
errors were harmless, except with respect to the exclusion of Mohamud’s
contemporaneous statements. “Usually when the government fails to argue
harmlessness, we deem the issue waived and do not consider the harmlessness of
any errors we find.” United States v. Gonzalez-Flores, 418 F.3d 1093, 1100 (9th
Cir. 2005). However, we have discretion “to consider harmlessness sua sponte in
extraordinary cases.” United States v. Brooks, 772 F.3d 1161, 1171 (9th Cir.
5
The district court gave several limiting instructions that this evidence was
relevant only for its effect on the agents’ understanding (“mental state”).
8
2014). In doing so, we must consider “(1) the length and complexity of the record,
(2) whether the harmlessness of an error is certain or debatable, and (3) the futility
and costliness of reversal and further litigation.” Id. (quoting Gonzalez-Flores,
418 F.3d at 1101). The second factor is the most important. Id.
Here, in the context of the entire trial record, “the harmlessness of the
error[s] is not reasonably debatable,” and further litigation would be futile.
Gonzalez-Flores, 418 F.3d at 1101. Accordingly, we hold that any evidentiary
errors were cumulatively harmless.
5. The district court denied Mohamud’s motion to suppress, in which he
argued that the FBI’s conduct related to a separate state police investigation was
unconstitutional, and therefore later national security investigation evidence was
the fruit of an illegal search. The district court reasoned that the later national
security investigation evidence was based on untainted, independent sources.
Contrary to Mohamud’s contention, the district court did not err by declining to
determine whether the FBI’s conduct violated Mohamud’s constitutional rights.
See United States v. Crawford, 372 F.3d 1048, 1053-54 (9th Cir. 2004) (en banc)
(affirming denial of motion to suppress on attenuation grounds, and stating that the
court “need not” decide whether the search violated the defendant’s Fourth
Amendment rights).
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6. The district court did not abuse its discretion by denying Mohamud’s
security-cleared counsel access to classified materials under the Foreign
Intelligence Surveillance Act of 1978 (“FISA”). See 50 U.S.C. § 1806(f)
(providing that under FISA, “the court may disclose to the aggrieved person, under
appropriate security procedures and protective orders, portions of the application,
order, or other materials relating to the surveillance only where such disclosure is
necessary to make an accurate determination of the legality of the surveillance”);
United States v. Ott, 827 F.2d 473, 477 (9th Cir. 1987) (holding that FISA’s ex
parte in camera proceedings did not violate due process, even though defense
counsel had high security clearances).6 In addition, and as stated above, the
summary of classified materials provided by the FBI adequately satisfied CIPA’s
requirement that the summary “provide the defendant with substantially the same
ability to make his defense as would disclosure of the specific classified
information.” 18 U.S.C. app. 3, § 6(c)(1); see also id. § 4.
7. Finally, Mohamud argues that we should vacate his thirty-year sentence
for two reasons, neither of which we find persuasive. First, we reject Mohamud’s
6
On appeal, Mohamud alternatively requested that we authorize
supplemental briefing with defense access to the relevant classified FISA
materials. We granted this request in part because, at our request post-argument,
the government declassified certain facts about Mohamud’s surveillance, and we
permitted the parties to file supplemental briefs.
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contention that his sentence should be vacated because the government’s forty-year
sentencing recommendation was allegedly based in part on unlawful
considerations.
Second, Mohamud contends that the district court procedurally erred by
failing to resolve his future dangerousness on an individualized basis and by failing
to explain adequately its reasons for rejecting a departure from the terrorism
criminal history enhancement under U.S.S.G. § 4A1.3. These contentions are
belied by the record. The district court considered Mohamud’s arguments and
evidence about his purported lack of future dangerousness, weighed individualized
mitigating and aggravating factors, and adequately explained its reasons for
Mohamud’s below-Guidelines thirty-year sentence. See United States v. Sandoval-
Orellana, 714 F.3d 1174, 1181 (9th Cir. 2013) (“If the record ‘makes clear that the
sentencing judge listened to each argument’ and ‘considered the supporting
evidence,’ the district court’s statement of reasons for the sentence, although brief,
will be ‘legally sufficient.’” (quoting Rita v. United States, 551 U.S. 338, 358
(2007))).
AFFIRMED.
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