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United States of America v. Basaaly Saeed Moalin

November 8, 2012


The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge


Defendants Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, and Ahmed Nasir Taalil Mohamud jointly move to reconsider Magistrate Judge William V. Gallo's October 29, 2012 Order Denying Defendants' Joint Motion for Order of Safe Passage ("Order"). (Ct. Dkt. 220). The Government opposes the joint motion. For the reasons set forth below, the court denies the motion to reconsider and rejects Defendants' objections to the Order.


To place Defendants' motion for "safe passage" in context, the court notes that Defendants represent that Farah Shidane, an apparent citizen of Djibouti and current resident of Somalia, is a material defense witness who is anticipated to provide exculpatory testimony at the time of the Rule 15 depositions in Djibouti, Djibouti calendared for November 11-15, 2012.*fn1 Defendants anticipate that Mr. Shidane will testify, among other things, that he was a part of the local administration of the Galgaduud region of Somalia, that he actively fought against al-Shabaab, and that the money he received from Defendants was used for humanitarian purposes. (Motion at p.2:12-21). Mr. Shidane, however, is also the "uncharged co-conspirator #1" in a terrorism offense as identified in the October 2010 Indictment, as well as subsequent indictments. (Ct. Dkt. 1).

Without submission of supporting admissible evidence, Defendants represent that Mr. Shidane is unavailable to testify in the United States and that he will only appear at the time of the Djibouti depositions if he is provided with "safe passage."*fn2 The Government declines to provide Mr. Shidane with "safe passage." Before Magistrate Judge Gallo, Defendants moved to compel the Government to issue Mr. Shidane "safe passage." On October 29, 2012 Magistrate Judge Gallo denied the motion for safe passage noting, among other things, that the court lacked "the authority to order the executive branch to provide safe passage to defense witnesses." (Order at p.2:24-25). Defendants object to the Order.


Legal Standard

Pursuant to 28 U.S.C. § 636(b)(1)(A), Defendants request that this court reconsider Judge Gallo's pretrial Order. This court may set aside or modify a Magistrate Judge's order only if found to be "clearly erroneous or contrary to law." 28 U.S.C. §636(b)(1)(A); Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1414 (9th Cir. 1991). While findings of fact are reviewed under the clearly erroneous standard of review, legal conclusions are reviewed de novo. See United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir. 1984).

The Motion

Defendants argue that the court should reconsider the Order because (1) the Government is contractually obligated to issue "safe passage to and from the depositions in Djibouti," (Motion at p.7:6), and (2) by analogy to compelled and judicial immunity cases, the Fifth Amendment due process clause and the Sixth Amendment right to compel compulsory process clause require the Government to provide "safe passage." As set forth below, the court concludes that the Government is not under any contractual obligation to afford Mr. Shidane "safe passage" and that it lacks the authority to compel the Government to provide "safe passage" to Mr. Shidane.

The Contract Based Argument

Although not so articulated, Defendants rely on principles of contract law to argue that they entered into a valid agreement with the Government to provide "safe passage" to Mr. Shidane. The elements of a contract claim are (1) the existence and terms of the contract, (2) the plaintiff's performance or excuse for failing to perform, (3) the defendant's breach, and (4) plaintiff's damages. Amelco Electric v. City of Thousand Oaks, 27 Cal.4th 228, 243 (2002); Spinks v. Equity Residential Briarwood Apartments, 171 Cal.App.4th 1004, 1031 (2009). Defendants simply fail to establish that any contract existed between the parties. Defendants represent that the Government, at some point in time during the past several months, stated that "it was going to assist in ensuring that the depositions occurred as scheduled" and that safe passage could be sought if the witnesses "were willing to come to the United States." (Motion at pp. 7:17-8:1). The contractual argument is woefully inadequate because it fails to establish the existence of a contract (i.e. competent parties, mutual consent, consideration, essential terms, Cal.Civ. Code §1550), Defendants' performance, the Government's breach of the contract, and damages.*fn3 In the absence of a contract, Defendants' claims fail.

To the extent Defendants seek to establish a claim based upon a promissory estoppel theory, the argument fairs no better. The elements of a promissory estoppel claim are "(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance." US Ecology, Inc. v. State of California, 129 Cal.App.4th 887, 901 (2005). Defendants simply fail to provide any evidence that the equitable doctrine of promissory estoppel should apply under the circumstances. Defendants fail to establish a clear and unambiguous promise to provide the "safe passage" of any proposed deponent from Somalia to Djibouti, any detrimental or reasonable reliance on the alleged promise, and any injury from the failure to provide "safe passage" to Mr. Shidane.

In sum, the court rejects Defendants' argument that contract principles require the Government to provide ...

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