United States v. Moalin

973 F.3d 977

UNITED STATES of America, Plaintiff-Appellee,

v.Basaaly Saeed MOALIN, aka Basal, aka Muse Shekhnor Roble, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Mohamed Mohamed Mohamud, aka Mohamed Khadar, aka Sheikh Mohamed, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Issa Doreh, aka Sheikh Issa, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Ahmed Nasir Taalil Mohamud, Defendant-Appellant.

No. 13-50572

No. 13-50578

No. 13-50580

No. 14-50051

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 10, 2016 Pasadena, California

Filed September 2, 2020

Joshua L. Dratel (argued), Joshua Dratel P.C., New York, New York; Alexander A. Abdo (argued), Jameel Jaffer, Patrick Toomey, and Brett Max Kaufman, American Civil Liberties Union, New York, New York; David J. Zugman, Burcham & Zugman, San Diego, California; Elizabeth Armena Missakian, Law Office of Elizabeth A. Missakian, San Diego, California; Benjamin L. Coleman, Coleman & Balogh LLP, San Diego, California; for Defendants-Appellants.

Jeffrey M. Smith (argued), Appellate Counsel; John P. Carlin, Assistant Attorney General; National Security Division, United States Department of Justice, Washington, D.C.; Caroline P. Han, Assistant United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Michael Price, Brennan Center for Justice, New York, New York; Faiza Patel, Brennan Center for Justice at New York University School of Law, New York, New York; Alan Butler, Electronic Privacy Information Center (EPIC), Washington, D.C.; David M. Porter, Co-Chair, NACDL Amicus Committee; Sacramento, California; Bruce D. Brown, Katie Townsend, and Hannah Bloch-Wehba, Reporters Committee for Freedom of the Press, Washington, D.C.; Michael Filipovic, Federal Public Defender, Seattle, Washington; Tony Gallagher, Executive Director, Federal Defenders of Montana, Great Falls, Montana; Lisa Hay, Federal Public Defender, Portland, Oregon; Heather Erica Williams, Federal Public Defender, Sacramento, California; Steven Gary Kalar, Federal Public Defender, San Francisco, California; Hilary Potashner, Federal Public Defender, Los Angeles, California; Reuben Cahn, Executive Director, Federal Defenders of San Diego Inc., San Diego, California; Jon M. Sands, Federal Public Defender, Phoenix, Arizona; Rich Curtner, Federal Public Defender, Anchorage, Alaska; John T. Gorman, Federal Public Defender, Mong Mong, Guam; Peter Wolff, Federal Public Defender, Honolulu, Hawaii; Samuel Richard Rubin, District of Idaho Community Defender, Boise, Idaho; R.L. Valladares, Federal Public Defender, Las Vegas, Nevada; for Amici Curiae Brennan Center for Justice, American Library Association, Electronic Privacy Information Center, Freedom to Read Foundation, National Association of Criminal Defense Lawyers, Ninth Circuit Federal and Community Defenders, and Reporters Committee for Freedom of the Press.

Before: Marsha S. Berzon and Jacqueline H. Nguyen, Circuit Judges, and Jack Zouhary,^* District Judge.

BERZON, Circuit Judge:

INTRODUCTION

Four members of the Somali diaspora appeal from their convictions for sending, or conspiring to send, $10,900 to Somalia to support a foreign terrorist organization. Their appeal raises complex questions regarding the U.S. government's authority to collect bulk data about its citizens’ activities under the auspices of a foreign intelligence investigation, as well as the rights of criminal defendants when the prosecution uses information derived from foreign intelligence surveillance. We conclude that the government may have violated the Fourth Amendment and did violate the Foreign Intelligence Surveillance Act ("FISA") when it collected the telephony metadata of millions of Americans, including at least one of the defendants, but suppression is not warranted on the facts of this case. Additionally, we confirm that the Fourth Amendment requires notice to a criminal defendant when the prosecution intends to enter into evidence or otherwise use or disclose information obtained or derived from surveillance of that defendant conducted pursuant to the government's foreign intelligence authorities. We do not decide whether the government failed to provide any required notice in this case because the lack of such notice did not prejudice the defendants. After considering these issues and several others raised by the defendants, we affirm the convictions in all respects.

BACKGROUND¹

I.

Somalia's turbulent recent history forms the backdrop for this case. After military dictator Siad Barre was ousted in 1991, the country spiraled into civil war. Fighting between rival warlords led to a humanitarian crisis in Mogadishu, Somalia's capital, and other parts of the country. An estimated 30,000 people died in Mogadishu alone, and hundreds of thousands more were displaced. As the war continued, its impact on the populace was exacerbated by recurring periods of severe drought and famine.

