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United States v. Moalin

United States District Court, Ninth Circuit

November 18, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
BASAALY MOALIN; MOHAMED MOHAMED MOHAMUD; ISSA DOREH; AHMED NASIR TAALIL MOHAMUD, Defendants.

AMENDED ORDER DENYING MOTION FOR NEW TRIAL

JEFFREY T. MILLER, District Judge.

The court issues this Amended Order Denying Motion for New Trial to correct a factual misstatement in its November 14, 2013 Order Denying Motion for New Trial ("Order"). (Ct. Dkt. 386). The court deletes the phrase "and the telephony metadata collected from the NSA program was either provided, " (Ct. Dkt. 386 at p.7:15-16), and replaces it with "and the telephony metadata, collected pursuant to the FISA warrants and subpoenaed telephone toll records, was either provided." The Amended Order follows:

Defendants Basaaly Moalin ("Moalin"), Mohamed Mohamed Mohamud ("Mohamud"), Issa Doreh ("Doreh"), and Ahmed Nasir Taalil Mohamud ("Nasir") jointly move for a new trial pursuant to Federal Rule of Criminal Procedure 33. The Government opposes the motion. Having carefully considered the papers submitted, the court record, and the arguments of counsel, the court denies the motion for new trial.

BACKGROUND

The Second Superseding Indictment

Filed on June 8, 2012, the operative Second Superseding Indictment alleges five counts: (1) conspiracy to provide material support to terrorists in violation of 18 U.S.C. §2339A(a); (2) conspiracy to provide material support to a foreign terrorist organization in violation of 18 U.S.C. §2339B(a)(1); (3) conspiracy to launder monetary instruments in violation of 18 U.S.C. §1956(h); (4) providing material support to terrorists in violation of 18 U.S.C. §2339A(a); and (5) providing material support to a foreign terrorist organization in violation of 18 U.S.C. §§2339B(a)(1) and (2). (Ct. Dkt. 147). Counts One, Two and Three were charged against all Defendants, Count Four against Moalin alone, and Count Five against all Defendants except Nasir.

The FISA Motion

On December 9, 2011, Defendants, among other things, moved to suppress wiretap evidence obtained pursuant to a Foreign Intelligence Surveillance Act ("FISA") warrant, evidence seized pursuant to a search warrant of Defendant Moalin's home; and statements made at the time of Defendant Moalin's arrest. (Ct. Dkt. 92). On October 17, 2012, the court issued an order denying the motion to suppress evidence seized from Moalin's residence, denied the motion to suppress statements, and continued the FISA wiretap motion.

Defendants' FISA motion challenged the Government's use of electronic surveillance obtained pursuant to 50 U.S.C. §1806 (Title I of FISA) and those collections obtained after the enactment of Section 702 (50 U.S.C. §1881a) of the FISA Amendments Act of 2008 ("FAA"). On June 4, 2012, in an order placed under seal with the Court Security Officer ("FISA Order"), the court denied Defendants' motion to suppress FISA intercepts and provided the parties notice of that fact. (Ct. Dkt. 146).

On March 9, 2012, in reply to the Government's opposition to the motion to dismiss FISA materials, Defendants repeated their request that defense counsel possessing appropriate security clearances be granted access to the FISA warrant applications and pertinent orders of the Foreign Intelligence Surveillance Court ("FISC"). Among other things, Defendants argued that the electronic surveillance was obtained in violation of FISA, the First and Fourth Amendments, and Brady v. Maryland , 373 U.S. 83 (963). Defendants also argued that the minimization protocols were defective. (Ct. Dkt. 131).

The CIPA Motions

On March 9, 2012, Defendants jointly and preemptively moved to deny the Government's anticipated request for an ex parte and in camera review pursuant to Section 4 of the Classified Information Protection Act ("CIPA"), 18 U.S.C. App. 3 §4. On March 23, 2012, the Government filed a response to Defendants joint motion to (1) deny the ex parte CIPA filing and (2) compel disclosure of the CIPA materials to cleared defense counsel. To assist the court in its review of CIPA-related materials for purposes of Brady, the First and Fourth Amendments, Fed.R.Crim.P. 16, and the Jencks Act, the court requested, and Defendants jointly submitted under seal, a memorandum identifying seven broad defense theories as well as specific evidence sought to be discovered in the Government's CIPA submission. (Ct. Dkt 133-35).

Ultimately, the Government submitted five requests for a protective order under CIPA. On August 28, 2012, the court completed its CIPA review of the materials provided by the Government and dated March 21, 2012, June 1, 2012, and August 22, 2012.[1] On August 28, 2012, the court filed its first CIPA order under seal with the Court Security Officer and provided notice to all parties of its entry. The court also ordered the Government to provide to Defendants two substituted statements as permitted by CIPA. (Ct. Dkt. 183). On January 17, 2013, the court granted the motion for a protective order concerning two additional submissions by the Government and dated January 2, 2013, and January 17, 2013. (Ct. Dkt. 253).

On January 28, 2013, Defendants filed under seal a motion for Court Ordered Remedies to Address the Government's Violation of Brady. (Ct. Dkt 271). On January 30, 2013, the court issued an order addressing several discovery-related issues raised in Defendants' motion and requesting that the Government submit for in camera review the redacted emails at issue. (Ct. Dkt. 273). Ultimately, the court concluded that the unredacted emails need not be produced pursuant to Brady, Fed.R.Crim.P. 16, or the Jencks Act. (Ct. Dkt. 279).

The Rule 15 Depositions

On July 20, 2012, Defendants filed a second motion to take the depositions of eight prospective defense witnesses in Somalia. (Ct. Dkt. 154). Defendants represented that these individuals received money transfers from Defendant Moalin and possessed direct knowledge of how the transferred money was spent. (Ct. Dkt. 154 at p.2:13-14). The court denied the motion without prejudice and referred the parties to Magistrate Judge William V. Gallo to discuss the Rule 15 depositions. On September 6, 2012, after consulting with the parties, Magistrate Judge Gallo ordered the eight depositions to proceed in Djibouti, Djibouti, (Ct. Dkt. 189), and set forth the logistics for the witness depositions. (Ct. Dkt. 195). The depositions (except the deposition of Farah Shidane) went forward in Djibouti from November 11-15, 2012. The videotaped depositions were viewed by the jury during Defendants' case-in-chief.

The Trial

The jury trial commenced on January 28, 2013. The Government presented 13 witnesses over five days and the Defense presented 11 witnesses over five days, including eight video-taped depositions taken pursuant to Fed.R.Crim.P. 15(a). On February 22, 2013, after 17 days of trial and deliberations, the jury ...


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