No New Trial for|’Christmas Tree Bomber’

PORTLAND, Ore. (CN) – The man convicted of a plot to bomb a Christmas tree-lighting ceremony in downtown Portland, Ore. is not entitled to dismissal or a new trial, a federal judge ruled.
     U.S. District Judge Garr King on Tuesday found “the government’s compelling interest in protecting national security outweighs the intrusion” of invading the defendant’s privacy.
     Mohamed Mohamud was convicted by a jury of federal terrorism charges in January 2013.
     His public defenders said their 19-year old client was entrapped by federal agents in a sting operation involving a fake bomb in a van.
     Prosecutors claimed the plot was Mohamud’s idea, and that he pushed a button that he thought would detonate the bomb at a Christmas tree-lighting ceremony in downtown Portland.
     Mohamud’s attorneys moved to vacate the conviction, or alternately to dismiss the indictment or suppress evidence presented at trial.
     The defense’s arguments involved a 2008 amendment to the Foreign Intelligence Surveillance Act (FISA), which allows the government to use electronic surveillance on a suspect that is not a foreign power. The amendment does not require the government to specify where the surveillance will happen.
     At trial, prosecutors presented evidence that Mohamud was communicating with al-Qaeda-affiliated people in the years before the sting operation that led to his arrest.
     The defense tried to prove that the surveillance evidence the government withheld at trial violated Mohamud’s constitutional rights, an argument Judge King rejected in an order this week.
     Specifically, the defense argued that the scope of the surveillance and the evidence generated by it was withheld at trial.
     “Defendant is at a grave disadvantage in articulating how the withheld evidence might have affect the trial, because he has not seen it, but he presents a few scenarios he considers likely,” King wrote in the 56-page order.
     Mohamud’s attorneys argued that the jury should have seen the withheld evidence because it would give fuller context to the government’s surveillance, and he should be granted a new trial as a result.
     “Although defendant vehemently disagrees, the fundamental problem with defendant’s argument is that there is no new evidence,” King wrote.
     “A surveillance is not evidence – it produces evidence. Even with an entrapment defense, the way in which the government was able to tailor the sting operation is not relevant to entrapment. What is relevant to entrapment are the actual contacts between government agents and the defendant.”
     King added that introducing the fact of the surveillance “would not gut the government’s case against defendant.”
     The judge also found that suppressing evidence is not needed in this case.
     “Clearly a lot of time has passed, but otherwise suppression and a new trial would put defendant in the same position he would have been in if the government notified him of the [FISA] surveillance at the start of the case,” King wrote. “Moreover, the government has apparently changed its practice in making this type of notification, so dismissal is not needed as a deterrence.”
     The judge agreed with the government that the “foreign intelligence exception” applied to the surveillance against Mohamud because of his contacts with al-Qaeda affiliates.
     King said the defense’s “most persuasive argument” was that even if the “warrantless surveillance is lawful, subsequent querying of the information after acquisition is a search requiring a warrant under the Fourth Amendment.”
     Calling it a “very close question,” the judge nonetheless found the surveillance was not unreasonable under the Fourth Amendment.
     “As the government argues, it must review information lawfully collected to decide whether to retain or disseminate it under the minimization procedures,” King wrote. “I do not find any significant additional intrusion past what must be done to apply minimization procedures.”

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