In 2004, an interim government for Somalia, the Transitional Federal Government ("TFG"), was established in Kenya. Although the TFG received significant international support, it faced widespread distrust and opposition in Somalia. The TFG installed itself in Somalia with the protection of Ethiopian military forces, which occupied Somalia beginning in 2006. Somali opposition to the TFG and the Ethiopian occupation developed into a broad-based, violent insurgency undertaken by a variety of groups with disparate agendas.

One element of the insurgency was a group called "al-Shabaab," which means "the youth" in Arabic. Al-Shabaab used distinctive types of violence, such as improvised explosive devices and suicide bombings. In March 2008, the United States designated al-Shabaab a foreign terrorist organization. A key figure in al-Shabaab, Aden Hashi Ayrow, was killed in a U.S. missile strike on May 1, 2008.

Many Somalis have fled the country. An estimated three million live abroad, creating a global Somali diaspora. Somalis abroad often remain actively engaged in developments in Somalia, and contributions from the diaspora are a critical source of financial support within the troubled country. As Somalia has no formal banking system, members of the diaspora who wish to send money back frequently rely on informal money transfer businesses called "hawalas."

II.

Defendants Basaaly Saeed Moalin ("Moalin"), Mohamed Mohamed Mohamud ("M. Mohamud"), Issa Doreh ("Doreh"), and Ahmed Nasir Taalil Mohamud ("Nasir Mohamud") immigrated to the United States from Somalia years ago and lived in Southern California.² Moalin and Nasir Mohamud were taxicab drivers; M. Mohamud was an imam at a mosque; and Doreh worked at Shidaal Express, a hawala.

Between October 2010 and June 2012, the United States ("the government") charged defendants in a five-count indictment with conspiring to send and sending $15,900 to Somalia between January and August of 2008 to support al-Shabaab.³ The charges against all four defendants were: conspiracy to provide material support to terrorists, in violation of 18 U.S.C. § 2339A(a) ; conspiracy to provide material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1) ; and conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 1956(a)(2)(A) and (h). Moalin, M. Mohamud, and Doreh were charged with an additional count of providing material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1) and (2), and Moalin was charged with a further count of conspiracy to provide material support to terrorists in violation of 18 U.S.C. § 2339A(a), based on his alleged provision of a house in Somalia to members of al-Shabaab.

Shortly after filing the initial indictment, the government filed notice that it intended to use or disclose in the proceedings "information obtained or derived from electronic surveillance conducted pursuant to the authority of the Foreign Intelligence Surveillance Act." At trial, the government's principal evidence against defendants consisted of a series of recorded calls between Moalin, his codefendants, and individuals in Somalia, obtained through a wiretap of Moalin's phone. The government obtained access to Moalin's calls after receiving a court order under FISA Subchapter I, 50 U.S.C. §§ 1801 – 1812. Several of the recorded calls involved a man who went by "Shikhalow" (sometimes spelled "Sheikalow") or "Majadhub," whom the government contends was Ayrow, the important al-Shabaab figure. In addition to the intercepted phone calls, the government introduced records of money transfers completed by Shidaal Express, the hawala where Doreh worked.

In a recorded call from December 2007, Shikhalow requested money from Moalin for "rations." The two men also discussed other fundraising efforts relating to a school. Moalin then spoke with Doreh, reporting that "[o]ne dollar a day per man" was needed for forces stationed "where the fighting [is] going on." Moalin also spoke with Nasir Mohamud, telling him that money was needed for "the young men who are firing the bullets" and that, within the last month, "these men cut the throats of 60" Ethiopians and destroyed up to five vehicles.

Ten days later, Moalin called Shikhalow to tell him that he had sent $3,300 using the recipient name "Yusuf Mohamed Ali." Transaction records from the Shidaal Express reveal two transfers of $1,950 each to "yusuf mohamed ali" from "Duunkaal warsame warfaa" and "safiya Hersi." Two days later, Moalin called Shikhalow again, and Shikhalow told him he had "received the three." Moalin also offered Shikhalow the use of one of his houses in Somalia, which, Moalin noted, had an attic suitable for hiding documents and weapons. A half-hour after making the call to Shikhalow, Moalin told another acquaintance he "was talking to the man who is in charge of the youth."

Later, in January 2008, Moalin called Shikhalow again, urging him to allow...