Ninth Circuit Affirms Christmas Tree Bomber’s Conviction

Nick McCann

PORTLAND, Ore. (CN) — An FBI sting did not entrap 19-year-old Mohamed Mohamud, who was convicted of plotting to bomb a Christmas tree-lighting ceremony in Portland, Ore. six years ago, the Ninth Circuit affirmed on Monday.

On Black Friday of 2010, Mohamed Osman Mohamud pushed a button he believed would set off a truck full of bombs in downtown Portland.

The Somali-American college student, 19 at the time, had been the target of an undercover FBI sting operation. The bombs, and the two al-Qaida recruiters he had befriended, were fake.

Mohamud was sentenced to 30 years in federal prison in late 2014 after a two-week jury trial. His public defenders appealed.

From his indictment through his appeals, Mohamud’s attorneys argued that their client had been entrapped by FBI agents who preyed on his vulnerabilities.

With support from the Electronic Frontier Foundation and the American Civil Liberties Union, the case brought attention to Section 702 of the amended Foreign Intelligence Surveillance Act, which allows the government to track telephones and emails without warrants.

Mohamud was a student at Oregon State University in Corvallis when he met “Youssef” and “Hussain,” FBI agents posing as terrorist recruiters.

It is not clear when the government began monitoring Mohamud, but trial evidence showed he wrote articles for “Inspire,” al Qaida’s English-language magazine, and had communicated with Samir Khan, the magazine’s editor, and with terror suspect Anwar al-Awlaki.

Khan and al-Awlaki, both U.S. citizens, were killed by U.S. drones in Yemen.

Mohamud’s attorneys had a tough case to sell to the federal jury. Historically, juries in terrorism cases have rejected defendants’ entrapment theories when undercover agents are involved.

A three-judge panel on the Ninth Circuit heard Mohamud’s appeal in July at the Pioneer Courthouse, just across the street from where the bomb was set to detonate.

On Monday the panel upheld the conviction, finding the government did not entrap Mohamud, and that its acquisition of his communications with jihadists did not violate his Fourth Amendment rights.

“Many young people think and say alarming things that they later disavow, and we will never know if Mohamud — a young man with promise — would have carried out a mass attack absent the FBI’s involvement,” U.S. Circuit Judge John Owens wrote for the panel.

“But some ‘promising’ young people — Charles Whitman, Timothy McVeigh, and James Holmes, to name a few from a tragically long list — take the next step, leading to horrific consequences.”

The government showed at trial, and the panel agreed, that the undercover agents gave Mohamud multiple opportunities to back out of the plan, but he wanted to go through with the bombing.

“The complete lack of reluctance on Mohamud’s part to participate in the bombing — indeed, his immediate zeal to see it through — separates this case from those in which courts have found defendants entrapped as a matter of law,” Owens wrote in the 50-page opinion.

The prosecution repeatedly emphasized at trial that Youssef and Hussain gave Mohamud “outs” after he expressed interest in taking an “operational” jihadist role, but he refused.

The government presented evidence of Mohamud’s contacts with jihadists abroad, and his plans to leave the United States, and that was enough for the jury to find he was predisposed to commit terrorist acts, the panel found.

“While the government’s conduct in this case was quite aggressive at times, it fell short of a due process violation,” Owens wrote.

The panel also found that the government did not need a warrant to obtain Mohamud’s communications with jihadists abroad, a point that was hotly contested by civil liberties groups in the appeals process.

While the panel agreed with the district court that the vast amount of communications collected by the government was “the most troubling aspect” of the operation, it found that the search was reasonable.

“(E)ven assuming Mohamud had a Fourth Amendment right in the incidentally collected communications, the search was reasonable,” Owens wrote, weighing Mohamud’s privacy interests against the government’s national security interests.

Electronic Frontier Foundation attorney Andrew Crocker on Monday reiterated his position that a warrant should be required when collecting the kinds of emails used in this case.

The Ninth Circuit’s opinion “was quite narrow” in that it said the government did not use a “backdoor search” to target Americans like Mohamud, Crocker wrote in an email.

“On this … point, however, we think the court almost certainly got the facts wrong,” Crocker wrote. “Based on public evidence in the case, it seems the FBI did in fact search its database for Mr. Mohamud’s emails — which would be a serious violation of his rights, according not just to EFF and ACLU, but also to lawmakers like Senator Ron Wyden who have been trying to stop this practice.”

Mohamud’s public defender Lisa Hay also was dissatisfied with the ruling.

“We’re disappointed that the Ninth Circuit would on one hand recognize the solid case for entrapment that we presented at trial, but on the other hand, decline to find any remedies for the numerous trial errors that they also recognized,” Hay said in an interview.

She said those errors at trial “misled the jury about the strength of the government’s case.”

“We are going to continue fighting on behalf of our client, either in the Ninth Circuit or in the Supreme Court,” Hay added.

Though Mohamud will spend “all of his productive life in custody,” Hay called him a “remarkable young man” who is reading a great deal in prison, and keeps his defense team informed of the books he is reading.

The Department of Justice did not respond to emailed requests for comment.

Joining Owens on the unanimous panel were Ninth Circuit Judges Harry Pregerson and Carlos Bea.

%d bloggers like this: