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1
2
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ll/-z...l Case 3:10-cr-04246-JM Document 1 Filed 10/22/10 PalgOe 1 of 7

SEGRE,-.

L I FILED
~2 OCT 2010

CLERK, U.S. DISTRICT COUR
SBYOUTHERN DISTRICT OF C.,._,II..,.,..

5

6

7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9
10

4246 July 2010 Grand ~ru~

JM/

UNITED STATES OF AMERICA,

) Case No.

11

)

Plaintiff,

) IND~~TMENT

12

)

v.

) Title 18, U.S.C., Sec. 2339A(a) -

13

) Conspiracy to Provide Material

BASAALY SAEED MOALIN (1),

) Support to Terrorists; Title 18,

14 MOHAMED MOHAMED MOHAMUD (2) ,

) U.S.C., Sec. 2339B(a) (1) -

aka "Mohamed Khadar"

) Conspiracy to Provide Material

15

aka "Sheikh Mohamed"

) Support to Foreign Terrorist

ISSA DOREH (3) ,

) Organization; Title 18, U.S.C.,

16

aka "Sheikh Issa"

) Sec. 956 - Conspiracy to Kill in

) a Foreign Country; Title 18,

17

Defendants.

) U.S.C., Sec. 1956(h) -Conspiracy

) to Launder Monetary Instruments;

______________________________ 18

) Title 18, U.S.C., Sec. 2339A(a) -

19

) )

Providing Material Support to Terrorists

20

The grand jury charges:

21

INTRODUCTORY ALLEGATIONS COMMON TO ALL COUNTS

22

1. Al-Shabaab is a violent and brutal militia group that uses

23 intimidation and violence to undermine Somalia's Transitional Federal

24 Government (TFG) and its supporters. On or about February 26, 2008,

25 the U.S. Department of State designated "Al-Shabaab" as a Foreign
26 Terrorist Organization (FTO) under Section 219 of the Immigration and

27 Nationality Act, as amended, and as a Specially Designated Global
28 Terrorist under Section 1(b) of Executive Order 13224, as amended.

WPC:nlv(1) :San Diego 10/20/10

Case 3:10-cr-04246-JM Document 1 Filed 10/22/10 Page 2 of 7

1 Al-Shabaab is also known·by the following names, among others: al-

2 Shababi Shabaabi the Youthi Mujahidin al-Shabaab Movementi the Youth

3 Movementi Mujahidini MYMi Harakat Shabaab al-Mujahidini Hizbul

4 Shabaabi Hisb' ul Shabaabi al-Shabaab al-Islamiyai al Shabaab al-Islami

5 al-Shabaab al-Jihaadi Youth Wingi and "the Unity of Islamic Youth."

6

2. Throughout al-Shabaab's war against the TFG and its

7 Ethiopian and African Union supporters, al-Shabaab has used harassment

8 and targeted assassinations of civilians, improvised explosive

9 devices, rockets, mortars, automatic weapons, suicide bombings, and

10 general tactics of intimidation and violence.

11

3. Until his death on or about May 1, 2008, Aden Hashi Ayrow,

12 aka "Shiqalow," aka "Sheikhalow," aka "Muja Dhuub," aka "Slim Limbs,"

13 was a prominent military leader of al-Shabaab. Ayrow called for

14 foreign fighters to join al-Shabaab in a "holy war" against the

15 Ethiopian and other African forces in Somalia. Ayrow' s call was

16 echoed by al-Qaeda leadership, including Usama bin Laden and Ayman al-

17 Zawahiri, and fighters from other countries have traveled to Somalia

18 to engage in violent jihad.

19

Count 1

20

CONSPIRACY TO PROVIDE MATERIAL SUPPORT TO TERRORISTS

21

Beginning on a date unknown to the grand jury, and continuing to

22 at least on or about August 5, 2008, within the Southern District of

23 California, and elsewhere, defendants BASAALY SAEED MOALIN, MOHAMED

24 MOHAMED MOHAMUD, aka "Mohamed Khadar," aka "Sheikh Mohamed," and ISSA

25 DOREH, aka "Sheikh Issa," did unlawfully and knowingly conspire and

26 agree with each other, and with other persons known and unknown to the

27 grand jury, to provide material support and resources, to wit:

28 currency and monetary instruments, knowing and intending that the

2

Case 3:10-cr-04246-JM Document 1 Filed 10/22/10 Page 3 of 7

1 material support and resources were to be used in preparation for and 2 in carrying out violations of Title 18, United States Code,

3 Section 956, conspiracy to kill persons in a foreign country, and 4 Title 18, United States Code, Section 2332a(b), conspiracy to use a 5 weapon of mass destruction outside of the United States; all in

6 violation of Title 18, United States Code, Section 2339A(a).

7

Count 2

8

CONSPIRACY TO PROVIDE MATERIAL SUPPORT TO FOREIGN TERRORIST ORGANIZATION

9

10

Beginning on or about February 26, 2008, and continuing to at

11 least on or about August 5, 2008, within the Southern District of

12 California, and elsewhere, and occurring in and affecting interstate

13 and foreign commerce, defendants BASAALY SAEED MOALIN, MOHAMED MOHAMED

14 MOHAMUD, aka "Mohamed Khadar , 11 aka "Sheikh Mohamed, II and ISSA DOREH,

15 aka "Sheikh Issa, 11 did unlawfully and knowingly conspire and agree

16 with each other, and with other persons known and unknown to the grand

17 jury, to provide material support and resources, to wit: currency and

18 monetary instruments, to a foreign terrorist organization, namely, al-

19 Shabaab, which has been designated as a foreign terrorist organization

20 since on or about February 26, 2008, knowing that the organization was

21 designated as a terrorist organization (as defined in Title 18, United

22 States Code, Section 2339B (g) (6)) and that the organization had

23 engaged and was engaging in terrorist activity and terrorism; in

24 violation of Title 18, United States Code, Section 2339B(a) (1).

25 I I

26 I I

27 I I

28 I I

3

Case 3:10-cr-04246-JM Document 1 Filed 10/22/10 Page 4 of 7

Count 3

2

CONSPIRACY TO KILL IN A FOREIGN COUNTRY

3

Beginning on a date unknown to the grand jury, and continuing to

4 at least on or about August 5, 2008, within the Southern District of

5 California, and elsewhere, defendants BASAALY SAEED MOALIN, MOHAMED

6 MOHAMED MOHAMUD, aka "Mohamed Khadar," aka "Sheikh Mohamed," and ISSA

7 DOREH, aka "Sheikh Issa," did unlawfully and knowingly conspire and

8 agree with each other, and with other persons known and unknown to the

9 grand jury, to commit acts outside the United States that would

10 constitute the offense of murder if committed in the special maritime

11 or territorial jurisdiction of the United States.

12

Overt Acts

13

In furtherance of said conspiracy and to effect and accomplish

14 the objects thereof, the following overt acts, among others, were

15 committed within the Southern District of California:

16

1. On or about December 21, 2007, Aden Hashi Ayrow ("Ayrow")

17

advised defendant BASAALY SAEED MOALIN ( "MOALIN") by

18

telephone that he urgently needed several thousand dollars.

19

Defendant MOALIN replied that he would take care of the

20

issue swiftly with "Sheikh Issa."

21

2. On or about December 21, 2007, defendant MOALIN advised

22

defendant ISSA DOREH ( "DOREH") by telephone that "one

23

dollar a day per man" was needed for the forces.

24

3 . On or about January 20, 2008, after telling defendant

25

MOALIN that "we planted a land mine" for an individual "who

26

was traveling on that road; he was almost hit," Ayrow

27

instructed defendant MOALIN by telephone to tell "Sheikh

28

4

Case 3:10-cr-04246-JM Document 1 Filed 10/22/10 Page 5 of 7

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 II 27 II 28 II

Mohamed" that "he must let us know the amount of money we can expect every month, even if it is one hundred dollars." 4. On or about February 13, 2008, defendants MOALIN, DOREH and MOHAMED MOHAMED MOHAMUD ( "MOHAMUD") caused the transfer of $2,000 from San Diego, California, to Somalia. 5. On or about February 14, 2008, defendant MOALIN told Ayrow by telephone that "Yusuf Mohamed Ali" was the recipient name used to transfer a total of $2,000 to Ayrow.

6. On or about April 12, 2008, Ayrow told defendant MOALIN by telephone that "it is time to finance the jihad."

7. On or about April 12, 2008, defendant MOALIN told an

individual by telephone that "to eliminate those men .

we must send someone to talk to the people

. we can

find thirty men who can pay small amounts."

8. On or about April 17, 2008, defendant MOALIN told defendant MOHAMUD by telephone that "calls are coming from the man" and that defendant MOHAMUD should hold back twenty or thirty trusted people at the mosque to tell them to contribute money.

9. On or about April 23, 2008, defendants MOALIN, DOREH and MOHAMUD caused the transfer of $3,000 from San Diego, California, to Somalia.

10. On or about April 24, 2008, defendant MOALIN advised Ayrow by telephone that the "three bundles" [code for $3,000] were sent from San Diego via Amal.

5

Case 3:10-cr-04246-JM Document 1 Filed 10/22/10 Page 6 of 7

11. On or about July 8, 2008, defendant DOREH advised defendant

2

MOALIN by telephone that the money had been sent, and that

3

"Dhunkaal Hersi" was the code name used as the recipient's

4

name.

5

12. On or about July 13, 2008, after being advised by uncharged

6

co-conspirator #1 in Somalia that it was difficult to

7

replace ammunition and that each rocket-propelled grenade

8

cost $270, defendant MOALIN told uncharged co-conspirator

9

#1 by telephone that "five cartons" [code for $5,000] were

10

on their way, but would be broken into several transfers.

11

13. On or about July 15, 2008, defendant DOREH caused the

12

transfer of $2,280 from San Diego, California, to Somalia.

13

14. On or about July 23, 2008, defendant MOALIN caused the

14

transfer of $1,650 from San Diego, California, to Somalia.

15 All in violation of Title 18, United States Code, Section 956.

16

Count 4

17

CONSPIRACY TO LAUNDER MONETARY INSTRUMENTS

18

Beginning on a date unknown to the grand jury, and continuing to

19 at least on or about August 5, 2008, defendants BASAALY SAEED MOALIN,

20 MOHAMED MOHAMED MOHAMUD, aka "Mohamed Khadar," aka "Sheikh Mohamed,"

21 and ISSA DOREH, aka "Sheikh Issa," did unlawfully and knowingly

22 conspire and agree to transmit and transfer monetary instruments and

23 funds from a place in the United States to a place outside the United

24 States, to wit: Somalia, with the intent to promote the carrying on

25 of specified unlawful activities, to wit: providing material support

26 to a foreign terrorist organization, in violation of Title 18, United

27 States Code, Section 2339B (a) (1); providing material support to

28 terrorists, in violation of Title 18, United States Code,

6

Case 3:10-cr-04246-JM Document 1 Filed 10/22/10 Page 7 of 7

Section 2339A(a); and conspiracy to kill persons in a foreign country, 2 in violation of Title 18, United States Code, Section 956; all in 3 violation of Title 18, United States Code, Sections 1956 (a) (2) (A)

4 and (h) .

5

Count 5

6

PROVIDING MATERIAL SUPPORT TO TERRORISTS

7

On or about January 3, 2008, within the Southern District of

8 California, and elsewhere, defendant BASAALY SAEED MOALIN, did

9 unlawfully and knowingly provide and attempt to provide material

10 support and resources, to wit : a house in Somalia, knowing and

11 intending that the material support and resources were to be used in

12 preparation for and in carrying out a violation of Title 18, United

13 States Code, Section 956, conspiracy to kill persons in a foreign

14 country; all in violation of Title 18, United States Code,

15 Section 2339A(a).

16

DATED: October 22, 2010.

17 18 19
20 LAURA E . DUFFY
21 United States Attorney

A TRUE BILL:
~c.J~
Forepetson

22 23 By:
24
25 By:
26 27

~
WILLIAM P. COLE Assistant U.S. Attorney
~~~~~ CAROLINE HAN
Assistant U.S. Attorney

28

7

 
 Case 3:10-cr-04246-JM Document 345-1 Filed 09/05/13 Page 1 of 47

1 HOLLY A. SULLIVAN California State Bar No.216376
2 110 West C Street, Suite 1903 San Diego, California 92101
3 Telephone: (619) 269-8054 Fax: (619) 794-2263
4 Email: hollyasullivan@yahoo.com
5 Attorneys for Basaaly Moalin

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

(HONORABLE JEFFREY T. MILLER )

11

12 UNITED STATES OF AMERICA ) Case No. 10-CR-4246 (JM)

)

13

Plaintiff,

) Date: September 30, 2013

) Time: 9:00 a.m.

14

)

v.

) STATEMENT OF FACTS

15

) AND MEMORANDUM OF

) POINTS AND

16 BASAALY MOALIN,

) AUTHORITIES IN

) SUPPORT OF JOINT

17

Defendant.

) MOTION PURSUANT TO

) RULE 33, FED. R.CRIM. P.,

18

FOR A NEW TRIAL

19

TABLE OF CONTENTS

20 Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

21 Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

22 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

23 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

24 A.

The Charges, Trial, and Verdict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

25 B.
26
C.
27

Mr. Moalin’s Pretrial Motion to Suppress Electronic Surveillance Conducted Pursuant to FISA and the FISA Amendments Act. . . . . . . . . . . . . 5
Mr. Moalin’s Pretrial Motion for Production of Exculpatory Material and Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

28 D.

Recent Disclosures By U.S. Government Officials Regarding NSA Interception/Collection of Mr. Moalin’s Electronic Communications. . . . . . 7

-i-

Case 3:10-cr-04246-JM Document 345-1 Filed 09/05/13 Page 2 of 47

1

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2

I.

The NSA’s Interception and/or Collection of Data Related to

3

Mr. Moalin’s Electronic Communications, or Any Aspect of the

Communications Themselves, Violated the First and Fourth

4

Amendments, FISA, or Other Claimed Statutory Authority. . . . . . . . . . . . . 11

5

A. Collection and Storage Via Section 215 of

the USA PATRIOT Act (50 U.S.C. §1861). . . . . . . . . . . . . . . . . . . . . . . 12

6

1. The Origins and Evolution of Section 215 (50 U.S.C. §1861). . . . . 12

7

2. The NSA’s Mass Call-Tracking Program. . . . . . . . . . . . . . . . . . . . . 14

8

B. The NSA’s Interceptions Via Section 702 (50 U.S.C. §1881a).. . . . . . 16

9

C. Applying the Statutory and Constitutional

10

Analysis to Mr. Moalin and This Case. . . . . . . . . . . . . . . . . . . . . . . . . . 19

11

1. Mr. Moalin Was Subject to the Ultimate “Big Brother”

Abuse of the NSA’s Untrammeled License to Conduct

12

Electronic Surveillance and Collection. . . . . . . . . . . . . . . . . . . . . . . 19

13

2. The Section 215 Collection and Storage Lacked the Requisite

“Particularity” and Constituted an Impermissible

14

“General Warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

15

3. The Likely (and Separate) January 2008 Interception of Mr.

Moalin’s Electronic Communications

16

Violated the Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

17 II.
18
19
III.
20
21
22
23
24
IV.
25
V.
26
27
28
VI.

The Government Failed to Provide A Complete or Accurate Response to Mr. Moalin’s Motion to Suppress the Electronic Surveillance (and Search) Conducted Against Him Pursuant to FISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Cleared Defense Counsel Should Be Provided the Government’s Response to Mr. Moalin’s Motion to Suppress the Electronic Surveillance Pursuant to FISA, As Well As the Underlying FISA Applications, and Materials In Support Thereof, and the Court Should Revisit Its Review and Decisions with Respect to Any of the Government’s Applications Made Pursuant to §4 of the Classified Information Procedures Act (“CIPA”), and Provide Those Submissions to Cleared Defense Counsel. . . . . . . . . . . 25
The Government Failed to Provide Necessary Rule 16 Discovery. . . . . . . . 33
Congressional Testimony and Other Statements By FBI and NSA Officials Have Fatally Undermined Not Only the Essential Element of the Government’s Theory at Trial, But Also Public Confidence In the Investigation and Prosecution of This Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
The Government Failed to Provide Mr. Moalin

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1

Exculpatory Material and Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

2 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

CASES

3 Alderman v. United States, 394 U.S. 65 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

4 Amnesty International USA, et al. v. Clapper,

08 Civ. 06259 (JGK) (S.D.N.Y.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

5

American Civil Liberties Union, et al. v. Clapper,

6

13 Civ. 03994 (WHP) (S.D.N.Y.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

7 Boyd v. United States, 116 U.S. 616 (1886). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

8 Brady v. Maryland, 373 U.S. 83 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 37

9 Center Art Galleries- Hawaii, Inc. v. United States,

875 F.2d 747 (9th Cir.1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

10

Clapper v. Amnesty International USA, ___ U.S. ___,

11

133 S. Ct. 1138 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 24

12 Coolidge v. New Hampshire, 403 US 443 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

13 Franks v. Delaware, 438 U.S. 154 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 26

14 Groh v. Ramirez, 540 US 551 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

15 In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611 (FISC), rev’d on other grounds sub nom.. . . . . . . . . . 30
16

17 In re Grand Jury Subpoenas Dated Dec. 10, 1987,

926 F.2d 847, 857 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

18

In re Proceedings Required by § 702(i) of the FISA Amendments Act of 2008,

19

No. Misc. 08-01 (FISA Ct. Aug. 27, 2008). . . . . . . . . . . . . . . . . . . . . . . . . . 19

20 In re Sealed Case, 310 F.3d 717 (FISCR 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

21 Ramirez v. Butte-Silver Bow County, 298 F.3d 1022 (9th Cir. 2002). . . . . . . . . . . . . . . . 21

22 Steagald v. United States, 451 US 204 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

23 Stein v. Department of Justice & Federal Bureau of Investigation, 662 F.2d 1245 (7th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
24
United States v. Adjani, 452 F.3d 1140 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . 21
25
United States v. Cardwell, 680 F.2d 75 (9th Cir.1982). . . . . . . . . . . . . . . . . . . . . . . . . . . 22
26
United States v. Chadwick, 433 US 1 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
27
United States v. Marzook, 412 F. Supp.2d 913 (N.D. Ill. 2006). . . . . . . . . . . . . . . . . . . . 27
28
United States v. McGrew, 122 F.3d 847 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . 22

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1

United States v. McLaughlin, 851 F.2d 283 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . 21

2

United States v. SDI Future Health, Inc., 568 F.3d 684 (9th Cir. 2009). . . . . . . . . . . . . . 22

3

United States v. Sears, 411 F.3d 1124 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

4

United States v. Spilotro, 800 F.2d 959 (9th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . 21, 22

5

United States v. Washington, 797 F.2d 1461 (9th Cir.1986). . . . . . . . . . . . . . . . . . . . . . . 22

6

United States v. White, 401 US 745 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

7

STATUTES

8

US Const. Amend. I.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 20

9

US Const. Amend. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 20

10

US Const. Amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

11

Classified Information Procedures Act (CIPA) §4. . . . . . . . . . . . . . . . . . 2, 3, 25, 32, 33, 34

12

FAA, FISA Amendments Act of 2008, Pub. L. No. 110-261 (2008).. . . . . . . . . . . . . . . . . 5

13

FAA §702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11, 23, 34

14

FAA §702(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

15

FAA §702(b)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

16

FAA §702(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

17

FAA §702(g)(4).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

18

FAA §702(i)(3)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

19

FAA §702(i)(4)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

20

Freedom of Information Act, 5 U.S.C. §552.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 31

21

Intelligence Authorization Act for Fiscal Year 2002, Pub. L. 107-108 (2001). . . . . . . . . 12

22

Protect America Act, Pub. L. No. 110-55 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

23

USA PATRIOT Act, Pub. L. 107-56 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

24

USA PATRIOT Act §215. . . . . . . . . . . . . . . . . . . . . . . . 7, 11, 12, 13, 15, 20, 24, 34, 36, 37

25

USA PATRIOT Improvement and Reauthorization Act of 2005,

26

Pub. L. 109-177 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

27 18 U.S.C. §956. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

28 18 U.S.C. §1956(a)(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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1 18 U.S.C. §1956(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2 18 U.S.C. §2339A(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3 18 U.S.C. §2339B(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4 18 U.S.C. §2518(8)(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34 5 18 U.S.C. §2518(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 6 50 U.S.C. §1801(h)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 7 50 U.S.C. §1803(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 8 50 U.S.C. §1804(a) (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 9 50 U.S.C. §1805(a)(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 10 50 U.S.C. §1805(a)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 11 50 U.S.C. §1806(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 12 50 U.S.C. §1806(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 13 50 U.S.C. §1806(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 26 14 50 U.S.C. §1806(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 26 15 50 U.S.C. §1821(4)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 16 50 U.S.C. §1861. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11. 12, 24, 34, 36 17 50 U.S.C. §1861(b)(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 18 50 U.S.C. §1861(c)(2)(D). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 19 50 U.S.C. §1861 (2000 ed.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 20 50 U.S.C. §1862 (2000 ed.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 21 50 U.S.C. §1881a.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11, 24, 34 22 50 U.S.C. §1881a(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 23 23 50 U.S.C. §1881a(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 24 50 U.S.C. §1881a(g)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 25 50 U.S.C. §1881a(i)(3)(A).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 26 50 U.S.C. §1881a(i)(4)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 27 50 U.S.C. §1881e(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 28 Fed. R. Crim. P. 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 34

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1 Fed. R. Crim. P. 16(d)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

2 Fed. R. Crim. P. 16(a)(1)(E)(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

3 Fed. R. Crim. P. 16(a)(1)(E)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

4 Fed. R. Crim. P. 33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 4, 38

5 FISC R. P. 17(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

6

OTHER AUTHORITIES

7 157 Cong. Rec. S3386 (daily ed. May 26, 2011)

(statement of Sen. Ron Wyden). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

8

157 Cong. Rec. S3389 (daily ed. May 26, 2011)

9

(statement of Sen. Mark Udall). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

10 Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215

of the USA PATRIOT Act, (Aug. 9, 2013),

11

(http://bit.ly/15ebL9k). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16

12 Charlie Savage, “N.S.A. Said to Search Content of Messages to and From U.S.,”

The New York Times, August 8, 2013, (http://www.nytimes.com/

13

2013/08/08/us/broader-sifting-of-data-abroad-is-seen-by-nsa.html?page

wanted=all). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

14

Dep’t of Justice, Report on the National Security Agency’s Bulk Collection Programs for

15

USA PATRIOT Act Reauthorization (Feb. 2, 2011),

(http://1.usa.gov/1cdFJ1G).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

16

17 Eric Lichtblau, “In Secret, Court Vastly Broadens Powers of N.S.A.,” The New York

Times, July 6, 2013, (http://www.nytimes.com/2013/07/07/us/in-

18

secret-court-vastly-broadens-powers-of-nsa.html?pagewanted=all). . . . . . 32

19 Glenn Greenwald, “NSA collecting phone records of millions of Verizon customers

daily”, The Guardian, June 5, 2013, (http://www.theguardian.com/world/

20

2013/jun/06/nsa-phone-records-verizon-court-order). . . . . . . . . . . . . . . . . . . 7

21 Glen Kessler, “James Clapper’s ‘Least Untruthful’ Statement to the Senate,” Wash. Post,

June 12, 2013, (http://wapo.st/170VVSu). . . . . . . . . . . . . . . . . . . . . . . . . . . 13

22

Ezra Klein, “A Radical Plan for Shaking Up the FISA Court”, Washington Post, July 9,

23

2013, (http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/

09/a-radical-plan-for-shaking-up-the-fisa-court/). . . . . . . . . . . . . . . . . . . . . 25

24

Hon. James G. Carr, Op-Ed, “A Better Secret Court,” The New York Times,

25

July 23, 2013, (http://www.nytimes.com/2013/07/23/opinion/a-better-

secret-court.html?ref=opinion&_r=1&). . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

26

In re Application of the FBI for an Order Requiring the Production of Tangible Things

27

from [Redacted], No. BR 13-80

(FISA Ct. Apr. 25, 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

28

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1 In re Application of the FBI for an Order Requiring the Production of Tangible Things

from Verizon Bus. Network Servs., Inc. on Behalf of MCI Commc’n Servs.,

2

Inc. d/b/a Verizon Bus. Servs., No. BR 13-80 (FISA Ct. Apr. 25, 2013)). . 14

3 John Shiffman and Kristina Cooke, “U.S. Directs Agents to Cover Up Program Used to

4

Investigate Americans,” Reuters, August 5, 2013, (http://www.reuters.com/

article/2013/08/05/us-dea-sod-idUSBRE97409R20130805). . . . . . . . 24, 37

5

Ken Dilanian, “Public Gets First Look At Once-Secret Court Order on NSA

6

Surveillance,”

Los Angeles Times, July 31, 2013,

7

(http://articles.latimes.com/2013/jul/31/news/la-pn-secret-nsa-

surveillance-court-order-20130731). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

8

Marshall Curtis Erwin and Edward C. Liu, NSA Surveillance Leaks: Background and

9

Issues for Congress, Congressional Research Service, July 2, 2013, R43134,

10

(http://www.fas.org/sgp/crs/intel/R43134.pdf). . . . . . . . . . . . . . . . . . . . . . . . 9

11 Max Fisher, “Is This $8,500 Wire Transfer Really the NSA’s Best Case for Tracking

12

Americans’ Phone Records?” The Washington Post, August 9, 2013,

(latimes.com/news/politics/la-pn-secret-nsa-surveillance-court-order-

13

20130731,0,1310703.story) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

14 Office of the Dir. of Nat’l Intelligence, Foreign Intelligence Surveillance Court Renews

Authority to Collect Telephony Metadata (July 19, 2013),

15

(http://1.usa.gov/12ThYlT). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

16 Office of the Dir. of Nat’l Intelligence, DNI Statement on Recent Unauthorized

Disclosures of Classified Information (June 6, 2013),

17

(http://1.usa.gov/13jwuFc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

18 Report to Congress on Implementation of Section 1001 of the USA PATRIOT Act, March

8, 2006 (http://www.usdoj.gov/oig/special/s0603/final.pdf). . . . . . . . . 30, 31

19

SID Oversight & Compliance, Quarterly Report, First Quarter Calendar Year 2012, May 3,

20

2012, (http://www.documentcloud.org/documents/758651-1

qcy12-violations.html#document/p12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

21

22 Spencer Ackerman, “US Senators Push for Special Privacy Advocate in Overhauled FISA

Court”, The Guardian, August 1, 2013, available at

23

(http://www.theguardian.com/law/2013/aug/01/fisa-court-bill-us-senate).. 25

24

Siobhan Gorman & Julian E. Barnes, “Officials: NSA Doesn’t Collect Cellphone-Location

25

Records,” Wall St. J., June 16, 2013, (http://on.wsj.com/13MnSsp). . . . . . 16

26

27

28

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1

Introduction

2

This Memorandum of Law is submitted on behalf of defendants Basaaly

3 Moalin, Mohamed Mohamed Mohamud, Issa Doreh, and Ahmed Nasir Taalil Mohamed in

4 support of their motion, pursuant to Rule 33, Fed.R.Crim.P., for a new trial in the above-

5 captioned case, in which they were convicted after a jury trial February 22, 2013.

6

The motion is based upon disclosures made recently – since the June 2013

7 commencement of reporting on material provided by Edward Snowden regarding

8 surveillance programs operated by the U.S. government through the National Security

9 Agency (“NSA”) – by U.S. officials from the Federal Bureau of Investigation (“FBI”) and

10 NSA in Congressional testimony and other forums.

11

As discussed below, among the disclosures by those government officials

12 was that such NSA collection, storage, and surveillance were instrumental in the

13 investigation in this case. Indeed, ultimately, U.S. government officials have cited this

14 case as the only U.S. criminal case in which a particular NSA program produced

15 information vital to the prosecution.

16

The collection/storage/interception cited by the government officials relates

17 to Mr. Moalin’s telephone contacts in 2007, after a prior investigation of him years earlier

18 had been closed due to lack of sufficient evidence to institute any charges. At issue in this

19 motion is the legality of that collection/storage/interception, and its impact on this case,

20 including not only the manner in which evidence was obtained and used by the

21 government, and whether other evidence constitutes the “fruit of the poisonous tree,” but

22 also the viability of the government’s only theory at trial. Further at issue is whether NSA,

23 or other U.S. government agencies, are in possession of exculpatory or discoverable

24 material to which defendants were entitled in advance of trial.

25

In addition, certain 3500 material alluded to other, subsequent electronic

26 surveillance of Mr. Moalin’s communications while the FISA wiretap on his phone was in

27 progress – surveillance which, due to its real-time monitoring, indicates it was not

28 pursuant to the same NSA program that collected the other information related to Mr.

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1 Moalin (and the subject of the recent official statements), but instead was conducted under

2 the auspices of another statutorily and constitutionally invalid NSA program.

3

This Rule 33 motion also seeks discovery of the data and information

4 collected/stored/intercepted by NSA, and to which the U.S. government officials have

5 referred in their public statements, and/or which appears in 3500 material. If that

6 information is classified, it is submitted that it should be produced to cleared counsel (as

7 each defendant in this case is represented by at least one cleared counsel).

8

Thus, this Rule 33 motion raises the following specific issues, the favorable

9 resolution of which would be sufficient to grant a new trial:

10

(1) whether the NSA interception and/or collection of Mr. Moalin’s

11

communications violated his Fourth and First Amendment rights, and/or

12

violated the Foreign Intelligence Surveillance Act (“FISA”), or any other

13

statutory authority upon which such interception/collection was

14

purportedly based;

15

(2) whether the government’s response to Mr. Moalin’s motion challenging

16

the electronic surveillance and physical searches conducted pursuant to

17

FISA – which response was filed ex parte – was complete and accurate

18

with respect to the scope of electronic surveillance and collection to

19

which Mr. Moalin was subjected;

20

(3) whether that government response (and any other related government

21

submissions), as well as the underlying FISA applications and

22

submissions in support thereof, should be provided to cleared defense

23

counsel pursuant to either 50 U.S.C. §§1806(f) & (g), and/or the Fifth

24

Amendment’s Due Process clause; and whether the government’s

25

submissions pursuant to §4 of the Classified Information Procedures Act

26

(“CIPA”), and the underlying materials, should be disclosed to cleared

27

defense counsel; and whether the Court should revisit its review and

28

decisions with respect to any of the government’s applications made

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1

pursuant to CIPA §4, and provide the government’s CIPA §4

2

submissions to cleared defense counsel;

3

(4) whether the government failed to provide Rule 16 discovery – the

4

evidence of Moalin’s communications as evidenced by the NSA

5

interceptions and collection of metadata – it was obligated to produce to

6

Mr. Moalin;

7

(5) whether the public statements, including Congressional testimony of

8

certain FBI and NSA officials, materially undermines the government’s

9

central and indispensable premise at trial: that the intercepted

10

conversations were between Moalin and Aden Hashi Ayrow directly, and

11

not indirectly; and

12

(6) whether the government failed to provide Brady material in the form of:

13

(a) the reasons underlying the conclusion, at the end of the initial 2003

14

investigation of Mr. Moalin, that he was not engaged in illegal

15

conduct or linked to terrorism. Also, that earlier investigation likely

16

yielded abundant, if not conclusive, evidence that Mr. Moalin was

17

sending money to Somalia for humanitarian and other (family)

18

purposes even before al Shabaab existed, and that he did not harbor

19

anti-U.S. or pro-terrorist sympathies;

20

(b) evidence that Mr. Moalin’s contacts with al Shabaab that

21

precipitated the current investigation were indirect, and not directly

22

with Mr. Ayrow;

23

(c) exculpatory information and material related to the FBI’s April

24

2009 Field Intelligence Group Assessment of Mr. Moalin, which

25

Mr. Moalin requested in his pretrial motions; and,

26

(d) anything exculpatory generated by and during the earlier Anaheim

27

investigation referred to in Ahmed Nasir’s Pre-Sentence Report

28

(“PSR”) – which also apparently resulted in a declination of

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1

charges.

2

Accordingly, it is respectfully submitted that the Court should grant

3 defendants’ Rule 33 motion, and order a new trial, and/or compel the discovery demanded

4 in this motion, and/or conduct the evidentiary hearings requested herein.

5

Statement of the Facts

6 A.

The Charges, Trial, and Verdict

7

The Superseding Indictment, S2 10 Cr. 4246 (JM) contained five counts,

8 alleging a Conspiracy to Provide Material Support for Terrorism, in violation of 18 U.S.C.

9 §2339A(a) (Count One); Conspiracy to Provide Material Support to a Foreign Terrorist

10 Organization (“FTO”), in violation of 18 U.S.C. §2339B(a)(1) (Count Two); Conspiracy

11 to Kill in a Foreign Country, in violation of 18 U.S.C. §956 (Count Three); Conspiracy to

12 Launder Monetary Instruments, in violation of 18 U.S.C. § 1956(a)(2)(A) and (h) (Count

13 Four); and Providing Material Support for Terrorism, in violation of 18 U.S.C. §

14 2339A(a) Count Five).

15

All four defendants were charged in Counts One, Two, and Three. Count

16 Four charged Mr. Moalin alone, and Count Five charged all defendants except Mr. Ahmed

17 Nasir.

18

Trial commenced January 28, 2013. In its opening statement, the government

19 argued that “[y]ou’ll learn in this case that he was the direct connection to Aden Ayrow,

20 the al-Shabaab leader who told him it was time to finance the jihad.” Trial Transcript,

21 January 30, 2013, at 5. See also id., at 7 (“[a]nd this is how it would work. Aden Ayrow,

22 al-Shabaab leader, rock star in al-Shabaab and in Somalia, both inside and outside of

23 Somalia, would talk to Basaaly – again, the main connection to Aden Ayrow . . .”); at 10

24 (“[i]n January of 2008 Aden Ayrow is talking to Basaaly”).

25

Throughout the trial, the government’s theory remained consistent with that

26 declaration: that the person named “Sheikalow” in the recorded telephone conversations

27 was, in fact, Mr. Ayrow, and that Mr. Moalin communicated directly with Mr. Ayrow for

28 the purpose of providing material support, in the form of financial assistance, to al

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1 Shabaab, a designated Foreign Terrorist Organization (“FTO”).

2

Thus, in summation the government contended that “Basaaly Moalin was on

3 the phone with Aden Ayrow, personally on the phone with this internationally infamous

4 terrorist leader.” Trial Transcript, February 19, 2013, at 4. See also id., at 5 (“[n]ow, I am

5 going to review with you all the bread crumbs – really not bread crumbs – all the neon

6 lights that point to the inescapable conclusion that this Sheikalow, the Majadhub, on the

7 phone with Basaaly Moalin, that was Aden Ayrow”).

8

The jury returned a verdict of guilty on all counts against all defendants

9 February 22, 2013. All four defendants, who were remanded pending trial, remain in

10 custody.

11 B.

Mr. Moalin’s Pretrial Motion to Suppress Electronic Surveillance Conducted Pursuant to FISA and the FISA Amendments Act

12

Mr. Moalin moved pretrial to suppress the fruits of the FISA electronic

13 surveillance and search(es). See Docket #92 (December 9, 2011), at 6-28.1 As part of that

14
motion, Mr. Moalin moved to preclude any interceptions conducted pursuant to FISA

15
generally, as well as to any such surveillance requested and conducted pursuant to the

16
authority provided in 50 U.S.C. §1881a, enacted in 2008 as part of the FISA Amendments

17 Act of 2008, Pub. L. No. 110-261 (2008) (hereinafter “FAA”), or to discover whether any

18 information in the FISA applications was the product of surveillance authorized under the

19
FAA. See Docket # 92, at 17-18.

20
Since the FISA surveillance of Mr. Moalin’s telephone straddled the date of

21
§1881a’s enactment, with some occurring in late 2007, and the remainder until December

22 2008, it was unknown to Mr. Moalin (and remains unknown) whether any of the FISA

23 electronic surveillance was conducted pursuant to the FAA. Id., at 17. Mr. Moalin also

24 sought, via 50 U.S.C. §§1806(f) & (g) disclosure of the underlying FISA applications and

25
supporting materials.

26
The factual portion of the government response to Mr. Moalin’s motion was

27

28

1 The government had previously filed a Notice of Intent to Use FISA

Information. See Docket #s 12 & 44.

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1 submitted ex parte February 23, 2012, and remains so. See Docket #128. Mr. Moalin

2 filed a Reply March 9, 2012, related to the legal argument advanced by the government in

3 its publicly filed opposition to the motion. See Docket #131.

4

In adjudicating the motion, the Court first issued an ex parte Order June 4,

5 2012, Docket #146, that has never been provided to the defense (either cleared counsel or

6 the defendants). Apparently the Court’s Order required some action or response by the

7 government, which moved initially for an extension of time to comply with the Court’s

8 June 4, 2013, Order. See Docket #148 (June 15, 2012). The Court granted that

9 application (see Docket #149), and June 27, 2012, the government filed an ex parte

10 Statement In Compliance with the Court’s June 4, 2012, Order. See Docket #151. Again,

11 neither defendants nor their counsel have been afforded access to that Statement, or the

12 Order to which it related.

13 C.

Mr. Moalin’s Pretrial Motion for Production of Exculpatory Material and Information

14
In his pretrial motions, Mr. Moalin moved for production of exculpatory

15
material the government was obligated to provide under Brady v. Maryland, 373 U.S. 83

16
(1963) and its progeny. See Docket #92, at 34-36. In large part, the specifics of the

17 motion were based on an FBI San Diego Field Intelligence Group Assessment, dated June

18 15, 2011 (hereinafter “FIG Assessment”).

19
That FIG Assessment was summarized in a two-page partially redacted FBI

20
Report dated June 15, 2011, created by the San Diego office (denominated in discovery as

21
GA-DOCS-000051-52, and attached hereto as Exhibit 1). Id.

22

According to the FIG Assessment:

23

[t]he San Diego FIG assesses that Moalin, who belongs to the

24

Hawiye tribe/Habr Gedir clan/Ayr subclan, is the most significant al-Shabaab fundraiser in the San Diego Area of

25

Operations (AOR). Although Moalin has previously expressed

support for al-Shabaab, he is likely more attentive to Ayr

26

subclan issues and is not ideologically driven to support al-

Shabaab. The San Deigo FIG assesses that Moalin likely

27

supported now deceased senior al-Shabaab leader Aden Hashi

Ayrow due to Ayrow’s tribal affiliation with the Hawiye

28

tribe/Habr Gedir clan/Ayr subclan rather than his position in alShabaab. Moalin has also worked diligently to support Ayr

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1

issues to promote his own status with Habr Gedir elders. The

San Diego FIG assesses, based on reporting that Moalin has

2

provided direction regarding financial accounts to be used when transferring funds overseas that he also serves as a controller for

3

the US-based al-Shabaab fundraising network.

4 Id. (Exhibit 1).

5

Mr. Moalin’s motion for Brady material also referenced prior investigations

6 of Mr. Moalin, and sought exculpatory information and material regarding them as well.

7 See Docket #92, at 34-36.

8 D.

Recent Disclosures By U.S. Government Officials Regarding NSA Interception/Collection of Mr. Moalin’s Electronic Communications

9
In its June 8, 2013, edition, The Washington Post published the first in a

10
continuing and ongoing series of articles by a variety of news organs, including The

11
Guardian and The New York Times, detailing disclosures by Edward Snowden, a former

12 NSA contract employee. The documents Mr. Snowden provided revealed the existence of

13 the scope of NSA’s electronic surveillance, interception, and collection, including

14 communications data relevant to U.S. persons.2

15
Two aspects of those revelations would seem to be particularly relevant here:

16
(1) the collection, storage, and subsequent retrospective use of metadata gleaned from

17 electronic communications by U.S. persons in the U.S., pursuant to Section 215 (50 U.S.C.

18 §1861); and (2) the interception of electronic communications, particularly those with a

19
domestic U.S. component (sending or receiving or, in some cases, entirely), pursuant to

20 Section 702 (50 U.S.C. §1881a) of the FAA.3

21
In response to the Snowden/ Washington Post disclosures, Congressional

22

23
2 Three days earlier, June 5, 2013, The Guardian published an article
24 regarding a previously undisclosed order by the Foreign Intelligence Surveillance
Court, but Mr. Snowden was not cited as the source (although apparently he
25
provided that document as well). See Glenn Greenwald, “NSA collecting phone 26 records of millions of Verizon customers daily,” The Guardian, June 5, 2013,
27 available at http://www.theguardian.com/world/2013/jun/06/nsa-phonerecords-verizon-court-order - article.
28
3 Those two sections are discussed in more detail post, in POINT I.

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1 hearings were convened on the subject within two weeks. During a June 18, 2013,

2 appearance before the House Permanent Select Committee on Intelligence (“HPSCI”),

3 Sean Joyce, Deputy Director, FBI, testified regarding criminal cases that had been initiated

4 as a result of the NSA interception/collection programs.

5

Initially, in his prepared remarks, Deputy Director Joyce informed the panel

6 about a particular case which he did not identify. He said of this case that

7

the FBI had opened an investigation shortly after 9/11. We did not have enough information nor did we find links to terrorism,

8

so we shortly thereafter closed the investigation. However, the NSA, using the business record FISA, tipped us off that this

9

individual had indirect contacts with a known terrorist overseas.

We were able to reopen this investigation, identify additional

10

individuals through a legal process and were able to disrupt this

terrorist activity.

11
Transcript, HPSCI Hearing, June 18, 2013, at 9-10. (A copy of the transcript of that

12 hearing is attached hereto as Exhibit 2).

13

Later in that same session, during the question and answer period, Deputy

14
Director Joyce confirmed that the case to which he had referred was this case: United

15
States v. Moalin, and that the individual who was the subject of the initial (closed)

16
investigation, and whose phone records had been the subject of Section 215 collection and

17 storage, was Mr. Moalin. Asked by Rep. Mac Thornberry (R-Tex.) to describe the Moalin

18 case further, Gen. Keith Alexander (USA), NSA’s Director, deferred to Deputy Director

19
Joyce, “because the actual guys who actually do all the work when we provide it is the FBI

20
and get [the description] exactly right.” Id., at 18 (Exhibit 2).

21
As a result, Deputy Director Joyce explained that

22

It was a(n) investigation after 9/11 that the FBI conducted. We conducted that investigation and did not find any connection to

23

terrorist activity. Several years later, under the 215 business record provision, the NSA provided us a telephone number only

24

in San Diego that had indirect contact with an extremist outside the United States. We served legal process to identify who was

25

the subscriber to this telephone number. We identified that

individual. We were able to, under further investigation and

26

electronic surveillance that we applied specifically for this U.S.

person with the FISA Court, we were able to identify co-

27

conspirators, and we were able to disrupt this terrorist activity.

28

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1 Id., at 18-19 (Exhibit 2).4

2

Four weeks later, at a July 18, 2013, address at the Aspen Security Forum in

3 Aspen, Colorado, Gen. Alexander repeated that same account of this case:

4

. . . so from some information we got in Somalia, we saw some –

we looked at a phone number, we said we know this is

5

associated with al Qaeda, we looked at that phone number and

we saw it touched a phone number in San Diego. And [Deputy

6

Director] Joyce . . . was the one who said that was [Basaaly

Moalin] case that they had started in 2003 but didn’t have

7

enough information to go up on. In 2007, we saw him talking to a facilitator in Somalia. We passed – all we have is the number.

8

We don’t know who it – a nine-digit number [or] ten-digit number. We pass that – I guess they’re ten digits – we’re going

9

to be accurate – a 10-digit number to them. And they look at

that and they go, ooh, this is [Basaaly Moalin]. They look up

10

and said, four years ago we had a case. They reopened the case.

11 Transcript, July 18, 2013, Aspen Security Forum, Gen. Keith Alexander, at 5. (A copy of

12 that transcript is attached hereto as Exhibit 3). See also Transcript, July 31, 2013, Black

13 Hat USA 2013 Conference, Las Vegas, Nevada, Gen. Keith Alexander, at 3-4. (A copy of

14 that transcript is attached hereto as Exhibit 4).5

15

16

4 See also Marshall Curtis Erwin and Edward C. Liu, NSA Surveillance

Leaks: Background and Issues for Congress, Congressional Research Service,

17 July 2, 2013, R43134, at 11, available at http://www.fas.org/sgp/crs/intel/

18 R43134.pdf (“Basaaly Saeed Moalin: NSA, using phone records pursuant to 215
authorities, provided the FBI with a phone number for an individual in San Diego 19 who had indirect contacts with extremists overseas. The FBI identified the

20 individual as [Mr. Moalin] and determined that he was involved in financing
extremist activity in Somalia”) (emphasis in original) (footnotes omitted).
21

22

5 At the Black Hat conference, Gen Alexander recounted that

23

we gave [the FBI the California telephone number] in

24

2007. In 2004, they had ordered an investigation on that

individual, but did not have enough information to open

25

a full field investigation, so they closed that investigation

26

down. In 2007, with the number we gave them, they had

enough information. They take that number, and now
27
their portion of this is they can take a national security

28

(clip?), find out who that number belongs to, and they

found out it was Basaaly Moalin. They can then, with

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1

Deputy Director Joyce, appearing before the Senate Judiciary Committee July

2 31, 2013, reiterated during his testimony the genesis and chronology of the investigation

3 in this case:

4

another instance when we used the business record 215

program, as Chairman – Leahy mentioned, [Basaaly Moalin].

5

So, initially, the FBI opened a case in 2003 based on a tip. We

investigated that tip. We found no nexus to terrorism and closed

6

the case.

7

In 2007, the NSA advised us, through the business record 215 program, that a number in San Diego was in contact with an Al-

8

Shabaab in East Al Qaida – East – Al Qaida East Africa member in Somalia. We served legal process to identify that

9

unidentified phone number. We identified [Mr. Moalin].

10 Transcript, July 31, 2013, Senate Judiciary Committee, Deputy Director Sean Joyce, at 14.

11 A copy of the transcript is attached hereto as Exhibit 5.

12

In addition to the recent disclosures, the 3500 material for the government’s

13 linguist, Liban Abdirahman, at GA-ABDIRAHMAN-000006 (and attached as Exhibit 6

14 hereto), includes a January 24, 2008, e-mail from a redacted source (probably FBI Special

15 Agent Michael C. Kaiser, the case agent) that states, “We just heard from another agency

16 that Ayrow tried to call Basaaly today, but the call didn’t go through.” As noted post, that

17 raises the additional question whether Mr. Moalin was subject to other means of

18 interception, i.e., Section 702 (FAA §1881a), conducted by NSA even while the FBI’s

19 FISA wiretap was underway.

20

21

22

23

24

probable cause, get a [FISA] warrant. NSA only has the
25
fact of a number. FBI could take that, see where it

26

connects to, use a national security letter and the legal

authorities given to them to take the next step.
27

28 Transcript, July 31, 2013, Black Hat USA 2013 Conference, Las Vegas, Nevada, Gen. Keith Alexander, at 3-4 (Exhibit 4).

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1

ARGUMENT

2 I.

The NSA’s Interception and/or Collection of Data Related to Mr. Moalin’s Electronic Communications, or Any Aspect of the

3

Communications Themselves, Violated the First and Fourth Amendments, FISA, or Other Claimed Statutory Authority

4
Both Section 215 (50 U.S.C. §1861) and Section 702 (50 U.S.C. §1881a) – to

5
the extent either or both were employed to conduct electronic surveillance on Mr. Moalin,

6
and/or to collect and store or intercept his communications – are unconstitutional as

7 applied to Mr. Moalin in this case.

8

The various means by which those provisions violate FISA itself, as well as

9
the First and Fourth Amendments, is treated most comprehensively in papers filed by the

10
American Civil Liberties Union in two separate lawsuits instituted with respect to those

11
two sections. In Amnesty International USA, et al. v. Clapper, 08 Civ. 06259 (JGK)

12 (S.D.N.Y.), the plaintiffs challenged Section 702 (50 U.S.C. §1881a) in a civil declaratory

13 judgment action. Ultimately, the Supreme Court ordered dismissal of that action because

14
plaintiffs therein lacked standing. See Clapper v. Amnesty International USA, ___ U.S.

15
___, 133 S. Ct. 1138 (2013).

16
In American Civil Liberties Union, et al. v. Clapper, 13 Civ. 03994 (WHP)

17 (S.D.N.Y.), the plaintiffs have challenged the use of Section 215 (50 U.S.C. §1861) as

18 described in the recent disclosures by Mr. Snowden and confirmed by government

19
officials and documents. That action remains pending.

20
Rather than simply repeat the comprehensive and compelling statutory and

21
constitutional analysis performed in ACLU’s papers, defendants respectfully incorporate

22 them by reference herein and adopt them from the following pleadings in those cases: (a)

23 in Amnesty International USA, Docket #7, at 15-53 (attached hereto as Exhibit 7); and (b)

24 in ACLU, Docket # 26, at 8-36 (attached hereto as Exhibit 8).

25
However, this motion will set forth some of the factual background with

26
respect to each section to provide sufficient context, and will also discuss certain Fourth

27
Amendment principles that are not addressed in the ACLU’s briefs.

28

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1

A. Collection and Storage Via Section 215 of

the USA PATRIOT Act (50 U.S.C. §1861)

2

1. The Origins and Evolution of Section 215 (50 U.S.C. §1861)

3

In enacting FISA in 1978, Congress created the Foreign Intelligence

4
Surveillance Court (“FISC”) and empowered it to grant or deny government applications

5
for surveillance orders in foreign-intelligence investigations. See 50 U.S.C. § 1803(a).

6
The FISC meets in secret, generally hears argument only from the government, and rarely

7 publishes its decisions. See, e.g., FISC R. P. 17(b), 62. See also

8 http://www.uscourts.gov/uscourts/rules/FISC2010.pdf.

9
Section 215 (18 U.S.C. §1861), was originally added to FISA in 1998. See

10
50 U.S.C. §§1861-1862 (2000 ed.). In its initial form, it permitted the government to

11
compel the production of certain records in foreign-intelligence or international-terrorism

12 investigations from common carriers, public-accommodation facilities, storage facilities,

13 and vehicle rental facilities. Id. at §1862 (2000 ed.). The government was required to

14
include in its application to the FISC “specific and articulable facts giving reason to

15
believe that the person to whom the records pertain[ed] [was] a foreign power or an agent

16
of a foreign power.” Id.

17

The USA PATRIOT Act and several successor bills modified that provision

18 in several respects.6 In its current form, the statute – commonly referred to as Section 215

19
– allows the government to obtain an order requiring the production of “any tangible

20
things” upon a “showing that there are reasonable grounds to believe that the tangible

21
things sought are relevant to an authorized investigation (other than a threat assessment) . .

22 . to obtain foreign intelligence information not concerning a United States person or to

23 protect against international terrorism or clandestine intelligence activities.” Id.

24

25

26

6 The “PATRIOT Act” is the name customarily used to refer to the Uniting

and Strengthening America by Providing Appropriate Tools Required to Intercept
27
and Obstruct Terrorism Act of 2001, Pub. L. 107-56. See also Intelligence

28 Authorization Act for Fiscal Year 2002, Pub. L. 107-108 (2001); USA PATRIOT

Improvement and Reauthorization Act of 2005, Pub. L. 109-177 (2006).

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1 §1861(b)(2)(A). The provision deems certain kinds of tangible things “presumptively 2 relevant.”7

3

While the amendments to this provision expanded the government’s

4 investigative power, that expansion was not without limits. Language added by the Patriot

5 Act prohibits the government from using the provision to obtain tangible things that could

6 not be obtained through analogous mechanisms. It states: “An order under this subsection

7 . . . may only require the production of a tangible thing if such thing can be obtained with

8 a subpoena duces tecum issued by a court of the United States in aid of a grand jury

9 investigation or with any other order issued by a court of the United States directing the

10 production of records or tangible things.” Id., §1861(c)(2)(D).

11

Until recently, the public knew little about the government’s use of Section

12 215. In 2011, however, Senators Ron Wyden and Mark Udall, both of whom sit on the

13 Senate Select Committee on Intelligence, stated publicly that the government had adopted

14 a “secret interpretation” of Section 215, and predicted – quite correctly now in hindsight– 15 that Americans would be “stunned,” “angry,” and “alarmed” when they learned of it.8

16

Their efforts to make more information available to the public, however,

17 were largely unsuccessful, as were parallel efforts under the Freedom of Information Act.

18 Ordinary citizens who wanted to understand the government’s surveillance policies were

19 entirely reliant on the government’s own statements about them, and those statements were

20 sometimes misleading or false. See, e.g., Glen Kessler, “James Clapper’s ‘Least

21 Untruthful’ Statement to the Senate”, Wash. Post, June 12, 2013, available at

22
7 See 50 U.S.C. § 1861(b)(2)(A) (deeming tangible things “presumptively
23
relevant to an authorized investigation” if they pertain to “a foreign power or an 24 agent of a foreign power;” “the activities of a suspected agent of a foreign power
who is the subject of such authorized investigation;” or “an individual in contact
25
with, or known to, a suspected agent of a foreign power who is the subject of such 26 authorized investigation”).

27

8 157 Cong. Rec. S3386 (daily ed. May 26, 2011) (statement of Sen. Ron

28 Wyden); 157 Cong. Rec. S3389 (daily ed. May 26, 2011) (statement of Sen. Mark

Udall).

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1 http://wapo.st/170VVSu (discussing statement by the Director of National Intelligence

2 indicating, falsely, that government was not collecting information about millions of

3 Americans).

4

2. The NSA’s Mass Call-Tracking Program

5

In its June 5, 2013, edition, The Guardian disclosed a previously secret FISC

6 order, labeled a “Secondary Order,” directing Verizon Business Network Services

7 (“Verizon”) to produce to the NSA “on an ongoing daily basis . . . all call detail records or

8 ‘telephony metadata’” relating to every domestic and international call placed on its 9 network between April 25, 2013 and July 19, 2013.9 The Secondary Order specified that

10 telephony metadata includes, for each phone call, the originating and terminating

11 telephone number as well as the call’s time and duration. Secondary Order at 2. On the

12 day the Secondary Order expired, the Director of National Intelligence issued a statement

13 indicating that the FISC had renewed it. Office of the Dir. of Nat’l Intelligence, Foreign

14 Intelligence Surveillance Court Renews Authority to Collect Telephony Metadata (July 19,

15 2013), http://1.usa.gov/12ThYlT.

16

The government has disclosed that the Secondary Order was issued as part of

17 a broader program that has been in place for seven years that involves the collection of

18 information about virtually every phone call, domestic and international, made or received

19 in the United States. Administration White Paper: Bulk Collection of Telephony Metadata

20 Under Section 215 of the USA PATRIOT Act, (Aug. 9, 2013), http://bit.ly/15ebL9k

21 (“White Paper”); Dep’t of Justice, Report on the National Security Agency’s Bulk

22 Collection Programs for USA PATRIOT Act Reauthorization (Feb. 2, 2011),

23

24

9 Secondary Order at 2, In re Application of the FBI for an Order Requiring

the Production of Tangible Things from Verizon Bus. Network Servs., Inc. on

25 Behalf of MCI Commc’n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80

26 (FISA Ct. Apr. 25, 2013)) (“Secondary Order”). Within the days after The

Guardian disclosed the Secondary Order, DNI Director Clapper acknowledged its
27
authenticity. See Office of the Dir. of Nat’l Intelligence, DNI Statement on Recent

28 Unauthorized Disclosures of Classified Information (June 6, 2013),

http://1.usa.gov/13jwuFc.

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1 http://1.usa.gov/1cdFJ1G. The Secondary Order to Verizon was issued pursuant to a

2 “Primary Order” that the government has now released and that sets out procedures the 3 NSA must follow to “query” telephony metadata collected under the Secondary Order.10

4

The Primary Order and the administration’s White Paper explain how the

5 government analyzes and disseminates information housed in the massive database

6 assembled by the call-tracking program. Specifically, the documents indicate that the NSA

7 is permitted to query this database when a “designated approving official” at the NSA

8 determines that “there are facts giving rise to a reasonable, articulable suspicion (RAS)

9 that the selection term to be queried is associated with” a “foreign terrorist organization.” 10 Primary Order at 7.11 The NSA is permitted to review not just telephony metadata

11 pertaining to the NSA’s specific target, but also telephony metadata pertaining to

12 individuals as many as three degrees removed from that target.

13

Under the FISC’s order, the NSA may also obtain information concerning

14 second and third-tier contacts of the identifier (also referred to as “hops”). The first “hop”

15 refers to the set of numbers directly in contact with the initial or “seed” identifier. The

16 second “hop” refers to the set of numbers found to be in direct contact with the first “hop”

17 numbers, and the third “hop” refers to the set of numbers found to be in direct contact with

18 the second “hop” numbers. White Paper at 3–4.

19

Even assuming, conservatively, that each person communicates by telephone

20 with forty different people, an analyst who accessed the records of everyone within three

21 hops of an initial target would have accessed records concerning more than two million

22

23
10 Primary Order at 3, 6–11, In re Application of the FBI for an Order 24 Requiring the Production of Tangible Things from [Redacted], No. BR 13-80
(FISA Ct. Apr. 25, 2013)) (“Primary Order”).
25

26

11 The government has acknowledged that the NSA has violated the Primary

Order’s restrictions on multiple occasions. White Paper at 5 (“[s]ince the
27
telephony metadata collection program under Section 215 was initiated, there have

28 been a number of significant compliance and implementation issues that were

discovered as a result of DOJ and ODNI reviews and internal NSA oversight”).

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1 people. The government has disclosed that the NSA conducted queries on approximately

2 300 selectors in 2012 alone. White Paper at 4.

3

The NSA stores the information collected under the program for five years.12

4 Its collection of telephony metadata continues “on an ongoing daily basis.” Secondary

5 Order at 2.

6

B. The NSA’s Interceptions Via Section 702 (50 U.S.C. §1881a)

7

The historical background of Section 702 (50 U.S.C. §1881a) is set forth in

8 detail in Exhibit 7, at 3-10, and is adopted and incorporated by reference herein. Before

9 passage of the FAA, FISA generally foreclosed the government from engaging in

10 “electronic surveillance” without first obtaining an individualized and particularized order

11 from the FISC. The government was required to submit an application that identified or

12 described the target of the surveillance; explained the government’s basis for believing

13 that “the target of the electronic surveillance [was] a foreign power or an agent of a

14 foreign power;” explained the government’s basis for believing that “each of the facilities

15 or places at which the electronic surveillance [was] directed [was] being used, or [was]

16 about to be used, by a foreign power or an agent of a foreign power;” described the

17 procedures the government would use to “minimiz[e]” the acquisition, retention, and

18 dissemination of non-publicly available information concerning U.S. persons; described

19 the nature of the foreign intelligence information sought and the type of communications

20 that would be subject to surveillance; and certified that a “significant purpose” of the

21 surveillance was to obtain “foreign intelligence information.” Id. § 1804(a) (2006).

22

“Foreign intelligence information” was defined broadly (and is still defined

23 broadly) to include, among other things, information concerning terrorism, national

24 security, and foreign affairs, and the FISC could issue such an order only if it found, inter

25

26

12 See Dep’t of Justice, Report on the National Security Agency’s Bulk

Collection Programs for USA PATRIOT Act Reauthorization 4 (Feb. 2, 2011),
27
http://1.usa.gov/1cdFJ1G; Siobhan Gorman & Julian E. Barnes, “Officials: NSA

28 Doesn’t Collect Cellphone-Location Records,” Wall St. J., June 16, 2013,

available at http://on.wsj.com/13MnSsp.

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1 alia, “probable cause to believe that the target of the electronic surveillance [was] a

2 foreign power or an agent of a foreign power,” id. § 1805(a)(2)(A); and that “each of the

3 facilities or places at which the electronic surveillance [was] directed [was] being used, or

4 [was] about to be used, by a foreign power or an agent of a foreign power,” id. §

5 1805(a)(2)(B).

6

In August 2007, Congress enacted the Protect America Act, Pub. L. No. 110-

7 55 (2007). The Act expanded the executive’s surveillance authority and provided

8 legislative sanction for surveillance that the President had previously been conducting

9 since 2001 under the warrantless Terrorist Surveillance Program (“TSP”).

10

However, due to a “sunset” provision under which the amendments enacted

11 within the Protect America Act ceased to have effect on February 17, 2008, Congress

12 passed permanent revisions to FISA through the FAA, which President Bush signed into

13 law July 10, 2008. While leaving FISA in place insofar as communications known to be

14 purely domestic are concerned, the FAA revolutionized the FISA regime by allowing the

15 mass acquisition of U.S. citizens’ and residents’ international telephone and e-mail

16 communications.

17

Under section 702(a) (50 U.S.C. §1881a(a)), the Attorney General and DNI

18 can “authorize jointly, for a period of up to one year from the effective date of the

19 authorization, the targeting of persons reasonably believed to be located outside the United

20 States to acquire foreign intelligence information.”

21

While the FAA prohibits the government from, inter alia, “intentionally

22 target[ing] any person known at the time of the acquisition to be located in the United

23 States,” id. § 702(b)(1), an acquisition authorized under section 702(a) (50 U.S.C.

24 §1881a(a)) may encompass the international communications of U.S. citizens and

25 residents. Indeed, the Attorney General and the DNI may authorize a mass acquisition

26 under section 702(a) even if all communications to be acquired under the program

27 originate or terminate inside the United States.

28

The FAA does not require the government to demonstrate to the FISC that its

surveillance targets are foreign agents, engaged in criminal activity, or connected even

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1 remotely with terrorism. Indeed, the statute does not require the government to identify its

2 surveillance targets at all. Moreover, the statute expressly provides that the government’s

3 certification is not required to identify the facilities, telephone lines, e-mail addresses,

4 places, premises, or property at which its surveillance will be directed. FAA §702(g)(4)

5 (50 U.S.C. §1881a(g)(4)).

6

Thus, the government may obtain a mass acquisition order without

7 identifying the people (or even the group of people) to be surveilled; without specifying

8 the facilities, places, premises, or property to be monitored; without specifying the

9 particular communications to be collected; without obtaining individualized warrants

10 based on criminal or foreign intelligence probable cause; and without making even a prior

11 administrative determination that the acquisition relates to a particular foreign agent or

12 foreign power.

13

A single mass acquisition order may be used to justify the surveillance of

14 communications implicating thousands or even millions of U.S. citizens and residents.

15 Equally striking is the Act’s failure to place meaningful limits on the government’s

16 retention, analysis, and dissemination of information that relates to U.S. citizens and

17 residents. While the Act requires the government to adopt “minimization procedures” that

18 are “reasonably designed . . . to minimize the acquisition and retention, and prohibit the

19 dissemination of nonpublicly available information concerning unconsenting United

20 States persons,” the statute contemplates minimization procedures that are generic and

21 programmatic, rather than tailored to the surveillance of individualized targets.

22

Moreover, the statute does not prescribe specific minimization procedures,

23 does not give the FISA court any authority to oversee the implementation of the

24 procedures, and specifically allows the government to retain and disseminate information

25 – including information relating to U.S. citizens and residents – if the government

26 concludes that it is “foreign intelligence information.” FAA § 702(e) [referencing 50

27 U.S.C. §§1801(h)(1) & 1821(4)(A)]. Nothing in the Act forecloses the government from

28 compiling databases of such “foreign intelligence information” and searching those

databases for information about specific U.S. citizens and residents. Again, the statute

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1 defines the phrase “foreign intelligence information” exceedingly broadly.

2

The role of the FISC in authorizing and supervising surveillance conducted

3 under the FAA is “narrowly circumscribed.” In re Proceedings Required by § 702(i) of

4 the FISA Amendments Act of 2008, No. Misc. 08-01, slip op. at 3 (FISA Ct. Aug. 27,

5 2008) (internal quotation marks omitted). The FISC is required to issue a mass acquisition

6 order if it finds that the government’s certification “contains all the required elements” and

7 that the “targeting and minimization procedures” are consistent with the requirements of

8 the statute and the Fourth Amendment. FAA § 702(i)(3)(A) (50 U.S.C. §1881(i)(3)(A)).

9

The FISC does not consider individualized and particularized surveillance

10 applications, does not make individualized probable cause determinations, and does not

11 supervise the implementation of the government’s targeting or minimization procedures.

12 Moreover, even if the FISC rejects the government’s certification or procedures, the

13 government “may continue” its surveillance activities during the pendency of any appeal

14 or further court proceedings. Id., §702(i)(4)(B) (50 U.S.C. §1881(i)(4)(B)). The FAA

15 thereby permits the government to continue its surveillance activities even if the FISC has

16 concluded that those activities are inconsistent with the statute or are unconstitutional.

17

C. Applying the Statutory and Constitutional Analysis to Mr. Moalin and This Case

18

1. Mr. Moalin Was Subject to the Ultimate “Big Brother”

19

Abuse of the NSA’s Untrammeled License to Conduct

Electronic Surveillance and Collection

20
Here, the worst-fears nightmare electronic surveillance/metadata collection

21
scenario has occurred: a U.S. citizen – Mr. Moalin – located in the U.S. was subject to an

22 initial investigation that U.S. law enforcement and intelligence officials acknowledge did

23 not yield evidence of “links to terrorism,” yet information collected about his electronic

24 communications, i.e., his telephone number, was nevertheless stored in a massive database

25
and provided by NSA to the FBI four years later for solely retrospective use. That use

26
lead directly to targeted FISA electronic surveillance (which U.S. officials concede could

27
not have been authorized without that stored information) and, ultimately, this indictment

28 and conviction.

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1

Thus, despite the conclusion that Mr. Moalin had not broken any laws, or had

2 any “nexus” or “links to terrorism,” or “connection to terrorist activity,” his information,

3 absent probable cause, remained “seized” by the government for unfettered use

4 indefinitely. This scenario manifests precisely the most acute concerns articulated with

5 respect to the scope and duration of NSA collection and interception: a perpetual database

6 on persons cleared of wrongdoing, unhinged from any standard designed to hold

7 intelligence-gathering accountable to the Fourth or First Amendments.

8

2. The Section 215 Collection and Storage Lacked the Requisite “Particularity” and Constituted an Impermissible “General Warrant”

9
In addition to the constitutional infirmities detailed in Exhibit 8, the lack of

10
any specificity in the standards governing the collection and/or storage of information

11
related to Mr. Moalin pursuant to Section 215 (50 U.S.C. §1861) renders it invalid as a

12 “general warrant,” and/or lacking in the necessary “particularity” the Fourth Amendment

13 demands.

14
The Fourth Amendment requires “particularity” – specifically, that language

15
in the warrant, or in supporting documents specifically incorporated by reference,

16
“particularly describ[es] the place to be searched, and the persons or things to be seized.”

17 See Groh v. Ramirez, 540 US 551, 557 (2004) (emphasis added); see also United States v.

18 White, 401 US 745, 758 (1971) (“wiretapping is a search and seizure within the meaning

19
of the Fourth Amendment and therefore must meet its requirements,” including

20
particularity).

21
Underlying the particularity requirement in the Fourth Amendment is the

22 abhorrence for“general warrants” and “writs of assistance,” the language of which was so

23 broad and vague as to grant practically unlimited discretion to authorities to search

24 locations and seize people and things. Steagald v. United States, 451 US 204, 220 (1981)

25
(“the general warrant specified only an offense” and “the writs of assistance . . . noted only

26
the object of the search – any uncustomed goods”); see also Boyd v. United States, 116

27
U.S. 616, 625-30 (1886).

28

As the Ninth Circuit has explained, the purpose of the particularity

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1 requirement, in addition to vindicating the staunch opposition to the practices of a

2 tyrannical government, is to prevent “a general exploratory rummaging in a person’s

3 belongings.” United States v. Sears, 411 F.3d 1124, 1127 (9th Cir. 2005), quoting

4 Coolidge v. New Hampshire, 403 US 443, 467 (1971). In addition, as the Court in Sears

5 elaborated, specificity in a warrant permits the individual who is the subject of the search

6 and seizure to be “assure[d] . . . of the lawful authority of the executing officer, his need to

7 search, and the limits of his power to search.” Id., quoting United States v. Chadwick, 433

8 US 1, 9 (1977).

9

In fact, the Ninth Circuit has held expressly that particularity in a warrant

10 discourages confrontation between the officers and the individual searched, and ensures

11 that the individual searched has the ability to prevent a violation by challenging any

12 deviation from the authorized scope of the search and seizure. Id., citing Ramirez v. Butte-

13 Silver Bow County, 298 F.3d 1022, 1027 (9th Cir. 2002) (as amended).

14

In order for the particularity requirement to be met in the Ninth Circuit, “the

15 warrant must make clear to the executing officer exactly what it is that he or she is

16 authorized to search for and seize.” In re Grand Jury Subpoenas Dated Dec. 10, 1987,

17 926 F.2d 847, 857 (9th Cir. 1991). The detail necessary varies depending on “the

18 particular circumstances and the nature of the evidence sought.” United States v. Adjani,

19 452 F.3d 1140, 1147 (9th Cir. 2006).

20

For instance, descriptions of “generic categories of items” do not violate the

21 Fourth Amendment when a “more precise description of the items subject to seizure is not

22 possible.” United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986). But when

23 descriptions are so imprecise that distinguishing between valid and invalid searches or

24 seizures “require[s] police to exceed their expertise,” warrants have been declared invalid

25 for failing to meet the particularity requirement. United States v. McLaughlin, 851 F.2d

26 283, 286 (9th Cir. 1988).

27

When a warrant lacking in sufficient particularity has produced evidence

28 used against an individual, the Ninth Circuit has adopted a “doctrine of severance,” which

permits the court to preserve the portions of the warrant untainted by the lack of

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1 particularity, and suppress “[o]nly those articles seized pursuant to the invalid portions

2 need be suppressed.” Sears, 411 F.3d at 1129.

3

However, particularity is not met, and severability is not permissible, when

4 “even the most specific descriptions . . . [were] fairly general and contained no time or

5 subject matter limitations.” Sears, 411 F.3d at 1130, citing United States v. Cardwell, 680

6 F.2d 75, 78–79 (9th Cir.1982). A complete failure to “specify any type of criminal activity

7 or any type of evidence sought” would result in total suppression of evidence obtained

8 pursuant to the warrant. Id., citing United States v. McGrew, 122 F.3d 847 (9th Cir.

9 1997).

10

Similar to the principle of particularity, a warrant must not be overbroad,

11 requiring “that the scope of the warrant be limited by the probable cause on which the

12 warrant is based.” In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d at 856-57.

13 Although many of the opinions in the Ninth Circuit have conflated the two requirements to

14 some extent, the Court has clarified that the warrant’s instructions, even if particularized,

15 must also be “legal” in the sense that they are supported by “probable cause to seize the

16 particular thing[s] named in the warrant.” United States v. SDI Future Health, Inc., 568

17 F.3d 684, 702 (9th Cir. 2009).

18

The breadth requirement is a language requirement, similar to particularity,

19 but which serves to ensure that searches and seizures do not extend beyond the scope of

20 probable cause. Spilotro, 800 F.2d at 963 (“probable cause must exist to seize all the

21 items of a particular type described in the warrant”). The breadth of a warrant limits the

22 scope of search and seizure based on whether there is a “fair probability that contraband or

23 evidence of a crime will be found in a particular place,” not whether the language of the

24 warrant is sufficiently specific to remove inappropriate discretion from the searcher’s

25 hands. Id. If the language of a warrant authorizes an official to exceed his legal authority

26 (i.e., to search and seize without probable cause), the warrant is invalid. In re Grand Jury

27 Subpoenas Dated Dec. 10, 1987, 926 F.2d at 857, citing Center Art Galleries- Hawaii,

28 Inc. v. United States, 875 F.2d 747 (9th Cir.1989) and United States v. Washington, 797

F.2d 1461, 1472 (9th Cir.1986).

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1

3. The Likely (and Separate) January 2008 Interception of Mr. Moalin’s

Electronic Communications Violated the Fourth Amendment

2

The 3500 material related to the government’s linguist (see Exhibit 6)

3 demonstrates that Mr. Moalin’s communications – in this instance, an incoming

4
international telephone call – were intercepted not just via the dedicated FISA wiretap

5
directed at his cellular telephone, but also concurrently, in real time, by “another

6
agency’s” independent means of interception.

7

For the reasons set forth in the analysis within Exhibit 7, that interception,

8 too, lacked any of the elements and protections that would satisfy the Fourth Amendment,

9
and is therefore invalid. Moreover, to the extent that interception was conducted pursuant

10
to Section 702 (18 U.S.C. §1881a), Mr. Moalin was not provided the required notice.

11
See post, at 24.

12

Thus, it appears that Mr. Moalin was subject to both of NSA’s unlawful

13 electronic surveillance programs, involving improper collection, storage, retrospective use,

14
and interception of his electronic communications. Accordingly, Mr. Moalin renews his

15
motion to dismiss the fruits of any such electronic surveillance, including that obtained

16
from the FISA wiretap on his phone, and any evidence generated as a result. Also, in light

17 of the government’s failure to disclose to Mr. Moalin this other electronic surveillance, as

18 well as the prospect that the FISA court was not apprised sufficiently of the background of

19
the investigation, Mr. Moalin also renews his request for an evidentiary pursuant to

20
Franks v. Delaware, 438 U.S. 154 (1978)

21
II.
22

The Government Failed to Provide A Complete or Accurate Response to Mr. Moalin’s Motion to Suppress the Electronic Surveillance (and Search) Conducted Against Him Pursuant to FISA

23

The recent revelations regarding NSA collection and/or interception also

24 raises the question whether the government – and that term is designed to include the

25
government as a whole, including NSA– provided a complete or accurate response to Mr.

26

27

28

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1 Moalin’s motion to suppress the electronic surveillance conducted against him.13

2

Certainly the interception/collection conducted pursuant to Section 215 (50

3 U.S.C. §1861) was an indispensable factor in addressing the surveillance of Mr. Moalin’s

4 electronic communications. Yet the defense was not provided any notice of such

5 interception/collection, or the role it played in the FISA process.14

6

In addition, the reference in the e-mail to Liban Abdirahman (the linguist)

7 about “hear[ing] from another agency that Ayrow tried to call Basaaly today, but the call

8 didn’t go through[,]” (Exhibit 6 hereto), further demonstrates that the government’s

9 surveillance extended beyond ordinary FISA interception.

10

Also, as noted ante, in his pretrial motion to suppress, Mr. Moalin challenged

11 any interceptions conducted pursuant to the FAA (50 U.S.C. §1881a), and to the extent

12 any such interceptions occurred, they were subject to required notice to Mr. Moalin that

13 was not provided. See 50 U.S.C. §1806(c), 1806(e) & 1881e(a).15

14

13 On making this assertion counsel are not necessarily suggesting that it is
15
the prosecutors in this case that are at fault here. In fact, it may well be the case

16 that the NSA deliberately kept this information from the prosecutors as it did the

17 public. See, e.g., John Shiffman and Kristina Cooke, “U.S. Directs Agents to Cover Up Program Used to Investigate Americans,” Reuters, August 5, 2013,
18 available at http://www.reuters.com/article/2013/08/05/us-dea-sod-

19 idUSBRE97409R20130805. The truth of the matter may well be that the NSA is
deliberately misleading – if not outright lying – to the prosecutors. Particularly in 20 light of these recent disclosures of abusive surveillance programs, Defendant’s fair

21 trial rights and rights to obtain exculpatory information should not be defeated by
nuanced and one-sided statutory interpretation.
22

23

14 To the extent such information was provided by the government to the

Court ex parte, it merely underscores the need for disclosure to cleared counsel,

24 see post, at POINT III, as defense counsel could have argued effectively the

25 impact of that interception/collection on sufficiency and validity of the FISA application. It also would have enabled defense counsel to establish the
26 exculpatory nature of the Section 215 interception/collection, and the need for

27 discovery of the particulars involved in that interception/collection.

28

15 In Clapper v. Amnesty International USA, ___ U.S. ___, ___, 133 S. Ct.

1138, 1154-55 (2013), one of the reasons urged by the government and adopted by

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1

In the alternative, the Court should order discovery and conduct an

2 evidentiary hearing to determine whether the government’s response to Mr. Moalin’s

3 motion to suppress was complete and accurate.

4 III.
5 6 7

Cleared Defense Counsel Should Be Provided the Government’s Response to Mr. Moalin’s Motion to Suppress the Electronic Surveillance Pursuant to FISA, As Well As the Underlying FISA Applications, and Materials In Support Thereof, and the Court Should Revisit Its Review and Decisions with Respect to Any of the Government’s Applications Made Pursuant to §4 of the Classified Information Procedures Act (“CIPA”), and Provide Those Submissions to Cleared Defense Counsel

8

As noted ante, at 5-6, Mr. Moalin moved pretrial for disclosure of the FISA

9 applications and supporting materials filed therewith. He also moved for disclosure of the

10 government’s CIPA §4 submissions, and the underlying material and information therein.

11 The recent revelations about NSA surveillance, and the government’s convenient and self-

12 serving disclosure of the interception/collection related to Mr. Moalin – revealed not in the

13 course of a criminal prosecution laden with Due Process protections and concurrent

14 government obligations, but rather in the context of a calculated but clumsy attempt to

15 justify the NSA programs in the wake of the political controversy revelation of their

16 existence has generated – only reinforce the virtues of the adversary process, and the

17 inherent and practical unfairness of a system that denies even cleared defense counsel the 18 ability to advocate against the government’s position.16

19

20 the Court to justify denying the plaintiffs in that case standing was because of the confidence that the statutory and constitutional validity of FAA surveillance
21
would be adequately tested in the context of criminal prosecutions. Yet this case 22 demonstrates that such confidence was misplaced, as the criminal process does not 23 provide such opportunity in any genuine fashion, but instead merely repeats the
secret, one-sided proceedings by which the authority for the surveillance was 24 obtained.
25
16 The Snowden NSA revelations have promoted the same adversarial 26 concerns in the context of the FISA Court itself. See Spencer Ackerman, “US
Senators Push for Special Privacy Advocate in Overhauled FISA Court”, The
27
Guardian, August 1, 2013, available at 28 http://www.theguardian.com/law/2013/aug/01/fisa-court-bill-us-senate; Ezra
Klein, “A Radical Plan for Shaking Up the FISA Court”, Washington Post, July 9,

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1

The law permits disclosure to defense counsel, yet not a single court has ever

2 ordered such production. If this case does not present the situation in which such

3 disclosure is not merely proper, but necessary, then §§1806(f) & (g) might as well not

4 exist at all – and the same can be said for the adversary process, and defense counsel, as a

5 whole. If cleared defense counsel cannot be afforded access to materials so essential to

6 the case, and which shed light on the evidence, and the government’s theory, in a manner

7 otherwise hidden from the defense, what is the point of a lawyer for the defendant, for

8 cross-examination, for a trial at all?

9

Under the circumstances, it cannot be suggested that Mr. Moalin has been

10 provided his Sixth Amendment right to counsel, much less effective assistance thereof.

11 Indeed, with respect to some of the most important issues in the case – that could

12 categorically halt the prosecution altogether, or dramatically alter its evidentiary context –

13 Mr. Moalin had, in reality, no lawyer at all.

14

This Memo of Law will not belabor the necessity of the adversary process in

15 protecting the rights of the defendant, and in ultimately achieving justice as well as

16 promoting confidence in the criminal justice system – see Docket #92, at 26-29, for an

17 abbreviated treatment of the issue – but, as the Supreme Court recognized in Alderman v.

18 United States, 394 U.S. 65 (1969) “[i]n our adversary system, it is enough for judges to

19 judge. The determination of what may be useful to the defense can properly and

20 effectively be made only by an advocate.” Id., at 184; see also Franks v. Delaware, 438

21 U.S. 154, 169 (1978) (permitting adversarial proceeding on showing of intentional

22 falsehood in warrant affidavit because the magistrate who approves a warrant ex parte

23 “has no acquaintance with the information that may contradict the good faith and

24

25

26

27
2013, available at
28 http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/09/a-radical-plan-fo
r-shaking-up-the-fisa-court/.

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1 reasonable basis of the affiant’s allegations”).17

2

In addition, while defense counsel have always been aware that they were

3 operating at an insurmountable disadvantage by being denied access to the FISA

4 applications or the underlying supporting documents (unlike any other situation in which

5 the government seizes evidence pursuant to warrant), only recently has it been revealed

6 that there exists a growing body of law, in the form of opinions by the Foreign Intelligence

7 Surveillance Court (“FISC”), and the Foreign Intelligence Court of Review (“FISCR”),

8 that are available to government counsel, but not to even cleared defense counsel.

9

Thus, unbeknownst to defense counsel, District Judge John D. Bates, Chief

10 Judge of the FISC at the time, had issued an extraordinary opinion October 3, 2011, just

11 before pretrial motions were filed in this case. Judge Bates excoriated NSA for exceeding

12 its acquisition authority and making repeated misrepresentations to the FISC regarding

13 NSA’s activities during the very same time period in which Mr. Moalin’s phone number

14 was turned over to the FBI, and perhaps even when it was collected in the first place.

15

Judge Bates’s language and concern is instructive for our own purposes here.

16 For example, Judge Bates stated “[t]he court is troubled that the government’s revelations

17 regarding NSA’s acquisition of Internet transactions mark the third instance in less than

18 three years in which the government has disclosed a substantial misrepresentation

19

20

17 As the District Court in United States v. Marzook, 412 F. Supp.2d 913

(N.D. Ill. 2006), explained in the context of deciding whether to close a
21
suppression hearing to the public because of the potential revelation of classified

22 information thereat,

23
[i]t is a matter of conjecture whether the court performs

24

any real judicial function when it reviews classified

documents in camera. Without the illumination provided
25
by adversarial challenge and with no expertness in the

26

field of national security, the court has no basis on which

27

to test the accuracy of the government's claims.

28 Id., at 921, quoting Stein v. Department of Justice & Federal Bureau of Investigation, 662 F.2d 1245, 1259 (7th Cir. 1981).

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1 regarding the scope of a major collection program.” October 3, 2011, Memorandum

2 Opinion, FISC, at 16 n. 14. A copy of the opinion is attached hereto as Exhibit 9.

3

While one example cited by Judge Bates is redacted,18 another related to an

4 NSA program that logged all domestic U.S. telephone calls. Id. Judge Bates also pointed

5 out, referring to an earlier March 2009, FISC opinion (as yet undisclosed) that

6

the Court concluded that its authorization of NSA’s bulk

acquisition of telephone call detail records from [REDACTED]

7

in the so-called “big business records” matter “ha[d] been premised on a flawed depiction of how the NSA uses [the

8

acquired] metadata,” and that “[t]his misperception by the FISC existed from the inception of its authorized collection in May

9

2006, buttressed by repeated inaccurate statements made in the

government’s submissions, and despite a government-devised

10

and Court-mandated oversight regime.” Docket [REDACTED].

Contrary to the government’s repeated assurances, NSA had

11

been routinely running queries of the metadata using querying

terms that did not mee the required standard for querying. The

12

Court concluded that this requirement had been “so frequently and systematically violated that it can fairly be said that this

13

critical element of the overall . . . regime has never functioned effectively.” Id.

14
Id. (Exhibit 9).

15
Judge Bates further noted that the government’s submissions in that

16
proceeding made it clear that NSA had been acquiring Internet transactions even before

17 the FISC’s first approval thereof, id., at 17, adding that:

18

! “for the first time, the government has now advised the Court that the

19
volume and nature of the information it has been collecting is

20
fundamentally different than what the Court had been led to believe.” Id.,

21
at 28;

22

! “the Court is also unable to find that NSA’s targeting and minimization

23

procedures, as the government proposes to implement them in connection

24

with MCT’s [multi-communication transactions], are consistent with the

25
Fourth Amendment.” Id., at 29;

26

27

18 The publicly disclosed version – released in connection with a Freedom

28 of Information Act lawsuit – is redacted, and is the only version defense counsel

possess (or have seen).

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1

! “NSA’s minimization procedures, as the government proposes to apply

2

them to MCT’s as to which the ‘active user’ is not known to be a tasked

3

selector, do not meet the requirements of 50 U.S.C. §1881a(e) with

4

respect to retention[.]” Id., at 80

5

! “[t]he sheer volume of transactions acquired by NSA through its upstream

6

collection is such that any meaningful review of the entire body of

7

transactions is not feasible.” Id., at 31;

8

! “the Court cannot know for certain the exact number of wholly domestic

9

communications acquired through this collection, nor can it know the

10

number of non-target communications acquired or the extent to which

11

those communications are to or from United States persons or persons in

12

the United States.” Id., at 31-32;

13

! “[e]ven if the Court accepts the validity of conclusions derived from

14

statistical analyses, there are significant hurdles in assessing NSA’s

15

upstream collection . . . it is impossible to define with any specificity the

16

universe of transactions that will be acquired by NSA’s upstream

17

collection at any point in the future.” Id., at 32;

18

! “the actual number of wholly domestic communications acquired may still

19

be higher in view of NSA’s inability conclusively to determine whether a

20

significant portion of the MCT’s within its sample contained wholly

21

domestic communications.” Id., at 34-35; and

22

! “the record shows that the government knowingly acquires tens of

23

thousands of wholly domestic communications each year.” Id., at 43.19

24

The repeated misrepresentations cited by Judge Bates in October 2011

25

26

19 See also Charlie Savage, “N.S.A. Said to Search Content of Messages to

and From U.S.,” The New York Times, August 8, 2013, available at

27 <http://www.nytimes.com/2013/08/08/us/broader-sifting-of-data-abroad-is-seen-b

28 y-nsa.html?pagewanted=all> (analyzing a document of internal NSA rules

disclosed by Mr. Snowden).

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1 are reminiscent of the FISC’s 2002 opinion in In re All Matters Submitted to the Foreign

2 Intelligence Surveillance Court, 218 F. Supp. 2d 611, 620-21 (FISC), rev’d on other 3 grounds sub nom., In re Sealed Case, 310 F.3d 717 (FISCR 2002),20 in which the FISC, in

4 its first opinion ever, reported that beginning in March 2000, the Department of Justice

5 (hereinafter “DoJ”) had come “forward to confess error in some 75 FISA applications

6 related to major terrorist attacks directed against the United States. The errors related to

7 misstatements and omissions of material facts,” including:

8

! “75 FISA applications related to major terrorist attacks directed against

9

the United States” contained “misstatements and omissions of material

10

facts.” 218 F. Supp. 2d at 620-21;

11

! the government’s failure to apprise the FISC of the existence and/or status

12

of criminal investigations of the target(s) of FISA surveillance. Id.; and

13

! improper contacts between criminal and intelligence investigators with

14

respect to certain FISA applications. Id.

15

According to the FISC, “[i]n March of 2001, the government reported similar

16 misstatements in another series of FISA applications . . .” Id., at 621. Nor were those

17 problems isolated or resolved by those revelations. Instead, they proved persistent. A

18 report issued March 8, 2006, by the DoJ Inspector General stated that the FBI found

19 apparent violations of its own wiretapping and other intelligence-gathering procedures

20 more than 100 times in the preceding two years, and problems appear to have grown more

21 frequent in some crucial respects. See Report to Congress on Implementation of Section

22 1001 of the USA PATRIOT Act, March 8, 2006 (hereinafter “DoJ IG Report”), available

23 at http://www.usdoj.gov/oig/special/s0603/final.pdf.

24

The report characterized some violations as “significant,” including wiretaps

25 that were much broader in scope than authorized by a court (“over-collection”), and others

26
20 “FISCR” refers to the Foreign Intelligence Court of Review, which is the 27 appellate court for the FISC, and is comprised of three federal Circuit judges. The
28 FISCR’s 2002 decision in In re Sealed Case marked its first case since enactment
of FISA in 1978.

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1 that continued for weeks and months longer than authorized (“overruns”). Id., at 24-25.21

2 FISA-related overcollection violations constituted 69% of the reported violations in 2005,

3 an increase from 48% in 2004. See DoJ IG Report, at 29. The total percentage of FISA-

4 related violations rose from 71% to 78% from 2004 to 2005, id., at 29, although the

5 amount of time “over-collection” and “overruns” were permitted to continue before the

6 violations were recognized or corrected decreased from 2004 to 2005. Id., at 25.

7

The lack of veracity catalogued in these two opinions is inevitable in a

8 system in which there is no opponent to dispute facts or hold opponents accountable for

9 misrepresenting facts, and in which the court lacks investigative authority or any practical,

10 meaningful means of oversight over the collection/storage/interception process. Indeed,

11 an internal May 2012 audit of NSA’s surveillance programs – among the documents

12 recently disclosed by Mr. Snowden – found that NSA violated privacy rules protecting

13 domestic U.S. communications 2,776 times in a one-year period. See SID Oversight &

14 Compliance, Quarterly Report, First Quarter Calendar Year 2012, May 3, 2012, available

15 at

16 <http://www.documentcloud.org/documents/758651-1qcy12-violations.html#document/p1

17 2>.

18

Unfortunately, in a system in which NSA and other intelligence organs are

19 free to misrepresent without challenge or accountability, little has changed except perhaps

20 NSA’s enhanced dexterity in abusing and manipulating the FISC and the FISA system as a

21 whole.

22

Defense counsel have always believed that contesting a motion without

23 access to the facts is untenable, but denial to both the facts and the law is unconscionable.

24
21 The DoJ Inspector General’s report was not instigated by the government 25 itself. Rather, the publication of documents released to Electronic Privacy
26 Information Center (hereinafter “EPIC”) in Freedom of Information Act litigation prompted the DoJ IG to use those and other documents as a basis for the report. In
27 preparing the report the IG reviewed only those 108 instances in which the FBI
28 itself reported violations to the Intelligence Oversight Board – a four-member
Executive Branch body that ordinarily does not submit its reports to Congress.

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1 As a result of this vertical playing field, with the government at the apex and the defense

2 at the bottom, a criminal defendant and his counsel are compelled to operate in a system in

3 which the admissibility of evidence at the core of the government’s case – in this case, in

4 effect the entirety of the government’s case – is decided on the basis of a secret body of 5 facts and law to which even cleared defense counsel is denied access.22

6

The unfairness of such a system is manifested in the government’s perfect

7 record in FISA and CIPA §4 litigation. Being in complete and unilateral control of the

8 contents of the facts and the law, is it any wonder that the government has prevailed each

9 and every time? Such a system does not provide Due Process, or even approach it. If a

10 U.S. citizen charged in another country were to be subjected to such a system, it would be

11 the subject of bipartisan nationwide opprobrium. Yet it is not any more acceptable 12 because it is happening here; instead, it is less tolerable.23

13

Thus, this case presents the manifest unfairness in which key evidence

14 relating to the core of the government’s case was withheld from the defense in the context

15 of both the legal determination whether such evidence was obtained legitimately, as well

16 as the factual context, in which the evidence fatally undercut the linchpin of the

17 government’s theory at trial.

18

19

22 That embargo on such important information and material renders

20 defense counsel’s security clearance entirely ineffectual, as it is not a factor with
respect to gaining access to information essential to perhaps the critical legal and 21 factual determination in the case.

22
23 Regarding the FISC’s ex parte proceedings, The New York Times reported 23 that Geoffrey R. Stone, professor of constitutional law at the University of
24 Chicago, “said he was troubled by the idea that the court is creating a significant body of law without hearing from anyone outside the government, forgoing the
25 adversarial system that is a staple of the American justice system. ‘That whole
26 notion is missing in this process,’ he said.” Eric Lichtblau, “In Secret, Court Vastly Broadens Powers of N.S.A.,” The New York Times, July 6, 2013, available
27 at
28 <http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powersof-nsa.html?pagewanted=all>.

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1

Accordingly, it is respectfully submitted that the Court should order

2 disclosure to cleared defense counsel the FISA applications and supporting materials, as

3 well as the government’s CIPA §4 submissions and underlying related documents, and

4 revisit its CIPA §4 decisions with full participation by defense counsel consistent with the 5 principles of the adversary system.24

6 IV.

The Government Failed to Provide Necessary Rule 16 Discovery

7

The recent revelations regarding NSA collection and/or interception

8 establishes that the government – and again that term is designed to include the

9 government as a whole, including NSA – provided a complete or accurate response to Mr.

10 Moalin’s motion to suppress the electronic surveillance conducted against him.

11

In addition, the reference in the January 24, 2008, e-mail to Liban

12 Abdirahman (the government’s Somali linguist), from a redacted source (probably SA

13 Michael C. Kaiser, the FBI case agent) that states, “We just heard from another agency

14 that Ayrow tried to call Basaaly today, but the call didn’t go through[,]” (Exhibit 6 hereto),

15 further demonstrates that the government’s surveillance extended beyond ordinary FISA

16 interception.

17

Yet neither of those interceptions and/or collection of Mr. Moalin’s

18 communications, or data related thereto, was provided to Mr. Moalin as part of Rule 16

19 discovery, even though they clearly are covered by Rule 16's disclosure obligations. For

20 example, it is axiomatic that any items seized from the defendant, by any means, are

21 discoverable. See Rule 16(a)(1)(E)(iii) (government must permit inspection of items if

22 they were “obtained from or belong[] to the defendant”). In addition, Rule 16 also

23 requires discovery of items “material to preparation of the defense.” Rule 16(a)(1)(E)(i).

24

Also, here, the interception/seizure of his electronic communications, and

25 data related thereto, constituted a seizure just as it would in the Title III context. See 18

26
24 See Hon. James G. Carr, Op-Ed, “A Better Secret Court,” The New York 27 Times, July 23, 2013, available at
28 <http://www.nytimes.com/2013/07/23/opinion/a-better-secret-court.html?ref=opin
ion&_r=1&>.

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1 U.S.C. §2518 (8)(d) & (9). The notion that such records obtained via either Section 215

2 (§1861) or Section 702 (§1881) would or could be immune from discovery is simply

3 without precedent or foundation.

4

Even if the government were to rely on CIPA §4 or Rule 16(d)(1) as a means

5 of avoiding production, the exculpatory character of the interceptions or data (as explained

6 ante in POINT III) would make them discoverable under both sections. Moreover, to the

7 extent such vital information and materials were addressed in the government’s CIPA §4

8 application(s), that merely highlights the complete unfairness – and denial of Due Process

9 – in denying cleared defense counsel access to such applications and the underlying

10 information the government sought to exempt from discovery.

11

Also, the government cannot argue that the interception/collection was not

12 related to this case (which might enable it to be non-discoverable under Rule 16 or CIPA

13 §4). Here, the information and material go to the basis for the government’s investigation,

14 and the heart of its theory at trial, namely, whether Mr. Moalin was communicating

15 directly with Aden Ayrow. For the same reason, and also because of their dubious

16 legality, any “programmatic analytics” are also discoverable and should have been (and

17 should now be) produced.

18

At the very least, production of that material and information would have

19 enabled the defense to examine the telephone numbers Mr. Moalin called (or which called

20 him), identify them, conduct an investigation, and use those results in cross-examination

21 or the defense case (through either or both documents and witnesses).

22

As a result, it is respectfully submitted that the government’s failure to

23 discharge its Rule 16 obligations require a new trial, or, at the very least, disclosure of the

24 information and material in question, and an evidentiary hearing.

25

26

27

28

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1 V.

Congressional Testimony and Other Statements By FBI and NSA Officials

Have Fatally Undermined Not Only the Essential Element of the

2

Government’s Theory at Trial, But Also Public Confidence In the Investigation and Prosecution of This Case

3

As set forth ante, at 3, 4-5, the government based its case on trial on the

4
assertion that Mr. Moalin was in direct communication with Aden Ayrow: that the

5
“Sheikalow” on the intercepted telephone conversations was, in fact, Mr. Ayrow. Yet

6
Deputy Director Joyce’s admission that the contact Mr. Moalin had with a terrorist

7 organization that instigated the second investigation of Mr. Moalin was indirect casts

8 serious doubt on that position.

9
That raises at least the following critical questions:

10
1. was that indirect contact to the same telephone number(s) used by

11
“Sheikalow,” which would establish that even the government did not

12

believe “Sheikalow” was Mr. Ayrow himself? and

13

2. was that indirect contact the same person as “Sheikalow,” and therefore

14
not Mr. Ayrow?

15
3. whose telephone number was it, and how was that person identified (and

16
how was he deemed “connected” to a terrorist organization?

17

Either way, the concession of indirect contact during the relevant time period

18 – rather than direct contact with Mr. Ayrow – fatally undermines the government’s theory.

19
In addition, the impact of the linguist’s 3500 material is equally profound:

20
1. how did the other U.S. government agency know it was Mr. Ayrow who

21
was attempting to contact Mr. Moalin in January 2008?

22

2. did that agency have Mr. Ayrow’s telephone number?

23

3. was it different than the number(s) used by “Sheikalow”?

24

4. what was the number used by Mr. Ayrow during that intercepted

25
attempted call?

26
Again, the information underlying that 3500 material could very well have

27
torpedoed the government’s theory entirely, and regardless of the answers, the

28 government’s failure to provide the defense with the information is indefensible and

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1 inexcusable.

2

In addition, the manner in which Mr. Moalin remained – perhaps forever – on

3 the government’s radar, leading to this investigation, has dramatically eroded public

4 confidence in the fundamental fairness of the investigation and prosecution of this case,

5 and its use as a justification for the most massive electronic surveillance, collection,

6 storage, and interception programs in human history. See, e.g., Max Fisher, “Is This

7 $8,500 Wire Transfer Really the NSA’s Best Case for Tracking Americans’ Phone

8 Records?” The Washington Post, August 9, 2013, available at

9 <latimes.com/news/politics/la-pn-secret-nsa-surveillance-court-order-

10 20130731,0,1310703.story>; Ken Dilanian, “Public Gets First Look At Once-Secret

11 Court Order on NSA Surveillance,” Los Angeles Times, July 31, 2013, available at

12 http://articles.latimes.com/2013/jul/31/news/la-pn-secret-nsa-surveillance-court-order-201

13 30731 (“officials remained unable to come up with more than one relatively minor

14 terrorism-financing case in which the phone records had proved instrumental”).25

15

Accordingly, it is respectfully submitted that the Court should grant

16 defendants a new trial, order the government to disclose the underlying materials, and

17 conduct the appropriate evidentiary hearings regarding the role of NSA, its use of the FAA

18 and other surveillance programs, including Section 215 (50 U.S.C. §1861) in the

19 investigation and prosecution of this case.

20

21

22
25 The sanitizing of the origins of criminal investigations has already 23 leached from the national security sphere and is poised to contaminate a much
24 wider type of ordinary criminal prosecution, and involves concealment from not just the defense. See, e.g., Shiffman and Cooke, “U.S. Directs Agents to Cover Up
25 Program Used to Investigate Americans,” Reuters, August 5, 2013, available at
26 <http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R201308 05> (“[a]lthough these case rarely involve national security issues, documents
27 reviewed by Reuters show that law enforcement agents have been directed to
28 conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges”).

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1 VI.

The Government Failed to Provide Mr. Moalin Exculpatory Material and Information

2

Requests for Brady material often occur in a partial vacuum: because the

3 government possesses the information and materials, more often than not defendants can

4
only propose subject matters of exculpatory material and information that might exist

5
without firm knowledge of whether it, or in what form, it exists at all.

6
As a result, courts, too, are not usually in a position to identify exculpatory

7 material and information with precision, and instead are limited to reminding the

8 government of its obligation to provide Brady material, and deferring to the government’s

9
recognition of that duty.

10
However, here, defendants and the Court are now aware of specific

11
Brady material that exists, but which the government did not produce, namely, the Section

12 215 interception/collection and the underlying information related to the previously

13 terminated investigation of Mr. Moalin (that likely contributed to the conclusions noted in

14
the FIG Assessment).

15
While still unable to identify the exact form in which such exculpatory

16
material and information exists, defendants can now to some extent articulate its nature:

17

(a) the reasons underlying the conclusion, at the end of the initial post-9/11

18

investigation of Mr. Moalin, that he was not engaged in illegal conduct

19
or linked to terrorism. Also, that earlier investigation likely yielded

20
abundant if not conclusive evidence that Mr. Moalin was sending money

21
to Somalia for humanitarian and other (family) purposes even before al

22

Shabaab existed, and that he did not harbor anti-U.S. or pro-terrorist

23

sympathies;26

24

(b) evidence that Mr. Moalin’s contacts with al Shabaab that precipitated

25
renewal of the investigation were indirect, and not directly with Mr.

26

27

26 The FIG Assessment (Exhibit 1) was prepared in April 2009, while the

28 initial investigation occurred years earlier (2003). As a result, the information

from either might be in many ways distinct.

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1

Ayrow;

2

(c) anything exculpatory generated by and during the earlier Anaheim

3

investigation referred to in Ahmed Nasir’s PSR in which no charges were

4

ever filed against Nasir; 27 and

5

(d) exculpatory information and material related to the FIG Assessment itself,

6

which Mr. Moalin requested in his pretrial motions.

7

Of course, the government’s production – and its search for such materials

8 and information – should not be limited to the items enumerated above, but should also

9 include any other exculpatory material and information reviewed in the process (as the

10 defense is still for the most part in a position of not knowing the specific nature and type

11 of exculpatory information and material in the government’s possession).

12

Conclusion

13

For all the reasons set forth above, and in all papers previously submitted in

14 this case, it is respectfully submitted that the Court should grant defendants’ Rule 33

15 motion, and order anew trial, and/or compel the discovery demanded in this motion, and/or

16 conduct the evidentiary hearings requested herein.

17

Dated:

5 September 2013 New York, New York

18

Respectfully submitted,

19

20

S/ Joshua L. Dratel

JOSHUA L. DRATEL

21

JOSHUA L. DRATEL, P.C.

29 Broadway, Suite 1412

22

New York, NY 10006

23

Attorneys for Basaaly Moalin

24

S/ Linda Moreno LINDA MORENO

25

Linda Moreno, P.A.

PO Box 10985

26

27

27 Mr. Ahmed Nasir’s PSR notes that the “case agent advised [the Probation

28 Officer] that the defendant was originally investigated in Anaheim, California,

prior to his known connections in this offense.”

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1

Tampa, Florida 33679

2

Attorney for Mohamed Mohamud

3

S/ Ahmed Ghappour AHMED GHAPPOUR

4

The Law Offices of Ahmed Ghappour

PO Box 20367

5

Seattle, Washington 98102

6

Attorney for Issa Doreh

7

S/ Thomas A. Durkin THOMAS A. DURKIN

8

Durkin & Roberts Attorneys and Counselors

9

2446 North Clark Street

Chicago, Illinois 60614

10
Attorneys for Ahmed Nasir Taalil

11

Mohamud

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10 UNITED STATES OF AMERICA,

CASE NO. 10cr4246 JM

11

Plaintiff, ORDER DENYING MOTION FOR

vs. 12

NEW TRIAL

BASAALY MOALIN; MOHAMED

13 MOHAMED MOHAMUD; ISSA

DOREH; AHMED NASIR TAALIL

14 MOHAMUD,

15

Defendants.

16

Defendants Basaaly Moalin (“Moalin”), Mohamed Mohamed Mohamud 17

(“Mohamud”), Issa Doreh (“Doreh”), and Ahmed Nasir Taalil Mohamud (“Nasir”) 18

jointly move for a new trial pursuant to Federal Rule of Criminal Procedure 33. The 19

Government opposes the motion. Having carefully considered the papers submitted, 20

the court record, and the arguments of counsel, the court denies the motion for new 21

trial. 22

BACKGROUND 23

The Second Superseding Indictment 24

25

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. 26

27 §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 28

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1 monetary instruments in violation of 18 U.S.C. §1956(h); (4) providing material

2 support to terrorists in violation of 18 U.S.C. §2339A(a); and (5) providing material

3 support to a foreign terrorist organization in violation of 18 U.S.C. §§2339B(a)(1) and

4 (2). (Ct. Dkt. 147). Counts One, Two and Three were charged against all Defendants,

5 Count Four against Moalin alone, and Count Five against all Defendants except Nasir.

6 The FISA Motion

7

On December 9, 2011, Defendants, among other things, moved to suppress

8 wiretap evidence obtained pursuant to a Foreign Intelligence Surveillance Act

9 (“FISA”) warrant, evidence seized pursuant to a search warrant of Defendant Moalin’s

10 home; and statements made at the time of Defendant Moalin’s arrest. (Ct. Dkt. 92).

11 On October 17, 2012, the court issued an order denying the motion to suppress

12 evidence seized from Moalin’s residence, denied the motion to suppress statements,

13 and continued the FISA wiretap motion.

14

Defendants’ FISA motion challenged the Government’s use of electronic

15 surveillance obtained pursuant to 50 U.S.C. §1806 (Title I of FISA) and those

16 collections obtained after the enactment of Section 702 (50 U.S.C. §1881a) of the FISA

17 Amendments Act of 2008 (“FAA”). On June 4, 2012, in an order placed under seal

18 with the Court Security Officer (“FISA Order”), the court denied Defendants’ motion

19 to suppress FISA intercepts and provided the parties notice of that fact. (Ct. Dkt. 146).

20

On March 9, 2012, in reply to the Government’s opposition to the motion to

21 dismiss FISA materials, Defendants repeated their request that defense counsel

22 possessing appropriate security clearances be granted access to the FISA warrant

23 applications and pertinent orders of the Foreign Intelligence Surveillance Court

24 (“FISC”). Among other things, Defendants argued that the electronic surveillance was

25 obtained in violation of FISA, the First and Fourth Amendments, and Brady v.

26 Maryland, 373 U.S. 83 (963). Defendants also argued that the minimization protocols

27 were defective. (Ct. Dkt. 131).

28

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1 The CIPA Motions

2

On March 9, 2012, Defendants jointly and preemptively moved to deny the

3 Government’s anticipated request for an ex parte and in camera review pursuant to

4 Section 4 of the Classified Information Protection Act (“CIPA”), 18 U.S.C. App. 3 §4.

5 On March 23, 2012, the Government filed a response to Defendants joint motion to (1)

6 deny the ex parte CIPA filing and (2) compel disclosure of the CIPA materials to

7 cleared defense counsel. To assist the court in its review of CIPA-related materials for

8 purposes of Brady, the First and Fourth Amendments, Fed.R.Crim.P. 16, and the Jencks

9 Act, the court requested, and Defendants jointly submitted under seal, a memorandum

10 identifying seven broad defense theories as well as specific evidence sought to be

11 discovered in the Government’s CIPA submission. (Ct. Dkt 133-35).

12

Ultimately, the Government submitted five requests for a protective order under

13 CIPA. On August 28, 2012, the court completed its CIPA review of the materials

14 provided by the Government and dated March 21, 2012, June 1, 2012, and August 22,

15 2012.1 On August 28, 2012, the court filed its first CIPA order under seal with the

16 Court Security Officer and provided notice to all parties of its entry. The court also

17 ordered the Government to provide to Defendants two substituted statements as

18 permitted by CIPA. (Ct. Dkt. 183). On January 17, 2013, the court granted the motion

19 for a protective order concerning two additional submissions by the Government and

20 dated January 2, 2013, and January 17, 2013. (Ct. Dkt. 253).

21

On January 28, 2013, Defendants filed under seal a motion for Court Ordered

22 Remedies to Address the Government’s Violation of Brady. (Ct. Dkt 271). On January

23 30, 2013, the court issued an order addressing several discovery-related issues raised

24 in Defendants’ motion and requesting that the Government submit for in camera review

25 the redacted emails at issue. (Ct. Dkt. 273). Ultimately, the court concluded that the

26 unredacted emails need not be produced pursuant to Brady, Fed.R.Crim.P. 16, or the

27 1 Upon completion of its initial review of the submitted CIPA materials, the court
28 requested in a sealed order that the Government submit additional classified documents for in camera review.

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1 Jencks Act. (Ct. Dkt. 279).

2 The Rule 15 Depositions

3

On July 20, 2012, Defendants filed a second motion to take the depositions of

4 eight prospective defense witnesses in Somalia. (Ct. Dkt. 154). Defendants

5 represented that these individuals received money transfers from Defendant Moalin and

6 possessed direct knowledge of how the transferred money was spent. (Ct. Dkt. 154 at

7 p.2:13-14). The court denied the motion without prejudice and referred the parties to

8 Magistrate Judge William V. Gallo to discuss the Rule 15 depositions. On September

9 6, 2012, after consulting with the parties, Magistrate Judge Gallo ordered the eight

10 depositions to proceed in Djibouti, Djibouti, (Ct. Dkt. 189), and set forth the logistics

11 for the witness depositions. (Ct. Dkt. 195). The depositions (except the deposition of

12 Farah Shidane) went forward in Djibouti from November 11-15, 2012. The videotaped

13 depositions were viewed by the jury during Defendants’ case-in-chief.

14 The Trial

15

The jury trial commenced on January 28, 2013. The Government presented 13

16 witnesses over five days and the Defense presented 11 witnesses over five days,

17 including eight video-taped depositions taken pursuant to Fed.R.Crim.P. 15(a). On

18 February 22, 2013, after 17 days of trial and deliberations, the jury returned guilty 19 verdicts on all counts alleged in the second superseding indictment.2

20 Recent Public Disclosures

21

On June 8, 2013, The Washington Post reported on disclosures made by Edward

22 Snowden, a former NSA contract employee. As described by Defendants, “[t]he

23 documents Mr. Snowden provided revealed the existence of the scope of NSA’s

24 electronic surveillance, interception, and collection, including communications data

25 relevant to U.S. persons.” (Motion at p.7:12-14). In broad brush, the disclosures

26 revealed the existence of several classified United States surveillance programs and

27 2 On September 21, 2012, the court appointed Magistrate Judge Gallo as a
28 special master to oversee the depositions and authorized the Magistrate Judge to exercise those duties specifically enumerated in Fed.R.Civ.P. 53(c).

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1 their scope. As reported by the Associated Press, on September 26, 2013, NSA director

2 Keith B. Alexander confirmed that one goal of the NSA is to collect and store all phone

3 records of American citizens. Senators: Limit NSA Snooping into US Phone Records,

4 Associated Press, October 15, 2013.

5

In addition to the so-called Snowden disclosures, Defendants also cite several

6 statements made by Sean Joyce, Deputy Director of the FBI, before the House

7 Permanent Select Committee on Intelligence to support their Rule 33 motion.

8 Defendants highlight that Deputy Director Joyce stated that material obtained from the

9 NSA program resulted in the investigation of terrorist activities, including the present

10 case. (Def’t Exh. 2). Deputy Director Joyce also stated that the NSA provided a

11 telephone number in San Diego “that had indirect contact with an extremist outside the

12 United States.” Using this telephone number the FBI “served legal process to identify

13 the subscriber to this telephone number.” He further stated, “However, the NSA using

14 the business record FISA [Section 215] tipped us off that this individual had indirect

15 contacts with a known terrorist overseas.” Based largely upon this investigation, the

16 FBI applied to the FISC for FISA warrants and “disrupt[ed] this terrorist activity.” Id.

17

On July 18, 2013, at a conference at the Aspen Security Forum in Aspen

18 Colorado, General Alexander reportedly repeated that, based on information obtained

19 in Somalia, a telephone number was traced to San Diego. The telephone number was

20 traced to Defendant Moalin and an investigation was commenced against him “in 2003

21 but didn’t have enough information to go up on.” (Def’t Exh. 3).

22

On July 31, 2013, Deputy Director Joyce provided testimony before the Senate

23 Judiciary Committee. He reportedly stated that an FBI investigation of Defendant

24 Moalin was opened “in 2003 based on a tip. We investigated that tip. We found no

25 nexus to terrorism and closed the case.” (Def’t Exh. 5). He also stated that, in 2007,

26 the NSA advised the FBI that the San Diego telephone number was in contact with

27

28

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1 members of al-Shabaab.3 Acting on this information, the FBI “served legal process to

2 identify the unidentified phone number. We identified [Defendant Moalin].” Id.

3 Classified Facts Summary

4

The court incorporates the classified factual summary set forth in the

5 Government’s opposition filed under seal.

6

DISCUSSION

7 Legal Standards

8

The court notes that neither Defendants nor the Government sets forth the legal

9 standard governing this motion. Under Rule 33(a), the court has broad authority to

10 grant a motion for new trial whenever “the interest of justice so requires.”

11 Fed.R.Crim.P. 33(a); United States v. Young, 17 F.3d 1201, 1205 (9th Cir. 1994).

12 Notably, Defendants raise no typical arguments for a new trial: sufficiency of the

13 evidence, evidentiary rulings, instructional challenge, or prosecutorial misconduct.

14 Rather, Defendants focus on two sealed orders of the court: the order denying the

15 motion to suppress FISA intercepts and the order granting the Government’s motion

16 for a protective order under CIPA.

17

Defendants broadly argue that recent revelations by Snowden and Government

18 officials regarding NSA surveillance in this particular case warrant the suppression of

19 all intercepted conversations. Although the present motion does not neatly fit into the

20 category of newly discovered evidence, it is nonetheless helpful to set forth the

21 standard for such a claim. The court considers the following five part test to determine

22 whether to grant a new trial based on newly discovered evidence: (1) the evidence must

23 be newly discovered; (2) the failure to discover the evidence sooner must not be the

24 result of a lack of diligence on the defendant’s part; (3) the evidence must be material

25 3 Al-Shabaab, a violent and brutal militia group, was designated by the U.S.
26 Department of State as a Foreign Terrorist Organization on February 26, 2008. (Ct. Dkt. 147 ¶1). “Throughout al-Shabaab’s war against the TFG (Somalia’s Transitional
27 Federal Government) and its Ethiopian and African Union supporters, al-Shabaab used harassment and targeted assassinations of civilians, improvised explosive devices,
28 mines, mortars, automatic weapons, suicide bombings, and general tactics of intimidation and violence.” (Id. ¶2).

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1 to the issues at trial; (4) the evidence must be neither cumulative nor merely

2 impeaching; and (5) the evidence must indicate that a new trial would probably result

3 in acquittal. Untied States v. Sarno, 73 F.3d 1470, 1507 (9th Cir. 1995).

4

Setting aside the issue of admissibility of the public revelations of the NSA

5 program of securing telephone metadata, the public disclosure of the NSA program

6 adds no new facts to alter the court’s FISA and CIPA rulings. Because the court has

7 already considered and addressed many of the FISA and CIPA arguments from a

8 federal and constitutional law perspective, the present motion is akin to a motion for

9 reconsideration. Under the reconsideration standard, the court is authorized to alter its

10 prior rulings based upon newly discovered evidence, intervening change of law, or

11 clear error. See School Dist. N. 1J, Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255,

12 1262 (9th Cir. 1993). The court notes that the newly discovered evidence prong is not

13 particularly useful in this case to the extent the NSA revelations are newly discovered

14 by Defendants. The mere existence of the NSA program has no evidentiary value in

15 and of itself, and the telephony metadata collected from the NSA program was either

16 provided to the defense by means of the intercepted telephone calls produced in

17 discovery or considered by this court under its FISA and CIPA responsibilities.

18 Similarly, the intervening change of law prong is not useful to the Defendants because

19 they cite no intervening change of law. To the extent the clear error prong applies, the

20 court notes that the clear error standard is analogous to the “interests of justice”

21 requirement of Rule 33.

22 The Motion

23

Defendants raise three main arguments in support of their motion for new trial:

24 (1) The NSA intercepts and/or collection of electronic data related to Defendant Moalin

25 violated the First and Fourth Amendments and FISA; (2) cleared defense counsel

26 should have previously been, and, should now be provided with the Government’s

27 under seal response to their FISA motion, including the FISA applications and

28 warrants, and the ex parte request for a protective order under CIPA; and (3) the

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1 Government failed to provide necessary Rule 16 discovery and exculpatory materials

2 under Brady. To the extent possible, each argument is discussed in this publicly

3 available order.4

4

The NSA Surveillance

5

Defendants argue that the collection of telephony metadata violated Defendant

6 Moalin’s First and Fourth Amendment rights. At issue are two distinct uses of

7 telephone metadata obtained from Section 215. The first use involves telephony

8 metadata retrieved from communications between third parties, that is, telephone calls

9 not involving Defendants. Clearly, Defendants have no reasonable expectation of

10 privacy to challenge any use of telephony metadata for calls between third parties. See

11 Steagald v. United States, 451 U.S. 204, 219 (1981) (Fourth Amendment rights are

12 personal in nature); Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (“Fourth

13 Amendment rights are personal rights which, like some other constitutional rights, may

14 not be vicariously asserted.”); United States v. Verdugo-Uriquidez, 494 U.S. 259, 265

15 (1990) (the term “people” described in the Fourth Amendment are persons who are part

16 of the national community or may be considered as such). As noted in Steagald, “the

17 rights [] conferred by the Fourth Amendment are personal in nature, and cannot bestow

18 vicarious protection on those who do not have a reasonable expectation of privacy in

19 the place to be searched.” 451 U.S. at 219. As individuals other than Defendants were

20 parties to the telephony metadata, Defendants cannot vicariously assert Fourth

21 Amendment rights on behalf of these individuals. To this extent, the court denies the

22 motion for new trial.

23

The second use of telephony metadata involves communications between

24 individuals in Somalia (or other countries) and Defendant Moalin. The following

25 discusses whether Defendant Moalin, and other Defendants through him, have any

26 reasonable expectation of privacy in telephony metadata between Moalin and third

27 4 The court informs the parties that this is the only order addressing the issues
28 raised in the Rule 33 motion. No order has been filed under seal to address Defendants’ arguments.

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1 parties, including co-defendants.

2

The Fourth Amendment

3

Defendants contend that they have a Fourth Amendment reasonable expectation

4 of privacy in the collection of telephony metadata for communications between third 5 parties and Defendants.5 In Smith v. Maryland, 442 U.S. 735 (1979), the Supreme

6 Court addressed whether the Fourth Amendment was violated when the telephone

7 company, at police request and without a warrant, installed a pen register to record

8 numbers dialed from petitioner Smith’s home. Based upon information received from

9 the victim, the police believed that Smith was involved in a robbery. After the robbery,

10 the victim received threatening and obscene telephone calls from an individual

11 identifying himself as the robber. Id. at 737. The device installed recorded the

12 telephone numbers dialed from the defendant’s home but did not record the contents

13 of the conversation. When the victim received another telephone call from Smith, the

14 police obtained a search warrant to search Smith’s home.

15

Consistent with Katz v. United States, 389 U.S. 347 (1967), the Supreme Court

16 held that the application of the Fourth Amendment “depends on whether the person

17 invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate

18 expectation of privacy’ that has been invaded by government action.” Smith, 442 U.S.

19 at 740. A justifiable, reasonable, or legitimate expectation of privacy is one where (1)

20 the defendant, by his conduct, has “exhibited an actual (subjective) expectation of

21 privacy,” and (2) the individual’s subjective expectation of privacy is “one that society

22 is prepared to recognize as ‘reasonable,’” that is, whether the individual’s expectation,

23 “viewed objectively is ‘justifiable under the circumstances.’” Id. (quoting Katz, 389

24 U.S. at 351-62).

25

The Supreme Court noted that someone who uses a telephone has “‘voluntarily

26 conveyed numerical information to the telephone company and exposed’ that

27

28

5 The Fourth Amendment guarantees “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures.”

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1 information to its equipment in the ordinary course of business,” and therefore has

2 “assumed the risk that the company would reveal to police the numbers he dialed.” Id.

3 at 744. The Supreme Court has consistently held “that a person has no legitimate

4 expectation of privacy in information he voluntarily turns over to third parties.” Id.;

5 United States v. Miller, 425 U.S. 435 (1976) (“the Fourth Amendment does not prohibit

6 the obtaining of information revealed to a third party and conveyed by him to United

7 States authorities, even if the information is revealed on the assumption that it will be

8 used only for a limited purpose and the confidence placed in the third party will not be

9 betrayed”).

10

In United States v. Reed, 575 F.3d 900 (9th Cir. 2009), the Government, acting

11 without a warrant, requested that the telephone company install a pen register and trap

12 and trace device on the defendant’s telephone. The pen register and trap and trace

13 device provided “call data content,” that is, data about “call origination, length, and

14 time.” Id. at 914. The defendants argued that the call data content had to be

15 suppressed under the Fourth Amendment. Citing Smith, the Ninth Circuit determined

16 that defendants had no Fourth Amendment “expectation of privacy” in the data and

17 affirmed the district court’s denial of the motion to suppress. Id. Further, the Ninth

18 Circuit has repeatedly held that an individual does not have a reasonable expectation

19 of privacy in business records such as power company consumption records, telephone

20 records, bank records, or motel registration records. United States v. Golden Valley

21 Elec. Ass’n, 689 F.3d 1108, 1116 (9th Cir. 2012); United States v. Miller, 425 U.S.

22 436, 440 (1976) (“the Fourth Amendment does not prohibit the obtaining of

23 information revealed to a third party and conveyed by him to the United States

24 authorities”); United States v. Phibbs, 999 F.2d 1053, 1077 (6th Cir. 1993) (holding it

25 was “evident” that the defendant did not have any justifiable privacy interest in

26 telephone records obtained from the service provider); United States v. Qing Li, 2008

27 WL 789899 *4 (S.D. Cal. Mar. 20, 2008, No. 07cr2915 JM) (defendant lacks a

28 reasonable expectation of privacy in Internet Protocol log-in histories and addressing

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1 information).

2

In light of these persuasive and binding authorities, Defendants argue that the

3 court should blaze a new path and adopt the approach to the concept of privacy set

4 forth by Justice Sotomayor in her concurrence in United States v. Jones, __U.S.__, 132

5 S.Ct. 945, 954-964 (2012). In Jones, the Supreme Court considered whether the

6 installation and subsequent monitoring of a Global Positioning System tracking device

7 on an automobile by the police without a valid warrant and without the individual’s

8 consent violated the Fourth Amendment. Noting that Fourth Amendment

9 jurisprudence, up to the latter half of the 20th century, was tied to common-law trespass

10 principles, the majority held that “[w]here, as here, the Government obtains information

11 by physically intruding on a constitutionally protected area,” the Fourth Amendment

12 is violated. Id. at 950 n.3, 954. As noted by Defendants, Justice Sotomayor stated that

13 the recent rise of the digital era of cell phones, internet, and email communications may

14 ultimately require a reevaluation of “expectation of privacy in information voluntarily

15 disclosed to third parties.” Id. at 957. Defendants extrapolate from this dicta that the

16 court should recognize that Defendant Moalin had a reasonable expectation of privacy

17 cognizable under the Fourth Amendment that the Government would not collect either

18 individual or aggregated metadata.

19

The difficulty with Defendants’ argument is twofold. First, the use of pen

20 register-like devices - going back to Samuel Morses’s 1840 telegraph patent - predates

21 the digital era and cannot be considered a product of the digital revolution like the

22 internet or cell phones. See Samuel F.G. Morse, Improvement in the Mode of

23 Communicating Information by Signals by the Application of Electro-Magnetism, U.S.

24 Patent 1647, June 20, 1840, page 4 column 2. In short, pen register-like devices

25 predate the internet era by about 150 years and are not a product of the so-called digital

26 revolution - the basis for the concerns articulated by Justice Sotomayor. Second, and

27 more importantly, the Supreme Court specifically and unequivocally held in Smith that

28 retrieval of data from a pen register by the Government without a search warrant is not

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1 a search for Fourth Amendment purposes. 442 U.S. at 744. Because individuals

2 voluntarily convey numerical information to the telephone company to complete a

3 telephone call, one cannot possess a reasonable expectation of privacy in the telephone

4 number dialed (as opposed to the content of the conversation). Id. For these reasons,

5 the court declines Defendants’ invitation to depart from well-established precedent.

6

Here, when Defendant Moalin used his telephone to communicate with third

7 parties, whether in Somalia or the United States, he had no legitimate expectation of

8 privacy in the telephone numbers dialed. The calls were routed through the

9 communications company and its switching equipment in the ordinary course of

10 business. While Defendant Moalin may have had some degree of a subjective

11 expectation of privacy, that expectation is not “one that society is prepared to recognize

12 as reasonable.” Rakas v. Illinois, 439 U.S. 128, 143-44 n.12 (quoting Katz, 389 U.S.

13 at 361). Furthermore, where the calls were initiated by third parties, whether from

14 Somalia or other countries, Defendant Moalin’s subjective expectation of privacy is

15 even further diminished because Defendant Moalin cannot assert Fourth Amendment

16 principles on behalf of third parties. The court could not locate any authorities, nor do

17 Defendants cite any pertinent authorities, that recognize any expectation of privacy in

18 the receipt of telephone call data from a third party in a foreign country. As in Smith,

19 because the metadata was obtained through communications companies and their

20 switching equipment, Defendant Moalin “cannot claim that his property was invaded

21 or that police intruded into a ‘constitutionally protected area.’” 442 U.S. at 741.6

22 While technology continues to advance through the implementation of new devices and

23 methods, the legal analysis remains fairly constant: whether “the government violate[d]

24 a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v.

25 United States, 533 U.S. 27, 33 (2001). For the above stated reasons, Defendant’s

26 6 As set forth above, Defendant Moalin lacks standing to challenge the metadata
27 collected in reference to communications initiated by third parties. The Fourth Amendment rights are “personal in nature” and Defendant Moalin cannot assert any
28 Fourth Amendment right on behalf of any party subject to the collection of telephone metadata. See Steagald, 451 U.S. 204, 219.

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1 minimal subjective belief in the privacy of telephony metadata is not one that society

2 has adopted.

3

The FISC has similarly determined that individuals like Defendant Moalin

4 cannot successfully assert a cognizable Fourth Amendment claim to telephony

5 metadata. In In re Application of the Federal Bureau of Investigation for an Order

6 Requiring the Production of Tangible Things, 2013 WL 5307991, *3 (For. Intell. Sur.

7 Ct. Aug. 29, 2013), the court found that a Section 215 order for telephony metadata

8 does not implicate the Fourth Amendment.

9

[B]ecause the Application at issue here concerns only the production of

call detail records or ‘telephony metadata’ belong to a telephone company,

10

and not the contents of communications, Smith v. Maryland compels the

conclusion that there is no Fourth Amendment impediment to the

11

collection . . . . [T]his court finds that the volume of records being

acquired does not alter this conclusion. Indeed, there is no legal basis for

12

the Court to find otherwise.

13

Defendants also vigorously contend that “the long-term recording and

14 aggregation of telephony metadata constitutes” an impermissible Fourth Amendment

15 search. (Reply at p. 6:7-8). The court notes that the preservation of “long-term

16 recordings” of telephony metadata played a minor role in the underlying

17 investigations.7 At the time of oral argument, defense counsel argued that Jewel v.

18 National Sec. Agency, 673 F.3d 902 (9th Cir. 2011) supports their position. There, the

19 plaintiff filed a putative class action on behalf of all Americans who were subscribers

20 of AT&T. Plaintiff alleged that the Government attached surveillance devices to

21 AT&T’s network. Id. at 906. The district court dismissed the action on standing

22 grounds. The central, merits-based allegation in Jewel arose “from claims that the

23 federal government, with the assistance of major telecommunications companies,

24 engaged in widespread warrantless eavesdropping in the United States following the

25 September 11, 2001, attacks.” Id. at 905. Shortly after the 911 attacks, President Bush

26 7 The court declines to reach Defendants’ generalized arguments that (1) the
27 NSA involvement in surveillance activities was overbroad or (2) the NSA violated orders by the FISC. Such public revelations and the ensuing debates in public and
28 political arenas do not alter or lessen this court’s responsibility to apply constitutional and other relevant legal principles to this motion.

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1 authorized “a terrorist surveillance program to detect and intercept al Qaeda

2 communications involving someone here in the United States.” Id. at 912. Plaintiff

3 alleged that the Government acquired the content of all email, internet, and telephone

4 communications. The court concludes that Jewel is not helpful to Defendants. First,

5 the merits involved the alleged eavesdropping on the content of the communications,

6 not just the telephony metadata. Second, the issues addressed in Jewel related to

7 standing, and not the Fourth Amendment. Id. at 905 (the issue is whether the plaintiff

8 had “standing to bring their statutory and constitutional claims”).

9

In sum, the court denies the motion for new trial based upon the alleged violation

10 of the Fourth Amendment.

11

The First Amendment

12

Defendants raise a generalized First Amendment challenge. In broad brush,

13 Defendants argue that “the 2003 investigation of Mr. Moalin ‘did not find any

14 connection to terrorist activity.’ It is inconceivable that the investigation did not also

15 involve investigation of conduct and/or expression by Mr. Moalin fully protected by

16 the First Amendment.” (Reply at p.15:12-14). Defendants cite no evidence nor

17 provide legal authority to support the proposition that Defendant Moalin’s First

18 Amendment rights were violated in any manner.

19

In sum, the court denies the motion for new trial based upon the alleged violation

20 of the First Amendment.

21

The FISA and CIPA Section 4 Arguments

22

Defendants argue that the Government did not comply with the provisions of

23 FISA and CIPA. The FISA and CIPA challenges are not addressed herein but in the

24 court’s previous sealed orders. With respect to the FISA and CIPA challenges, the

25 court notes that the arguments do not identify any newly discovered evidence,

26 intervening change in law, or clear error warranting reconsideration of its FISA and

27 CIPA orders.

28

In sum, the court denies the motion for new trial based upon the alleged violation

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1 of FISA and CIPA.

2

Renewed Motion to Gain Access to FISA and CIPA Materials

3

In a well-presented argument, Defendants contend that cleared defense counsel

4 should have been earlier and should now be provided with all CIPA and FISA-related

5 materials (including FISA applications, exhibits, and FISC orders). Legal authorities

6 that have addressed this precise issue have uniformly rejected this argument. While

7 counsel may have security clearances, classified information may be disclosed only to

8 individuals who both possess the requisite clearance and additionally have a need to

9 know the information at issue. See Executive Order 13526, §§4.1(a) and 6.1(dd);

10 United States v. Sedaghaty, 728 F.3d 885, 908-09 (9th Cir. 2013); United States v.

11 Mejia, 448 F.3d 436, 458 (D.C. Cir 2006); Baldrawi v. Dept. of Homeland Security,

12 596 F. Supp. 2d 389, 400 (D. Conn. 2009) (counsel without need to know properly

13 denied access to classified information despite holding a security clearance): United

14 States v. Libby, 429 F. Supp. 2d 18, (D. D.C.), amended, 429 F. Supp. 2d 46 (D. D.C.

15 2006) (security clearance alone does not justify disclosure because access to classified

16 information is permitted only upon a showing that there is a “need to know”).

17

Here, the court reviewed all materials submitted under seal and concluded that

18 such ex parte proceedings are authorized by CIPA, Fed.R.Crim.P. 16(1), and the 19 common law.8 Again, the court is mindful of the argument that denial of access to the

20 FISA and CIPA materials is inconsistent with the adversary process. However, to

21 mitigate the denial of access to the classified materials and to assist the court in its

22 review of CIPA-related materials for purposes of Brady, the First and Fourth

23 Amendments, Fed.R.Crim.P. 16, and the Jencks Act, the court requested, and carefully

24 8 “The Government has a compelling interest in protecting both the secrecy of
25 information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.” CIA v. Sims,
26 471 U.S. 159, 175 (1985). To that end, CIPA Section 4 expressly authorizes the United States to submit an ex parte motion seeking in camera review of classified information
27 that may be discoverable in a federal criminal case. 18 U.S.C. App. III § 4. The Ninth Circuit has endorsed the ex parte proceedings as an appropriate means of reviewing
28 classified information under CIPA § 4. United States v. Klimavicius-Viloria, 144 F.3d 1249 (9th Cir. 1998).

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1 considered, Defendants’ jointly submitted sealed memorandum identifying seven broad

2 defense theories as well as specific evidence sought to be discovered in the

3 Government’s CIPA §4 submissions. (Ct. Dkt 133-35). Ultimately, for the reasons

4 set forth in the previously filed sealed CIPA orders, the court concluded that certain

5 materials were not helpful to the defense (either because the materials were not relevant

6 or cumulative to other materials already produced to Defendants) and, as to those

7 relevant and helpful statements, the court ordered the Government to provide

8 substituted statements that conveyed the material substance of those statements.

9

Accordingly, the court declines to order the Government to produce FISA- and

10 CIPA- related materials to Defendants.

11

Discovery-Related Issues

12

Defendants argue that the Government seized items (intercepted conversations

13 and telephony metadata) from Defendant Moalin but did not produce them in discovery

14 as required by Fed.R.Crim.P 16. The Government responds that it fully complied with

15 its discovery obligations under Rule 16 and that the interceptions and metadata were

16 obtained via third parties and therefore no violation occurred. The court notes that

17 Defendants fail to identify any evidence not produced by the Government pursuant to

18 Rule 16, the Jencks Act, or Brady.

19

Defendants also argue that the Government failed to comply with its obligations

20 under Brady to produce exculpatory information. Among other things, Defendants

21 seek to discover the reasons underlying the conclusion of the 2003 investigation

22 involving Defendant Moalin; evidence that Defendant Moalin’s contacts with al

23 Shabaab were indirect, not direct; exculpatory evidence concerning the earlier Anaheim

24 investigation of Defendant Nasir; and exculpatory evidence related to the so-called FIG

25 assessment. The Government responds that it has complied with its obligations under

26 Brady and produced to Defendants all such materials. The court notes that the court

27 has ordered the Government on several occasions - most recently in its January 30,

28 2013 order - to comply with its obligations under Brady. (Ct. Dkt. 273). Based upon

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1 the court’s careful review of all materials provided by the Government under FISA and

2 CIPA, as well as the myriad of intercepted communications provided to the defense,

3 the court has no reason to suspect or speculate that the Government may have faltered

4 in its Brady obligations. The current defense requests for further discovery ignore the

5 timing and nature of the involvement of these Defendants which led to their

6 convictions, which, in turn, were supported by strong and compelling evidence. As

7 Defendants fail to identify any discovery or Brady violation by the Government, the

8 court denies the motion for new trial based upon alleged discovery violations.

9

In sum, the court denies the motion for a new trial in its entirety.

10

IT IS SO ORDERED.

11 DATED: November 14, 2013

12
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cc:
14

All parties

Hon. Jeffrey T. Miller United States District Judge

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 Court of Appeals Docket #: 13-50572

Docketed: 11/26/2013

USA v. Basaaly Moalin

Termed: 09/02/2020

Appeal From: U.S. District Court for Southern California, San Diego

Fee Status: Paid

Case Type Information: 1) criminal 2) Direct Criminal 3) null

Originating Court Information:

District: 0974-3 : 3:10-cr-04246-JM-1

Court Reporter: Debra Mae Henson

Court Reporter: LeeAnn Pence

Trial Judge: Jeffrey T. Miller, Senior District Judge

Date Filed: 10/22/2010

Date

Date Order/Judgment Date NOA

Order/Judgment: EOD:

Filed:

11/22/2013

11/22/2013

11/26/2013

Date Rec'd COA:
11/26/2013

Prior Cases: None

Current Cases: Lead
Consolidated 13-50572 13-50572 13-50572

Member
13-50578 13-50580 14-50051

Start

End

04/10/2014 04/10/2014 04/10/2014

UNITED STATES OF AMERICA Plaintiff - Appellee,

Jeffrey Michael Smith Direct: 202-532-0220 [COR NTC Assist US Attorney] DOJ - U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530
Daniel Earl Zipp, Assistant U.S. Attorney Direct: 619-546-8463 [COR NTC Assist US Attorney] Office of the US Attorney 880 Front Street Room 6293 San Diego, CA 92101-8893

v.

BASAALY SAEED MOALIN, AKA Basal, AKA Muse Shekhnor Roble
Defendant - Appellant,

Joshua L. Dratel Direct: 212-732-0707 [COR LD NTC Retained] Law Offices of Joshua L. Dratel, P.C. 29 Broadway Suite 1412 New York, NY 10006

Alexander A. Abdo Direct: 646-745-8502 [COR NTC Retained] Knight First Amendment Institute at Columbia University 475 Riverside Drive Suite 302 New York, NY 10115

------------------------------

Patrick C. Toomey [COR NTC Retained] ACLU-American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004

BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW, 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
Amicus Curiae,

Faiza Patel Direct: 646-292-8325 [COR NTC Retained] Brennan Center for Justice 12th Floor 161 Avenue of the Americas New York, NY 10013

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.

BASAALY SAEED MOALIN, AKA Basal, AKA Muse Shekhnor Roble, Defendant - Appellant.

11/26/20 1

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DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. Reporters Transcript required: Yes. Sentence imposed: 18 years. Transcript ordered by 12/17/2013. Transcript due 01/16/2014. Appellant briefs and excerpts due by 02/25/2014 for Basaaly Saeed Moalin. Appellee brief due 03/27/2014 for United States of America. Appellant's optional reply brief is due 14 days after service of the answering brief. [8879677] (HC) [Entered: 11/26/2013 02:14 PM]

12/04/20 2

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Filed (ECF) court reporter Court Reporter Ms. Debra Mae Henson motion to extend time to file transcript. Date of service: 12/04/2013. [8887982] (Henson, Debra) [Entered: 12/04/2013 01:19 PM]

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Filed clerk order (Deputy Clerk: CAG): Court Reporter Debra M. Henson’s motion for an extension of time to file the transcript is granted. The transcripts are due February 3, 2014. This order waives the mandatory provided that the transcripts are filed within the time allowed in this order. The opening brief is due March 17, 2014. The answering brief is due April 16, 2014, and the optional reply brief is due within 14 days after service of the answering brief. A copy of this order shall be provided to the court reporter at the district court [8896051] (WL) [Entered: 12/10/2013 01:43 PM]

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Filed clerk order (Deputy Clerk: CAG): Court Reporter Debra M. Henson’s motion for an extension of time to file the transcript is granted. The transcripts are due February 3, 2014. This order waives the mandatory fee reduction provided that the transcripts are filed within the time allowed in this order. The opening brief is due March 17, 2014. The answering brief is due April 16, 2014, and the optional reply brief is due within 14 days after service of the answering brief. A copy of this order shall be provided to the court reporter at the district court. [8897183] (RT) [Entered: 12/11/2013 10:40 AM]

03/13/20 5 14

Filed (ECF) Streamlined request for extension of time to file Opening Brief by Appellant Basaaly Saeed Moalin. New requested due date is 04/16/2014. [9014669] (Dratel, Joshua) [Entered: 03/13/2014 01:24 PM]

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Streamlined request [5] by Appellant Basaaly Saeed Moalin to extend time to file the brief is approved. Amended briefing schedule: Appellant briefs and excerpts due by 04/16/2014 for Basaaly Saeed Moalin. Appellee brief due 05/16/2014 for United

States of America. The optional reply brief is due 14 days from the date of service of the answering brief. [9015201] (GS) [Entered: 03/13/2014 03:27 PM]

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Filed order (Appellate Commissioner): In appeals numbers 13-50572, 13-50578, 13-50580, and 14-50051, appellants’ request for a telephonic case management conference is granted. See Fed. R. App. P. 33; 9th Cir. R. 33-1; Cir. Adv. Comm. N. to R. 33-1(b). The conference will be conducted by Appellate Commissioner Peter L. Shaw on Tuesday, April 8, 2014, at 2:30 p.m. Pacific Time. To participate in the conference, counsel for all parties shall dial the tollfree number (888) 273-3658 and follow the voice prompts. When asked, counsel should enter the access PIN code number 9326894 and the # key. Counsel will be connected to the conference. If counsel are disconnected for any reason, counsel can dial in again and re-enter the access PIN code number. Briefing of the appeals is stayed pending the conclusion of the conference. (Appellate Commissioner) [9046491] [13-50572, 13-50578, 13-50580, 14-50051] (DL) [Entered: 04/07/2014 10:16 AM]

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Filed order (Appellate Commissioner): Pursuant to the April 8, 2014 case management conference, appeal numbers 13-50572, 13-50578, 13-50580, and 14-50051 are consolidated. The Clerk shall change the court’s docket to so reflect. The district court’s February 25, 2011 amended protective order (docket number 56) to prevent certain sensitive but unclassified discovery materials from being disclosed without limitation to persons not parties to the court proceedings in this matter, and the district court’s September 17, 2012 protective order (document number 198) to prevent the unauthorized use, disclosure or dissemination of classified national security information and documents, shall continue in effect on appeal. See Section 3 of the Classified Information Procedures Act, 18 U.S.C. App. 3; Security Procedures Established Pursuant to Pub. L. 96-456, 94 Stat. 2025, by the Chief Justice of the United States for the Protection of Classified Information; Fed. R. Crim. P. 16(d). The parties are granted leave to file separate classified and unclassified briefs on appeal. Appellants’ opening briefs are due December 5, 2014. The government’s answering brief is due February 5, 2015. Appellants’ optional reply briefs are due March 20, 2015. Appellants are encouraged to join in a single brief and to avoid repetitive presentations of common facts and issues to the greatest extent practicable. See 9th Cir. R. 28-4, -5; Cir. Adv. Comm. N. to R. 28-4. Any party who wishes to file an oversized unclassified brief or a supplemental individual unclassified brief shall file, on or before the due date for the brief, a motion for leave to file the brief accompanied by a copy of the proposed brief and a certification as to the brief’s

word count. See 9th Cir. R. 32-1, 32-2; 9th Cir. Form 8. Motions for leave to file oversized classified briefs or supplemental individual classified briefs need not be accompanied by copies of the proposed brief. The parties shall file the classified briefs in camera and under seal with Winfield S. “Scooter” Slade, Classified Information Security Officer, United States Department of Justice, (202) 5149016, Scooter.Slade@usdoj.gov, as the designee of the Clerk of the Court. At the time of making a physical submission to the Security Officer, counsel shall file on the public record in the CM/ECF system a notice of filing that notifies the Court that a filing has been made. Appellants' counsel each may submit an interim voucher for compensation under the Criminal Justice Act without filing a motion for such relief: (1) after August 20, 2014; (2) after the opening brief is filed; and (3) after the reply brief is filed. See 9th Cir. R. 4-1(f). Any interim voucher should be accompanied by a copy of this order. After the court submits the appeals for disposition, appellants’ counsel may submit vouchers without leave of court. Id. The Clerk shall forward to the Appellate Commissioner all motions for procedural relief filed before these appeals are calendared. (Appellate Commissioner) [9053292] [13-50572, 13-50578, 13-50580, 14-50051] (DL) [Entered: 04/10/2014 01:34 PM]

09/17/20 9

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Filed (ECF) Appellant Issa Doreh in 13-50580 Motion for miscellaneous relief [This is a motion for authorization for out-ofstate travel to visit appellant who is in federal custody in Tucson, Arizona. My residence is in San Diego, California]. Date of service: 09/17/2014. [9244073] [13-50572, 13-50580] --[COURT UPDATE: Spread to cases 13-50578 & 147-50051. 09/17/2014 by TL] (Missakian, Elizabeth) [Entered: 09/17/2014 03:00 PM]

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Filed (ECF) Appellant Mohamed Mohamed Mohamud in 13-50578 Unopposed Motion to extend time to file Opening brief until 04/06/2015. Date of service: 11/20/2014. [9321309] [13-50578, 1350572, 13-50580, 14-50051] --[COURT UPDATE: Attached corrected motion. 11/21/2014 by TL] (Zugman, David) [Entered: 11/20/2014 04:24 PM]

11/24/20 14

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2 pg, 33.13 KB

Filed order (Appellate Commissioner): Appellants’ unopposed motion for an extension of time to file the opening brief is granted. Appellants’ opening brief is due April 6, 2015. The government’s answering brief is due June 8, 2015. Appellants’ optional reply brief is due July 23, 2015.(Appellate Commissioner) [9323328] [13-50572, 13-50578, 13-50580, 14-50051] (DJV) [Entered: 11/24/2014 08:00 AM]

02/24/20 12

Filed (ECF) Appellant Mohamed Mohamed Mohamud in 13-50578

15

6 pg, 48.78 KB Unopposed Motion to extend time to file Opening brief until

07/31/2015. Date of service: 02/24/2015. [9433147] [13-50578, 1350572, 13-50580, 14-50051] (Zugman, David) [Entered: 02/24/2015 03:54 PM]

02/25/20 15

13
2 pg, 33.33 KB

Filed order (Appellate Commissioner):Appellants’ unopposed motion for an extension of time to file the opening brief is granted. Appellants’ opening brief is due July 31, 2015. The government’s answering brief is due October 2, 2015. Appellants’ optional reply brief is due November 16, 2015. (Appellate Commissioner) [9433530] [13-50572, 13-50578, 13-50580, 14-50051] (DJV) [Entered: 02/25/2015 07:28 AM]

04/21/20 15

14
2 pg, 76.12 KB

Filed (ECF) notice of appearance of Jameel Jaffer for Appellant Basaaly Saeed Moalin. Date of service: 04/21/2015. [9503219] [1350572] --[COURT UPDATE: Spread to cases 13-50578, 13-50580, and 14-50051. 04/21/2015 by TL] (Jaffer, Jameel) [Entered: 04/21/2015 12:55 PM]

04/21/20 15

15

2 pg, 75.9 KB

Filed (ECF) notice of appearance of Patrick C. Toomey for Appellant Basaaly Saeed Moalin. Date of service: 04/21/2015. [9503235] [1350572] --[COURT UPDATE: Spread to cases 13-50578, 13-50580, and 14-50051. 04/21/2015 by TL] (Toomey, Patrick) [Entered: 04/21/2015 01:01 PM]

04/21/20 16

15

2 pg, 75.9 KB

Filed (ECF) notice of appearance of Alexander Abdo for Appellant Basaaly Saeed Moalin. Date of service: 04/21/2015. [9503481] [1350572] --[COURT UPDATE: Spread to cases 13-50578, 13-50580, and 14-50051. 04/21/2015 by TL] (Abdo, Alexander) [Entered: 04/21/2015 02:14 PM]

04/21/20 15

17
2 pg, 76.33 KB

Filed (ECF) notice of appearance of Jeffrey Michael Smith for Appellee USA in 13-50572, 13-50578, 13-50580, 14-50051. Date of service: 04/21/2015. [9503496] [13-50572, 13-50578, 13-50580, 1450051] (Smith, Jeffrey) [Entered: 04/21/2015 02:18 PM]

04/21/20 18 15

Added attorney Jeffrey Michael Smith for USA. [9503871] [1350572, 13-50578, 13-50580, 14-50051] (RL) [Entered: 04/21/2015 04:19 PM]

04/22/20 19 15

Added attorney Alexander A. Abdo, Jameel Jaffer, Patrick C. Toomey for Basaaly Saeed Moalin. [9504216] [13-50572, 13-50578, 13-50580, 14-50051] (RL) [Entered: 04/22/2015 09:07 AM]

07/09/20 15

20
7 pg, 60.32 KB

Filed (ECF) Appellant Mohamed Mohamed Mohamud in 13-50578 Unopposed Motion to extend time to file Opening brief until 09/29/2015. Date of service: 07/09/2015. [9604184] [13-50578, 1350572, 13-50580, 14-50051] (Zugman, David) [Entered: 07/09/2015 11:16 AM]

07/10/20 15

21
2 pg, 33.24 KB

Filed order (Appellate Commissioner): The parties’ unopposed requests for extensions of time to file the opening and answering briefs are granted. Appellants’ opening brief is due September 29, 2015. The government’s answering brief is due January 27, 2016. Appellants’ optional reply brief is due March 14, 2016. (Appellate Commissioner) [9605310] [13-50572, 13-50578, 13-50580, 1450051] (DJV) [Entered: 07/10/2015 06:25 AM]

09/22/20 15

22
7 pg, 52.78 KB

Filed (ECF) Appellant Mohamed Mohamed Mohamud in 13-50578 Unopposed Motion to extend time to file Opening brief until 10/29/2015. Date of service: 09/22/2015. [9691650] [13-50572, 1350578, 13-50580, 14-50051] (Zugman, David) [Entered: 09/22/2015 10:37 AM]

09/23/20 15

23
2 pg, 33.33 KB

Filed order (Appellate Commissioner): Appellants’ unopposed request for a final 30-day extension of time to file the opening brief is granted. Appellants’ opening brief is due October 29, 2015. The government’s answering brief is due February 29, 2016. Appellants’ optional reply brief is due April 14, 2016. [9693016] [13-50572, 1350578, 13-50580, 14-50051] (DJV) [Entered: 09/23/2015 07:10 AM]

10/29/20 24

15

462 pg, 5.09

MB

Submitted (ECF) Opening brief and Excerpts of Record for review and filed Motion to file oversized brief. Submitted by Appellant Mohamed Mohamed Mohamud in 13-50578. Date of service: 10/29/2015. [9738581] [13-50572, 13-50578, 13-50580, 14-50051] (Zugman, David) [Entered: 10/29/2015 04:16 PM]

11/05/20 25

15

47 pg, 212.66 KB

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Amici Curiae Brennan Ctr. for Justice, Am. Library Ass'n, Electronic Privacy Info. Ctr., Freedom to Read Found., Nat'l Ass'n of Crim. Def. Lawyers, Ninth Cir. Fed. and Community Defenders, Reporters Committee for Freedom of the Press. Date of service: 11/05/2015. [9745936] [13-50572, 13-50578, 13-50580, 14-50051] (Price, Michael) [Entered: 11/05/2015 10:20 AM]

11/05/20 26 15

Entered appearance of 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 in 1350572, 13-50578, 13-50580, 14-50051. [9745978] [13-50572, 1350578, 13-50580, 14-50051] (TLH) [Entered: 11/05/2015 10:39 AM]

11/05/20 27

15

2 pg, 187.07

KB

Filed clerk order: The amicus brief [25] submitted by Brennan Center for Justice, et al. is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied

by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: green. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. [9746002] [13-50572, 13-50578, 13-50580, 1450051] (TLH) [Entered: 11/05/2015 10:51 AM]

11/09/20 28 15

Received 7 paper copies of Amicus brief [25] filed by Brennan Center for Justice, et al. [9749424] [13-50572, 13-50578, 13-50580, 1450051] (SD) [Entered: 11/09/2015 01:53 PM]

11/13/20 15

29
2 pg, 33.64 KB

Filed order (Appellate Commissioner): A review of appellants’ proposed joint opening brief reveals that it may reasonably be shortened. Accordingly, appellants’ unopposed motion for leave to file an oversize joint opening brief consisting of 51,727 words is granted in part. On or before December 14, 2015, appellants shall file a joint opening brief that does not exceed 45,000 words. The government’s answering brief is due April 15, 2016. Appellants’ optional reply brief is due May 31, 2016 [9755501] [13-50572, 1350578, 13-50580, 14-50051] (DJV) [Entered: 11/13/2015 04:20 PM]

12/11/20 15

30
258 pg, 883.07 KB

Submitted (ECF) Opening Brief for review. Submitted by Appellant Basaaly Saeed Moalin in 13-50572, Appellant Mohamed Mohamed Mohamud in 13-50578, Appellant Issa Doreh in 13-50580, Appellant Ahmed Nasir Taalil Mohamud in 14-50051. Date of service: 12/11/2015. [9790016] [13-50572, 13-50578, 13-50580, 14-50051] (Zugman, David) [Entered: 12/11/2015 04:27 PM]

12/14/20 31

15

3 pg, 200.26

KB

Filed clerk order: The joint opening brief [30] submitted by Basaaly Saeed Moalin, Mohamed Mohamed Mohamud , Issa Doreh , Ahmed Nasir Taalil Mohamud is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: blue. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed the joint excerpts of record [24] submitted by Basaaly Saeed Moalin, Mohamed Mohamed Mohamud , Issa Doreh, Ahmed Nasir Taalil Mohamud. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [9790494] [13-50572, 13-50578, 13-50580, 14-50051] (GV) [Entered: 12/14/2015 09:05 AM]

12/23/20 32 15

Received 7 paper copies of the joint Opening brief [30] filed by Basaaly Saeed Moalin, et al. [9804555] [13-50572, 13-50578, 1350580, 14-50051] (SD) [Entered: 12/23/2015 04:10 PM]

12/23/20 33 15

Filed Appellants paper copies of joint excerpts of record [24] in 1 volume(s). [9805580] [13-50572, 13-50578, 13-50580, 14-50051] (SML) [Entered: 12/24/2015 03:57 PM]

04/15/20 16

34
116 pg, 352.26 KB

Submitted (ECF) Answering Brief for review. Submitted by Appellee USA in 13-50572, 13-50578, 13-50580, 14-50051. Date of service: 04/15/2016. [9941688] [13-50572, 13-50578, 13-50580, 14-50051] -[COURT UPDATE: Removed motion (refiled in entry [38]). 04/18/2016 by TYL] (Smith, Jeffrey) [Entered: 04/15/2016 11:36 AM]

04/15/20 35

16

167 pg, 3.18

MB

Submitted (ECF) supplemental excerpts of record. Submitted by Appellee USA. Date of service: 04/15/2016. [9941702] [13-50572] -[COURT UPDATE: Spread to cases 13-50578, 13-50580 and 1450051. 04/18/2016 by TYL] (Smith, Jeffrey) [Entered: 04/15/2016 11:42 AM]

04/15/20 16

36
2 pg, 62.31 KB

Filed (ECF) Appellee USA in 13-50572, 13-50578, 13-50580, 1450051 Correspondence: Notice of Ex Parte Filing of Classified Brief and Classified Supplemental Excerpts of Record. Date of service: 04/15/2016 [9941908] [13-50572, 13-50578, 13-50580, 14-50051] (Smith, Jeffrey) [Entered: 04/15/2016 01:29 PM]

04/15/20 38

16

3 pg, 59.1 KB

Filed (ECF) Appellee USA in 13-50572, 13-50578, 13-50580, 1450051 Motion to file oversized brief. Date of service: 04/15/2016. [9944122] [13-50572, 13-50578, 13-50580, 14-50051] --[COURT ENTERED FILING to correct entry [34] .] (TYL) [Entered: 04/18/2016 03:30 PM]

04/18/20 16

37
2 pg, 35.22 KB

Filed order (Appellate Commissioner): The government’s motion for leave to file answering briefs totalling 26,909 words is granted. The government is granted leave to file: (1) an unclassified answering brief consisting of 24,556 words; and (2) a classified answering brief consisting of 2,353 words. The Clerk shall file the government’s unclassified answering brief received April 15, 2016. The government has filed a notice stating that its classified answering brief was filed with Classified Information Security Officer Winfield S. “Scooter” Slade, as designee of the Clerk. The briefing schedule previously established remains in effect. Appellants’ joint reply brief is due May 31, 2016. [9942696] [13-50572, 13-50578, 13-50580, 14-50051] (DJV) [Entered: 04/18/2016 06:34 AM]

04/18/20 39

Filed clerk order: The answering brief [34] submitted by USA is filed.

16

3 pg, 198.3 KB Within 7 days of the filing of this order, filer is ordered to file 7

copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: red. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate ECF. The Court has reviewed the supplemental excerpts of record [35] submitted by USA. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 301.6. [9944140] [13-50572, 13-50578, 13-50580, 14-50051] (TLH) [Entered: 04/18/2016 03:35 PM]

04/19/20 40 16

Terminated William P. Cole for USA in 13-50572, 13-50578, 1350580 and 14-50051 (due to incorrect ECF account info) [9944734] [13-50572, 13-50578, 13-50580, 14-50051] (JT) [Entered: 04/19/2016 08:44 AM]

04/21/20 41 16

Received 7 paper copies of Answering brief [34] filed by USA. [9948691] [13-50572, 13-50578, 13-50580, 14-50051] (SD) [Entered: 04/21/2016 03:03 PM]

04/21/20 42 16

Filed Appellee USA paper copies of supplemental excerpts of record [35] in 1 volume. [9950207] [13-50572, 13-50578, 13-50580, 1450051] (LA) [Entered: 04/22/2016 03:13 PM]

05/13/20 16

43
5 pg, 48.02 KB

Filed (ECF) Appellant Mohamed Mohamed Mohamud in 13-50578 Motion to extend time to file Reply brief until 08/15/2016. Date of service: 05/13/2016. [9975576] [13-50572, 13-50578, 13-50580, 1450051] (Zugman, David) [Entered: 05/13/2016 09:55 AM]

05/16/20 16

44
2 pg, 33.06 KB

Filed order (Appellate Commissioner): Appellants’ motion at docket entry [43] for an extension of time to file the joint reply brief is granted. Appellants’ joint reply brief is due August 15, 2016. [9977096] [13-50572, 13-50578, 13-50580, 14-50051] (DJV) [Entered: 05/16/2016 06:30 AM]

06/02/20 45

16

3 pg, 142.94

KB

Filed (ECF) Appellee USA in 13-50572, 13-50578, 13-50580, 1450051 citation of supplemental authorities. Date of service: 06/02/2016. [9999469] [13-50572, 13-50578, 13-50580, 14-50051] (Smith, Jeffrey) [Entered: 06/02/2016 09:16 AM]

06/17/20 46 16

This case is being considered for the October 2016 Pasadena oral argument calendar. The exact date of your oral argument has not been determined at this time. The following is a link to the upcoming court sessions: http://cdn.ca9.uscourts.gov/datastore/uploads/calendar/sitdat es_2016.pdf. Please review these upcoming dates immediately to determine if you

have any conflicts with them. If you do have conflicts, please inform the Court within 3 days of this notice by sending a letter to the Court using CM/ECF (Type of Document: File Correspondence to Court; Subject: regarding availability for oral argument). The Court discourages motions to continue after this 3-day period. The clerk's office takes conflict dates into consideration in scheduling oral arguments but cannot guarantee that every request will be honored. Your case will be assigned to a calendar approximately 10 weeks before the scheduled oral argument date. Note that your case will be set for hearing in due course if it is not assigned to this calendar. In addition, if parties would like to discuss settlement before argument is scheduled, they should jointly request a referral to the mediation unit. Such a referral will postpone the calendaring of oral argument. All such requests must be made within 3 days of this notice by sending a letter to the Court using CM/ECF (Type of Document: File Correspondence to Court; Subject: request for mediation). Once the case is calendared, it is unlikely that the court will postpone argument for settlement discussions.[10018881] (AW) [Entered: 06/17/2016 09:51 AM]

06/17/20 16

47
2 pg, 36.51 KB

Filed (ECF) Appellant Mohamed Mohamed Mohamud in 13-50578 Correspondence: Availability for Oral Argument of David Zugman. Date of service: 06/17/2016 [10019663] [13-50572, 13-50578, 1350580, 14-50051] (Zugman, David) [Entered: 06/17/2016 02:12 PM]

06/21/20 48

16

3 pg, 133.21

KB

Filed (ECF) Appellee USA in 13-50572, 13-50578, 13-50580, 1450051 citation of supplemental authorities. Date of service: 06/21/2016. [10023194] [13-50572, 13-50578, 13-50580, 14-50051] (Smith, Jeffrey) [Entered: 06/21/2016 01:00 PM]

06/22/20 49

16

1 pg, 277.14

KB

Filed (ECF) Appellant Basaaly Saeed Moalin Correspondence: Notice if availability for oral argument. Date of service: 06/22/2016 [10025359] [13-50572] --[COURT UPDATE: Updated docket text to reflect correct ECF filing type. Spread to cases 13-50578, 13-50580 and 14-50051. 06/22/2016 by TYL] (Dratel, Joshua) [Entered: 06/22/2016 02:05 PM]

07/26/20 51 16

This case is being considered for the November 2016 Pasadena oral argument calendar. The exact date of your oral argument has not been determined at this time. The following is a link to the upcoming court sessions: http://cdn.ca9.uscourts.gov/datastore/uploads/calendar/sitdat es_2016.pdf. Please review these upcoming dates immediately to determine if you have any conflicts with them. If you do have conflicts, please inform the Court within 3 days of this notice by sending a letter to the Court

using CM/ECF (Type of Document: File Correspondence to Court; Subject: regarding availability for oral argument). The Court discourages motions to continue after this 3-day period. The clerk's office takes conflict dates into consideration in scheduling oral arguments but cannot guarantee that every request will be honored. Your case will be assigned to a calendar approximately 10 weeks before the scheduled oral argument date. Note that your case will be set for hearing in due course if it is not assigned to this calendar. In addition, if parties would like to discuss settlement before argument is scheduled, they should jointly request a referral to the mediation unit. Such a referral will postpone the calendaring of oral argument. All such requests must be made within 3 days of this notice by sending a letter to the Court using CM/ECF (Type of Document: File Correspondence to Court; Subject: request for mediation). Once the case is calendared, it is unlikely that the court will postpone argument for settlement discussions.[10063647] (AW) [Entered: 07/26/2016 02:01 PM]

08/03/20 16

52
1 pg, 24.54 KB

Filed (ECF) Appellant Basaaly Saeed Moalin Correspondence: Letter in regard to the notice from the Court with respect to the schedule for oral argument, and the direction for counsel to provide information about availability for oral argument.. Date of service: 08/03/2016 [10074317] [13-50572]--[COURT UPDATE: Spread docket text to 13-50580, 13-50578, 14-50051. 08/03/2016 by RY] (Dratel, Joshua) [Entered: 08/03/2016 01:06 PM]

08/05/20 16

53
5 pg, 47.71 KB

Filed (ECF) Amicus Curiae Brennan Center for Justice and Appellant Basaaly Saeed Moalin in 13-50572, Amicus Curiae Brennan Center for Justice and Appellant Mohamed Mohamed Mohamud in 1350578, Amicus Curiae Brennan Center for Justice and Appellant Issa Doreh in 13-50580, Amicus Curiae Brennan Center for Justice and Appellant Ahmed Nasir Taalil Mohamud in 14-50051 Unopposed Motion to extend time to file Reply brief until 08/29/2016. Date of service: 08/05/2016. [10077766] [13-50572, 13-50578, 13-50580, 1450051] (Zugman, David) [Entered: 08/05/2016 04:33 PM]

08/29/20 54 16

STRICKEN PER ORDER [69]. Submitted (ECF) Reply Brief for review. Submitted by Appellant Basaaly Saeed Moalin in 13-50572, Appellant Mohamed Mohamed Mohamud in 13-50578, Appellant Issa Doreh in 13-50580, Appellant Ahmed Nasir Taalil Mohamud in 14-50051. Date of service: 08/29/2016. [10105357] [13-50572, 1350578, 13-50580, 14-50051] (Zugman, David) [Entered: 08/29/2016 04:23 PM]

08/29/20 55

Filed (ECF) Appellant Basaaly Saeed Moalin and Amicus Curiae

16

5 pg, 59.3 KB Brennan Center for Justice in 13-50572, Appellant Mohamed

Mohamed Mohamud and Amicus Curiae Brennan Center for Justice in 13-50578, Appellant Issa Doreh and Amicus Curiae Brennan Center for Justice in 13-50580, Appellant Ahmed Nasir Taalil Mohamud and Amicus Curiae Brennan Center for Justice in 14-50051 Unopposed Motion to file oversized brief. Date of service: 08/29/2016. [10105365] [13-50572, 13-50578, 13-50580, 14-50051] (Zugman, David) [Entered: 08/29/2016 04:25 PM]

08/31/20 16

56
3 pg, 14.53 KB

Filed (ECF) Appellant Basaaly Saeed Moalin in 13-50572 Motion to withdraw as counsel. Date of service: 08/31/2016. [10108065] [1350572, 13-50578, 13-50580, 14-50051] (Jaffer, Jameel) [Entered: 08/31/2016 11:21 AM]

09/01/20 57 16

Notice of Oral Argument on Thursday, November 10, 2016 - 09:00 A.M. - Courtroom 2 - Pasadena CA.

View the Oral Argument Calendar for your case here.

Be sure to review the GUIDELINES for important information about your hearing, including when to arrive (30 minutes before the hearing time) and when and how to submit additional citations (filing electronically as far in advance of the hearing as possible).

09/01/20 58

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1 pg, 208.44

KB

09/01/20 59

16

1 pg, 586.07

KB

09/01/20 60 16

When you have reviewed the calendar, download the ACKNOWLEDGMENT OF HEARING NOTICE form, complete the form, and file it via Appellate ECF or return the completed form to: PASADENA Office. [10109952] [07-56657, 07-56662, 13-50572, 13-50578, 13-50580, 14-50051] (DR) [Entered: 09/01/2016 12:12 PM]
Filed (ECF) Acknowledgment of hearing notice. Location: Pasadena. Filed by Attorney David James Zugman for Appellant Mohamed Mohamed Mohamud in 13-50578. [10109984] [13-50578, 13-50572, 13-50580, 14-50051] (Zugman, David) [Entered: 09/01/2016 12:36 PM]
Filed (ECF) Acknowledgment of hearing notice. Location: Pasadena. Filed by Attorney Ms. Elizabeth Armena Missakian for Appellant Issa Doreh in 13-50580. [10110399] [13-50580, 13-50572, 13-50578, 14-50051] (Missakian, Elizabeth) [Entered: 09/01/2016 03:16 PM]
COURT DELETED INCORRECT ENTRY. Motion refiled using correct filing type (see entry [61]). Notice about deletion sent to case participants registered for electronic filing. Original Text: Filed (ECF) Errata to Reply brief ([54] Brief Submitted for Review (ECF Filing)). Filed by Appellant Mohamed Mohamed Mohamud in 13-50578. Date

of service: 09/01/2016. [10110740] [13-50572, 13-50578, 13-50580, 14-50051] (Zugman, David) [Entered: 09/01/2016 04:42 PM]

09/02/20 16

61
6 pg, 60.03 KB

Filed (ECF) Appellant Basaaly Saeed Moalin in 13-50572, Appellant Mohamed Mohamed Mohamud in 13-50578, Appellant Issa Doreh in 13-50580, Appellant Ahmed Nasir Taalil Mohamud in 14-50051 Motion to file substitute or corrected brief. Date of service: 09/02/2016. [10111234] [13-50572, 13-50578, 13-50580, 14-50051]-[COURT UPDATE: Attached corrected motion. Removed PDF of brief (resubmitted separately using correct filing type, see entry [63]). 09/02/2016 by RY] (Zugman, David) [Entered: 09/02/2016 09:54 AM]

09/02/20 16

62
1 pg, 50.62 KB

Filed (ECF) Acknowledgment of hearing notice. Location: Pasadena. Filed by Attorney Mr. Jeffrey Michael Smith for Appellee USA in 13-50572, 13-50578, 13-50580, 14-50051. [10111462] [13-50572, 13-50578, 13-50580, 14-50051] (Smith, Jeffrey) [Entered: 09/02/2016 11:05 AM]

09/02/20 63

16

71 pg, 309.45

KB

Submitted (ECF) Reply Brief for review. Submitted by Appellant Basaaly Saeed Moalin in 13-50572, Appellant Mohamed Mohamed Mohamud in 13-50578, Appellant Issa Doreh in 13-50580, Appellant Ahmed Nasir Taalil Mohamud in 14-50051. Date of service: 09/02/2016. [10111545] [13-50572, 13-50578, 13-50580, 14-50051] (Zugman, David) [Entered: 09/02/2016 11:34 AM]

09/02/20 64 16

RECEIVED (ORIGINAL) CERTIFIED RECORD ON APPEAL. Record Part: Other Documents, No. of Volumes: 1, Sealed: y; Record Part: Other Documents, Sealed: y (10 envelopes). [10111652] [1350572, 13-50578, 13-50580, 14-50051]--[Edited 09/02/2016 by RY] (MM) [Entered: 09/02/2016 12:25 PM]

09/07/20 16

65
1 pg, 53.54 KB

Filed (ECF) Acknowledgment of hearing notice. Location: Pasadena. Filed by Attorney Alexander A. Abdo for Appellant Basaaly Saeed Moalin in 13-50572. [10114486] [13-50572, 13-50578, 13-50580, 1450051] (Abdo, Alexander) [Entered: 09/07/2016 10:05 AM]

09/07/20 16

66
1 pg, 34.56 KB

Filed (ECF) Acknowledgment of hearing notice. Location: Pasadena. Filed by Attorney Mr. Joshua L. Dratel for Appellant Basaaly Saeed Moalin in 13-50572. [10114693] [13-50572, 13-50578, 13-50580, 1450051] (Dratel, Joshua) [Entered: 09/07/2016 11:20 AM]

09/07/20 16

67
1 pg, 27.98 KB

Filed (ECF) Appellant Basaaly Saeed Moalin Correspondence: The letter is in regard to the oral argument in US v. Moalin, 13-50572, and is submitted to inform the Court that, with its permission, Alex Abdo of ACLU and Joshua L. Dratel will be dividing the argument for Appellant Moalin.. Date of service: 09/07/2016 [10115716] [1350572] --[COURT UPDATE: Attached searchable version of

correspondence and spread to cases 13-50578, 13-50580 and 1450051. 09/08/2016 by TYL] (Dratel, Joshua) [Entered: 09/07/2016 05:21 PM]

09/30/20 16

68
1 pg, 52.59 KB

Filed (ECF) Acknowledgment of hearing notice. Location: Pasadena. Filed by Attorney Mr. Benjamin Lee Coleman for Appellant Ahmed Nasir Taalil Mohamud in 14-50051. [10143850] [14-50051, 1350572, 13-50578, 13-50580] (Coleman, Benjamin) [Entered: 09/30/2016 11:07 AM]

10/11/20 69

16

2 pg, 34.3 KB

Filed clerk order (Deputy Clerk: AF): Appellants’ motion for a fourteen-day extension of time to file the reply brief is GRANTED. Appellants’ motion to file an oversized unclassified joint reply brief is GRANTED. Appellants’ motion to file a replacement reply brief with no substantive changes is GRANTED. Jameel Jaffer’s motion to withdraw his appearance as counsel for Defendant- Appellant is GRANTED. [10154477] [13-50572, 13-50578, 13-50580, 14-50051] (AF) [Entered: 10/11/2016 08:51 AM]

10/11/20 70 16

Terminated Jameel Jaffer for Basaaly Saeed Moalin in 13-50572 [10154482] [13-50572, 13-50578, 13-50580, 14-50051] (AF) [Entered: 10/11/2016 08:53 AM]

10/11/20 71

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2 pg, 186.41 KB

Filed clerk order: The joint reply brief [63] submitted by appellants is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: gray. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate CM/ECF. [10155316] [13-50572, 13-50578, 13-50580, 14-50051] (SML) [Entered: 10/11/2016 02:28 PM]

10/20/20 75 16

Received 7 paper copies of Reply Brief [63] filed by Basaaly Saeed Moalin in 13-50572, Mohamed Mohamed Mohamud in 13-50578, Issa Doreh in 13-50580, Ahmed Nasir Taalil Mohamud in 14-50051. [10172849] [13-50572, 13-50578, 13-50580, 14-50051] Sent to Panel. (RG) [Entered: 10/25/2016 12:19 PM]

10/24/20 72

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2 pg, 365.13 KB

Filed (ECF) Appellant Basaaly Saeed Moalin citation of supplemental authorities. Date of service: 10/24/2016. [10171010] [13-50572]-[COURT UPDATE: Spread docket text to 13-50580,13-50578,1450051. 10/24/2016 by RY] (Dratel, Joshua) [Entered: 10/24/2016 12:19 PM]

10/24/20 73 16

**REVISED**Notice of Oral Argument on Thursday, November 10, 2016 - 12:00 P.M. - Courtroom 2 - Pasadena CA.**NOTE: Starting Time Changed**

View the Oral Argument Calendar for your case here.

Be sure to review the GUIDELINES for important information about your hearing, including when to arrive (30 minutes before the hearing time) and when and how to submit additional citations (filing electronically as far in advance of the hearing as possible).

When you have reviewed the calendar, download the ACKNOWLEDGMENT OF HEARING NOTICE form, complete the form, and file it via Appellate ECF or return the completed form to: PASADENA Office. [10171824] (AKM) [Entered: 10/24/2016 04:24 PM]

10/25/20 16

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Filed (ECF) Appellee USA in 13-50572, 13-50578, 13-50580, 1450051 citation of supplemental authorities. Date of service: 10/25/2016. [10172674] [13-50572, 13-50578, 13-50580, 14-50051] (Smith, Jeffrey) [Entered: 10/25/2016 11:18 AM]

11/09/20 76

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KB

Filed Appellee USA's letter dated 11/08/2016 re:.United States' exhibits in 1 CD (4 copies). [10191422] [13-50572, 13-50578, 1350580, 14-50051]--[Edited 11/09/2016 by SVG] (HH) [Entered: 11/09/2016 10:14 AM]

11/10/20 77 16

ARGUED AND SUBMITTED TO MARSHA S. BERZON, JACQUELINE H. NGUYEN and JACK ZOUHARY. [10194137] [13-50572, 13-50578, 13-50580, 14-50051] (Witt, Dusty) [Entered: 11/10/2016 05:03 PM]

07/18/20 78

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2 pg, 125.54

KB

Filed (ECF) Appellant Basaaly Saeed Moalin in 13-50572 citation of supplemental authorities. Date of service: 07/18/2018. [10947009] [13-50572, 13-50578, 13-50580, 14-50051] (Dratel, Joshua) [Entered: 07/18/2018 12:45 PM]

07/19/20 79

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KB

Filed (ECF) Appellee USA in 13-50572, 13-50578, 13-50580, 1450051 citation of supplemental authorities. Date of service: 07/19/2018. [10947815] [13-50572, 13-50578, 13-50580, 14-50051] (Smith, Jeffrey) [Entered: 07/19/2018 08:16 AM]

08/22/20 18

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2 pg, 85.88 KB

Filed (ECF) notice of appearance of Faiza Patel for Amicus Curiae Brennan Center for Justice at NYU School of Law. Date of service: 08/22/2018. [10986196] [13-50572]--[COURT UPDATE: Spread docket text to 14-50051, 13-50580, 13-50578. 08/22/2018 by SLM] (Patel, Faiza) [Entered: 08/22/2018 03:07 PM]

08/22/20 81 18

Attorney Michael William Price substituted by Attorney Faiza Patel [10986368] [13-50572, 13-50578, 13-50580, 14-50051] (JFF) [Entered: 08/22/2018 04:03 PM]

07/25/20 19

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Filed (ECF) Appellant Basaaly Saeed Moalin citation of supplemental authorities. Date of service: 07/25/2019. [11376473] [13-50572] -[COURT UPDATE: Spread to cases 13-50578, 13-50580, and 1450051. 7/25/2019 by TYL] (Dratel, Joshua) [Entered: 07/25/2019 11:37 AM]

07/29/20 83

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2 pg, 174.72

KB

Filed (ECF) Appellee USA in 13-50572, 13-50578, 13-50580, 1450051 citation of supplemental authorities. Date of service: 07/29/2019. [11379275] [13-50572, 13-50578, 13-50580, 14-50051] (Smith, Jeffrey) [Entered: 07/29/2019 10:54 AM]

03/12/20 84 20

Terminated Caroline Han for USA in 13-50572, 13-50578, 13-50580 and 14-50051 (due to incorrect ECF contact information) [11628419] [13-50572, 13-50578, 13-50580, 14-50051] (RY) [Entered: 03/12/2020 04:21 PM]

09/02/20 85

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68 pg, 419.62

KB

FILED OPINION (MARSHA S. BERZON, JACQUELINE H. NGUYEN and JACK ZOUHARY) Defendants’ convictions are AFFIRMED. Judge: MSB Authoring. FILED AND ENTERED JUDGMENT. [11810285] [13-50572, 13-50578, 13-50580, 1450051] (AKM) [Entered: 09/02/2020 08:02 AM]

09/04/20 20

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Filed (ECF) Appellant Mohamed Mohamed Mohamud in 13-50578 Unopposed Motion to extend time to file petition for rehearing until 11/16/2020. Date of service: 09/04/2020. [11813395] [13-50572, 1350578, 13-50580, 14-50051] (Zugman, David) [Entered: 09/04/2020 08:55 AM]

09/04/20 87 20

Filed text clerk order (Deputy Clerk: OC):Appellants' motion [86] for a sixty-day extension of time to file a petition for rehearing and suggestion for rehearing en banc, is granted. [11813997] [13-50572, 13-50578, 13-50580, 14-50051] (OC) [Entered: 09/04/2020 02:39 PM]

 
 Case: 13-50572, 09/02/2020, ID: 11810285, DktEntry: 85-1, Page 1 of 59

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.

No. 13-50572
D.C. No. 3:10-cr-04246-JM-1

BASAALY SAEED MOALIN, AKA Basal, AKA Muse Shekhnor Roble,
Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.

No. 13-50578
D.C. No. 3:10-cr-04246-JM-2

MOHAMED MOHAMED MOHAMUD, AKA Mohamed Khadar, AKA Sheikh Mohamed,
Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.

No. 13-50580
D.C. No. 3:10-cr-04246-JM-3

ISSA DOREH, AKA Sheikh Issa, Defendant-Appellant.

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UNITED STATES V. MOALIN

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.

No. 14-50051
D.C. No. 3:10-cr-04246-JM-4

AHMED NASIR TAALIL MOHAMUD,
Defendant-Appellant.

OPINION

Appeal from the United States District Court for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted November 10, 2016 Pasadena, California
Filed September 2, 2020
Before: Marsha S. Berzon and Jacqueline H. Nguyen, Circuit Judges, and Jack Zouhary,* District Judge.
Opinion by Judge Berzon

* The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation.

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SUMMARY**

Criminal Law
The panel affirmed the convictions of four members of the Somali diaspora for sending, or conspiring to send, $10,900 to Somalia to support a foreign terrorist organization, in an appeal that raised 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.
The panel held that the government may have violated the Fourth Amendment when it collected the telephony metadata of millions of Americans, including at least one of the defendants, pursuant to the Foreign Intelligence Surveillance Act (FISA), but that suppression is not warranted on the facts of this case. Having carefully reviewed the classified FISA applications and all related classified information, the panel was convinced that under established Fourth Amendment standards, the metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial. The panel wrote that to the extent the public statements of government officials created a contrary impression, that impression is inconsistent with the contents of the classified record.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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The panel rejected the government’s argument that the defendants lacked standing to pursue their statutory challenge to the (subsequently discontinued) metadata collection program. On the merits, the panel held that the metadata collection exceeded the scope of Congress’s authorization in 50 U.S.C. § 1861, which required the government to make a showing of relevance to a particular authorized investigation before collecting the records, and that the program therefore violated that section of FISA. The panel held that suppression is not clearly contemplated by section 1861, and there is no statutory basis for suppressing the metadata itself. The panel’s review of the classified record confirmed that the metadata did not and was not necessary to support the requisite probable cause showing for the FISA Subchapter I warrant application in this case. The panel wrote that even if it were to apply a “fruit of the poisonous tree” analysis, it would conclude that evidence from the government’s wiretap of defendant Moalin’s phone was not the fruit of the unlawful metadata collection. The panel wrote that if the statements of the public officials created a contrary impression, that impression is inconsistent with the facts presented in the classified record.

The panel confirmed 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 the surveillance of that defendant conducted pursuant to the government’s foreign intelligence authorities. The panel did not decide whether the government failed to prove any required notice in this case because the lack of such notice did not prejudice the defendants.

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5

The panel held that evidentiary rulings challenged by the defendants did not, individually or cumulatively, impermissibly prejudice the defense.

The panel held that sufficient evidence supported defendant Doreh’s convictions.

COUNSEL
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 DefendantsAppellants.
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,

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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.

OPINION
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

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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

1 All the factual information presented in this opinion comes from unclassified or declassified sources.

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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 “alShabaab,” 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

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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 alShabaab.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

2 Moalin and Doreh are U.S. citizens, M. Mohamud has refugee status, and Nasir Mohamud has a visa.
3 At trial, the government sought only to prove that defendants had sent $10,900 to support al-Shabaab.

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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,

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11

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 another group to handle “overall politics” while Shikhalow dealt with “military matters.” Shikhalow disagreed, stating, “we, the Shabaab, have a political section, a military section and a missionary section.” Shikhalow recounted recent incidents in which his group had planted a landmine and launched mortar shells at the presidential palace, and requested more money “to support the insurgent.”
Communications between Moalin and Shikhalow continued through April 2008, during which time several money transfers were made to “yusuf mohamed ali,” “YUSUF MOHAMED ALI,” “DUNKAAL MOHAMED YUSUF,” and “mohamed yusuf dunkaal.” Ayrow was killed on May 1, 2008. A week later, Moalin told an acquaintance that he did not want “the assistance and the work that we were performing” to stop, even though “the man that we used to deal with is gone.”
In July 2008, a senior operational figure in al-Shabaab gave Moalin contact information for Omar Mataan. Later that day, Moalin got in touch with Mataan and promised to send money. The following week, Moalin spoke with Nasir Mohamud, reporting that they were being “closely watched,” but that they could still support “the orphans” and “people in need” and would “go under that pretense now.” Shidaal Express records show a series of transfers over the

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next few weeks, including one to “Omer Mataan” and another to “Omer matan.”4
Defendants did not dispute that they sent money to Somalia through Shidaal Express, but they did dispute that the money was intended to support al-Shabaab. They maintained that Shikhalow was not Ayrow but a local police commissioner, and that their money went to support the work of regional administrations governing in the absence of an effective central government. Moalin also presented evidence that he supported humanitarian causes in Somalia during the time period of the indictment.
In February 2013, the jury convicted defendants on all counts.
III.
Before trial, Moalin moved to suppress, among other things, “all interceptions made and electronic surveillance conducted pursuant to [FISA], 50 U.S.C. § 1801, et seq., and any fruits thereof, and/or for disclosure of the underlying applications for FISA warrants.” Moalin contended that information in the government’s applications for the FISA wiretap may have been “generated by illegal means”—that is, that the government may have violated the Fourth Amendment or its statutory authority under FISA in collecting information supporting the FISA warrants. The district court denied Moalin’s suppression motion and did not grant security-cleared defense counsel access to the documents supporting the FISA orders.

4 We review the call transcripts in greater deal in Part V of the Discussion section of the opinion, infra pp. 53–57.

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Two days before trial, the prosecution disclosed an email from a redacted FBI email address to the government’s Somali linguist, who was monitoring Moalin’s phone calls during the wiretap. The email said: “We just heard from another agency that Ayrow tried to make a call to Basaaly [Moalin] today, but the call didn’t go through. If you see anything today, can you give us a shout? We’re extremely interested in getting real-time info (location/new #’s) on Ayrow.”
Months after the trial, in June 2013, former National Security Agency (“NSA”) contractor Edward Snowden made public the existence of NSA data collection programs. One such program, conducted under FISA Subchapter IV, involved the bulk collection of phone records, known as telephony metadata, from telecommunications providers. Other programs, conducted under the FISA Amendments Act of 2008, involved the collection of electronic communications, such as email messages and video chats, including those of people in the United States.
Subsequent statements of public officials defending the telephony metadata collection program averred that the program had played a role in the government’s investigation of Moalin. These statements reported that the FBI had previously closed an investigation focused on Moalin without bringing charges, then reopened that investigation based on information obtained from the metadata program.
For instance, in a hearing before the House Permanent Select Committee on Intelligence held shortly after the Snowden disclosures, then-FBI Deputy Director Sean Joyce described a post-9/11 investigation conducted by the FBI that initially “did not find any connection to terrorist activity. Several years later, under [FISA Subchapter IV], the NSA provided us a telephone number only in San Diego that had

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indirect contact with an extremist outside the United States.” Joyce explained that the FBI “served legal process to identify who was the subscriber to this telephone number,” then, after “further investigation and electronic surveillance that we applied specifically for this U.S. person with the FISA Court, we were able to identify co-conspirators, and we were able to disrupt” their financial support to a Somali designated terrorist group. According to Joyce, “if [the FBI] did not have the tip from NSA, [it] would not have been able to reopen that investigation.” In another congressional hearing, Joyce specifically named Moalin as the target of the investigation.
On September 30, 2013, defendants filed a motion for a new trial. Defendants argued that the government’s collection and use of Moalin’s telephony metadata violated the Fourth Amendment, and that the government had failed to provide notice of the metadata collection or of any surveillance of Moalin it had conducted under the FISA Amendments Act, including, potentially, the surveillance referred to in the email to the linguist. The district court denied the motion, concluding that “public disclosure of the NSA program adds no new facts to alter the court’s FISA . . . rulings,” and that the telephony metadata program did not violate the Fourth Amendment. United States v. Moalin, No. 10-CR-4246 JM, 2013 WL 6079518, at *4, *8 (S.D. Cal. Nov. 18, 2013).
This appeal followed. On appeal, defendants continue to challenge the metadata collection and the lack of notice of both the metadata collection and of any additional surveillance not disclosed by the government. They also make arguments regarding the government’s obligation to produce exculpatory evidence; the district court’s evidentiary rulings; and the sufficiency of the evidence to

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convict Doreh. We present the facts relating to each argument as we analyze it.
DISCUSSION
I. The Telephony Metadata Collection Program
The government’s telephony metadata collection program was authorized in a series of classified orders by the FISA Court under FISA Subchapter IV, the “business records” subchapter.5 See In re Application of the FBI for an Order Requiring the Prod. of Tangible Things from [redacted], No. BR 13-80, 2013 WL 5460137, at *1 (FISA Ct. Apr. 25, 2013). These orders required major telecommunications providers to turn over to the government on an “ongoing daily” basis a “very large volume” of their “call detail records.” In re Application of the FBI for an Order Requiring the Prod. of Tangible Things from [redacted], No. BR 13-109, 2013 WL 5741573, at *1 (FISA Ct. Aug. 29, 2013) (“In re Application II”). Specifically, providers were ordered to produce “all call detail records or ‘telephony metadata’ . . . for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” Id. at *10. These records included
5 The FISA Court was established by Congress to entertain applications by the government to take investigative actions authorized by FISA. 50 U.S.C. § 1803(a). Broadly, “FISA authorizes the federal government to engage in four types of investigative activity [in the United States]: electronic surveillance targeting foreign powers and agents of foreign powers; physical searches targeting foreign powers and agents of foreign powers; the use of pen registers and trap-and-trace devices . . . ; and court orders compelling the production of tangible things in connection with certain national security investigations.” David Kris & J. Douglas Wilson, National Security Investigations and Prosecutions § 4:2 (3rd ed. 2019).

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information such as the phone numbers involved in a call and the time and duration of the call, but not the voice content of any call. Id. at *1 n.2.
The court orders authorized the NSA to compile the records into a database and to query the database under certain conditions to obtain foreign intelligence information. See id. at *1. During the time period relevant to this case, the government was permitted to search the database when certain NSA officials determined that “reasonable, articulable suspicion” existed connecting a specific selection term—for example, a particular phone number—with “one of the identified international terrorist organizations.” Id. The government was also allowed to search phone numbers within three “hops” of that selector, i.e., the phone numbers directly in contact with a selector, the numbers that had been in contact with those numbers, and the numbers that had been in contact with those numbers. In re Application of the FBI for an Order Requiring the Prod. of Tangible Things from [redacted], No. BR 14-96, 2014 WL 5463290, at *2 & n.2 (FISA Ct. June 19, 2014).
Snowden’s disclosure of the metadata program prompted significant public debate over the appropriate scope of government surveillance. In June 2015, Congress passed the USA FREEDOM Act, which effectively ended the NSA’s bulk telephony metadata collection program. Pub. L. No. 114-23, 129 Stat. 268 (codified at 50 U.S.C. § 1861). The Act prohibited further bulk collection of phone records after November 28, 2015. Id.; see Smith v. Obama, 816 F.3d 1239, 1241 (9th Cir. 2016). Besides ending the bulk collection program, Congress also established new reporting requirements relating to the government’s collection of call detail records. Pub. L. No. 114-23, § 601, 129 Stat. at 291.

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Defendants contend that the discontinued metadata program violated both the Fourth Amendment and FISA Subchapter IV, under which it was authorized. They argue that the “fruits” of the government’s acquisition of Moalin’s phone records should therefore have been suppressed. According to defendants, those fruits included the phone records themselves and the evidence the government obtained through its subsequent wiretap of Moalin’s phone.
A.
Moalin contends that the metadata collection violated his Fourth Amendment “right . . . to be secure . . . against unreasonable searches and seizures.” U.S. Const. amend. IV. A person may invoke the protections of the Fourth Amendment by showing he had “an actual (subjective) expectation of privacy,” and “the expectation [is] one that society is prepared to recognize as ‘reasonable.’” Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Moalin asserts he had a reasonable expectation of privacy in his telephony metadata.
The district court held, and the government argues, that this case is controlled by Smith v. Maryland, 442 U.S. 735 (1979), which helped establish the so-called third-party doctrine in Fourth Amendment jurisprudence. Smith held that the government’s use of a pen register to record the numbers the defendant dialed from his home telephone did not constitute a Fourth Amendment search, because individuals have no reasonable expectation of privacy in information they voluntarily convey to the telephone company. Id. at 742–43. Smith relied on United States v. Miller, 425 U.S. 435 (1976), which had held that defendants had no legitimate expectation of privacy in their bank records. The government argues that the NSA’s collection of Moalin’s telephony metadata is indistinguishable, for Fourth

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Amendment purposes, from the use of the pen register in Smith.
There are strong reasons to doubt that Smith applies here. Advances in technology since 1979 have enabled the government to collect and analyze information about its citizens on an unprecedented scale. Confronting these changes, and recognizing that a “central aim” of the Fourth Amendment was “to place obstacles in the way of a too permeating police surveillance,” the Supreme Court recently declined to “extend” the third-party doctrine to information whose collection was enabled by new technology. Carpenter v. United States, 138 S. Ct. 2206, 2214, 2217 (2018) (quoting United States v. Di Re, 332 U.S. 581, 595 (1948)).
Carpenter did not apply the third-party doctrine to the government’s acquisition of historical cell phone records from the petitioner’s wireless carriers. The records revealed the geographic areas in which the petitioner used his cell phone over a period of time. Id. at 2220. Citing the “unique nature of cell phone location information,” the Court concluded in Carpenter that “the fact that the Government obtained the information from a third party does not overcome [the petitioner’s] claim to Fourth Amendment protection,” because there is “a world of difference between the limited types of personal information addressed in Smith . . . and the exhaustive chronicle of location information casually collected by wireless carriers today.” Id. at 2219– 20.
There is a similar gulf between the facts of Smith and the NSA’s long-term collection of telephony metadata from Moalin and millions of other Americans. In Smith, a woman was robbed and gave the police a description of the robber and of a car she saw nearby. 442 U.S. at 737. After the robbery, the woman received “threatening and obscene

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phone calls from a man identifying himself as the robber.” Id. Police later spotted a man and car matching the robber’s description and traced the license plate number to Smith. Id. Without obtaining a warrant, they asked the telephone company to install a “pen register,” a device that would record the numbers dialed from Smith’s home telephone. Id. The day the pen register was installed it recorded a call from Smith’s home to the home of the robbery victim. Id. Based on that and other evidence, police obtained a warrant to search Smith’s home and arrested him two days later. Id.
Holding that the use of the pen register did not constitute a “search” for Fourth Amendment purposes, id. at 745–46, the Court reasoned, first, that it was unlikely “that people in general entertain any actual expectation of privacy in the numbers they dial,” id. at 742. Second, “even if [Smith] did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not ‘one that society is prepared to recognize as “reasonable.”’” Id. at 743 (quoting Katz, 389 U.S. at 361). Smith had “voluntarily conveyed numerical information to the telephone company” and in so doing had “assumed the risk that the company would reveal to police the numbers he dialed.” Id. at 744.
The distinctions between Smith and this case are legion and most probably constitutionally significant. To begin with, the type of information recorded in Smith was “limited” and of a less “revealing nature” than the telephony metadata at issue here. Carpenter, 138 S. Ct. at 2219. The pen register did not disclose the “identities” of the caller or of the recipient of a call, “nor whether the call was even completed.” Smith, 442 U.S. at 741 (quoting United States v. New York Tel. Co., 434 U.S. 159, 167 (1977)). In contrast, the metadata in this case included “comprehensive

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communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile station Equipment Identity (IMEI) number, International Mobile Subscriber Identity (IMSI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call.” In re Application II, 2013 WL 5741573, at *1 n.2. “IMSI and IMEI numbers are unique numbers associated with a particular telephone user or communications device.” Br. of Amici Curiae Brennan Center for Justice 11. “A ‘trunk identifier’ provides information about where a phone connected to the network, revealing data that can locate the parties within approximately a square kilometer.” Id. at 11–12.
Although the Smith Court perceived a significant distinction between the “contents” of a conversation and the phone number dialed, see 442 U.S. at 743, in recent years the distinction between content and metadata “has become increasingly untenable,” as Amici point out. Br. of Amici Curiae Brennan Center for Justice 6. The amount of metadata created and collected has increased exponentially, along with the government’s ability to analyze it. “Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic—a vibrant and constantly updating picture of the person’s life.” Klayman v. Obama, 957 F. Supp. 2d 1, 36 (D.D.C. 2013), vacated and remanded, 800 F.3d 559 (D.C. Cir. 2015). According to the NSA’s former general counsel Stewart Baker, “[m]etadata absolutely tells you everything about somebody’s life. . . . If you have enough metadata you don’t really need content . . . .” Laura K. Donohue, The Future of Foreign Intelligence 39 (2016). The information collected here was thus substantially more revealing than the telephone numbers recorded in Smith.

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The duration of the collection in this case—and so the amount of information collected—also vastly exceeds that in Smith. While the pen register in Smith was used for a few days at most, here the NSA collected Moalin’s (and millions of other Americans’) telephony metadata on an ongoing, daily basis for years. Carpenter distinguished between using a beeper to track a car “during a discrete automotive journey,” which the Court had upheld in United States v. Knotts, 460 U.S. 276 (1983), and using cell phone location information to reveal “an all-encompassing record of the holder’s whereabouts” “over the course of 127 days.” 138 S. Ct. at 2215, 2217 (internal quotation marks omitted). As the Court put it, “Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible.” Id. at 2219.
Like the cell phone location information in Carpenter, telephony metadata, “as applied to individual telephone subscribers, particularly with relation to mobile phone services and when collected on an ongoing basis with respect to all of an individual’s calls . . . permit something akin to . . . 24-hour surveillance . . . .” Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 824 (2d Cir. 2015). This long-term surveillance, made possible by new technology, upends conventional expectations of privacy. Historically, “surveillance for any extended period of time was difficult and costly and therefore rarely undertaken.” United States v. Jones, 565 U.S. 400, 429 (2012) (Alito, J., concurring in the judgment). Society may not have recognized as reasonable Smith’s expectation of privacy in a few days’ worth of dialed numbers but is much more likely to perceive as private several years’ worth of telephony metadata collected on an ongoing, daily basis—as demonstrated by the public outcry following the revelation of the metadata collection program.

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Also problematic is the extremely large number of people from whom the NSA collected telephony metadata, enabling the data to be aggregated and analyzed in bulk. The government asserts that “the fact that the NSA program also involved call records relating to other people . . . is irrelevant because Fourth Amendment rights . . . cannot be raised vicariously.” Br. of United States 58. The government quotes the FISA Court, which reasoned similarly that “where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.” In re Application II, 2013 WL 5741573, at *2. But these observations fail to recognize that the collection of millions of other people’s telephony metadata, and the ability to aggregate and analyze it, makes the collection of Moalin’s own metadata considerably more revealing.
A couple of examples illustrate this point: A woman calls her sister at 2:00 a.m. and talks for an hour. The record of that call reveals some of the woman’s personal information, but more is revealed by access to the sister’s call records, which show that the sister called the woman’s husband immediately afterward. Or, a police officer calls his college roommate for the first time in years. Afterward, the roommate calls a suicide hotline. These are simple examples; in fact, metadata can be combined and analyzed to reveal far more sophisticated information than one or two individuals’ phone records convey. As Amici explain, “it is relatively simple to superimpose our metadata trails onto the trails of everyone within our social group and those of everyone within our contacts’ social groups and quickly paint a picture that can be startlingly detailed”—for example, “identify[ing] the strength of relationships and the structure of organizations.” Br. of Amici Curiae Brennan

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Center for Justice 21 (internal quotation marks and alterations omitted). Thus, the very large number of people from whom telephony metadata was collected distinguishes this case meaningfully from Smith.
Finally, numerous commentators and two Supreme Court Justices have questioned the continuing viability of the third-party doctrine under current societal realities. The assumption-of-risk rationale underlying the doctrine is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Jones, 565 U.S. at 417 (Sotomayor, J., concurring). “Even our most private documents—those that, in other eras, we would have locked safely in a desk drawer or destroyed—now reside on third party servers. Smith . . . teach[es] that the police can review all of this material, on the theory that no one reasonably expects any of it will be kept private. But no one believes that, if they ever did.” Carpenter, 138 S. Ct. at 2262 (Gorsuch, J., dissenting).
For all these reasons, defendants’ Fourth Amendment argument has considerable force. But we do not come to rest as to whether the discontinued metadata program violated the Fourth Amendment because even if it did, suppression would not be warranted on the facts of this case. See United States v. Ankeny, 502 F.3d 829, 836–37 (9th Cir. 2007) (declining to decide “close” Fourth Amendment question where suppression was “not appropriate”). Having carefully reviewed the classified FISA applications and all related classified information, we are convinced that under established Fourth Amendment standards, the metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial. See Wong Sun v. United States, 371 U.S. 471, 488 (1963). To the extent the

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public statements of government officials created a contrary impression, that impression is inconsistent with the contents of the classified record.6
B.
Defendants also argue that the metadata collection program violated FISA Subchapter IV, under which the FISA Court authorized it.
1.
At the outset, the government asserts that Moalin lacks standing to pursue his statutory challenge. The government

6 Defendants, relying on Alderman v. United States, 394 U.S. 165 (1969), urge us to remand to the district court for a suppression hearing. Alderman held that where the government conducted electronic surveillance of defendants in violation of the Fourth Amendment, the government had to turn over to defendants “the records of those overheard conversations” so that they could intelligently litigate the question whether the unlawful eavesdropping had tainted the evidence introduced at trial. Id. at 183. The Court in Alderman was concerned that if it were left solely to the trial judge to review the recorded conversations in camera, the judge might lack the time or knowledge to grasp the significance of an “apparently innocent phrase” or “chance remark” that in fact shaped the subsequent investigation. Id. at 182–84.
We decline to extend Alderman’s holding to the facts of this case. Here, the material whose collection may have been unlawful but was not disclosed was not Moalin’s conversations but his telephony metadata; the records of the overheard conversations obtained pursuant to the FISA warrants were fully disclosed. We express no opinion as to whether Alderman could appropriately apply to the government’s unlawful collection of metadata in a different case. But in the particular circumstances of this case, based on our careful review of the classified record, there is no concern similar to the Court’s concern in Alderman and thus no need to apply the case here, given the countervailing national security concerns.

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relies on United States v. Plunk, 153 F.3d 1011 (9th Cir. 1998), overruled on other grounds by United States v. Hankey, 203 F.3d 1160, 1169 n.7 (9th Cir. 2000). Plunk held that a defendant lacked Fourth Amendment “standing” to challenge a subpoena to his telephone company requesting his telephone records. Id. at 1020. We reasoned in Plunk that the subpoena was directed not at the defendant “but rather at third party businesses,” and that “individuals possess no reasonable expectation of privacy in telephone records.” Id.7 The government challenges Moalin’s standing on the same basis, which it contends “is simply an application of the broader rule that ‘the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant.’” Br. of United States 51 (quoting Miller, 425 U.S. at 444).
As our cases have explained, “Fourth amendment standing is quite different . . . from ‘case or controversy’ determinations of article III standing.” United States v. Taketa, 923 F.2d 665, 669 (9th Cir. 1991). Whereas Article III standing concerns our jurisdiction, Fourth Amendment standing “is a matter of substantive fourth amendment law; to say that a party lacks fourth amendment standing is to say that his reasonable expectation of privacy has not been infringed.” Id.8

7 Plunk also concluded that the defendant had “not demonstrated that he was within the ‘zone of interests’ intended to be protected by” the statutory provision at issue in that case, id., but the government does not raise a similar argument here.
8 Unlike Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013), this case is a criminal prosecution, so there is no Article III standing issue here.

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We reject the government’s invitation to dispense with defendants’ statutory argument on the basis of Fourth Amendment standing. First, as Carpenter clarified after this case was briefed, there is no categorical rule preventing criminal defendants from challenging third-party subpoenas. Carpenter, 138 S. Ct. at 2221. Second, as discussed above, Moalin likely had a reasonable expectation of privacy in his telephony metadata—at the very least, it is a close question. Finally, and most importantly, defendants’ statutory and Fourth Amendment arguments rest on independent legal grounds, and we see no reason why Moalin’s “standing” to pursue the statutory challenge should turn on the merits of the Fourth Amendment issue. We therefore proceed to the merits of the statutory challenge.
2.
Section 1861 of FISA Subchapter IV authorizes the government to apply to the FISA Court for an “order requiring the production of any tangible things (including . . . records . . .) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” 50 U.S.C. § 1861(a)(1).9 At the time relevant to this case, the statute required the government to include in its application “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment).” 50 U.S.C.

9 All citations to the U.S. Code are to the current version unless otherwise indicated.

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§ 1861(b)(2)(A) (2006) (emphasis added).10 Defendants argue that the metadata program defied this relevance requirement because the government collected phone records in bulk, without regard to whether any individual record was relevant to any specific, already-authorized investigation.

The government’s theory, expressed in its initial application to the FISA Court to authorize the metadata collection, was that “[a]lthough admittedly a substantial portion of the telephony metadata that is collected would not relate to operatives of [redacted], the intelligence tool that the Government hopes to use to find [redacted] communications—metadata analysis—requires collecting and storing large volumes of the metadata to enable later analysis.” Mem. of Law in Supp. of Appl. for Certain Tangible Things for Investigations to Protect Against International Terrorism 15, In re Application of the FBI for an Order Requiring the Prod. of Tangible Things, No. BR 06-05 (FISA Ct. May 23, 2006). According to the government, “[a]ll of the metadata collected is thus relevant, because the success of this investigative tool depends on bulk collection.” Id.

Defendants respond that Congress intended for the relevance requirement to be a limiting principle. They argue that the government’s interpretation of the word “relevant” is essentially limitless and so contravenes the statute. Defendants rely principally on Clapper, which held that the text of section 1861 “cannot bear the weight the government

10 The USA Freedom Act later expanded on the application requirements. See 50 U.S.C. § 1861(b)(2)(A)–(C).

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asks us to assign to it, and . . . does not authorize the telephone metadata program.” 785 F.3d at 821. We agree.
As the Second Circuit noted, the “expansive concept of ‘relevance’” used by the government to justify the metadata program “is unprecedented and unwarranted.” Id. at 812. The government had argued in Clapper that Congress’s intention in adopting section 1861 was to give the government “broad-ranging investigative powers analogous to those traditionally used in connection with grand jury investigations into possible criminal behavior.” Id. at 811. Although the Second Circuit agreed with that premise, it concluded that the metadata collection orders were dissimilar from grand jury subpoenas with respect to both the quantity and the quality of the information sought. First, “while . . . subpoenas for business records may encompass large volumes of paper documents or electronic data, the most expansive of such evidentiary demands are dwarfed by the volume of records obtained pursuant to the orders in question here.” Id. at 813. Second, “document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred,” but the metadata collection orders “contain[ed] no such limits.” Id.
The Second Circuit also reasoned that the term “relevant” in section 1861 takes meaning from its context: records sought must be “relevant to an authorized investigation.” 50 U.S.C. § 1861(b)(2)(A) (2006) (emphasis added). The court faulted the government for referring to the records collected under the metadata program “as relevant to ‘counterterrorism investigations,’ without identifying any specific investigations to which such bulk collection is relevant.” Clapper, 785 F.3d at 815.

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Here, the government, in the two pages it devotes to defending the metadata program’s compliance with FISA, maintains that the Second Circuit got it wrong because “[t]here were in fact multiple specified counterterrorism investigations for which the [FISA Court], in repeatedly approving the program, found reasonable grounds to believe the telephony metadata would be relevant.” Br. of United States 53. But, as the Second Circuit noted, referring to the findings of the Privacy and Civil Liberties Oversight Board (“PCLOB”) in a 2014 report on the metadata collection program:
[T]he government’s practice is to list in § [1861] applications multiple terrorist organizations, and to declare that the records being sought are relevant to the investigations of all of those groups. . . . As the [PCLOB] report puts it, that practice is “little different, in practical terms, from simply declaring that they are relevant to counterterrorism in general. . . . At its core, the approach boils down to the proposition that essentially all telephone records are relevant to essentially all international terrorism investigations.”

785 F.3d at 815 (quoting Privacy and Civil Liberties Oversight Board, Rep. on the Tel. Records Program Conducted Under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court 59–60 (Jan. 23, 2014)). The government’s approach “essentially reads the ‘authorized investigation’ language out of the statute.” Id. at 815–16.

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Finally, we do not accept the government’s justification in this case that “the call detail records at issue here—the records that suggested that a particular U.S.-based telephone number may have been associated with a foreign terrorist— were clearly relevant to a counterterrorism investigation.” Br. of United States 52 (emphasis added). That argument depends on an after-the-fact determination of relevance: once the government had collected a massive amount of call records, it was able to find one that was relevant to a counterterrorism investigation. The problem, of course, is that FISA required the government to make a showing of relevance to a particular authorized investigation before collecting the records. 50 U.S.C. § 1861(b)(2)(A) (2006).
We hold that the telephony metadata collection program exceeded the scope of Congress’s authorization in section 1861 and therefore violated that section of FISA. See Clapper, 785 F.3d at 826.
3.
As a remedy for the FISA violation, defendants ask us to suppress the alleged “fruits” of the unlawful metadata collection, including the evidence from the government’s wiretap of Moalin’s phone. Because “suppression is a disfavored remedy,” we impose it to remedy a statutory violation “only . . . where it is clearly contemplated by the relevant statute.” United States v. Forrester, 512 F.3d 500, 512 (9th Cir. 2008).11 To decide whether suppression is

11 In some circumstances a court may order suppression to remedy the violation of a statute that “enforce[s] constitutional norms,” even if the statute does not expressly call for suppression. United States v. Dreyer, 804 F.3d 1266, 1278 (9th Cir. 2015). We decline to impose suppression on that basis in this case for the same reason we conclude

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clearly contemplated by FISA in this context, we begin with 50 U.S.C. § 1861, the section under which Moalin’s metadata was collected and which that collection violated.
Section 1861 authorizes the recipient of a production order to “challenge the legality” of the order. Id. § 1861(f)(2)(A)(i). But it does not expressly provide for a challenge by the subject of the records collected—that is, the person whose records are collected from a third party. Nor does section 1861, either as it read at the time relevant to this case, or as it reads now, after amendment by the USA Freedom Act, contain any provision for suppressing in a criminal trial evidence obtained in violation of the section. Compare 50 U.S.C. § 1861 with 50 U.S.C. § 1861 (2006). The remainder of Subchapter IV likewise makes no mention of a suppression remedy.
The lack of a suppression remedy in section 1861, and in Subchapter IV more generally, is significant because all the other FISA subchapters authorizing intelligence collection do contain a suppression remedy. See id. § 1806(g) (Subchapter I, concerning electronic surveillance); id. § 1825(h) (Subchapter II, concerning physical searches); id. § 1845(g) (Subchapter III, concerning pen registers and trapand-trace devices); id. § 1881e(b) (Subchapter VI, or the FISA Amendments Act, concerning surveillance of persons outside the United States).
Of particular significance is that Congress added Subchapters III and IV to FISA in the same legislation. It chose expressly to authorize a suppression remedy in

suppression would not be warranted were we to decide that the metadata program violated the Fourth Amendment. See supra p. 23.

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Subchapter III12 but not in Subchapter IV. See Pub. L. No. 105-272, Title VI, §§ 601–602, 112 Stat. 2396, 2404–2412 (1998). “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) (alteration in original). This presumption is “strongest in those instances in which the relevant statutory provisions were considered simultaneously when the language raising the implication was inserted,” as is the case with Subchapters III and IV. Gomez-Perez v. Potter, 553 U.S. 474, 486 (2008) (internal quotation marks omitted). We therefore conclude that suppression is not “clearly contemplated” by section 1861, Forrester, 512 F.3d at 512, and that there is no statutory basis for suppressing Moalin’s metadata itself.

Recognizing the gap in Subchapter IV, defendants urge us to rely on the suppression remedy in Subchapter I. See 50 U.S.C. § 1806(g). As discussed, the government obtained an order from the FISA Court under Subchapter I authorizing a wiretap of Moalin’s phone, and introduced evidence obtained from the wiretap at trial. Defendants were entitled to “move to suppress the evidence obtained or derived from such electronic surveillance on the grounds that . . . the information was unlawfully acquired.” Id. § 1806(e). The statute instructs that, if the “district court . . . determines that the surveillance was not lawfully authorized . . . it shall, in accordance with the requirements of law, suppress the

12 Upon finding that the use of a pen register “was not lawfully authorized or conducted,” a district court “may . . . suppress the evidence which was unlawfully obtained or derived from the use of the pen register.” 50 U.S.C. § 1845(g)(1).

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evidence which was unlawfully obtained or derived from electronic surveillance.” Id. § 1806(g) (emphases added).
To obtain the Moalin wiretap order, the government submitted an application to the FISA Court including, among other things, “a statement of the facts and circumstances relied upon by the applicant to justify his belief that . . . the target of the electronic surveillance is a foreign power or an agent of a foreign power.” 50 U.S.C. § 1804(a)(4)(A) (2006). The government’s application is classified, and the district court denied defendants’ request to see it. Nonetheless, defendants assume, based on the public statements of government officials following the Snowden disclosures, see supra pp. 13–14, that the application relied at least in part on Moalin’s metadata. Defendants contend that because the metadata was obtained in violation of the “relevance” provision in Subchapter IV, 50 U.S.C. § 1861(b)(2)(A) (2006), the evidence obtained from the subsequent wiretap was therefore “unlawfully acquired” for purposes of Subchapter I, 50 U.S.C. § 1806(e).
Contrary to defendants’ assumption, the government maintains that Moalin’s metadata “did not and was not necessary to support the requisite probable cause showing” for the Subchapter I application in this case. Our review of the classified record confirms this representation. Even if we were to apply a “fruit of the poisonous tree” analysis, see Wong Sun, 371 U.S. at 487–88, we would conclude, based on our careful review of the classified FISA applications and related information, that the FISA wiretap evidence was not the fruit of the unlawful metadata collection. Again, if the statements of public officials created a contrary impression, that impression is inconsistent with the facts presented in the classified record. Because the wiretap evidence was not

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“unlawfully acquired,” suppression is not warranted. 50 U.S.C. § 1806(e).
II. Notice of Surveillance Activities
Separately from their contention that the metadata collection violated their Fourth Amendment rights, defendants maintain that the Fourth Amendment required the government to provide notice to defendants of its collection and use of Moalin’s telephony metadata. They also contend that they were entitled to notice of any additional surveillance, other than FISA Subchapter I surveillance, that the government conducted of them during the course of its investigation.13
A.
After defendants were indicted, the government notified them and the district court that it intended to “use or disclose” in “proceedings in this case information obtained or derived from electronic surveillance conducted pursuant to the authority of [FISA].” See 50 U.S.C. § 1806(c) (FISA Subchapter I notice requirement). That information turned out to be recordings and transcripts of defendants’ phone calls stemming from the government’s wiretap of Moalin’s cell phone under FISA Subchapter I.

13 The government asserts that defendants forfeited their argument that they were entitled to notice of the metadata collection by failing to raise it before the district court. Defendants adequately raised the issue in their motion for a new trial, arguing that they were “not provided any notice” of the metadata collection and that the government’s response to defendants’ motion to suppress FISA surveillance was therefore incomplete. The government does not address defendants’ argument that they were entitled to notice of any additional surveillance the government conducted.

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The government did not notify defendants that it had collected Moalin’s phone records as part of the metadata program. Defendants learned that after trial—from the public statements that government officials made in the wake of the Snowden disclosures. See supra pp. 13–14. Nor did the government provide notice of any additional surveillance, apart from FISA Subchapter I surveillance, it had conducted of defendants. Defendants contend that at least some such surveillance may have occurred, because the email to the linguist produced by the government two days before trial referred to a phone call to Moalin that had not gone through and therefore presumably would not have been captured by the wiretap of Moalin’s phone. See supra p. 13. According to defendants, any additional surveillance of Moalin, depending on when it began (and regardless of whether it targeted Moalin), may have provided information used in the wiretap applications or may otherwise have contributed to the evidence used by the government at trial.
Just months after defendants’ convictions, news articles in the wake of the Snowden disclosures revealed that the government had been using evidence derived from foreign intelligence surveillance in criminal prosecutions without notifying the defendants of the surveillance. Five years earlier, Congress had passed the FISA Amendments Act (“FAA”), which provided congressional authorization for a surveillance program the government had previously conducted outside the auspices of FISA. Pub. L. No. 110261, 122 Stat. 2436 (2008); see Kris & Wilson, supra note 5, § 17:1. The FAA permits the government to conduct electronic surveillance of people it believes are located outside the United States without using the procedures required by FISA Subchapter I. 50 U.S.C. §§ 1881a, 1881b, 1881c. If the government intends to use evidence “obtained or derived from” FAA surveillance in a criminal

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prosecution, however, it must provide notice to the defendants as required by FISA Subchapter I. Id. §§ 1806(c), 1881e(a)(1). In 2013, it came to light that the government had been using evidence derived from FAA surveillance in criminal prosecutions without providing the mandated notice. See Charlie Savage, Door May Open for Challenge to Secret Wiretaps, N.Y. Times, Oct. 16, 2013, http://nyti.ms/1r7mbDy.
Additionally, the government conducts other foreign intelligence surveillance outside the United States, beyond the scope of FISA or the FAA, under Executive Order 12,333. See Exec. Ord. No. 12,333, as amended by Exec. Ord. Nos. 13,284 (2003), 13,355 (2004), and 13,470 (2008); Kris & Wilson, supra note 5, §§ 2:7, 17:1. Following the passage of the FAA, Executive Order 12,333 no longer authorizes surveillance targeting U.S. persons, but such persons’ communications and metadata may be incidentally collected.14 See Kris & Wilson, supra note 5, § 17:19. Executive Order 12,333 does not contain any notice requirement.
B.
The Fourth Amendment requires that a person subject to a government search receive notice of the search, absent “exigent circumstances.” Berger v. State of New York, 388 U.S. 41, 60 (1967); see United States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986). Courts have excused advance notice in the wiretapping context for a practical reason: if the

14 Executive Order 12,333 and FISA contain similar definitions of “United States person.” Both definitions include U.S. citizens and permanent residents. See 50 U.S.C. § 1801(i); Exec. Ord. No. 12,333, as amended, § 3.5(k).

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subject of a wiretap were “told in advance that federal officers intended to record his conversations, the point of making such recordings would obviously [be] lost.” Katz, 389 U.S. at 355 n.16. In such circumstances, the government must provide a “constitutionally adequate substitute for advance notice.” Dalia v. United States, 441 U.S. 238, 248 (1979). Dalia explained that the Wiretap Act, which governs the use of electronic surveillance in criminal investigations, meets this requirement by instructing that “once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance.” Id. (citing 18 U.S.C. § 2518(8)(d)); see United States v. Donovan, 429 U.S. 413, 429 n.19 (1977).
The government argues that Berger and Dalia are inapposite here because they dealt with ordinary criminal investigations, and the Fourth Amendment requirements are different in the foreign intelligence context. The government points to United States v. Cavanagh, which quoted United States v. United States District Court (Keith), 407 U.S. 297, 322–23 (1972), for the proposition that a different standard may be compatible with the Fourth Amendment in the intelligence-gathering context if it is “reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.” 807 F.2d 787, 790 (9th Cir. 1987). Cavanagh held that “FISA satisfies the constraints the Fourth Amendment places on foreign intelligence surveillance conducted by the government.” Id. For our purposes, the essential insight of Cavanagh is that even if the Fourth Amendment applies

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differently in the foreign intelligence context, it still applies, at least if U.S. persons are involved.15
Cavanagh did not address the Fourth Amendment’s notice requirement, but the insight we glean from it bears on our analysis here: because the Fourth Amendment applies to foreign intelligence investigations, U.S. criminal defendants against whom the government uses evidence obtained or derived from foreign intelligence surveillance may have Fourth Amendment rights to protect. The principal remedy for a Fourth Amendment violation is the exclusionary rule: a criminal defendant may seek suppression of evidence obtained from an unlawful search or seizure, as well as of the “fruits” of that evidence—additional evidence to which it led. See Wong Sun, 371 U.S. at 488. But criminal defendants who have no knowledge that a potentially unconstitutional search has played a part in the government’s case against them have no opportunity to vindicate any Fourth Amendment-protected rights through suppression.
Notice is therefore a critical component of the Fourth Amendment in the context of a criminal prosecution. And although the Fourth Amendment may apply differently to foreign intelligence surveillance than to searches undertaken in ordinary criminal investigations, notice of a search plays the same role in the criminal proceeding: it allows the defendant to assess whether the surveillance complied with

15 In some circumstances, surveillance targeting a non-U.S. person does not require a warrant, even if a U.S. person’s communications are incidentally collected. See United States v. Mohamud, 843 F.3d 420, 439–41 (9th Cir. 2016). But we have assumed that, even in such circumstances, the incidental collection affects the Fourth Amendment rights of the U.S. person, id. at 441 n.26, and therefore the search must be “reasonable in its scope and manner of execution,” id. at 441 (quoting Maryland v. King, 569 U.S. 435, 448 (2013)).

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the Fourth Amendment’s requirements, whatever the parameters of those requirements are. Indeed, the Supreme Court has recognized that the notice provisions in FISA and the FAA serve precisely that function. See Amnesty Int’l USA, 568 U.S. at 421 & n.8.
At the same time, the need for secrecy inherent in foreign intelligence investigations justifies a more circumscribed notice requirement than in the ordinary criminal context. See Kris & Wilson, supra note 5, § 29:2 (discussing the need for secrecy). Whereas the Wiretap Act requires notice at the end of an investigation regardless of whether an indictment is filed, 18 U.S.C. § 2518(8)(d), the FISA and FAA notice provisions are more limited, requiring notice only when the “Government intends to enter into evidence or otherwise use or disclose in any trial . . . or other proceeding in or before any court . . . or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter,” 50 U.S.C. § 1806(c); see id. §§ 1825(d) (physical search), 1845(c) (pen register and trap-and-trace surveillance); 1881e(a)(1) (FAA).16 According to the Senate Judiciary Committee Report accompanying FISA, Congress was aware that it was “depart[ing] from traditional Fourth Amendment criminal procedures,” but it concluded that the “need to preserve secrecy for sensitive counterintelligence sources and methods justifies elimination” of the “requirement of subsequent notice to the surveillance target . . . unless the

16 An “aggrieved person” is “a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.” Id. § 1801(k).

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fruits are to be used against him in legal proceedings.” S. Rep. No. 95-701, at 11–12 (1978) (emphasis added).
At a minimum, then, 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. See Dalia, 441 U.S. at 248; Berger, 388 U.S. at 60.
This constitutional notice requirement applies to surveillance conducted under FISA and the FAA, which codify the requirement with respect to several types of surveillance. 50 U.S.C. §§ 1806(c), 1825(d), 1845(c), 1881e(a)(1). It also applies to surveillance conducted under other foreign intelligence authorities, including Executive Order 12,333 and the FAA’s predecessor programs. Indeed, the notice requirement is of particular importance with regard to these latter, non-statutory programs precisely because these programs lack the statutory protections included in FISA. Where statutory protections are lacking, the Fourth Amendment’s reasonableness requirement takes on importance as a limit on executive power, and notice is necessary so that criminal defendants may challenge surveillance as inconsistent with that requirement.
We emphasize that notice is distinct from disclosure. Given the need for secrecy in the foreign intelligence context, the government is required only to inform the defendant that surveillance occurred and that the government intends to use information obtained or derived from it. Knowledge of surveillance will enable the defendant to file a motion with the district court challenging its legality. If the government avers that disclosure of information relating to the surveillance would harm national security,

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then the court can review the materials bearing on its legality in camera and ex parte. See, e.g., 50 U.S.C. § 1806(f) (allowing in camera, ex parte review of the legality of electronic surveillance under FISA Subchapter I if “the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States”).
C.
Here, assuming without deciding that the government should have provided notice of the metadata collection to defendants, the government’s failure to do so did not prejudice defendants. Defendants learned of the metadata collection, albeit in an unusual way, in time to challenge the legality of the program in their motion for a new trial and on appeal. See Mohamud, 843 F.3d at 436. The “purpose of the [notice] rule has thereby been vindicated.” New York v. Harris, 495 U.S. 14, 20 (1990).
Defendants also contend they should have received notice of any other surveillance the government conducted of Moalin, noting that there is some reason to think it did conduct other surveillance. See supra p. 35. Based on our careful review of the classified record, we are satisfied that any lack of notice, assuming such notice was required, did not prejudice defendants. Our review confirms that on the particular facts of this case, information as to whether surveillance other than the metadata collection occurred would not have enabled defendants to assert a successful Fourth Amendment claim. We therefore decline to decide whether additional notice was required.

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III. Brady Claims
Defendants contend that the government violated their rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to produce exculpatory evidence. Brady held that the Due Process Clause requires prosecutors to produce “evidence favorable to an accused upon request . . . where the evidence is material either to guilt or to punishment.” Id. at 87. “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985).17 We review de novo whether a Brady violation has occurred. United States v. Cano, 934 F.3d 1002, 1022 n.14 (9th Cir. 2019).
The government submitted five requests for a protective order under the Classified Information Procedures Act (“CIPA”), which allows the court to “authorize the United States to delete specified items of classified information from documents” provided to the defendant in discovery, “to substitute a summary of the information,” or “to substitute a statement admitting relevant facts that the classified information would tend to prove.” 18 U.S.C. App. 3 § 4. The district court carefully reviewed the classified documents submitted by the government to determine whether they

17 We note that, in general, the Brady materiality inquiry might unfold differently if it were analyzed from the perspective of the prosecution at the time of the pretrial decision whether to disclose. But our case law has treated the inquiry on appeal as retrospective: we analyze the withheld evidence in the “context of the entire record,” including the “evidence each side presented at trial,” to decide whether the failure to disclose favorable evidence “undermines confidence in the outcome of the trial.” United States v. Jernigan, 492 F.3d 1050, 1054 (9th Cir. 2007) (en banc).

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contained information required to be disclosed under Brady. The court held in camera, ex parte hearings; asked defendants for a sealed memorandum identifying their legal theories to aid the court in assessing materiality; requested additional classified documents from the government; and issued sealed orders discussing all the withheld information in detail as to whether it met the Brady standard. For information that it determined was both favorable to defendants and material, the court ordered the government to provide substituted statements that conveyed the material substance of the information.
On appeal, defendants assert, first, that the government was required to produce the evidence underlying an FBI Field Intelligence Group Assessment (“FIG Assessment”), and a 2008 General Assessment Questionnaire completed by the Somali linguist who interpreted the intercepted calls. The FIG Assessment evaluated “Moalin’s motivation for providing financial support to al-Shabaab,” and the questionnaire included a summary of Moalin’s “personality, behavior, [and] attitudes.”
The government maintains that both documents present opinions based only on the intercepted phone calls, which the government provided in full to defendants in discovery. Having carefully reviewed the classified record, we agree with the district court that there is “no reason to suspect or speculate that the Government may have faltered in its Brady obligations” in this regard.
Second, defendants contend the government was required to produce any favorable, material evidence relating to the FISA surveillance or to the previously terminated investigation of Moalin. Based on our review of the classified record and of the district court’s extensive sealed orders covering Brady issues, neither the classified FISA

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materials nor the file concerning the previously terminated investigation of Moalin contained favorable, material information. More generally, we are satisfied that the district court’s several determinations regarding Brady issues in its sealed orders were correct.
IV. Evidentiary Challenges
Defendants contend that certain evidentiary rulings by the district court impermissibly prejudiced the defense.
A.
At trial, defense witness Halima Ibrahim testified to Moalin’s support of her organization, IIDA, which was dedicated to the education of girls and the advancement of women’s rights in Somalia. Ibrahim testified that IIDA was still in existence; that Moalin provided financial support to IIDA and allowed the organization to use his house; and that IIDA’s goals were antithetical to al-Shabaab’s. The district court did not, however, permit Ibrahim to testify that Moalin helped organize a conference in Somalia in 2009 addressing the kidnapping of aid workers, after which al-Shabaab announced on the radio that the organizers of the conference were against al-Shabaab. The district court concluded that this evidence was minimally probative as to Moalin’s intent during the time period relevant to the indictment, 2007 to 2008. Defendants challenge this ruling.
An erroneous evidentiary ruling provides grounds for reversal if the ruling “more likely than not affected the verdict.” United States v. Pang, 362 F.3d 1187, 1192 (9th Cir. 2004). Here, any error on the part of the district court was harmless. A significant amount of evidence in the record demonstrated that Moalin was at times affiliated with causes that took positions disapproved by al-Shabaab, including

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Ibrahim’s testimony regarding Moalin’s support of projects benefitting girls and the government’s stipulation that one of the charities with which Moalin was involved was opposed to al-Shabaab. To the degree the excluded evidence had any pertinence to whether Moalin was ideologically aligned with al-Shabaab in 2007 and 2008, it served at best marginally to reinforce Ibrahim’s uncontested testimony directly concerning the relevant time period. We cannot say that the exclusion of Ibrahim’s testimony regarding the 2009 conference “more likely than not affected the verdict.” See id.
B.
Before trial, Moalin and his co-defendants moved to take depositions of defense witnesses residing in Somalia who could not or would not travel to the United States to testify. The court ultimately granted defendants’ motion to the extent the depositions could be taken in neighboring Djibouti.18
One proposed defense witness was Farah Shidane, also called Farah Yare. The indictment against defendants listed four transfers of funds for which “Farah Yare” (or, in one instance, “farahyare”) was named as the recipient on Shidaal Express’s transaction register. Defendants anticipated that Shidane would testify that he was part of the local administration for Moalin’s home region in Somalia, that he fought against al-Shabaab, and that the money he received from defendants was used for humanitarian purposes.

18 The government represented that it would not be safe for prosecutors to travel to Somalia.

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After the government identified Shidane as an unindicted co-conspirator in the case, defendants sought an order compelling the government to give Shidane “safe passage,” i.e., a guarantee that it “would not arrest or otherwise detain [him] because he appeared at the deposition in Djibouti.” Alternatively, defendants sought authorization to depose Shidane in Somalia via videoconference. The district court denied both requests.
Shidane refused to travel to Djibouti for his scheduled deposition. Depositions of seven other witnesses proceeded in Djibouti, and the defense presented six of the videotaped depositions to the jury. The defense elicited testimony at trial that Shidane was involved in the regional administration for Moalin’s home region and presided over a drought relief committee. Ultimately, the government did not rely on the transfers to Shidane as part of the case it submitted to the jury, and counsel for the prosecution told the jury that “the government is not alleging that Farah Yare was part of alShabaab.”
Defendants challenge the district court’s denial of their request for “safe passage” for Shidane and of their motion to conduct his deposition via videoconference.19 We first address the request for “safe passage.”
Under certain circumstances, due process may require a court to compel the prosecution to grant, at least, use

19 After Shidane failed to appear at his deposition in Djibouti, defendants renewed their motion to depose him by video. The district court again denied the motion.

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immunity.20 See 18 U.S.C. § 6002; Straub, 538 F.3d at 1148. Use immunity guarantees witnesses that their testimony will not be used against them in a criminal case (except that it does not protect against a prosecution for perjury). See 18 U.S.C. § 6002. A request to compel immunity implicates “important separation of powers concerns” because the court, in granting the request, “impede[s] on the discretion of the executive branch” to decide whether to prosecute a case. Straub, 538 F.3d at 1156. Given these concerns, due process requires a court to grant use immunity to a defense witness only when the defense establishes that the testimony would be relevant and that:
(a) the prosecution intentionally caused the defense witness to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process; or (b) the prosecution granted immunity to a government witness in order to obtain that witness’s testimony, but denied immunity to a defense witness whose testimony would have directly contradicted that of the government witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial.

Id. at 1162.
Defendants’ request for immunity for Shidane from arrest abroad was somewhat distinct from a request for use

20 Whether a district court erred by refusing to grant use immunity is a mixed question of law and fact that we review de novo. United States v. Straub, 538 F.3d 1147, 1156 (9th Cir. 2008).

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immunity and may implicate additional separation of powers concerns. Even assuming defendants were required to satisfy only the Straub test, however, that test was not met.
Defendants contend they met the first prong because the government had named Shidane as “uncharged coconspirator #1.” But there is no indication that the government “intentionally caused [Shidane] to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process.” Straub, 538 F.3d at 1162. The government referred to “uncharged co-conspirator #1” in the October 2010 indictment and subsequent indictments, suggesting the government had long considered Shidane a person of interest and did not change its position to discourage Shidane’s testimony. And the district court found no evidence “to suggest that the Government interfered in any manner with Mr. Shidane’s ability to appear at his deposition.” Defendants were not entitled to compel safe passage for Shidane.
As for defendants’ request to take a video deposition of Shidane in Somalia, a court may grant a motion to depose a prospective witness, including by video, “because of exceptional circumstances and in the interest of justice.” Fed. R. Crim. P. 15(a)(1); see United States v. Yida, 498 F.3d 945, 960 (9th Cir. 2007). Courts consider, “among other factors, whether the deponent would be available at the proposed location for deposition and would be willing to testify,” as well as “whether the safety of United States officials would be compromised by going to the foreign location.” United States v. Olafson, 213 F.3d 435, 442 (9th Cir. 2000). We review the district court’s denial of defendants’ motion for abuse of discretion. United States v. Omene, 143 F.3d 1167, 1170 (9th Cir. 1998).

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The district court reasoned that permitting defendants to depose Shidane by video in Somalia would not be in the interests of justice because defendants could not show that there would be procedures in place to ensure the reliability and trustworthiness of Shidane’s testimony. Specifically, defendants could not show that an “oath in Somalia is subject to penalties of perjury and judicial process like those available in the United States.” In light of these concerns, the district court did not abuse its discretion in denying defendants’ motion.
Even if the district court did abuse its discretion, any error, in denying either defendants’ request for “safe passage” or their request to depose Shidane by video, was harmless. Shidane’s anticipated testimony could have marginally supported the defense’s showing that Moalin contributed to humanitarian causes, including those opposed to al-Shabaab. But, as we have noted, there was considerable other evidence in the record that Moalin contributed to a variety of humanitarian causes. Additionally, the government made clear it was not alleging that Shidane was part of al-Shabaab, and the government did not rely on the money transfers to Shidane in its arguments to the jury. In short, the district court’s refusal to compel “safe passage” or to permit a video deposition in Somalia did not prejudice the defense.
C.
Defendants’ final evidentiary challenge involves testimony at trial relating to the so-called “Black Hawk Down” incident. The district court permitted the government’s expert to discuss briefly a 1993 incident in which two U.S. helicopters were shot down in Mogadishu by a group other than al-Shabaab. Defendants argue that the

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testimony’s probative value was substantially outweighed by prejudice to defendants.
The district court did not abuse its discretion in permitting the government expert’s very brief testimony regarding the incident. On direct examination, the expert said only that “18 American soldiers were killed, several dozen injured, an estimated 1,000 Somalis were casualties of that clash, and it was the event that led the United States government to withdraw its forces the following year.” This brief and matter-of-fact testimony was delivered as part of a long chronology detailing Somalia’s recent history, which both parties agreed was generally relevant. Defense counsel revisited the incident on cross-examination, asking about the number of Somali casualties, and also mentioned it in passing during closing argument. The expert’s testimony was not tied to defendants or to al-Shabaab in any way and was therefore unlikely to have prejudiced the jury against defendants. So, even if the district court did abuse its discretion in admitting the testimony, the error was harmless. See Pang, 362 F.3d at 1192.
D.
Defendants contend that the evidentiary rulings just discussed, even if not prejudicial on their own, constituted cumulative error. To the extent we have found the claimed errors of the district court harmless, “we conclude that the cumulative effect of such claimed errors is also harmless because it is more probable than not that, taken together, they did not materially affect the verdict.” United States v. Fernandez, 388 F.3d 1199, 1256–57 (9th Cir. 2004). Even if the district court did err in any respect, its rulings did not affect any essential element of the case. Neither Moalin’s involvement in the 2009 conference nor Shidane’s additional testimony about Moalin’s humanitarian efforts would have

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undermined the validity of the government’s key evidence— the recorded calls and the money transfer records. The omission of that additional testimony, combined with the brief discussion of the Black Hawk Down incident, did not significantly undercut the persuasiveness of the defense. So the evidentiary rulings do not support a determination of cumulative error.
V. Sufficiency of the Evidence Against Issa Doreh
Defendant Issa Doreh challenges the sufficiency of the evidence to support the jury’s verdict that he was guilty of Counts One (conspiracy to provide material support to terrorists in violation of 18 U.S.C. § 2339A(a)), Two (conspiracy to provide material support to a foreign terrorist organization in violation of 18 U.S.C. § 2339B(a)(1)), Three (conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(a)(2)(A) and (h)), and Five (providing or aiding and abetting the provision of material support to a foreign terrorist organization in violation of 18 U.S.C. § 2339B(a)(1) and (2)). We review de novo whether sufficient evidence supports a conviction, asking whether, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Chung, 659 F.3d 815, 823 (9th Cir. 2011).
To prove Count One, the prosecution was required to prove beyond a reasonable doubt that: (1) Doreh entered into a conspiracy; (2) the objective of the conspiracy was to provide material support or resources; and (3) he knew and intended that the provision of such material support or resources would be used in preparing for, or in carrying out, a conspiracy to kill persons in a foreign country (18 U.S.C. § 956) or a conspiracy to use a weapon of mass destruction outside of the United States (18 U.S.C. § 2332a(b)).

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18 U.S.C. § 2339A(a); see United States v. Hassan, 742 F.3d 104, 112 (4th Cir. 2014). To prove Count Two, the prosecution had to prove beyond a reasonable doubt that Doreh entered into a conspiracy to provide material support or resources to al-Shabaab, knowing that al-Shabaab was a designated terrorist organization or that it engaged in terrorist activity. See 18 U.S.C. § 2339B(a)(1). To prove Count Three, the prosecution had to prove beyond a reasonable doubt that Doreh entered into an agreement to transfer funds with an “intent to promote the carrying on of specified unlawful activity,” namely, the provision of material support to foreign terrorists and a foreign terrorist organization, with intent to promote a conspiracy to kill persons in a foreign country. Id. § 1956(a)(2)(A) and (h). Finally, to prove Count Five, the government had to prove beyond a reasonable doubt that Doreh either knowingly provided material support and resources to a foreign terrorist organization or that he “knowingly and intentionally aided” in the commission of that offense. 18 U.S.C. §§ 2, 2339B(a)(1).
None of the three conspiracy counts required the prosecution to prove that Doreh committed an overt act in furtherance of the conspiracy. See id. §§ 2339A, 2339B(a)(1); Whitfield v. United States, 543 U.S. 209, 219 (2005); United States v. Stewart, 590 F.3d 93, 114–16 (2d Cir. 2009). The prosecution also did not have to prove that Doreh “kn[ew] all the conspirators, participated in the conspiracy from its beginning, participated in all its enterprises, or [knew] all its details.” United States v. Torralba-Mendia, 784 F.3d 652, 664 (9th Cir. 2015) (internal quotation marks and citations omitted).
Viewing the evidence in the light most favorable to the prosecution, a rational jury could conclude beyond a

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reasonable doubt that the elements of Counts One, Two, Three, and Five were satisfied.
Doreh maintains that the government could not prove that “Shikhalow”—the person identified on the calls with Moalin—was actually Aden Hashi Ayrow, the important alShabaab figure. The call transcripts introduced by the government reflect calls between Moalin and Shikhalow from December 21, 2007, to April 25, 2008. It can be inferred from Moalin’s conversations with Shikhalow and others that “Shikhalow” was a code name for Ayrow. On December 30, 2007, an unidentified man asked Moalin whether “Aden Ayrow” was the leader of “these youth”; “alShabaab” means “the youth” in Arabic. Moalin replied that while Aden Ayrow had superiors, he was “involved in it extensively.” On January 3, 2008, Moalin spoke to Shikhalow and then told an unidentified man on a call beginning about half an hour later that “right now, when . . . you were calling me . . . I was talking to the man who is in charge of the youth.” Later, on January 20, 2008, Shikhalow told Moalin that “we, the Shabaab, have a political section, a military section and a missionary section.” Further, on February 17, 2008, an acquaintance of Moalin’s told Moalin he had “heard that . . . [Moalin’s] friend, Aden Hashi Ayrow, [was] in Dhusa Mareeb . . . and [was] taking part in the fighting . . . and [was] pleading for support. . . .”
The transcripts also indicate that Doreh was aware of Shikhalow’s identity as Aden Ayrow. Ayrow died in a U.S. missile strike on May 1, 2008. That same day, Moalin learned from an acquaintance that “the house where Shikhalow . . . used to stay” was targeted. Moalin then learned from another acquaintance that a missile was dropped on a house “thought to be inhabited by the main man.” Moalin then called M. Mohamud and told him that

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UNITED STATES V. MOALIN

“mainly the news is that even Majadhub is among [the people who are gone].” “Majadhub” was another name for Shikhalow. Lastly, Moalin called Doreh and told him: “[T]hat man is gone . . . . That news is highly reliable—that he is gone. . . . [T]he people whom he was working with reported that news.” Doreh responded: “You mean Aden?” Moalin replied: “Yes.”
Further, a rational juror could conclude beyond a reasonable doubt that Doreh was aware of Shikhalow’s involvement with violent activity. On December 21, 2007, Moalin discussed with Shikhalow the money Shikhalow needed for the remainder of the month. Moalin told Shikhalow that he would talk to “the Saleban clan cleric whom you talked to, by the name of Sheikh Issa, who is a very dear man.” (Issa is Doreh’s first name, and Moalin addressed him directly as “Sheikh Issa.”) Minutes after talking to Shikhalow, Moalin called Doreh and told him that the “cleric whom you spoke with the other day” had just called and requested money. Moalin told Doreh that the money was “need[ed] for our forces stationed” in the “places where the fighting are [sic] going on.” A few months later, on April 21, 2008, Doreh told Moalin and another man that “whoever fights against the aggressive non-Muslims . . . will be victorious” and that “today there is no better cause for a person . . . than to be martyr for his country, land and religion.” When Doreh learned of “Aden’s” death, he told Moalin that the “question is not how he died but the important thing is what he died for[:] . . . the religion of Islam . . . .”
While the transcripts do not include direct conversations between Doreh and Shikhalow, they describe Doreh’s involvement with Moalin and others in transferring funds from San Diego to Shikhalow’s organization in Somalia,

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55

sometimes using names Doreh knew were invented. The funds were transferred by Shidaal Express, the hawala where Doreh worked. The transactions at issue, totaling $10,900, took place in January, February, April, July, and August of 2008.
As described above, Moalin informed Shikhalow on December 21, 2007, that Moalin would handle the sending of funds to Shikhalow “with the . . . cleric whom you talked to, by the name of Sheikh Issa.” On that call, Shikhalow told Moalin that he needed $3,160 for the remainder of the month. Minutes later, Moalin called Doreh and told him that “[t]he cleric whom you spoke with the other day” had stated that “an amount of . . . $3600.00 . . . is needed” for the “forces stationed around” “where the fighting are [sic] going on.” Moalin also told Doreh that he had been told that “the most we spend for any one place is $4000.00.” Moalin called Doreh again on December 28, 2007, telling him that “[t]he men requested that we throw something to them for this month” and asking if Sheikh Mohamed had fallen behind schedule. Doreh told Moalin that he would speak with Sheikh Mohamed about the issue if he saw Sheikh Mohamed that day. Moalin called Sheikh Mohamed later on December 28, 2007, and received Sheikh Mohamed’s promise that he would “complete the task, which pertains to the men, tomorrow. . . .” On January 1, 2008, Shidaal Express transferred two installments of $1,950 (totaling $3,900) to “yusuf mohamed ali.” On January 3, 2008, Shikhalow told Moalin: “[W]e received the three.”
Moalin and Shikhalow had a long discussion on the morning of January 20, 2008. Later that day,21 Moalin told

21 The second transcript is dated January 21 (Universal Time Coordinated), but it was still the afternoon of January 20 in San Diego.

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UNITED STATES V. MOALIN

an acquaintance: “[T]he gentlemen [sic] called me this morning. . . . [W]e had a heated debate. He said . . . [‘]We will use what you give us for bullets and drinking-water for the people. So, don’t hold back anything.’” On February 3, 2008, Moalin asked Shikhalow for news. In response, Shikhalow told Moalin: “You are running late with the stuff. Send some and something will happen.” On February 9, 2008, Doreh called Moalin and told him: “We have sent it.” When Moalin asked whether it was “the one for the youth . . . I mean the orphans or was [sic] the other,” Doreh told Moalin it was “the Dhunkaal one . . . [y]es, two.” The Shidaal Express Transaction Records note two transfers totaling $2,000 sent on February 13, 2008, from “dhunkaal warfaa” to “YUSUF MOHAMED ALI.” On February 14, 2008, Moalin spoke to Shikhalow and asked him whether he had “receive[d] Dhunkaal’s stuff” in “two pieces” with the name of “Yusuf Mohamed Ali” listed as the receiver. Shikhalow asked if the amount was $2,000, and Moalin confirmed the amount was correct.
On April 23, 2008, Moalin called Sheikh Mohamed and asked: “Did Dhunkaal go?” Upon hearing that “Dhunkaal left,” Moalin asked Sheikh Mohamed for details about “where . . . Dhunkaal [went],” and whether “it went to the same name” for the “one whom it is addressed to.” Nine minutes after this conversation began, Moalin spoke to Doreh and asked him multiple questions about “the name that you used for Dhunkaal” and “the name of the sender,” explaining that he had just spoken to Sheikh Mohamed and thought “you used the wrong name.” Doreh told Moalin: “He told me the sender is the same as the name of [sic] previous person.” On another call a few minutes later, Doreh, Moalin, and Abdirizak, the manager of Shidaal Express, went over the details of the sender, receiver, and location of receipt. Doreh told Moalin: “I made Abdiweli Ahmed as the person

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sending it”; “the man who is receiving the money” was “Dhunkaal Mohamed Yusuf”; and the location “we sent it to [was] Bakara.” When Moalin asked to change to location to Dhuusa Mareeb, Doreh told Moalin: “Then it will be changed. . . . It is settled. We will transfer it there.”
Moalin learned from Shikhalow on April 25, 2008, that Shikhalow had received $1,900. Moalin called Sheikh Mohamed less than an hour later and asked “how many stones” they had sent to “Majadhub.” After learning that “three stones” had been sent, Moalin told Sheikh Mohamed that Shikhalow had received “[t]wo stones minus one.” Sheikh Mohamed told Moalin: “It was sent in installments. That is what they did.” Later on April 25, 2008, Moalin called Abdirizak and asked whether “[t]hat issue with [] Dhunkaal” had been sent in two installments. Abdirizak confirmed that there were two installments: “[O]ne was for 19 and the other for 11.” Abdirizak noted that the second installment was “still outstanding,” that the recipient was “Mohamed Yusuf Dhunkaal,” that the sender was “Sahra Warsame,” and that the location was “Dhusa Mareeb.” The Shidaal Express Transaction Records note a transfer of $1,900 on April 23, 2008, from “abdiwali ahmed” to “DUNKAAL MOHAMED YUSUF” as well as a transfer of $1,100 on April 25, 2008, from “Zahra warsame” to “mohamed yusuf dunkaal”; both transfers record a receiver city of “DHUUSAMAREEB.”
After Ayrow’s death, Moalin told an acquaintance on May 8, 2008: “If the man that we used to deal with is gone— I mean—that the assistance and the work that we were performing—we want it not to stop.” Moalin appears to have been asking the acquaintance to connect him to someone else so that Moalin could continue supporting al-Shabaab: “So now that man is gone we want to have contact with another

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man God willing. So we can continue the assistance as before.” On July 11, 2008, Moalin made contact, apparently for the first time, with Omar Mataan. After learning that the man on the phone was Mataan, Moalin told him: “Man, our contact got interrupted. You know that I had contact with the scholar, don’t you? . . . After the man left the scene, the whole contact was interrupted, you know?” Mataan told Moalin that he would be in Dhusa Mareeb until “the Friday after next Friday,” or July 25, 2008. Moalin then told Mataan: “It will come under the name of the account we used before, which was Dhunkaal. . . . [A]nd I will write your name as it is: Omar Mataan.” On July 18, 2008, Moalin told an unidentified man that Omar Mataan was “one of the guys in the region and one of the youth.”
On July 22, 2008, Moalin told Mataan: “[W]e threw two cartons addressed to . . . your name, Omar Mataan. . . . I sent it to Dhusa Mareeb.” The next day, Moalin told Doreh: “[A]sk your friend if the stuff reached the children.” Doreh replied: “I personally checked the whole thing. . . . That money had [sic] exchanged hand.” After a segment of the conversation unintelligible to the interpreter, Moalin told Doreh: “No, we are talking about something else now, about the youngsters; . . . there were two cartons that I allocated for them. . . .” Doreh responded throughout with “yes” and finally told Moalin that the two of them should meet.
On July 24, 2008, Mataan reported to Moalin that he had “received the stuff” and that it was “1, 6 eh 5, 0.” Moalin told Mataan: “It should have been two cartons. . . . I understood that you received 1, 6, 5, 0 and still short of 3, 5, 0.” The Shidaal Express Transaction Records note a transfer of $1,650 on July 23, 2008, from “Kulan Muhumed” to “Omer Mataan” with a receiver city of “DHUUSAMAREEB,” and a further transfer of $350 on

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UNITED STATES V. MOALIN

59

August 5, 2008, from “Hashi mohamed” to “Omer matan” with a receiver city of “DHUUSAMAREEB.”
Viewing the evidence in the light most favorable to the prosecution, a reasonable jury could have concluded beyond a reasonable doubt that Doreh entered into an agreement to provide material support, knowing the support would be used in preparing for, or in carrying out, a conspiracy to kill persons in a foreign country, see 18 U.S.C. § 2339A; that he entered into an agreement to provide material support to alShabaab, knowing that al-Shabaab was tied to terrorism, see id. § 2339B(a)(1); that he entered into an agreement to transfer funds with an intent to promote the provision of material support to foreign terrorists and a foreign terrorist organization, intending to promote a conspiracy to kill persons in a foreign country; see id. § 1956(a)(2)(A) and (h); and that he knowingly aided in the provision of material support to a designated foreign terrorist organization, see id. §§ 2, 2339B(a)(1). We therefore affirm Doreh’s convictions.
CONCLUSION
Defendants’ convictions are AFFIRMED.

 
 Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 1 of 56
APPEAL,CLOSED,COMPLEX,NON−COMPLIANCE,PROTO,SEALDC,TRIAL
U.S. District Court Southern District of California (San Diego) CRIMINAL DOCKET FOR CASE #: 3:10−cr−04246−JM All Defendants

Case title: USA v. Moalin et al
Assigned to: Judge Jeffrey T. Miller
Appeals court case number: 13−50572 USCA
Defendant (1)
Basaaly Saeed Moalin TERMINATED: 11/22/2013 also known as Basal TERMINATED: 11/22/2013 also known as Muse Shekhnor Roble TERMINATED: 11/22/2013

Date Filed: 10/22/2010 Date Terminated: 01/31/2014
represented by Alice L. Fontier Alice L. Fontier 369 Lexington Avenue 2d Floor, #224 New York, NY 10017 (212) 256−1244 Fax: (917) 521−5071 Email: alicefontieresq@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Holly A Sullivan Law Offices of Holly A. Sullivan 110 West C Street Suite 2105 San Diego, CA 92101 619−269−8054 Fax: 619−794−2263 Email: HollyASullivan@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Joshua L. Dratel Law Offices of Joshua Dratel 2 Wall Street 3rd Floor New York, NY 10005 (212) 732−0707 Fax: (212) 732−0707 Email: jdratel@joshuadratel.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Designation: Retained
Marc B. Geller Law Offices of Marc B Geller 1010 Second Avenue Suite 1820 San Diego, CA 92101−4902 (619)239−9456 Fax: (619)239−9334 Email: marcbgeller@aol.com TERMINATED: 04/07/2011 LEAD ATTORNEY

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 2 of 56
ATTORNEY TO BE NOTICED Designation: CJA Appointment

Pending Counts
18:956; 18:2332a(b) − Conspiracy to kill persons in a foreign country; Conspiracy to use a weapon of mass destruction outside of the Untied States (1ss)
18:2339B(a)(1) − Conspiracy to Provide Material Support to Foreign Terrorist Organization (2ss)
18:2339B(a)(1); 18:2339A(a); 18:956; 18:1956(a)(2)(A) and (h) − Providing material support to terrorists; Conspiracy to kill persons in a foreign country; Conspiracy to kill in a foreign country; Conspiracy to launder monetary instruments (3ss)
18:956; 18:2339A(a) − Conspiracy to kill persons in a foreign country; Providing material support to terrorists (4ss)
18:2339B(a)(1) and 2 − Conspiracy to provide material support to foreign terrorist organization; Aiding and abetting (5ss)

Disposition
CBOP 15 years; Assessment $100.00; Fine waived; S/R 3 years
CBOP 15 years, to run concurrent with Count 1; Assessment $100.00, waived; Fine waived; S/R 3 years
CBOP 15 years, to run concurrent with Counts 1, 2; Assessment $100.00, waived; Fine waived; S/R 3 years
CBOP 15 years with 3 years to run consecutive to and 12 years to run concurrent with Counts 1, 2, 3 and 5; Assessment $100.00, waived; Fine waived; S/R 3 years
CBOP 15 years, to run concurrent with Counts 1, 2, 3, and 4; Assessment $100.00, waived; Fine waived; S/R 3 years

Highest Offense Level (Opening)
Felony

Terminated Counts
18:2339A(a) − Conspiracy to Provide Material Support to Terrorists (1)
18:2339A(a) − Conspiracy to Provide Material Support to Terrorists (1s)
18:2339B(a)(1) − Conspiracy to Provide Material Support to Foreign Terrorist Organization (2)
18:2339B(a)(1) − Conspiracy to Provide Material Support to Foreign Terrorist Organization (2s)
18:956 − Conspiracy to Kill in a Foreign Country

Disposition Dismissed by the Government Dismissed by the Government Dismissed by the Government Dismissed by the Government Dismissed by the Government

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 3 of 56

(3)
18:956 − Conspiracy to Kill in a Foreign Country (3s)
18:1956(h) − Conspiracy to Launder Monetary Instruments (4)
18:1956(a)(2)(A) and (h) − Conspiracy to Launder Monetary Instruments (4s)
18:2339A(a) − Providing Material Support to Terrorists (5)
18:2339A(a) − Providing Material Support to Terrorists (5s)

Dismissed by the Government Dismissed by the Government Dismissed by the Government Dismissed by the Government Dismissed by the Government

Highest Offense Level (Terminated)
Felony

Complaints None

Disposition

Assigned to: Judge Jeffrey T. Miller
Appeals court case number: 13−50578 USCA

Defendant (2)
Mohamed Mohamed Mohamud TERMINATED: 11/21/2013 also known as Mohamed Khadar TERMINATED: 11/21/2013 also known as Sheikh Mohamed TERMINATED: 11/21/2013

represented by David J Zugman Burcham & Zugman APC 1010 Second Avenue Suite 1800 San Diego, CA 92101 United Sta (619)699−5931 Fax: 619−924−2201 Email: zugman@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: CJA Appointment
Linda Moreno Linda Moreno, P.A. PO Box 10985 Tampa, FL 33679 (813) 247−4500 Email: lindamoreno.esquire@gmail.com TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Mahir Tewfik Sherif Law Offices of Mahir T Sherif 3376 30th Street

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 4 of 56
San Diego, CA 92104−4535 (619)297−4444 Fax: (619)297−4115 Email: mahirsherif@gmail.com TERMINATED: 04/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: CJA Appointment

Pending Counts
18:956; 18:2332a(b) − Conspiracy to kill persons in a foreign country; Conspiracy to use a weapon of mass destruction outside of the Untied States (1ss)
18:2339B(a)(1) − Conspiracy to Provide Material Support to Foreign Terrorist Organization (2ss)
18:2339B(a)(1); 18:2339A(a); 18:956; 18:1956(a)(2)(A) and (h) − Providing material support to terrorists; Conspiracy to kill persons in a foreign country; Conspiracy to kill in a foreign country; Conspiracy to launder monetary instruments (3ss)
18:2339B(a)(1) and 2 − Conspiracy to provide material support to foreign terrorist organization; Aiding and abetting (5ss)

Disposition
CBOP 13 years; Assessment $100.00; Fine waived; S/R 3 years
CBOP 13 years, concurrent with Count 1; Assessment $100.00, waived; Fine waived; S/R 3 years
CBOP 13 years, concurrent with Counts 1, 2; Assessment $100.00, waived; Fine waived; S/R 3 years
CBOP 13 years, concurrent with Counts 1, 2, 3; Assessment $100.00, waived; Fine waived; S/R 3 years

Highest Offense Level (Opening)
Felony

Terminated Counts
18:2339A(a) − Conspiracy to Provide Material Support to Terrorists (1)
18:2339A(a) − Conspiracy to Provide Material Support to Terrorists (1s)
18:2339B(a)(1) − Conspiracy to Provide Material Support to Foreign Terrorist Organization (2)
18:2339B(a)(1) − Conspiracy to Provide Material Support to Foreign Terrorist Organization (2s)
18:956 − Conspiracy to Kill in a Foreign Country

Disposition Dismissed by the Government Dismissed by the Government Dismissed by the Government Dismissed by the Government Dismissed by the Government

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 5 of 56

(3)
18:956 − Conspiracy to Kill in a Foreign Country (3s)
18:1956(h) − Conspiracy to Launder Monetary Instruments (4)
18:1956(a)(2)(A) and (h) − Conspiracy to Launder Monetary Instruments (4s)

Dismissed by the Government Dismissed by the Government Dismissed by the Government

Highest Offense Level (Terminated)
Felony

Complaints None

Disposition

Assigned to: Judge Jeffrey T. Miller
Appeals court case number: 13−50580 USCA

Defendant (3)
Issa Doreh TERMINATED: 11/21/2013 also known as Sheikh Issa TERMINATED: 11/21/2013

represented by Ahmed Ghappour Civil Rights Clinic 727 E Dean Keeton St Austin, TX 78705 (415) 505−5083 Fax: (866) 929−9610 Email: aghappour@gmail.com TERMINATED: 03/28/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Elizabeth Armena Missakian Law Office Of Elizabeth A. Missakian PO Box 601879 San Diego, CA 92160−1879 (619) 233−6534 Fax: (619) 233−6555 Email: lizmissakian@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: CJA Appointment
Kenneth J Troiano Law Office of Kenneth J Troiano PO Box 33536 San Diego, CA 92163−3536 (858) 268−8600 Email: kjtroiano@mac.com TERMINATED: 04/07/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: CJA Appointment

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 6 of 56

Pending Counts
18:956; 18:2332a(b) − Conspiracy to kill persons in a foreign country; Conspiracy to use a weapon of mass destruction outside of the Untied States (1ss)
18:2339B(a)(1) − Conspiracy to Provide Material Support to Foreign Terrorist Organization (2ss)
18:2339B(a)(1); 18:2339A(a); 18:956; 18:1956(a)(2)(A) and (h) − Providing material support to terrorists; Conspiracy to kill persons in a foreign country; Conspiracy to kill in a foreign country; Conspiracy to launder monetary instruments (3ss)
18:2339B(a)(1) and 2 − Conspiracy to provide material support to foreign terrorist organization; Aiding and abetting (5ss)
Highest Offense Level (Opening)
Felony
Terminated Counts
18:2339A(a) − Conspiracy to Provide Material Support to Terrorists (1)
18:2339A(a) − Conspiracy to Provide Material Support to Terrorists (1s)
18:2339B(a)(1) − Conspiracy to Provide Material Support to Foreign Terrorist Organization (2)
18:2339B(a)(1) − Conspiracy to Provide Material Support to Foreign Terrorist Organization (2s)
18:956 − Conspiracy to Kill in a Foreign Country (3)
18:956 − Conspiracy to Kill in a Foreign Country (3s)
18:1956(h) − Conspiracy to Launder Monetary Instruments (4)

Disposition CBOP 10 years; Assessment $100.00; Fine waived; S/R 3 years
CBOP 10 years, to run concurrent with Count 1; Assessment $100.00, waived; Fine waived; S/R 3 years
CBOP 10 years to run concurrent with Counts 1, 2; Assessment $100.00, waived; Fine waived; S/R 3 years
CBOP 10 years to run concurrent with Counts 1, 2, 3; Assessment $100.00, waived; Fine waived; S/R 3 years
Disposition Dismissed by the Government
Dismissed by the Government
Dismissed by the Government
Dismissed by the Government
Dismissed by the Government Dismissed by the Government Dismissed by the Government Dismissed by the Government

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 7 of 56
18:1956(a)(2)(A) and (h) − Conspiracy to Launder Monetary Instruments (4s)

Highest Offense Level (Terminated)
Felony

Complaints None

Disposition

Assigned to: Judge Jeffrey T. Miller
Appeals court case number: 14−50051 USCA

Defendant (4)
Ahmed Nasir Taalil Mohamud TERMINATED: 01/31/2014

represented by Benjamin L Coleman Coleman & Balogh LLP 1350 Columbia Street Suite 600 San Diego, CA 92101 (619)794−0420 Fax: (619)652−9964 Email: blc@colemanbalogh.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: CJA Appointment
Holly S Hanover Law Offices of Holly S Hanover 1016 La Mesa Avenue Spring Valley, CA 91977 (619)295−1264 Email: hollyhanover@gmail.com TERMINATED: 05/05/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: CJA Appointment
Janis D. Roberts Durkin & Roberts 2446 North Clark Street Chicago, IL 60614 (312)913−9300 Email: jdroberts@durkinroberts.com TERMINATED: 02/18/2014 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Designation: Retained
Thomas Anthony Durkin Durkin & Roberts 2446 North Clark Street Chicago, IL 60614 (312) 913−9300 Fax: (312) 913−9235 Email: tdurkin@durkinroberts.com TERMINATED: 02/18/2014

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 8 of 56
LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Pending Counts
18:956; 18:2332a(b) − Conspiracy to kill persons in a foreign country; Conspiracy to use a weapon of mass destruction outside of the Untied States (1s)
18:2339B(a)(1) − Conspiracy to Provide Material Support to Foreign Terrorist Organization (2s)
18:2339B(a)(1); 18:2339A(a); 18:956; 18:1956(a)(2)(A) and (h) − Providing material support to terrorists; Conspiracy to kill persons in a foreign country; Conspiracy to kill in a foreign country; Conspiracy to launder monetary instruments (3s)

Disposition
CBOP 6 years; Assessment $100.00; Fine waived; S/R 3 years
CBOP 6 years, concurrent with Count 1; Assessment $100.00, waived; Fine waived; S/R 3 years, concurrent with Count 1
CBOP 6 years, concurrent with Counts 1 and 2; Assessment $100.00, waived; Fine waived; S/R 3 years, concurrent with Counts 1 and 2

Highest Offense Level (Opening)
Felony

Terminated Counts
18:2339A(a) − Conspiracy to Provide Material Support to Terrorists (1)
18:2339B(a)(1) − Conspiracy to Provide Material Support to Foreign Terrorist Organization (2)
18:956 − Conspiracy to Kill in a Foreign Country (3)
18:1956(a)(2)(A) and (h) − Conspiracy to Launder Monetary Instruments (4)

Disposition Dismissed by the Government Dismissed by the Government Dismissed by the Government Dismissed by the Government

Highest Offense Level (Terminated)
Felony

Complaints None

Disposition

Plaintiff USA

represented by

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 9 of 56
U S Attorney CR U S Attorneys Office Southern District of California Criminal Division 880 Front Street Room 6293 San Diego, CA 92101 (619)557−5610 Fax: (619)557−5917 Email: Efile.dkt.gc2@usdoj.gov TERMINATED: 11/03/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Assistant United States Attorney
Caroline Pineda Han U S Attorneys Office 880 Front Street Room 6293 San Diego, CA 92101 (619)546−6968 Fax: (619)546−0831 Email: Caroline.Han@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Assistant United States Attorney
Steven Philip Ward Department of Justice National Security Division 950 Pennsylvania Avenue N.W. Washington, DC 20530 (202)305−5035 Fax: (202)514−8714 Email: Steve.Ward@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Assistant United States Attorney
William P. Cole U.S. Attorney's Office, Southern District of California Criminal Division 880 Front Street Room 6293 San Diego, CA 92101 (619) 546−6762 Fax: (619) 546−0720 Email: William.P.Cole@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Assistant United States Attorney

Date Filed 10/22/2010

# Docket Text
1 INDICTMENT as to Basaaly Saeed Moalin (1) count(s) 1, 2, 3, 4, 5, Mohamed Mohamed Mohamud (2) count(s) 1, 2, 3, 4, Issa Doreh (3) count(s) 1, 2, 3, 4. (kaj) . Modified on 11/2/2010 to unseal Indictment (kaj). (Entered: 10/25/2010)

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 10 of 56

10/22/2010 10/22/2010 10/22/2010 11/02/2010 11/02/2010
11/02/2010 11/03/2010 11/03/2010 11/03/2010 11/03/2010
11/03/2010 11/04/2010 11/04/2010 11/05/2010 11/05/2010
11/05/2010

2 ARREST WARRANT ISSUED by Magistrate Judge William McCurine, Jr in case as to Basaaly Saeed Moalin. (kaj) (kaj). (Entered: 10/26/2010)
3 ARREST WARRANT ISSUED by Magistrate Judge William McCurine, Jr in case as to Mohamed Mohamed Mohamud. (kaj) (kaj). (Entered: 10/26/2010)
4 ARREST WARRANT ISSUED by Magistrate Judge William McCurine, Jr in case as to Issa Doreh. (kaj) (kaj). (Entered: 10/26/2010)
Arrest of Basaaly Saeed Moalin (kaj) (Entered: 11/02/2010)
5 Minute Entry for proceedings held before Magistrate Judge William V. Gallo: Govt's oral motion to unseal Indictment granted. Initial Appearance as to Basaaly Saeed Moalin held on 11/2/2010. Arraignment on Indictment as to Basaaly Saeed Moalin (1) Count 1,2,3,4,5 held on 11/2/2010. Not Guilty plea entered to Indictment. Court appoints Attorney Marc Bruce Geller, not appearing, as counsel in this case. Govt's oral motion for detention based on risk of flight. Detention Hearing set for 11/5/2010 09:00 AM in Courtroom F before Magistrate Judge William V. Gallo. Motion Hearing/Trial Setting set for 12/3/2010 11:00 AM in Courtroom 16 before Judge Jeffrey T. Miller (Tape No. WVG:10−10:43−10:52). (Plaintiff Attorney Carline Han and William Cole, AUSA). (Defendant Attorney Victor Pippins, FD, S/A). (kaj) (Entered: 11/02/2010)
6 Oral MOTION for Detention (risk of flight) by USA as to Basaaly Saeed Moalin 5 . (kaj) (Entered: 11/02/2010)
7 CJA 23 Financial Affidavit by Basaaly Saeed Moalin (tkl) (Entered: 11/03/2010)
Arrest of Mohamed Mohamed Mohamud, Issa Doreh. (mkz) (Entered: 11/03/2010)
8 NOTICE OF ATTORNEY APPEARANCE William P Cole appearing for USA. (Cole, William) (tkl). (Entered: 11/03/2010)
9 Minute Entry for proceedings held before Magistrate Judge William V. Gallo: Initial Appearance and Arraignment on Indictment as to Mohamed Mohamed Mohamud (2) Count 1,2,3,4 and Issa Doreh (3) Count 1,2,3,4 held on 11/3/2010. Not Guilty plea entered as to Mohamed Mohamed Mohamud, Issa Doreh. Attorney Mahir Sherif specially appearing for Mohamed Mohamed Mohamud. Attorney Kenneth J Troiano(n/a) provisionally appointed for Issa Doreh. Financial affidavit due as to Issa Doreh. Goverment oral motion to detain(flight risk). Court moves sua sponte to detain defendants based on danger to the community. Detention Hearing set for 11/5/2010 09:00 AM in Courtroom F before Magistrate Judge William V. Gallo. Motion Hearing/Trial Setting set for 12/3/2010 11:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. (CD# 11/3/2010 WVG:10:33−10:45). (Plaintiff Attorney Caroline Han and William Cole, AUSA). (Defendant Attorney Victor Pippins, FD−S/A). (mkz) (Entered: 11/03/2010)
10 Oral MOTION to Detain(risk of flight) by USA as to Mohamed Mohamed Mohamud, Issa Doreh. (mkz) (Entered: 11/03/2010)
11 NOTICE OF ATTORNEY APPEARANCE Caroline Pineda Han appearing for USA. (Han, Caroline) (tkl). (Entered: 11/04/2010)
12 NOTICE of Intent to Use Foreign Intelligence Surveillance Act Information by USA (Attachments: # 1 Proof of Service)(Cole, William) (tkl). (Entered: 11/04/2010)
13 MOTION for Discovery by Basaaly Saeed Moalin. (Attachments: # 1 Memo of Points and Authorities, # 2 Proof of Service)(Geller, Marc) (tkl). (Entered: 11/05/2010)
14 Minute Entry for proceedings held before Magistrate Judge William V. Gallo:Detention Hearing as to Basaaly Saeed Moalin held on 11/5/2010. USA oral motion for detention. Motion found as moot as to Basaaly Saeed Moalin. Defendant stipulates to detention pending trial without prejudice. Order of detention filed. (CD# 11/5/2010 WVG10−9:01−9:11). (Plaintiff Attorney William Cole AUSA and Caroline Han AUSA).(Defendant Attorney Marc Geller CJA).(jmy) (Entered: 11/05/2010)
15 Minute Entry for proceedings held before Magistrate Judge William V. Gallo: Detention Hearing Continued as to Mohamed Mohamed Mohamud, Issa Doreh. Defense oral motion to continue hearing granted. Detention Hearing continued to

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 11 of 56

11/05/2010 11/08/2010 11/09/2010
11/09/2010
11/09/2010 11/10/2010 11/12/2010 11/16/2010 11/16/2010 11/16/2010 11/19/2010 11/24/2010 12/03/2010

11/9/2010 03:00 PM before Magistrate Judge William V. Gallo. Attorney Mahir Tewfik Sherif's request to be provisionally appointed for Mohamed Mohamed Mohamud − granted. Court orders financial affidavit to be filed on 11/9/2010. (CD# 11/5/2010 WVG10−9:01−9:11). (Plaintiff Attorney William Cole AUSA and Caroline Han AUSA). (Defendant Attorney Mahir Sherif for #2 and Kenneth Troiano CJA for #3). (jmy) (Entered: 11/05/2010)
16 FINDINGS OF FACT AND ORDER RE WAIVER OF DETENTION PENDING TRIAL as to Basaaly Saeed Moalin. Signed by Magistrate Judge William V. Gallo on 11/5/2010. (tkl) (Entered: 11/05/2010)
17 NOTICE of Change of Address by Marc Bruce Geller (Attachments: # 1 Proof of Service)(Geller, Marc) Modified on 11/8/2010 (tkl). Emailed atty re Change of Address. (Entered: 11/08/2010)
18 Minute Entry for proceedings held before Magistrate Judge William V. Gallo:Detention Hearing as to Mohamed Mohamed Mohamud held on 11/9/2010. Defense counsel's request to be continued as provisional counsel for one more week − granted. USA oral motion for detention; motion found as moot as to Mohamed Mohamed Mohamud. Defendant stiuplates to detention pending trial without prejudice. Order of detention filed. (CD# 11/9/2010 WVG10−14:57−16:13). (Plaintiff Attorney William Cole AUSA and Caroline Han AUSA). (Defendant Attorney Mahir Sherif CJA). (jmy) Modified text to include provisional status of Mr. Sherif on 2/8/2011 (jmy). (Entered: 11/10/2010)
19 Minute Entry for proceedings held before Magistrate Judge William V. Gallo:Detention Hearing as to Issa Doreh held on 11/9/2010. USA oral motion for detention; motion granted as to Issa Doreh. Court orders defendant detained pending trial without prejudice. Order of detention to be submitted by AUSA by close of business on 11/9/2010. Defense counsel has until close of business on 11/10/2010 to object to the detention order language.(CD# 11/9/2010 WVG10−14:57−16:13). (Plaintiff Attorney William Cole AUSA and Caroline Han AUSA). (Defendant Attorney Kenneth Troiano CJA). (jmy) (Entered: 11/10/2010)
20 FINDINGS OF FACT AND ORDER RE WAIVER OF DETENTION PENDING TRIAL as to Mohamed Mohamed Mohamud. Signed by Magistrate Judge William V. Gallo on 11/9/2010. (tkl) (Entered: 11/10/2010)
21 OBJECTION To Proposed Detention Order by Issa Doreh (Attachments: # 1 Proof of Service)(Troiano, Kenneth)(tkl). (Entered: 11/10/2010)
22 ORDER OF DETENTION as to Issa Doreh. Signed by Magistrate Judge William V. Gallo on 11/12/2010. (tkl) (Main Document 22 replaced on 11/18/2010) (tkl). (Entered: 11/15/2010)
23 Arrest Warrant Returned Executed in case as to Basaaly Saeed Moalin. (jcj) (Entered: 11/16/2010)
24 Arrest Warrant Returned Executed in case as to Mohamed Mohamed Mohamud. (jcj) (Entered: 11/16/2010)
25 Arrest Warrant Returned Executed in case as to Issa Doreh. (jcj) (Entered: 11/16/2010)
26 MOTION for Joinder by Issa Doreh. (Attachments: # 1 Proof of Service)(Troiano, Kenneth) (tkl). (Entered: 11/19/2010)
27 RESPONSE in Opposition by USA as to Basaaly Saeed Moalin, Issa Doreh re 26 MOTION for Joinder, 13 MOTION for Discovery (Certificate of service included.) (Han, Caroline) (tkl). (Entered: 11/24/2010)
29 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Motion Hearing/Trial Setting as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh held on 12/3/2010. Govt oral motion to declare case complex, continued to 1/21/2011. Parties in agreement to declaring case complex are ordered to submit stipulation by 1/7/2011. Oppositions to be filed by 1/7/2011. Motion Hearing set for 1/21/2011 01:30 PM in Courtroom 16 before Judge Jeffrey T. Miller. Motions are continued. Time is excluded under the speedy trial act. (Court Reporter Debra Henson).(Plaintiff Attorney William Cole, AUSA; Caroline Han, AUSA). (Defendant

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 12 of 56

12/06/2010 12/16/2010 12/17/2010 12/20/2010 12/28/2010 01/03/2011 01/14/2011 01/20/2011
01/20/2011 01/20/2011 01/20/2011 01/20/2011
01/21/2011 02/10/2011

Attorney (1) Marc Geller, CJA; (2) Mahir Sherif, CJA; (3) Kenneth Troiano, CJA). (gac) (Entered: 12/06/2010)
28 SUPPLEMENTAL MEMORANDUM Re: Related Case by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh (Attachments: # 1 Proof of Service)(Cole, William) (tkl). (Entered: 12/06/2010)
30 NOTICE OF HEARING as to Defendants Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh. On the courts own motion Motion Hearing set for 1/21/2011 1:30 PM is vacated and reset to 1/20/2011 10:30 AM in Courtroom 16 before Judge Jeffrey T. Miller. (gac) (Entered: 12/16/2010)
31 MOTION for Protective Order (Certificate of service included.) by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh. (Attachments: # 1 Memo of Points and Authorities)(Han, Caroline) (knh). (Entered: 12/17/2010)
32 SUPPLEMENTAL MEMORANDUM in Support of Government's Motion for Protective Order (Certificate of service included.) by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh (Han, Caroline) (knh). (Entered: 12/20/2010)
33 Joint MOTION to Exclude Time Under the Speedy Trial Act by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh. (Attachments: # 1 Memo of Points and Authorities, # 2 Proof of Service)(Cole, William) (tkl). Modified on 1/22/2013 to term motion per Entry #77 (nsp). (Entered: 12/28/2010)
34 ORDER granting 31 Motion for Protective Order as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3). Signed by Judge Jeffrey T. Miller on 1/3/11.(lmt) (mam). (Entered: 01/03/2011)
38 FIRST SUPERSEDING INDICTMENT as to Basaaly Saeed Moalin (1) count(s) 1s, 2s, 3s, 4s, 5s, Mohamed Mohamed Mohamud (2) count(s) 1s, 2s, 3s, 4s, Issa Doreh (3) count(s) 1s, 2s, 3s, 4s, Ahmed Nasir Taalil Mohamud (4) count(s) 1, 2, 3, 4. (tkl)(mam). (Entered: 01/18/2011)
39 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Arraignment as to Basaaly Saeed Moalin (1) Count 1s,2s,3s,4s,5s and Mohamed Mohamed Mohamud (2) Count 1s, 2s, 3s, 4s and Issa Doreh (3) Count 1s, 2s, 3s, 4s and Ahmed Nasir Taalil Mohamud (4) Count 1s, 2s, 3s, 4s held on 1/20/2011. Not Guilty plea entered. Motion Hearing as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 1/20/2011. Status Hearing set for 4/7/2011 09:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. Pending motion are continued 4/7/2011. Time is excludable under the speedy trial act. (Court Reporter Debra Henson).(Attorney Carolin Han, AUSA; William P Cole, AUSA). (Defendant Attorney (1) Marc Geller, CJA; (2) Mahir Tewfik Sherif, Retnd; (3) Kenneth Troiano, CJA; (4) Holly Hanover, CJA). (gac) (Entered: 01/20/2011)
40 ORDER OF DETENTION on dft's waiver of bail pending trial as to Ahmed Nasir Taalil Mohamud. Signed by Magistrate Judge Jan M. Adler on 12/7/2010. (tkl) (Entered: 01/20/2011)
41 JOINT MOTION for Protective Order by Ahmed Nasir Taalil Mohamud. (tkl) (Entered: 01/20/2011)
42 PROTECTIVE ORDER 41 as to Ahmed Nasir Taalil Mohamud (4). Signed by Judge Jeffrey T. Miller on 12/9/2010.(tkl) (Entered: 01/20/2011)
43 MOTION for Order Discovery be turned over to the defense, Preserve the evidence and retain meterial witnesses, to declare the case complex and for leave to file further motions by Ahmed Nasir Taalil Mohamud. (tkl) Modified on 1/22/2013 to add text to Motion to Declare Case Complex and term motion per entry #77 (nsp). (Entered: 01/20/2011)
44 NOTICE of Intent to Use Foreign Intelligence Surveillance Act Information by USA (Attachments: # 1 Proof of Service)(Han, Caroline) (tkl). (Entered: 01/21/2011)
45 ORDER clarifying retained status of counsel as to Mohamed Mohamed Mohamud. Signed by Judge Jeffrey T. Miller on 2/10/2011. (tkl) (Entered: 02/10/2011)

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 13 of 56

02/11/2011 02/14/2011 02/16/2011 02/18/2011 02/22/2011 02/22/2011
02/22/2011
02/22/2011 02/23/2011
02/24/2011 02/25/2011 03/08/2011 03/10/2011

46 Ex Parte MOTION for Order To Receiver For Shidaal Express, Inc. by Issa Doreh. (Attachments: # 1 Declaration, # 2 Proof of Service)(Troiano, Kenneth) (tkl). (Entered: 02/11/2011)
47 RESPONSE to Motion by USA as to Issa Doreh re 46 Ex Parte MOTION for Order To Receiver For Shidaal Express, Inc. (Certificate of service included.) (Han, Caroline)(tkl). (Entered: 02/14/2011)
48 NOTICE OF HEARING as to Defendant Mohamed Mohamed Mohamud. Status Hearing re Counsel set for 2/22/2011 02:00 PM before Magistrate Judge William V. Gallo. (jmy) (Entered: 02/16/2011)
49 ORDER granting 46 Motion for Order to Preserve and Permit Inspection as to Issa Doreh (3). Signed by Judge Jeffrey T. Miller on 2/18/2011.(amh) (av1). (Entered: 02/18/2011)
50 NOTICE OF HEARING as to Defendant Issa Doreh. Discovery Hearing set for 2/24/2011 02:00 PM before Magistrate Judge William V. Gallo. (jmy) (Entered: 02/22/2011)
51 Minute Entry for proceedings held before Magistrate Judge William V. Gallo: Status Hearing re counsel's appointment status as to Mohamed Mohamed Mohamud held on 2/22/2011. Counsel files a financial affidavit. Upon review, the court determines Defendant is eligible for appointed counsel. Court confirms the appointment of Attorney Mahir Sherif as counsel in this case as of the date of the initial appearance of the defendant. (CD# 2/22/2011 WVG11−14:35−14:40). (Plaintiff Attorney Caroline Han AUSA and Willaim Cole AUSA). (Defendant Attorney Mahir Sherif CJA). (jmy) (Entered: 02/23/2011)
52 Minute Entry for proceedings held before Magistrate Judge William V. Gallo: Discovery Hearing as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Ahmed Nasir Taalil Mohamud held on 2/22/2011. Defendants Basaaly Moalin and Ahmed Nasir Mohamud not appearing − appearances waived for this hearing. Defense counsel raises logistical discovery issues to the court. Court gives all counsel two weeks to work on the discovery issue. If the parties cannot come to an agreement over the issues, counsel shall file a joint statement by 3/8/2011 alerting the court to the remaining issue(s). Status Hearing set for 3/10/2011 2:30pm before Magistrate Judge William V. Gallo. (CD# 2/22/2011 WVG14:40−15:05). (Plaintiff Attorney Caroline Han AUSA and William Cole AUSA). (Defendant Attorney Marc Geller CJA for #1, Mahir Sherif CJA for #2 and Holly Hanover CJA for #4). (jmy) (Entered: 02/23/2011)
54 CJA 23 Financial Affidavit by Mohamed Mohamed Mohamud (tkl) (Entered: 02/23/2011)
53 NOTICE OF VACATING OF HEARING as to Defendant Issa Doreh. The court hereby vacates the Discovery Hearing set for 2/24/2011 2:00pm before Magistrate Judge William V. Gallo. Court has given all counsel two weeks to come to an agreement on the discovery issue. If an agreement is not reached, counsel shall file a joint statement outlining the remaining issue(s) by 3/8/2011. Status Hearing set for 3/10/2011 02:30 PM before Magistrate Judge William V. Gallo. (jmy) (Entered: 02/23/2011)
55 Joint MOTION to Amend/Correct Protective Order by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Cole, William) (tkl). (Entered: 02/24/2011)
56 AMENDED PROTECTIVE ORDER 55 as to Basaaly Saeed Moalin, et al. Signed by Judge Jeffrey T. Miller on 2/25/2011.(tkl) (Entered: 02/25/2011)
57 STATUS REPORT on Defendants' Direct Access to Sensitive Discovery Materials (Certificate of service included.) by USA, Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Han, Caroline) (tkl). (Entered: 03/08/2011)
58 Minute Entry for proceedings held before Magistrate Judge William V. Gallo: Status Hearing re Discovery Issue as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 3/10/2011. The

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 14 of 56

03/14/2011 03/21/2011 03/23/2011 03/24/2011 03/28/2011 03/28/2011
03/29/2011 03/30/2011 03/30/2011 03/30/2011 03/31/2011 04/05/2011 04/07/2011
04/07/2011

defendants housed at GEO are to use the attorney room from 9:30p until 11:30p to review discovery on a laptop and/or in hard copy format. Court orders defense counsel to research procedure of how to purchase a laptop for the defendants to use at GEO during the specified hours. Warden informs the court that the laptop and discovery will be kept in a secure location at GEO. (CD# 3/10/2011 WVG11−14:53−15:18). (Interpreter Ahmedei Farah).(Plaintiff Attorney William Cole AUSA and Caroline Han AUSA). (Defendant Attorney Marc Geller CJA for #1, Mahir Sherif CJA for #2, Kenneth Troiano CJA for #3 and S/A for #4). (jmy) (Entered: 03/10/2011)
59 NOTICE OF ATTORNEY APPEARANCE: Alice L. Fontier appearing for Basaaly Saeed Moalin (Fontier, Alice) (tkl). Modified on 3/28/2011 (tkl). (Entered: 03/14/2011)
60 PRO HAC VICE APPOINTED: Joshua L. Dratel appearing for Defendant Basaaly Saeed Moalin. (All non−registered users served via U.S. Mail Service)(leh) (Entered: 03/21/2011)
61 MOTION for Discovery of Defendant and Codefendant Statements by Issa Doreh. (Attachments: # 1 Memo of Points and Authorities, # 2 Proof of Service)(Troiano, Kenneth) (tkl). (Entered: 03/23/2011)
62 NOTICE OF ATTORNEY APPEARANCE: Joshua L. Dratel appearing for Basaaly Saeed Moalin (Dratel, Joshua) . Modified on 3/25/2011 (tkl). Emailed atty. Missing proof of service (Entered: 03/24/2011)
63 NOTICE OF ATTORNEY APPEARANCE: Ahmed Ghappour appearing for Issa Doreh (Ghappour, Ahmed). Modified on 3/29/2011 (tkl). Emailed atty. Incorrect event used. See 65 (Entered: 03/28/2011)
64 MOTION to Substitute Attorney Joshua L. Dratel by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Declaration)(Dratel, Joshua). Modified on 3/29/2011 (tkl). Emailed atty. Missing proof of service. (Entered: 03/28/2011)
65 MOTION to Substitute Attorney Ahmed Ghappour by Issa Doreh. (Attachments: # 1 Declaration Declaration of Ahmed Ghappour)(Ghappour, Ahmed) . Modified on 3/29/2011 (tkl). Emailed atty. Missing proof of service (Entered: 03/29/2011)
66 Amended MOTION to Substitute Attorney Ahmed Ghappour by Issa Doreh. (Attachments: # 1 Declaration)(Ghappour, Ahmed) (tkl). (Entered: 03/30/2011)
67 Certificate of Service by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 64 MOTION to Substitute Attorney Joshua L. Dratel (Dratel, Joshua) (tkl). (Entered: 03/30/2011)
68 MOTION to Substitute Attorney Linda Moreno by Mohamed Mohamed Mohamud. (Attachments: # 1 Declaration Linda Moreno)(Moreno, Linda) (tkl). (Entered: 03/30/2011)
69 RESPONSE in Opposition by USA as to Issa Doreh re 61 MOTION for Discovery of Defendant and Codefendant Statements (Attachments: # 1 Proof of Service)(Cole, William) (tkl). (Entered: 03/31/2011)
70 NOTICE OF HEARING as to Defendant Issa Doreh. Status Hearing set for 4/7/2011 09:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. (gac) (Entered: 04/05/2011)
71 ORDER granting 68 Substitution of Counsel. Attorney Linda Moreno added for Defendant Mohamed Mohamed Mohamud (2). Attorney Mahir Tewfik Sherif terminated in case as to Mohamed Mohamed Mohamud (2). Signed by Judge Jeffrey T. Miller on 4/7/11.(lao) (jrl). (Entered: 04/07/2011)
72 ORDER granting 64 Substitution of Counsel. Attorney Joshua L. Dratel added for Defendant Basaaly Saeed Moalin (1). Attorney Attorney Marc B. Geller terminated in case as to Defendant Basaaly Saeed Moalin (1). Signed by Judge Jeffrey T. Miller on 4/7/11.(lao) (jrl). (Entered: 04/07/2011)

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 15 of 56

04/07/2011 04/07/2011
04/27/2011 04/28/2011 04/28/2011 05/04/2011 05/05/2011 06/07/2011 06/16/2011
06/24/2011

73 ORDER granting 66 Substitution of Counsel. Attorney Ahmed Ghappour added for Defendant Issa Doreh (3). Attorney Kenneth J Troiano terminated in case as to Issa Doreh (3). Signed by Judge Jeffrey T. Miller on 4/7/11.(lao) (jrl). (Entered: 04/07/2011)
74 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Status Hearing as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 4/7/2011. As to Basaaly Saeed Moalin, Attorney Alice Fontier, confirmed as retained counsel, Holly Sullivan, RET, as local counsel, Marc Geller, CJA, relieved.As to Mohamed Mohamed Mohamud, Attorney Linda Moreno confirmed as retained counsel, Mahir Tewfik Sherif, CJA, relieved. As to Issa Doreh Attorney Ahmed Ghappour, confirmed as retained counsel, Kenneth Troiano, CJA, relieved,. Status Hearing continued to 6/16/2011 09:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. (Court Reporter Debra Henson).(Plaintiff Attorney Caroline Pineda Han, AUSA; William Cole, AUSA). (Defendant Attorney 1) Alice Fontier, RET; Marc Geller, CJA; Holly Sullivan, RET. 2) Linda Moreno, RET; Mahir Tewfik Sherif, CJA. 3) Ahmed Ghappour, RET; Kenneth Troiano, CJA. 4) Holly Hanover, CJA). (gac) Modified on 2/24/2014 (gac). (Entered: 04/08/2011)
75 Joint MOTION to Exclude Time Under the Speedy Trial Act by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Cole, William) (jpp). (Entered: 04/27/2011)
76 ORDER granting 75 Joint Motion to Exclude time as to all Defendants. The period from 04/07/11 to 06/16/11, is excluded under 18 USC 3161(h)(7)(A) and (B)(ii).Signed by Judge Jeffrey T. Miller on 04/28/11.(jpp) (jrl). (Entered: 04/28/2011)
77 ORDER declaring case complex under 18 USC 3161(h) under the Speedy Trial Act. Signed by Judge Jeffrey T. Miller on 04/28/11. (jpp) (jrl). (Entered: 04/28/2011)
78 MOTION to Substitute Attorney Unopposed Motion to Substitute Counsel by Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Declaration of Ahmed Nasir Taalil Mohamud)(Durkin, Thomas) (kaj). (Entered: 05/04/2011)
79 ORDER granting 78 Unopposed Motion to Substitute Counsel. Attorney Thomas Anthony Durkin added as to Ahmed Nasir Taalil Mohamud. Attorney Holly S Hanover terminated in case as to Ahmed Nasir Taalil Mohamud (4). Signed by Judge Jeffrey T. Miller on 5/5/11.(lao) (jrl). (Entered: 05/05/2011)
80 NOTICE OF HEARING as to Defendants Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. On the courts own motion Status Hearing set for 6/16/2011 9:00 AM is vacated and reset to 10:00 AM 6/16/2011 in Courtroom 16 before Judge Jeffrey T. Miller. (gac) (Entered: 06/07/2011)
81 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Status Hearing as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 6/16/2011. Status Hearing set for 8/8/2011 10:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. (Court Reporter Debra Henson).(Plaintiff Attorney Caroline Pineda Han, AUSA; William Cole, AUSA). (Defendant Attorney (1) Joshua Dratel, RET; Holly Sullivan, RET; (2) Linda Moreno, RET; (3) Ahmed Ghappour, RET; (4) Thomas Anthony Durkin). (gac) (Entered: 06/16/2011)
82 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (Status Hearing) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 6/16/2011, before Judge Jeffrey T. Miller. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 7/15/2011. Redacted Transcript Deadline set for 7/25/2011. Release of Transcript Restriction set for 9/22/2011. (akr) (Entered: 06/24/2011)

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 16 of 56

08/08/2011
09/23/2011
10/12/2011 10/17/2011 10/17/2011 10/17/2011 12/09/2011
12/09/2011 12/09/2011 12/09/2011

83 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Status Hearing as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 8/8/2011. Mohamed Mohamed Mohamud (2), Issa Doreh (3), waive services of Somali Interpreter. Ahmed Nasir Taalil Mohamud (4), will continue to need the services of Somali Interpreter. Request to continue − granted. Status Hearing set for 9/23/2011 10:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. (Court Reporter Debra Henson).(Attorney Caroline Pideda Han, AUSA; William P Cole, AUSA). (Defendant Attorney (1) Joshua L Dratel, RET; Alice Fontier, RET; Holly A Sullivan, RET; (2) s/a Thomas Durkin; (3) Ahmed Ghappour, RET; (4) Thomas Durkin, RET). (gac) (Entered: 08/09/2011)
84 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Status Hearing as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 9/23/2011. Court instructs parties to meet in confer re scheduling order. Presence of dfts is waived during scheduling proceedings. Motions to be filed and served by 12/9/2011. Responses due by 1/13/2012. Replies due by 1/20/2012. Motion Hearing set for 2/9/2012 09:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. Motion In Limine Hearing set for 4/5/2012 09:00 AM before Judge Jeffrey T. Miller. In Limine Motions to be filed and served no later than 3/8/2012. Oppositions to be filed and served by 3/22/2012. Jury Trial set for 5/7/2012 9:00 AM before Judge Jeffrey T. Miller. (Court Reporter Debra Henson).(Plaintiff Attorney Caroline Han; William Cole, AUSA). (Defendant Attorney (1) Joshua Dratel, RET; Alice Fontier, RET (2) Linda Moreno; (3) Ahmed Ghappour, RET; (4) Thomas Durkin, RET). (gac) Modified on 9/23/2011 to correct jury trial date(gac). (Entered: 09/23/2011)
85 SCHEDULING ORDER as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. Court denies the request to place the ex parte the Application under seal. Defendants are ordered to immediately serve the Application on the USA. USA shall file a response to the Application by 11/4/2011. Defendants may file a reply to Govt's response by 11/11/2011. Matter is calendared for oral argument on 11/18/2011 11:30 AM before Judge Jeffrey T. Miller. Signed by Judge Jeffrey T. Miller on 10/12/2011. (jah) (jrl). (Entered: 10/13/2011)
86 Joint MOTION to Allow Co−defendant meeting by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Dratel, Joshua). (jah). (Entered: 10/17/2011)
87 RESPONSE to Motion by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 86 Joint MOTION to Allow Co−Defendant Meeting (Han, Caroline). Modified on 10/18/2011 − Edited text (jah). (Entered: 10/17/2011)
88 ORDER granting Defendant Basaaly Moalin's 86 Motion to Allow Co−Defendant Meeting as to Basaaly Saeed Moalin (1). Court grants the Application, conditioned upon compliance with reasonable requirements imposed by the Bureau of Prisons and/or the US Marshals Service. Signed by Judge Jeffrey T. Miller on 10/17/2011.(cc: USMS) (jah) (jrl). (Entered: 10/17/2011)
92 MOTION to Suppress Wiretap Evidence, MOTION to Suppress Evidence, MOTION to Suppress Statements, MOTION for Release of Brady Materials, MOTION to Join Co−Defendant's , MOTION for Leave to File Further Motions by Basaaly Saeed Moalin. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Joshua L. Dratel, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Proof of Service)(Dratel, Joshua). Modified on 12/12/2011 − Applied to all Dfts in error. Has s/ of different atty. Email sent to Atty. Removed non−applicable dfts and corrected text (jah). (Entered: 12/09/2011)
93 MOTION Early Return of Trial Subpoenas by Ahmed Nasir Taalil Mohamud. (Durkin, Thomas). (jah). (Entered: 12/09/2011)
94 MOTION for Preservation of Rough Notes and Logs by Ahmed Nasir Taalil Mohamud. (Durkin, Thomas). Modified on 12/12/2011 − Corrected motion event (jah). (Entered: 12/09/2011)
95 MOTION to Produce Rule 404(b) Material by Ahmed Nasir Taalil Mohamud. (Durkin, Thomas). (jah). (Entered: 12/09/2011)

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 17 of 56

12/09/2011 12/09/2011 12/09/2011 12/09/2011 12/09/2011 12/09/2011 12/10/2011 12/11/2011 12/12/2011 12/13/2011
12/15/2011
12/15/2011 01/13/2012
01/13/2012

96 MOTION for Disclosure of Favorable Evidence by Ahmed Nasir Taalil Mohamud. (Durkin, Thomas). (jah). (Entered: 12/09/2011)
97 MOTION for Pretrial Hearing Concerning Co−Conspirator's Statements by Ahmed Nasir Taalil Mohamud. (Durkin, Thomas). (jah). (Entered: 12/09/2011)
98 MOTION for Rule 14 Motion for Severance Due to Prejudicial Joinder by Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Durkin, Thomas). Modified on 12/12/2011 − Removed duplicate text (jah). (Entered: 12/09/2011)
99 MOTION for an Indefinite Stay of the Proceedings to Permit Effective Defense Investigation Function and to Insure That Defendant is not Taken Into Military Detention if Acquitted by Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Exhibit A, # 2 Exhibit B1, # 3 Exhibit B2)(Durkin, Thomas). (jah). (Entered: 12/09/2011)
100 MOTION for Release from Custody Due to the Extraordinary Nature of this Case by Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Durkin, Thomas). Modified on 12/12/2011 − Edited text (jah). (Entered: 12/09/2011)
101 MOTION for Extension of Time to File Additional Pretrial Motions by Ahmed Nasir Taalil Mohamud. (Durkin, Thomas). Modified on 12/12/2011 − Corrected motion event (jah). (Entered: 12/09/2011)
102 MOTION for Extension of Time to File Pretrial Motions by Issa Doreh. (Ghappour, Ahmed). (jah). Modified on 1/22/2013 to term motion documents filed 12/12/2011(nsp). (Entered: 12/10/2011)
103 MOTION to Continue Time to File Pretrial Motions by Mohamed Mohamed Mohamud. (Moreno, Linda). Modified on 12/12/2011 − Applied to all Dfts in error. Email sent to Atty. Removed non−applicable dfts and corrected text (jah). Modified on 1/22/2013 documents filed 12/13 and 12/15/2011 (nsp). (Entered: 12/11/2011)
104 MOTION for Bill of Particulars, MOTION for Leave to File Further Motions, MOTION to Join Co−Defendant's Motions by Issa Doreh. (Attachments: # 1 Memo of Points and Authorities, # 2 Proof of Service)(Ghappour, Ahmed). Modified on 12/13/2011 − Corrected motion event and text (jah). (Entered: 12/12/2011)
105 WITHDRAWN BY FILER ON 12/15/2011 PER NOTICE OF WITHDRAWAL OF DOCUMENT 107 − NOTICE of Motions Compel Production of Exculpatory Material, Motion to Strike Prejudicial Surplusage, Grant Leave to Join Co Defendant's Motions and Grant Leave to File Further Motions by Mohamed Mohamed Mohamud (Attachments: # 1 Memo of Points and Authorities, # 2 Proof of Service)(Moreno, Linda). Modified on 12/14/2011 − Wrong event, needed to be filed as Motions. Email sent to Atty to withdraw this entry and refile pdf as Motions (jah). Modified on 12/16/2011 − Edited to reflect as withdrawn (jah). (Entered: 12/13/2011)
106 MOTION to Compel Production of Brady Material, MOTION to Strike Surplusage, MOTION to Join Co−Defendant Motions, MOTION for Leave to File Further Motions by Mohamed Mohamed Mohamud. (Attachments: # 1 Memo of Points and Authorities, # 2 Proof of Service)(Moreno, Linda). Modified on 12/16/2011 − Edited text (jah). (Entered: 12/15/2011)
107 NOTICE OF WITHDRAWAL OF DOCUMENT re 105 Notice by Mohamed Mohamed Mohamud. (Attachments: # 1 Proof of Service)(Moreno, Linda). Modified on 12/16/2011 − Wrong event, not a Motion. Email sent to Atty. Termed motion and judge association. Added document link (jah). (Entered: 12/15/2011)
108 RESPONSE in Opposition by USA as to Basaaly Saeed Moalin re 92 MOTION to Suppress Wiretap Evidence MOTION to Suppress Evidence MOTION to Suppress Statements MOTION for Release of Brady MaterialsMOTION to Join Co−Defendant's Motions MOTION for Leave to File Further Motions (Attachments: # 1 Exhibit 1, # 2 Proof of Service)(Han, Caroline). (jah). (Entered: 01/13/2012)
109 WITHDRAWN BY FILER ON 1/13/2012 PER NOTICE OF WITHDRAWAL OF DOCUMENT 112 − RESPONSE in Opposition by USA as to Mohamed Mohamed Mohamud re 106 MOTION to Compel Production of Brady Materials, MOTION to Strike Surplusage, MOTION to Join Co−Defendant Motions, MOTION for Leave to File Further Motions (Attachments: # 1 Proof of Service)(Han, Caroline). Modified on

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 18 of 56

01/13/2012 01/13/2012
01/13/2012 01/13/2012 01/13/2012 01/20/2012
01/20/2012 01/20/2012 01/20/2012 01/30/2012

1/17/2012 − Wrong filer selected. Email sent to Atty. Corrected filer and text (jah). Modified on 1/17/2012 − Edited to reflect as withdrawn (jah). (Entered: 01/13/2012)
110 RESPONSE in Opposition by USA as to Issa Doreh re 104 MOTION for Bill of Particulars, MOTION for Leave to File Further Motions, MOTION to Join Co−Defendants' Motions (Attachments: # 1 Proof of Service)(Han, Caroline). (jah). (Entered: 01/13/2012)
111 RESPONSE in Opposition by USA as to Ahmed Nasir Taalil Mohamud re 97 MOTION for Pretrial Hearing Concerning Co−Conspirator's Statements, 99 MOTION for an Indefinite Stay of the Proceedings to Permit Effective Defense Investigation Function and to Insure That Defendant is not Taken Into Military Detention if Acquitted, 98 MOTION for Rule 14 Motion for Severance Due to Prejudicial Joinder, 96 MOTION for Disclosure of Favorable Evidence, 100 MOTION for Release from Custody Due to the Extraordinary Nature of this Case, 93 MOTION Early Return of Trial Subpoenas, 94 MOTION to Preserve Rough Notes and Logs, 95 MOTION to Produce Rule 404(b) Material (Attachments: # 1 Exhibit 1, # 2 Proof of Service)(Han, Caroline). (jah). (Entered: 01/13/2012)
112 NOTICE OF WITHDRAWAL OF DOCUMENT by USA re 109 Response in Opposition, (Han, Caroline). Modified on 1/17/2012 − Wrong event. Email sent to Atty. Edited text (jah). (Entered: 01/13/2012)
113 RESPONSE in Opposition by USA as to Mohamed Mohamed Mohamud re 106 MOTION to Compel Production of Brady Materials, MOTION to Strike Surplusage,to Join Co−Defendant Motions, MOTION for Leave to File Further Motions (Attachments: # 1 Proof of Service)(Han, Caroline). (jah). (Entered: 01/13/2012)
114 MOTION for a Pretrial Conference Pursuant to 18 U.S.C. App. III (CIPA) Section 2 by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Proof of Service)(Cole, William). Modified on 1/17/2012 − Edited text (jah). Modified on 1/23/2013 to term motion per 183 (nsp). (Entered: 01/13/2012)
115 REPLY TO RESPONSE to Motion by Ahmed Nasir Taalil Mohamud re 101 MOTION for Leave to File Further Motions, 97 MOTION for Pretrial Hearing Concerning Co−Conspirator's Statements, 99 MOTION for an Indefinite Stay of the Proceedings to Permit Effective Defense Investigation Function and to Insure That Defendant is not Taken Into Military Detention if Acquitted, 98 MOTION for Rule 14 Motion for Severance Due to Prejudicial Joinder, 96 MOTION for Disclosure of Favorable Evidence, 100 MOTION for Release from Custody Due to the Extraordinary Nature of this Case, 93 MOTION Early Return of Trial Subpoenas, 94 MOTION to Preserve Rough Notes and Logs, 95 MOTION to Produce Rule 404(b) Material (Durkin, Thomas). (jah). (Entered: 01/20/2012)
116 REPLY TO RESPONSE to Motion by Basaaly Saeed Moalin re 92 MOTION to Suppress Wiretap Evidence, MOTION to Suppress Evidence, MOTION to Suppress Statements, MOTION for Release of Brady Materials, MOTION to Join Co−Defendant's Motions, MOTION for Leave to File Further Motions (Attachments: # 1 Proof of Service)(Dratel, Joshua). Modified on 1/23/2012 − Applied to all dfts. Email sent to Atty. Removed non−applicable dfts and edited text (jah). (Entered: 01/20/2012)
117 REPLY TO RESPONSE to Motion by Mohamed Mohamed Mohamud re 106 MOTION to Compel Production of Brady Materials, MOTION to Strike Surplusage, MOTION to Join Co−Defendant Motions, MOTION for Leave to File Further Motions (Attachments: # 1 Proof of Service)(Moreno, Linda). Modified on 1/23/2012 − Incorrectly applied to all defendants. Email sent to Atty. Corrected text to remove non−applicable defendants (jah). (Entered: 01/20/2012)
118 REPLY TO RESPONSE to Motion by Issa Doreh re 104 MOTION for Bill of Particulars, MOTION for Leave to File Further Motions, MOTION to Join Co−Defendants' Motions (Attachments: # 1 Proof of Service)(Ghappour, Ahmed). (jah). (Entered: 01/20/2012)
119 NOTICE of Intent to Use Foreign Intelligence Surveillance Act Information (Supplemental) by USA (Attachments: # 1 Proof of Service)(Han, Caroline) (lmt).

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 19 of 56

02/09/2012
02/17/2012 02/17/2012 02/17/2012 02/17/2012 02/21/2012 02/21/2012 02/23/2012

(Entered: 01/30/2012)
120 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Motion Hearing as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 2/9/2012.Submitting 92 Motion to Suppress Evidence as to Basaaly Saeed Moalin (1); submitting 92 Motion to Suppress Statements as to Basaaly Saeed Moalin (1); submitting 106 Motion to Strike Surplusage as to Mohamed Mohamed Mohamud (2); granting 106 Motion for Leave to File Further Motions as to Mohamed Mohamed Mohamud (2); granting 104 Motion for Leave to File Further Motions as to Issa Doreh (3); submitting 93 Motion for Early Return of Trial Subpoenas as to Ahmed Nasir Taalil Mohamud (4); submitting 94 Motion to Preserve Evidence as to Ahmed Nasir Taalil Mohamud (4); submitting 96 Motion for Disclosure as to Ahmed Nasir Taalil Mohamud (4); submitting 97 Motion Pretrial Hearing Concerning Co−Conspirators Statements as to Ahmed Nasir Taalil Mohamud (4); submitting 98 Motion to Sever Defendants as to Ahmed Nasir Taalil Mohamud (4); granting 101 Motion for Leave to File Further Motions as to Ahmed Nasir Taalil Mohamud (4); Written order will follow submitted motion. Defendants request to continue Trial Date − granted. Jury Trial set for 5/7/2012 9:00 AM is vacated and continued to 10/15/2012 9:00 AM in Courtroom 16 before Judge Jeffery T. Miller. Motion In Limine Hearing set for 4/5/2012 9:00 AM is vacated, to be reset at a later date. Status Hearing set for 4/5/2012 09:00 AM in Courtroom 16 before Judge Jeffrey T. Miller.Pending Motions are continued to 4/5/2012. Time is excluded under the speedy trial act. (Court Reporter Debra Henson).(Attorney William Cole, AUSA; Caroline Pindeda Han, AUSA). (Defendant Attorney (1) Joshua L. Dratel, RET; Alice L. Fontier, RET; Holly A. Sulliven, RET; (2) Linda Moreno, RET; (3) Ahmed Ghappour, RET; (4) Thomas Anthony Durkin, RET). (gac) (Entered: 02/09/2012)
121 MOTION for Extension of Time to File Motion Pursuant to 18 U.S.C. App. III (CIPA) Sec. 4 by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Cole, William). (jah). (Entered: 02/17/2012)
122 MOTION for Leave to File Excess Pages by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Certificate of Service)(Han, Caroline). (jah). (Entered: 02/17/2012)
123 RESPONSE in Opposition by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 92 MOTION to Suppress Wiretap Evidence, MOTION to Suppress Evidence MOTION to Suppress Statements, MOTION for Release of Brady MaterialsMOTION to Join Co−Defendant's Motions, MOTION for Leave to File Further Motions (Attachments: # 1 Attachment A, # 2 Certificate of Service)(Han, Caroline). (jah). (Entered: 02/17/2012)
124 ORDER as to Basaaly Saeed Moalin (1) denying Defendant's 92 Motion to Suppress Evidence and 92 Motion to Suppress Statements. Court continues Defendant's 92 motion to suppress the FISA wiretap evidence until after the CIPA pretrial hearing. Signed by Judge Jeffrey T. Miller on 2/17/2012. (jah) (Entered: 02/21/2012)
125 ORDER granting USA's 121 Motion for Extension of Time to File a Motion Pursuant to CIPA Section 4 as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). USA shall file its initial motion puruant to CIPA Section 4 by 2/29/2012. Signed by Judge Jeffrey T. Miller on 2/21/2012. (jah) (Entered: 02/21/2012)
126 ORDER granting USA's 122 Motion for Leave to File Response in Excess of 25 Pages as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). USA permitted to file Response in Opposition to Dft Moalin's Motion to Suppress Evidence Obtained Pursuant to the FISA Wiretap 92 in excess of 25 pages, pursuant to Crim. L.R. 47.1(e). Signed by Judge Jeffrey T. Miller on 2/21/2012. (jah) (Entered: 02/21/2012)
127 NOTICE; SCHEDULING ORDER as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. In order to develop the factual records necessary to determine Dfts' motions to suppress FISA wiretap evidence, parties are advised that court will conduct an in camera review of pertinent classified materials during the week of 3/19/3012. In order to assist court in analyzing the FISA related materials, Dfts may file confidential supplemental briefs identifying potential defenses, strategies, and theories of relevancy. Dfts shall file the supplemental briefing

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 20 of 56

02/23/2012
03/01/2012
03/09/2012 03/09/2012 03/15/2012
03/23/2012 03/27/2012 03/30/2012 03/30/2012 04/02/2012 04/05/2012

under seal, without service on the Govt by 3/9/2012. Signed by Judge Jeffrey T. Miller on 2/23/2012. (jah) (jrl). (Entered: 02/23/2012)
128 NOTICE OF FILING CLASSIFIED VERSION as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. Court provides to all parties that on 2/17/2012, Govt filed its unredacted version of its Response in Opposition 123 with the Narional Security Officer assigned in this case. Clerk is instructed to docket this Notice indicating the filing of the classified version of the Response in Opposition with the National Security Officer as of 2/17/2012, Nunc Pro Pro. Signed by Judge Jeffrey T. Miller on 2/23/2012. (jah) (Entered: 02/23/2012)
130 ORDER granting USA's 129 Ex Parte Motion for Second Extension of Time to File Motion Pursuant to 18 U.S.C. App III (CIPA) Sec. 4 as to Basaaly Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). The application is deemed filed with the designated national security officer as of 2/28/2012. USA shall file its initial motion pursuant to CIPA Section 4 by 3/2/2012. Signed by Judge Jeffrey T. Miller on 3/1/2012. (jah). Modified on 3/1/2012 − Corrected text to added Dft 1. Regenerated NEF (jah). (jrl). (Entered: 03/01/2012)
131 REPLY TO RESPONSE to Motion by Basaaly Saeed Moalin re 92 MOTION to Suppress Wiretap Evidence MOTION to Suppress Evidence MOTION to Suppress Statements MOTION for Release of Brady MaterialsMOTION to Join Co−Defendant's Motions MOTION for Leave to File Further Motions (Dratel, Joshua) (cge). (Entered: 03/09/2012)
132 Joint MOTION Deny Government's Request to File Ex Parte and Compel Disclosure of CIPA Sect 4 Application by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Memo of Points and Authorities, # 2 Proof of Service)(Dratel, Joshua)(yeb). Modified on 1/23/2013 to term motion per 183 (nsp). (Entered: 03/09/2012)
136 SCHEDULING ORDER as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 132 Joint MOTION Deny Government's Request to File Ex Parte and Compel Disclosure of CIPA Sect 4 Application. Govt to file response by 3/23/2012. Defendants may jointly file a reply by 3/30/2012. Pursuant to Local Rule 7.1(d)(1), matter will be taken under submission w/o oral argument, and Court will issue its order in due course. Signed by Judge Jeffrey T. Miller on 3/15/2012. (jah) (Entered: 03/15/2012)
138 RESPONSE in Opposition by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 132 Joint MOTION Deny Government's Request to File Ex Parte and Compel Disclosure of CIPA Sect 4 Application (Attachments: # 1 Proof of Service)(Cole, William). (jah). (Entered: 03/23/2012)
139 ORDER re: April 5, 2012 Status Conference. Signed by Judge Jeffrey T. Miller on 3/27/2012. (knb) (Entered: 03/27/2012)
140 PRETRIAL MEMORANDUM Proposed Agenda for Status Conference by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Dratel, Joshua) (knb). (Entered: 03/30/2012)
141 REPLY TO RESPONSE to Motion by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 132 Joint MOTION Deny Government's Request to File Ex Parte and Compel Disclosure of CIPA Sect 4 Application (Dratel, Joshua) (knb). (Entered: 03/30/2012)
142 STATUS REPORT Government's Statement of Issues for April 5, 2012 Status Conference by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Attachments: # 1 Proof of Service)(Han, Caroline) (knb). (Entered: 04/02/2012)
143 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Status Hearing as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 4/5/2012. Scheduling order forthcoming setting future hearing dates. Pending motions are continued. Time is excluded under speedy trial act.

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 21 of 56

05/25/2012
06/01/2012 06/05/2012 06/08/2012 06/15/2012 06/18/2012 06/19/2012 06/27/2012 07/09/2012 07/12/2012
07/20/2012

(Court Reporter Debra Henson).(Attorney Caroline Pineda Han, AUSA; William P. Cole, AUSA). (Defendant Attorney (1)Joshua L Dratel, RET; Alice L. Fontier, RET; Holly A. Sullivan, RET; (2) Linda Moreno, RET; (3) Ahmed Ghappour, RET). (gac) (Entered: 04/05/2012)
144 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (Status Hearing) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 4/5/2012, before Judge Jeffrey T. Miller. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 6/15/2012. Redacted Transcript Deadline set for 6/25/2012. Release of Transcript Restriction set for 8/23/2012. (akr) (Entered: 05/25/2012)
145 NOTICE of Filing of Government's Ex Parte, In Camera Supplemental Motion for Protective Order Pursuant to the Classified Information Procedures Act Section 4 and Fed. R. Crim. P. 16(d) by USA (Attachments: # 1 Proof of Service)(Han, Caroline) (knb). (Entered: 06/01/2012)
146 Notice of Entry of ORDER Denying 92 Motion to Suppress FISA Intercepts. Signed by Judge Jeffrey T. Miller on 6/5/2012.(knb)(jrd) (Entered: 06/05/2012)
147 SUPERSEDING INDICTMENT as to Basaaly Saeed Moalin (1) count(s) 1ss, 2ss, 3ss, 4ss, 5ss, Mohamed Mohamed Mohamud (2) count(s) 1ss, 2ss, 3ss, 5ss, Issa Doreh (3) count(s) 1ss, 2ss, 3ss, 5ss, Ahmed Nasir Taalil Mohamud (4) count(s) 1s, 2s, 3s. (knb) (cap). (Entered: 06/08/2012)
148 NOTICE of Government's Ex Parte, In Camera Motion for an Extension of Time to Comply with the Court's June 4, 2012 Order by USA (Attachments: # 1 Proof of Service)(Han, Caroline) (knb). (Entered: 06/15/2012)
149 ORDER for Extension of Time as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. The United States shall comply with the Court's order by June 29, 2012. Signed by Judge Jeffrey T. Miller on 6/18/2012. (knb)(jrd) (Entered: 06/18/2012)
150 SUPPLEMENTAL BRIEFING by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 138 Response in Opposition, to Defendants' Joint Motion to Deny the Government's Request to File its CIPA Sec 4 Application Ex Parte and Compel Disclosure of the CIPA Sec 4 Application to Cleared Defense Counsel (Cole, William) (ag). (Entered: 06/19/2012)
151 NOTICE of Filing of Government's Ex Parte, In Camera Statement of Compliance with the Court's June 4, 2012 Order by USA (Attachments: # 1 Proof of Service)(Han, Caroline) (knb). (Entered: 06/27/2012)
152 STRICKEN re 153 Order. Joint MOTION to Take Deposition by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud.(Fontier, Alice) (knb). (Entered: 07/09/2012)
153 ORDER Striking Motion to Take Depositions (Doc. No. 152 ); Scheduling Order on (1) Rule 15 Motion; (2) Status Conference; and (3) Motion in Limine. Defendants may jointly file a Motion for Rule 15 Deposition Testimony by July 20, 2012. The matter is calendared for oral argument on August 20, 2012 at 10:30 a.m. The court calendars a trial readiness and status conference for September 14, 2012 at 1:30 p.m. Signed by Judge Jeffrey T. Miller on 7/12/2012. (knb) (Entered: 07/12/2012)
154 Joint MOTION to Take Deposition by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Proof of Service)(Fontier, Alice) (knb). (Entered: 07/20/2012)

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 22 of 56

07/24/2012 07/25/2012 08/01/2012 08/01/2012 08/02/2012 08/03/2012 08/07/2012 08/07/2012 08/09/2012 08/09/2012 08/10/2012
08/10/2012

155 Joint MOTION to Continue Hearing Date From August 20, 2012, to August 22, 2012 by Ahmed Nasir Taalil Mohamud as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Durkin, Thomas)(knb). (Entered: 07/24/2012)
156 ORDER Granting 155 Motion to Continue Hearing Date as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). The date scheduled for oral argument on the Rule 15 foreign depositions is continued from August 20, 2012, to August 22, 2012 at 10:30 a.m. Signed by Judge Jeffrey T. Miller on 7/25/2012.(knb) (Entered: 07/25/2012)
157 NOTICE OF WITHDRAWAL OF DOCUMENT. Motion to File Under Seal, dated July 20, 2012 by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Fontier, Alice) Modified to correct event used on 8/2/2012 (knb). (Entered: 08/01/2012)
158 AFFIDAVIT in Support by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 154 Joint MOTION to Take Deposition Supplemental Declaration of Alice L. Fontier (Fontier, Alice) (knb). (Entered: 08/01/2012)
159 Joint MOTION for Extension of Time to File Government's Response to Defendants' Joint Motion to Take Deposition and Defendants' Reply Brief by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Proof of Service)(Han, Caroline) (knb). (Entered: 08/02/2012)
160 ORDER Granting 159 Motion for Extension of Time to File as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). The United States' response to Defendants' Joint Motion to Take Deposition shall be filed on August 7, 2012, and the defendants' reply brief is to be filed on August 14, 2012. Signed by Judge Jeffrey T. Miller on 8/3/2012.(knb) (Entered: 08/03/2012)
161 RESPONSE in Opposition by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 154 Joint MOTION to Take Deposition (Attachments: # 1 Declaration of William P. Cole, # 2 Declaration of Linda Jacobson, # 3 Proof of Service)(Cole, William)(knb). (Entered: 08/07/2012)
162 MOTION for Leave to File Excess Pages by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Proof of Service)(Cole, William) (knb). (Entered: 08/07/2012)
163 SUPPLEMENTAL DOCUMENT by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 161 Response in Opposition, Errata (Attachments: # 1 Proof of Service)(Cole, William) (knb). (Entered: 08/09/2012)
164 ORDER Granting 162 Motion for Leave to File Excess Pages as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). Signed by Judge Jeffrey T. Miller on 8/9/2012.(knb) (Entered: 08/09/2012)
165 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (Status Hearing) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 8/8/2011, before Judge Jeffrey T. Miller. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 8/31/2012. Redacted Transcript Deadline set for 9/10/2012. Release of Transcript Restriction set for 11/8/2012. (akr) (Entered: 08/10/2012)
166 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (Status Hearing) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 23 of 56

08/10/2012
08/14/2012 08/14/2012 08/16/2012 08/17/2012 08/17/2012 08/17/2012 08/22/2012

Nasir Taalil Mohamud held on 9/23/2011, before Judge Jeffrey T. Miller. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 8/31/2012. Redacted Transcript Deadline set for 9/10/2012. Release of Transcript Restriction set for 11/8/2012. (akr) (Entered: 08/10/2012)
167 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (Status Hearing) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 2/9/2012, before Judge Jeffrey T. Miller. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 8/31/2012. Redacted Transcript Deadline set for 9/10/2012. Release of Transcript Restriction set for 11/8/2012. (akr) (Entered: 08/10/2012)
173 Joint MOTION for Leave to File Excess Pages in Joint Reply Motion for Depositions by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Fontier, Alice) (knb). (Entered: 08/14/2012)
174 REPLY TO RESPONSE to Motion by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 154 Joint MOTION to Take Deposition (Attachments: # 1 Declaration of Alice L. Fontier, # 2 Exhibit, # 3 Exhibit, # 4 Proof of Service)(Fontier, Alice) (knb). (Entered: 08/14/2012)
175 ORDER granting 173 Motion for Leave to File Excess Pages as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). Signed by Judge Jeffrey T. Miller on 8/16/2012.(jao) (jrl). (Main Document 175 replaced on 8/17/2012) (jao). (Entered: 08/16/2012)
176 NOTICE of Filing of Declaration of Caroline P. Han In Support of Government's Motions for Protective Orders Pursuant to Classified Information Procedures Act and Fed. R. Crim. P. 16(d) by USA (Attachments: # 1 Proof of Service)(Han, Caroline) (knb). (Entered: 08/17/2012)
177 MOTION Renewed Motion to Stay, Or in The Alternative, to Continue The Trial Date re 99 MOTION for an Indefinite Stay of the Proceedings to Permit Effective Defense Investigation Function and to Insure That Defendant is not Taken Into Military Detention if Acquitted by Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Exhibit A)(Durkin, Thomas) (knb). (Entered: 08/17/2012)
178 MOTION (Unopposed) Shorten the Notice Requirement of Local Criminal Rule 47.1(b) re 177 MOTION Renewed Motion to Stay, Or in The Alternative, to Continue The Trial Date re 99 MOTION for an Indefinite Stay of the Proceedings to Permit Effective Defense Investigation Function and to Insure That Defendant is not Taken Into Military De by Ahmed Nasir Taalil Mohamud. (Durkin, Thomas)(knb). Modified on 1/22/2013 to term motion per Entry 181 (nsp). (Entered: 08/17/2012)
179 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Arraignment on Second Superseding Indictment as to Basaaly Saeed Moalin (1) Count 1ss,2ss,3ss,4ss,5ss and Mohamed Mohamed Mohamud (2) Count 1ss,2ss,3ss,5ss and Issa Doreh (3) Count 1ss,2ss,3ss,5ss and Ahmed Nasir Taalil Mohamud (4) Count 1s,2s,3s held on 8/22/2012. Not Guilty plea entered. Motion Hearing as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 8/22/2012. 154 Joint MOTION to Take Deposition filed by Basaaly Saeed Moalin is submitted. Written order to follow. (Court Reporter Debra Henson).(Plaintiff Attorney Caroline Pineda Han, AUSA; William P Cole, AUSA).

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 24 of 56

08/22/2012 08/22/2012 08/23/2012 08/28/2012
08/30/2012
09/06/2012 09/06/2012 09/06/2012 09/06/2012 09/06/2012

(Defendant Attorney (1)Joshua L. Dratel, RET;Alice L. Fontier, RET; Holly A Sullivan, RET (2) Linda Moreno, RET (3)Ahmed Ghappour, RET (4) Thomas Anthony Durkin, RET). (no document attached) (gac) (Entered: 08/22/2012)
180 NOTICE of Filing of Government's Ex Parte, In Camera Second Supplemental Motion for Protective Order Pursuant to the Classified Information Procedures Act and Fed. R. Crim P. 16(d) by USA (Attachments: # 1 Proof of Service)(Han, Caroline)(knb). (Entered: 08/22/2012)
181 ORDER Denying Joint Motion to Take Rule 15 Depositions; Denying Motion to Stay as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). Signed by Judge Jeffrey T. Miller on 8/22/2012.(knb) (Entered: 08/22/2012)
182 MINUTE ORDER as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. Telephonic Status Conference set for 8/30/2012 08:00 AM before Magistrate Judge William V. Gallo. Signed by Magistrate Judge William V. Gallo on 8/23/2012. (knb)(jrd) (Entered: 08/23/2012)
183 NOTICE OF ENTRY OF ORDER Granting The Government's Motion For Protective Order Re: CIPA Materials as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4): The court provides notice to all parties that on 8/28/2012 the court filed with the Court Security Officer an order entitled Order Granting Motion for Protective Order. The Order addresses three different CIPA submissions dated 3/21/2012, 6/1/2012, and 8/22/2012. The Order also requires the Government to provide defense counsel with two substituted statements as permitted by 18 U.S.C. App. 3 Section 6(C)(1). The substituted statements shall be provided to defense counsel within ten days of entry of this order. Signed by Judge Jeffrey T. Miller on 8/28/2012. (mdc) (jrl). (Entered: 08/28/2012)
184 MINUTE ORDER for proceedings held before Magistrate Judge William V. Gallo: A Status Conference as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4) was held on 8/30/2012. A further telephonic Status Conference is set for 9/6/2012 at 07:00 AM. Counsel only shall participate by telephone conference call. On or before 9/5/2012, counsel for the parties shall identify: 1. If the depositions are to be taken in Djibouti, under what authority will the witnesses travel to Djibouti, and is there any required documentation to do so. 2. The requirements and challenges for the witnesses to travel to Nairobi, Kenya. 3. Whether the target time frame of 10/29/2012 to 11/2/2012 is realistic to accomplish the necessary logistical and other bureaucratic steps. Signed by Magistrate Judge William V. Gallo on 8/30/2012. (Plaintiff Attorneys: William Cole; Caroline Han) (Defendant Attorneys: Joshua Dratel; Linda Moreno; Ahmed Ghappour; Thomas Durkin) (mdc) (Entered: 08/31/2012)
185 STRICKEN − MOTION for Bill of Particulars Second by Issa Doreh. (Attachments: # 1 Memo of Points and Authorities, # 2 Proof of Service)(Ghappour, Ahmed)Document stricken per order signed on 09/06/2012(yeb). (Entered: 09/06/2012)
186 Minute Entry for proceedings held before Magistrate Judge William V. Gallo: Status Conference as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 9/6/2012 (no document attached) (mcb) (Entered: 09/06/2012)
187 Minute Order by Judge Jeffrey T. Miller: Status Hearing set for 9/14/2012 1:30 PM is vacated and reset to 9/10/2012 11:30 AM in Courtroom 16 before Judge Jeffrey T. Miller. Defendants presence is waived. (no document attached) (gac) Modified on 9/7/2012 edit time of hearing(gac). (Entered: 09/06/2012)
188 ORDER Striking 185 MOTION for Bill of Particulars Second filed by Issa Doreh. Signed by Judge Jeffrey T. Miller on 09/06/2012. (yeb) (jrl). (Entered: 09/06/2012)
189 ORDER FOR WITNESS DEPOSITIONS to occur in Djibouti, as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud, (Telephonic Status Conference set for 9/13/2012 07:00 AM before Magistrate Judge William V. Gallo.)Signed by Magistrate Judge William V. Gallo on 09/06/2012. (yeb) (jrl). (Entered: 09/06/2012)

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 25 of 56

09/07/2012 09/07/2012 09/10/2012
09/10/2012
09/13/2012 09/13/2012 09/14/2012 09/17/2012 09/17/2012 09/21/2012

190 Joint MOTION for Extension of Time to File Proposed Protective Order and Comply with Court's Order by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Proof of Service)(Han, Caroline) (jpp). Modified on 1/22/2013 to term motion per #191 (nsp). (Entered: 09/07/2012)
191 ORDER Re: Protective Order. It is hereby ordered that, pursuant to the Notice of Entry of Order Granting the Government's Motion for Protective Order Re: CIPA Materials [Docket No. 183], the parties file a proposed Joint Protective Order governing a classified substituted statement to be provided to defense counsel, by September 14, 2012. Signed by Judge Jeffrey T. Miller on 9/7/2012. (aef)(jrd) (Entered: 09/10/2012)
192 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 8/22/2012, before Judge Jeffrey T. Miller. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 10/1/2012. Redacted Transcript Deadline set for 10/11/2012. Release of Transcript Restriction set for 12/10/2012. (akr) (Entered: 09/10/2012)
193 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Status Hearing re Scheduling as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 9/10/2012. Defendant presence is waived. Motion In Limine Hearing is continued to 1/10/2013 09:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. Jury Trial is continued to 1/28/2013 09:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. Motions to be filed and served no later than 12/20/12. Opposition and statement of non−opposition to be filed and served no later than 12/27/2012. Responses to be filed and served no later than 1/3/2013. Status Hearing re Pretrial Motions to be set through written order. Pending motions continued. Time is excluded under the speedy trial act. (Court Reporter Debra Henson).(Attorney Carolin Han, AUSA; William P Cole, AUSA). (Defendant Attorney Thomas Anthony Durkin, RET). (no document attached) (gac) (Entered: 09/10/2012)
194 Minute Entry for proceedings held before Magistrate Judge William V. Gallo: Status Conference as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 9/13/2012 (no document attached) (mcb) (Entered: 09/13/2012)
195 ORDER Following Status Conference; Logistics for Witness Depositions in Djibouti as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. This Court will hold another telephonic Status Conference set for 9/17/2012 07:00 AM before Magistrate Judge William V. Gallo. Signed by Magistrate Judge William V. Gallo on 09/13/2012. (yeb)(jrd) (Entered: 09/13/2012)
196 Joint MOTION for Protective Order by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Proof of Service)(Han, Caroline) (knb) (Entered: 09/14/2012)
197 Minute Entry for proceedings held before Magistrate Judge William V. Gallo: Status Conference as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 9/17/2012 (no document attached) (mcb) (Entered: 09/17/2012)
198 PROTECTIVE ORDER: Granting 196 Motion for Protective Order as to Basaaly Saeed Moalin (1). Signed by Judge Jeffrey T. Miller on 9/17/2012.(knb)(jrd) (Entered: 09/17/2012)
199 ORDER Appointing Magistrate Judge Gallo as Special Master for Purposes of Taking Rule 15 Depositions. Signed by Judge Jeffrey T. Miller on 9/21/2012. (srm) (jrl). (Entered: 09/24/2012)

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 26 of 56

09/25/2012
09/27/2012 10/01/2012 10/02/2012 10/05/2012 10/09/2012 10/09/2012 10/09/2012 10/09/2012
10/15/2012 10/15/2012
10/24/2012 10/25/2012

200 Minute Order: The Court held a Status Conference on 9/17/2012. The Court will hold another telephonic attorneys only Status Conference on 10/1/2012 at 7:30 AM before Magistrate Judge William V. Gallo. Any motion regarding allocation of expenses related to the witness depositions in Djibouti, Djibouti shall be filed on or before 9/28/2012. Any response shall be filed on or before 10/5/2012. (Plaintiff Attorney William Cole, Caroline Han). (Defendant Attorney Thomas Durkin, Alice Fontier, Ahmed Ghappour). (srm) (jrl). (Entered: 09/25/2012)
201 NOTICE of Filing of Memoranda of Understanding Regarding Court's September 17, 2012 Protective Order for Defense Counsel Joshua Dratel, Alice Fontier, Ahmed Ghappour, Linda Moreno, and Thomas Durkin by USA (Attachments: # 1 Proof of Service)(Han, Caroline) (srm). (Entered: 09/27/2012)
202 Minute Entry for proceedings held before Magistrate Judge William V. Gallo: Status Conference as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 10/1/2012 (no document attached) (mcb) (Entered: 10/01/2012)
203 NOTICE of Filing of Government's Ex Parte, In Camera Submission Regarding Order Granting Protective Order by USA (Attachments: # 1 Proof of Service)(Han, Caroline) (srm). (Entered: 10/02/2012)
204 NOTICE of filing of Defendant Nasir Taalil Mohamud's Waiver of Personal Appearance at Rule 15 Foreign Deposition Pursuant to Fed. R. Crim. Pro. 15(c)(1)(A) by Ahmed Nasir Taalil Mohamud (Durkin, Thomas) (srm). (Entered: 10/05/2012)
205 AFFIDAVIT by Basaaly Saeed Moalin (Fontier, Alice)(srm). (Entered: 10/09/2012)
206 AFFIDAVIT by Issa Doreh (Fontier, Alice) (srm). (Entered: 10/09/2012)
207 AFFIDAVIT by Mohamed Mohamed Mohamud as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Moreno, Linda) (srm). (Entered: 10/09/2012)
208 Minute Order: The Court held a status conference on 10/1/2012. A telephonic, attorneys only Status Conference is set for 10/15/2012 at 7:00 AM before Magistrate Judge William V. Gallo. On or before 10/19/2012, Defense counsel shall obtain from each Defendant a written waiver of their right to be present at the depositions in Djibouti. (Plaintiff Attorneys William Cole, Caroline Han). (Defendant Attorneys Thomas Durkin, Alice Fontier, Ahmed Ghappour, Linda Moreno).(srm)(jrd) (Entered: 10/09/2012)
209 Minute Entry for proceedings held before Magistrate Judge William V. Gallo: Status Conference as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 10/15/2012 (no document attached) (mcb) (Entered: 10/15/2012)
210 Minute Order as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. Status Conference held on 10/15/2012. Telephonic Status Conference set for 10/24/2012 07:00 AM before Magistrate Judge William V. Gallo. Signed by Magistrate Judge William V. Gallo on 10/15/2012. (jao) (Entered: 10/15/2012)
211 Minute Entry for proceedings held before Magistrate Judge William V. Gallo: Status Conference as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 10/24/2012 (no document attached) (mcb) (Entered: 10/24/2012)
212 Minute Order as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. This Court held a telephonic Status Conference on October 24, 2012. On or before October 26, 2012, at 12:00 p.m., each side shall submit briefing to the Court on the issue of "safe passage." The briefs shall be limited to five (5) pages for each side, not including any Declarations and exhibits in support of the parties' positions.Telephonic Motion Hearing set for 10/29/2012 07:00 AM before Magistrate Judge William V. Gallo. Only counsel must participate and the Court will initiate the call.. Signed by Magistrate Judge William V. Gallo on 10/24/2012. (jao) (jrl). (Entered: 10/25/2012)

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 27 of 56

10/26/2012 10/26/2012 10/29/2012 10/29/2012
10/29/2012
10/29/2012 10/30/2012 11/05/2012
11/05/2012 11/05/2012 11/08/2012 11/22/2012

213 Joint MOTION for Order of Safe Passage by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Memo of Points and Authorities, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Proof of Service)(Dratel, Joshua) Mailer sent on 10/26/2012 (jao). (Entered: 10/26/2012)
214 SUPPLEMENTAL BRIEFING by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Attachments: # 1 Declaration, # 2 Exhibit)(Cole, William) (jao). (Entered: 10/26/2012)
215 Minute Entry for proceedings held before Magistrate Judge William V. Gallo: Motion Hearing as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 10/29/2012 (no document attached) (mcb) (Entered: 10/29/2012)
216 ORDER Denying 213 Defendants' Joint Motion for Order of Safe Passage as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). Telephonic Status Conference set for 11/5/2012 08:00 AM before Magistrate Judge William V. Gallo. Only counsel must participate and the Court will initiate the call. Signed by Magistrate Judge William V. Gallo on 10/29/2012.(jao)(jrd) (Entered: 10/29/2012)
217 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (Motion Hearing Re: Safe Passage) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 10/29/2012, before Magistrate Judge William V. Gallo. Court Reporter/Transcriber: Cameron P. Kircher. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 11/19/2012. Redacted Transcript Deadline set for 11/29/2012. Release of Transcript Restriction set for 1/28/2013. (akr) (Entered: 10/29/2012)
218 AFFIDAVIT by Ahmed Nasir Taalil Mohamud (Durkin, Thomas) (jao). (Entered: 10/29/2012)
219 AFFIDAVIT by Mohamed Mohamed Mohamud (Moreno, Linda) Mailer sent on 10/31/2012; Modified text on 10/31/2012 (jao). (Entered: 10/30/2012)
220 Joint MOTION for Reconsideration of Magistrate Judge's Order Denying Safe Passage to Farah Shidane by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Exhibit #1 −− Order Denying Defendants' Joint Motion for Order of Safe Passage, # 2 Exhibit #2− Email To Counsel)(Dratel, Joshua) (jao). (Entered: 11/05/2012)
221 Minute Entry for proceedings held before Magistrate Judge William V. Gallo: Status Conference as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 11/5/2012 (no document attached) (mcb) (Entered: 11/05/2012)
222 RESPONSE in Opposition by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 220 Joint MOTION for Reconsideration of Magistrate Judge's Order Denying Safe Passage to Farah Shidane (Attachments: # 1 Exhibit 1, # 2 Proof of Service)(Han, Caroline) Mailer sent on 11/6/2012 (jao). (Entered: 11/05/2012)
223 ORDER denying Objections to Magistrate Judge's Order Denying Safe Passage to Farah Shidane re 220 Motion for Reconsideration. Signed by Judge Jeffrey T. Miller on 11/8/2012.(jao) (jrl). (Entered: 11/08/2012)
224 Joint MOTION to Take Deposition of Farah Shidane by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Memo of Points and Authorities, # 2 Proof of Service)(Fontier, Alice) (jao). (Entered: 11/22/2012)

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 28 of 56

11/27/2012
12/04/2012 12/04/2012 12/10/2012 12/12/2012
12/17/2012 12/18/2012 12/20/2012 12/20/2012 12/20/2012 12/20/2012

225 SCHEDULING ORDER on Ex Parte Application for Rule 15 Deposition as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 224 Joint Motion to Take Deposition. The parties are advised that the court treats the request as an ex parte application, not as a noticed motion. The government is requested to file a response by December 4, 2012. At that time, the application will be taken under submission and decided on the papers filed unless it appears that oral argument would be of assistance to the court. Signed by Judge Jeffrey T. Miller on 11/27/2012. (jao)(jrd) (Entered: 11/27/2012)
226 SCHEDULING ORDER as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. On its own motion, the court sets a telephonic Status Conference re: scheduling with counsel only for December 12, 2012 at 10:00 a.m. before Judge Jeffrey T. Miller. Signed by Judge Jeffrey T. Miller on 12/4/2012. (jao)(jrl). (Entered: 12/04/2012)
227 RESPONSE in Opposition by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 224 Joint MOTION to Take Deposition of Farah Shidane Pursuant to Rule 15, Fed. R. Crim. P. (Attachments: # 1 Proof of Service)(Cole, William) (jao). (Entered: 12/04/2012)
228 ORDER Denying 224 Joint Motion to Take Video Deposition of Farah Shidane. In sum, the court concludes that Defendants fail to establish that it is in the interests of justice to take the video deposition of Mr. Shidane. Signed by Judge Jeffrey T. Miller on 12/10/2012.(jao) (Entered: 12/10/2012)
229 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Status Conference as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 12/12/2012. Defendant presence is waived. Objections to deposition transcripts must be submitted no later than 1/10/2013. Jencks to be produced no later than 1/10/2013. Any supplemental documentation re Motion for Bill of Particulars to be filed and served no later than 12/20/2012. Oppositions to be filed and served no later than 12/27/2012. Reply to be filed and served no later than 1/3/2013. (Court Reporter Debra Henson).(Plaintiff Attorney Caroline Han, AUSA; William P Cole, AUSA). (Defendant Attorney (1) Joshua L. Dratel, RET; Alice L. Fontier, RET; (2) LInda Moreno, RET; (3) Ahmed Ghappour, RET; (4) Thomas Anthony Durkin, RET). (no document attached) (gac) (Entered: 12/12/2012)
230 NOTICE of Filing of Government's Ex Parte, In Camera Submission Regarding December 3, 2012 Protective Order by USA (Attachments: # 1 Proof of Service)(Han, Caroline) (jao). (Entered: 12/17/2012)
231 Notice of Entry of Order Granting Ex Parte Application re: Supplemental Submission as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. The court provides notice to all parties that on December 17, 2012 the court filed with the Court Security Officer an order granting the Government's ex parte application re: supplemental submission pursuant to CIPA §4. Signed by Judge Jeffrey T. Miller on 12/18/2012. (jao)(jrd) (Entered: 12/18/2012)
232 Joint MOTION to Admit Testimony Taken Pursuant to Rule 15 by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Memo of Points and Authorities, # 2 Exhibit, # 3 Proof of Service)(Fontier, Alice) (jao). (Entered: 12/20/2012)
233 Joint MOTION to Preclude Testimony from the Government Referencing Irrelevant and Prejudicial Religious Violence at Trial by Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Durkin, Thomas) (jao). (Entered: 12/20/2012)
234 Joint MOTION for Attorney Voir Dire and for Juror Questionnaire by Mohamed Mohamed Mohamud. (Attachments: # 1 Exhibit A)(Moreno, Linda) (jao). (Entered: 12/20/2012)
235 MOTION to Preclude Evidence of duress, coercion or necessity defense, MOTION to Exclude witnesses from courtroom, MOTION to Preclude references to punishment, MOTION to Admit certified public records, MOTION to Preclude evidence of prior good acts, MOTION to Preclude pity or sympathy evidence, MOTION to Allow government witness to testify under pseudonym, MOTION to Allow Testimony by recalling witnesses, MOTION to Admit references to Al Qaeda by USA as to Basaaly

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01/02/2013 01/03/2013 01/04/2013

Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Memo of Points and Authorities, # 2 Exhibit 1−3, # 3 Proof of Service)(Cole, William) (jao). (Entered: 12/20/2012)
236 Joint MOTION for Order Regarding Proposed Protocol for Jury Selection by Mohamed Mohamed Mohamud. (Moreno, Linda) (jao). (Entered: 12/20/2012)
237 MOTION for Bill of Particulars by Issa Doreh as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Memo of Points and Authorities, # 2 Proof of Service)(Ghappour, Ahmed) (jao). (Entered: 12/20/2012)
238 Joint MOTION to Preclude Evidence by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Memo of Points and Authorities, # 2 Proof of Service)(Fontier, Alice) (jao). (Entered: 12/20/2012)
239 Ex Parte MOTION for Extension of Time to File Response/Reply as to 235 MOTION to Preclude Evidence of duress, coercion or necessity defense MOTION to Exclude witnesses from courtroom MOTION to Preclude references to punishment MOTION to Admit certified public records MOTION to Preclude evidence of prior good acts MOTION to Preclude pity or sympathy evidence MOTION to Allow government witness to testify under pseudonym MOTION to Allow Testimony by recalling witnesses MOTION to Admit references to Al Qaeda , Joint MOTION to Preclude Evidence , MOTION to Admit Records by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Fontier, Alice) Text Modified on 12/27/2012 (QC Mailer sent out re: missing proof of service) (sjt). Modified on 1/22/2013 to term motion 239−1, documents filed on 12/28/2012 (nsp). (Entered: 12/26/2012)
240 RESPONSE to Motion by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 232 Joint MOTION to Admit Testimony Taken Pursuant to Rule 15, 238 Joint MOTION to Preclude Evidence , 234 Joint MOTION for Attorney Voir Dire and for Juror Questionnaire, 237 MOTION for Bill of Particulars , 236 Joint MOTION for Order Regarding Proposed Protocol for Jury Selection, 233 Joint MOTION to Preclude Testimony from the Government Referencing Irrelevant and Prejudicial Religious Violence at Trial (Attachments: # 1 Proof of Service)(Cole, William) (jpp). (Entered: 12/27/2012)
241 RESPONSE in Opposition by Issa Doreh as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 235 MOTION to Preclude Evidence of duress, coercion or necessity defense MOTION to Exclude witnesses from courtroom MOTION to Preclude references to punishment MOTION to Admit certified public records MOTION to Preclude evidence of prior good acts MOTION to Preclude pity or sympathy evidence MOTION to Allow government witness to testify under pseudonym MOTION to Allow Testimony by recalling witnesses MOTION to Admit references to Al Qaeda (Attachments: # 1 Proof of Service)(Ghappour, Ahmed) (jao). (Entered: 12/28/2012)
242 NOTICE of Filing of Government's Ex Parte, In Camera Supplemental Motion for Protective Order Pursuant to the Classified Information Procedures Act, Fed R Crim P 26.2 and the Jencks Act by USA (Attachments: # 1 Proof of Service)(Cole, William) (jao). (Entered: 01/02/2013)
243 REPLY TO RESPONSE to Motion by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 235 MOTION to Preclude Evidence of duress, coercion or necessity defense MOTION to Exclude witnesses from courtroom MOTION to Preclude references to punishmentJoint MOTION to Preclude Evidence MOTION to Admit Records (Attachments: # 1 Proof of Service)(Cole, William) (jao). (Entered: 01/03/2013)
244 RESPONSE in Support by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 238 Joint MOTION to Preclude Evidence , 232 Joint MOTION to Admit Testimony Taken Pursuant to Rule 15, 236 Joint MOTION for Order Regarding Proposed Protocol for Jury Selection, 233 Joint MOTION to Preclude Testimony from the Government Referencing Irrelevant and Prejudicial Religious Violence at Trial, 237 MOTION for

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01/09/2013 01/10/2013 01/10/2013 01/10/2013
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Bill of Particulars (Attachments: # 1 Proof of Service)(Fontier, Alice) (jao). (Entered: 01/04/2013)
245 PRO HAC VICE APPOINTED: Janis D. Roberts appearing for Defendant Ahmed Nasir Taalil Mohamud,Receipt # 46318. (vam) (Entered: 01/09/2013)
246 ORDER Permitting Electronic Computer Equipment Into Courthouse as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. Signed by Judge Jeffrey T. Miller on 1/10/2013. (jao) (jrl). (Entered: 01/10/2013)
247 NOTICE OF ATTORNEY APPEARANCE Steven Phillip Ward appearing for USA. (Ward, Steven) (jao). (Entered: 01/10/2013)
248 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Motion In Limine Hearing as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 1/10/2013, (232−1) MOTION to Admit Testimony Taken Pursuant to Rule 15 − finding as moot;(233−1) Joint MOTION to Preclude Testimony from the Government Referencing Irrelevant and Prejudicial Religious Violence at Trial − denied;(234−1) Joint MOTION for Attorney Voir Dire and for Juror Questionnaire − granted;(235−1) MOTION to Preclude Evidence of duress, coercion or necessity defense − granted without prejudice;(235−2) MOTION to Exclude witnesses from courtroom − finding as moot;(235−3) MOTION to Preclude references to punishment − granted;(235−4) MOTION to Admit certified public records − granted; (235−5) MOTION to Preclude evidence of prior good acts − denied;(235−6) MOTION to Preclude pity or sympathy evidence − deferred; (235−7) MOTION to Allow government witness to testify under pseudonym − conditionally granted; (235−8) MOTION to Allow Testimony by recalling witnesses − finding as moot; (235−9) MOTION to Admit references to Al Qaeda − granted; (237−1) MOTION for Bill of Particulars − denied;(238−1) Joint MOTION Precluding or limiting the admission of evidence prior to February 26, 2008 − finding as moot; (238−2) MOTION to Preclude testimony regarding violence and terrorism not directly related to the defendants alleged acts− denied; (238−3) MOTION to Preclude testimony as to the reasons for reasons for al−Shabaabs designation as an FTO; − denied;(238−4) MOTION to Suppress the statements of non−testifying co−defendants − finding as moot. Status Hearing set for 1/25/2013 11:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. Proposed Voir Dire due by 1/18/2013. Trial Briefs to be field and served no later than 1/22/2013. Proposed Jury Instructions due by 1/25/2013. Pending motions continued to 1/25/2013. Time is excluded under the speedy trial act. (Court Reporter Debra Henson).(Plaintiff Attorney William P Cole, AUSA; Steven Phillip Ward, AUSA; Caroline Han, AUSA). (Defendant Attorney (1) Joshua L Dratel, RET; Alice L Fontier, RET; (2) Linda Moreno, RET; (3) Ahmen Ghappour, RET; (4) Thomas Anthony Durkin, RET). (no document attached) (gac) (Entered: 01/10/2013)
249 OBJECTION to Defense Depositions and Response to Defense Objections by USA (Attachments: # 1 Proof of Service)(Cole, William) (jao). (Entered: 01/14/2013)
250 NOTICE OF HEARING as to Defendants Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. Telephonic Status Hearing set for 1/17/2013 11:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. (no document attached) (gac) Modified on 1/15/2013 edit date(gac). (Entered: 01/15/2013)
251 SUPPLEMENTAL DOCUMENT by USA, Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Parties' Proposed Juror Questionnaire) (Attachments: # 1 Proof of Service, # 2 Exhibit 1)(Han, Caroline) (Entered: 01/16/2013)
252 NOTICE of Filing of Government's Ex Parte, In Camera Fourth Supplemental Motion for Protective Order Pursuant to the Classified Information Procedures Act, Section 4, Fed. R. Crim. P. 16 by USA (Ward, Steven) (jao). (Entered: 01/17/2013)
253 Notice of Entry of Orders RE: (1) Supplemental CIPA and Jencks Motion and (2) Fourth Supplementaal CIPA Motion as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. The court provides notice to all parties that on January 17, 2013 the court entered orders concerning the Government's (1) Supplemental CIPA and Jencks Motion and (2) Fourth Supplemental CIPA

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01/17/2013
01/17/2013 01/18/2013 01/18/2013 01/18/2013 01/22/2013 01/22/2013 01/23/2013 01/24/2013 01/24/2013 01/24/2013 01/25/2013 01/25/2013

Motion. Signed by Judge Jeffrey T. Miller on 1/17/2013. (jao)(jrl). (Entered: 01/17/2013)
254 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Telephonic Status Hearing as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 1/17/2013. Defendants presence waived. Status Hearing set for 1/25/2013 11:00 AM is reset to 1:00 PM 1/25/2013 before Judge Jeffrey T. Miller in Courtroom 16. Counsel waives services of interpreter at 1/25/2013 hearing as to Ahmed Nasir Taalil Mohamud (4). Defense counsel Thomas Anthony Durkin oral request to extend deadline for filing of trial briefs to 1/24/2013 − granted. (Court Reporter Debra Henson).(Attorney Caroline Han, AUSA; Steven Phillip Ward, AUSA; William P Cole, AUSA). (Defendant Attorney (1) Joshua L. Dratel, RET; Linda Moreno, RET; Ahmen Ghappour, RET; Thomas Anthony Durkin, AUSA). (no document attached) (gac) Modified on 1/17/2013 to add new trial brief deadline (gac). (Entered: 01/17/2013)
255 Proposed Voir Dire by Mohamed Mohamed Mohamud as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Moreno, Linda) (jao). (Entered: 01/17/2013)
256 Proposed Voir Dire by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Attachments: # 1 Proof of Service)(Cole, William) (jao). (Entered: 01/18/2013)
257 Supplemental Memorandum re 98 to Sever Defendants Memorandum in Support of Previously Filed Rule 14 Motion for Relief from Prejudicial Joinder by Ahmed Nasir Taalil Mohamud. (Durkin, Thomas) Modified text/event on 1/24/2013 (jao). (Entered: 01/18/2013)
258 ORDER Regarding Jury Fees as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. It is hereby ordered that each member of the jury hearing the above case shall receive a total attendance fee of $50.00 per day for each day of service in excess of ten (10) days. Signed by Judge Jeffrey T. Miller on 1/18/2013. (jao) (jrl). (Entered: 01/22/2013)
259 SUPPLEMENTAL MEMORANDUM In Support of Motion to Permit Witness To Testify Under Pseudonym by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Ward, Steven) (jao). (Entered: 01/22/2013)
260 TRIAL BRIEF by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Attachments: # 1 Proof of Service Certificate of Service)(Cole, William) (jao). (Entered: 01/22/2013)
261 SUPPLEMENTAL DOCUMENT by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 257 Supplemental MOTION to Sever Defendants Memorandum in Support of Previously Filed Rule 14 Motion for Relief from Prejudicial Joinder (Attachments: # 1 Proof of Service)(Cole, William) (jao). (Entered: 01/23/2013)
262 TRIAL BRIEF by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh (Attachments: # 1 Proof of Service)(Fontier, Alice) (jao). (Entered: 01/24/2013)
263 TRIAL BRIEF by Ahmed Nasir Taalil Mohamud (Durkin, Thomas) (jao). (Entered: 01/24/2013)
264 ORDER Denying 98 Motion for Rule 14 Severance as to Ahmed Nasir Taalil Mohamud (4). Signed by Judge Jeffrey T. Miller on 1/24/2013.(jao)(jrl). (Entered: 01/25/2013)
265 Proposed Jury Instructions by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Attachments: # 1 Proof of Service)(Cole, William)(jao). (Entered: 01/25/2013)
267 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Status Hearing as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 1/25/2013. Defendant waive services of court appointed

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interpreter as to this hearing. Court instructs parties as to modification to questionnaire and attorney conducted voir dire. Parties stipulate to release original questionnaire to AUSA for copying purposes, distribution of copies to appropriate parties, and returning originals to the court to be filed under seal. Counsel waives presence during completion of questionnaire. Jury Trial set for 1/28/2013 before Judge Jeffrey T. Miller in Courtroom 1. (Court Reporter Debra Henson).(Plaintiff Attorney Joshua L Dratel, RET; Alice L. Fontier, RET; Linda Moreno, RET; Thomas Durkin, RET). (Defendant Attorney Caroline Pineda Han, AUSA; Steven Phillip Ward, AUSA; William P Cole, AUSA). (no document attached) (gac) (Entered: 01/28/2013)
266 Proposed Jury Instructions by Issa Doreh as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Attachments: # 1 Proof of Service)(Ghappour, Ahmed) (jao). (Entered: 01/26/2013)
268 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 1/28/2013. Day of Trial 1. Jury selection held. Court exhibits 1, 2 entered. Prospective jurors completed questionnaire and excused to return if selected. Jury Trial continued to 1/29/2013 9:00 AM before Judge Jeffrey T. Miller in Courtroom 1. (Court Reporter Debra Henson).(Plaintiff Attorney Caroline Pineda Han, AUSA; Steven Phillip Ward, AUSA; William P Cole, AUSA). (Defendant Attorney Joshua L Dratel, RET(1); Alice L. Fontier, RET (1); Linda Moreno, RET(2);Ahmed Ghappour, RET (3);Janis D. Roberts, RET (4); Thomas Durkin, RET(4)). (no document attached) (gac) Modified on 1/30/2013 to note jury selection held (gac). (Entered: 01/29/2013)
272 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 1/29/2013. Day of Trial 2. Jury selection continued. Voir dire continued. Jury selection completed. Jury impaneled. 12 Trial Jurors Present. 3 Alternate Jurors Present. Jury Trial continued to 1/30/2013 9:00 AM before Judge Jeffrey T. Miller in Courtroom 16. (Court Reporter Debra Henson).(Plaintiff Attorney Caroline Pineda Han, AUSA; Steven Phillip Ward, AUSA; William P Cole, AUSA). (Defendant Attorney (1) Joshua L Dratel, RET; Alice L Fontier, RET; (2) Linda Moreno, RET; (3) Ahmen Ghappour, RET; (4) Thomas Anthony Durkin, RET; Janis D. Roberts, RET). (no document attached) (gac) (Entered: 01/10/2013) (no document attached) (gac) (Entered: 01/30/2013)
273 ORDER RE: Defendants' Joint Motion for Court Ordered Remedies as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. In sum, the Motion is granted in part and denied in part. Signed by Judge Jeffrey T. Miller on 1/30/2013. (jao) (jrl). (Entered: 01/31/2013)
274 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 1/30/2013. Day of Trial 3. 12 Trial Jurors Present. 3 Alternate Jurors Present. Opening statements held. Swore witnesses. Exhibits marked/received. Jury Trial continued to 1/31/2013 9:00AM before Judge Jeffrey T. Miller in Courtroom 16. (Plaintiff Attorney Caroline Pineda Han, AUSA; Steven Phillip Ward, AUSA; William P Cole, AUSA). (Defendant Attorney (1) Joshua L Dratel, RET; Alice L Fontier, RET; (2) Linda Moreno, RET; (3) Ahmen Ghappour, RET; (4) Thomas Anthony Durkin, RET; Janis D. Roberts, RET ).(Court Reporter Debra Henson). (no document attached) (gac) (Entered: 01/31/2013)
275 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 1/31/2013. Day of Trial 4. 12 Trial Jurors Present. 3 Alternate Jurors Present. Swore witnesses. Exhibits marked/received. Jury Trial continued to 2/4/2013 09:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. (Court Reporter Debra Henson).(Plaintiff Attorney Caroline Pineda Han, AUSA; Steven Phillip Ward, AUSA; William P Cole, AUSA). (Defendant Attorney (1) Joshua L Dratel, RET; Alice L Fontier, RET; (2) Linda Moreno, RET; (3) Ahmen Ghappour, RET; (4) Thomas Anthony Durkin, RET; Janis D. Roberts, RET ). (no document attached) (gac) (Entered: 02/01/2013)

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276 NOTICE of Classified Filing by Basaaly Saeed Moalin (Fontier, Alice) (jao). (Entered: 02/01/2013)
277 SUPPLEMENTAL MEMORANDUM by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Attachments: # 1 Exhibit, # 2 Proof of Service)(Cole, William) (jao). (Entered: 02/02/2013)
278 SUPPLEMENTAL MEMORANDUM Re: Rule 106 by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Attachments: # 1 Exhibit A, # 2 Proof of Service)(Han, Caroline) (Entered: 02/03/2013)
279 ORDER Following In Camera Review as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. Signed by Judge Jeffrey T. Miller on 2/4/2013. (jao)(jrd) (Entered: 02/04/2013)
281 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (Status Hearing) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 1/25/2013, before Judge Jeffrey T. Miller. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/25/2013. Redacted Transcript Deadline set for 3/7/2013. Release of Transcript Restriction set for 5/6/2013. (akr) (Entered: 02/05/2013)
282 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 2/4/2013. Day of Trial 5. 12 Trial Jurors Present. 3 Alternate Jurors Present. Swore witnesses. Exhibits marked/received. Jury Trial continued to 2/5/2013 09:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. (Court Reporter Debra Henson).(Plaintiff Attorney Caroline Pineda Han, AUSA; Steven Phillip Ward, AUSA; William P Cole, AUSA). (Defendant Attorney (1) Joshua L Dratel, RET; Alice L Fontier, RET; (2) Linda Moreno, RET; (3) Ahmen Ghappour, RET; (4) Thomas Anthony Durkin, RET; Janis D. Roberts, RET ) (no document attached) (gac) (Entered: 02/05/2013)
280 SUPPLEMENTAL DOCUMENT by Ahmed Nasir Taalil Mohamud Submission of Color Coded Transcripts Regarding Fed. R. Evid. 106 (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2, # 3 Exhibit A−3, # 4 Exhibit A−4, # 5 Exhibit A−5)(Durkin, Thomas) (jao). (Entered: 02/05/2013)
284 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 2/5/2013. Day of Trial 6. 12 Trial Jurors Present. 3 Alternate Jurors Present. Swore witnesses. Exhibits marked/received. Jury Trial continued to 2/6/2013 09:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. (Court Reporter Debra Henson).(Attorney Caroline Han, AUSA; Steven Ward, AUSA; William P Cole, AUSA). (Defendant Attorney (1) Joshua L. Dratel, RET; Alice L. Fontier, RET; (2) Linda Moreno, RET; (3) Ahmed Ghappour, RET; (4) Thomas Durkin, RET; Jani D Roberts, RET). (no document attached) (gac) (Entered: 02/06/2013)
285 MOTION to Admit Evidence Pursuant to Rule 106, Fed.R.Evid. by Basaaly Saeed Moalin. (Attachments: # 1 Appendix GX 123, # 2 Appendix GX 128, # 3 Appendix GX 130, # 4 Appendix GX 131, # 5 Appendix GX 135, # 6 Appendix GX 141, # 7 Appendix GX 143, # 8 Appendix GX 144, # 9 Appendix GX 177, # 10 Appendix GX 191, # 11 Proof of Service)(Fontier, Alice) (jao). (Entered: 02/06/2013)
286 MOTION to Admit Recorded Statements by Mohamed Mohamed Mohamud as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Moreno, Linda) (jao). (Entered: 02/06/2013)

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02/06/2013
02/07/2013
02/08/2013 02/08/2013 02/11/2013 02/11/2013 02/12/2013

287 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 2/6/2013. Day of Trial 7. 12 Trial Jurors Present. 3 Alternate Jurors Present. Swore witnesses. Exhibits marked/received. Rule 29 Motion for Judgement of Acquittal by Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud − denied. Rule 14 Motion for Severance by Ahmend Nasir Talil Mohamud − denied. Jury Trial continued to 2/7/2013 9:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. (Court Reporter Debra Henson).).(Attorney Caroline Han, AUSA; Steven Ward, AUSA; William P Cole, AUSA). (Defendant Attorney (1) Joshua L. Dratel, RET; Alice L. Fontier, RET; (2) Linda Moreno, RET; (3) Ahmed Ghappour, RET; (4) Thomas Durkin, RET; Janis D Roberts, RET). (no document attached) (gac) Modified on to include rulings on motions 2/8/2013 (gac). (Entered: 02/07/2013)
289 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 2/7/2013. Day of Trial 8. 12 Trial Jurors Present. 3 Alternate Jurors Present. Swore witnesses. Exhibits marked/received. Motions to Addition of Transcript Materials under Rule 106 of Rules of Evidence orally ruled upon as to defendants Basaaly Saeed Moalin (1); Mohamed Mohamed Mohamud (2); Issa Doreh (3); Ahmed Nasir Taalil Moahamud (4) on 2/6/2013 and 2/72013. Motions and Judge Association terminated as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud: 286 MOTION to Admit Recorded Statements filed by Mohamed Mohamed Mohamud. Jury Trial is continued to 2/8/2013 9:00 AM in Courtroom 16 before Judge Jeffrey T. Miller. (Court Reporter Debra Henson).(Attorney Caroline Han, AUSA; Steven Ward, AUSA; William Cole, AUSA). (Defendant Attorney (1) Joshua L Dratel, RET; Alice Fontier, RET; (2) Linda Moreo, RET; (3) Ahmed Ghappour, RET; (4) Thomas Durkin, RET; Janis Roberts, RET). (no document attached) (gac) (Entered: 02/08/2013)
288 NOTICE OF INTENT TO EXAMINE WITNESS ABDIAZIZ HUSSEIN by Issa Doreh (Attachments: # 1 Proof of Service)(Ghappour, Ahmed) (jao). (Entered: 02/08/2013)
290 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 2/8/2013. Day of Trial 9. 12 Trial Jurors Present. 3 Alternate Jurors Present. Swore witnesses. Exhibits marked/received. Jury Trial continued to 2/11/2013 9:00 AM in Courtroom 5D before Judge Jeffrey T. Miller. (Court Reporter Debra Henson). (no document attached) (gac) (Entered: 02/08/2013)
291 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 2/11/2013. Day of Trial 10. 12 Trial Jurors Present. 3 Alternate Jurors Present. Swore witnesses. Exhibits marked/received. Jury Trial set for 2/12/2013 09:00 AM in Courtroom 5D before Judge Jeffrey T. Miller. (Court Reporter Debra Henson).(Attorney Caroline Han, AUSA; Steven Ward, AUSA; William Cole, AUSA). (Defendant Attorney (1) Joshua L Dratel, RET; Alice Fontier, RET; (2) Linda Moreno, RET; (3) Ahmed Ghappour, RET; (4) Thomas Durkin, RET; Janis Roberts, RET). (Interpreters Fanik Jama, Ayderus Ali) (no document attached) (gac) (Entered: 02/12/2013)
295 SUPPLEMENTAL MEMORANDUM RE: Proposed Introduction of Their Own Recorded Statements by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (jao) (Entered: 02/14/2013)
292 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 2/12/2013. Day of Trial 11. 12 Trial Jurors Present. 3 Alternate Jurors Present. Swore witnesses. Exhibits marked/received. Jury Trial continued to 2/13/2013 09:00 AM in Courtroom 5D before Judge Jeffrey T. Miller. (Court Reporter Debra Henson).(Attorney Caroline Han, AUSA; Steven Ward, AUSA; William Cole, AUSA). (Defendant Attorney (1) Joshua L Dratel, RET; Alice Fontier, RET; (2) Linda Moreno, RET; (3) Ahmed Ghappour, RET; (4) Thomas Durkin, RET; Janis Roberts, RET). (Attorney Mary Franklin)(Interpreters Fanik Jama; Ayderus Ali) (no document attached) (gac) (Entered: 02/13/2013)

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 35 of 56

02/13/2013 02/13/2013
02/14/2013 02/19/2013 02/19/2013 02/20/2013
02/21/2013 02/22/2013

294 Notice of Entry of Order Permitting Witness Mr. Hussen to Invoke the Fifth Amendment Privilege. Signed by Judge Jeffrey T. Miller on 2/13/2013. (rlu)(jrd) (Entered: 02/13/2013)
296 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 2/13/2013. Day of Trial 12. 12 Trial Jurors Present. 3 Alternate Jurors Present.Swore witnesses. Exhibits marked/received. Rule 29 Motion renewed and denied as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. Jury Trial set for 2/14/2013 01:00 PM in Courtroom 5D before Judge Jeffrey T. Miller, for cousel only. Defendants appearances are waived 2/14/2013. Jury instructed to return 2/19/2013 9:00 AM to Courtroom 5D before Judge Jeffrey T. Miller. (Court Reporter Debra Henson).(Attorney Caroline Han, AUSA; Steven Ward, AUSA; William Cole, AUSA). (Defendant Attorney (1) Joshua L Dratel, RET; Alice Fontier, RET; (2) Linda Moreno, RET; (3) Ahmed Ghappour, RET; (4) Thomas Durkin, RET; Janis Roberts, RET). (Interpreters Fanik Jama; Ayderus Ali) (no document attached) (gac) (Entered: 02/14/2013)
297 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 2/14/2013. Day of Trial Day Thirteen. Defendants presence waived. Jury not present. Parties finalizing Jury Instructions outside the presence of the jury. (Court Reporter Debra Henson). (Plaintiff Attorney William P. Cole AUSA, Steven Phillip Ward AUSA). (Defendant Attorney Joshua L. Dratel RET, Ahmed Ghappour RET). (no document attached) (ymm) (Entered: 02/15/2013)
298 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 2/19/2013. Day of Trial 14. 12 Trial Jurors Present. 3 Alternate Jurors Present. Final instructions given to Jury. Closing arguments held. Defendant Issa Doreh Motion for Mistrial − denied. Case rests. Court instructs Jury to return 2/20/2013 9:00 AM to begin deliberations. Jury Trial continued to 2/20/2013 09:00 AM in Courtroom 5D before Judge Jeffrey T. Miller. (Interpreter Fanik Jama). (Court Reporter Debra Henson). (no document attached) (gac) (Entered: 02/20/2013)
301 Jury Instructions as to Defendants Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (nsp) (Entered: 02/25/2013)
299 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 2/20/2013. Day of Trial 15. 12 Trial Jurors Present. 3 Alternate Jurors Present. Jury retired to deliberate at 9:00 AM. Meals ordered at government expense. Counsel appeared telephonically outside the presence of the Jury. Defendants presence waived. Jury Trial continued to 2/21/2013 09:00 AM in Courtroom 5D before Judge Jeffrey T. Miller for further deliberations. (Court Reporter Debra Henson).(Attorney Caroline Han, AUSA; Steven Ward, AUSA; William Cole, AUSA). (Defendant Attorney (1) Joshua L Dratel, RET; (2) Linda Moreno, RET; (3) Ahmed Ghappour, RET; (4) Thomas Durkin, RET; Janis Roberts, RET). (no document attached) (gac) Modified on 2/21/2013 to include alternate juror information(gac). (Entered: 02/21/2013)
300 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 2/21/2013. Day of Trial 16. 12 Trial Jurors Present. 3 Alternate Jurors Present. Jury deliberating. Parties not appearing. Meals ordered at government expense. Jury Trial continued to 2/22/2013 9:00 AM in Courtroom 5D before Judge Jeffrey T. Miller. (Plaintiff Attorney n/a). (Defendant Attorney n/a). (no document attached) (gac) (Entered: 02/22/2013)
302 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Jury Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 2/22/2013. Day of Trial 17. Exhibits marked/received. Jury returned at 12:30 PM. Verdict: Basally Saeed Moalin (1), Guilty as to Counts 1, 2, 3, 4, and 5 of Superseding Indictment(See Court Exhibit 8 for clarification on Count 5 as to Basally Saeed Moalin (1)); Mohamed Mohamed Mohamud (2), Guilty as to Counts 1, 2, 3, and 5 of Superseding Indictment; Issa Doreh (3), Guilty as to Counts 1, 2, 3, and 5 of Superseding Indictment; Ahmed Nasir Taalil Mohamud (4), Guilty as to

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02/22/2013
02/22/2013
02/22/2013 02/22/2013 02/22/2013 03/11/2013 04/03/2013 04/05/2013
05/23/2013 05/23/2013 05/23/2013 05/23/2013 05/31/2013

Counts 1, 2 and 3 of Superseding Indictment. Jury polled. Meals ordered at government expense. Sentence With PSR set for 5/16/2013 09:00 AM in Courtroom 5D before Judge Jeffrey T. Miller. Presentence Report is ordered. Pending motions are rendered moot. Post Trial Motion deadlines are extended to be heard Sentencing Hearing date of 5/16/2013. (Interpreter Fanik Jama). (Court Reporter Debra Henson). (Plaintiff Attorney Caroline Han, AUSA; Steven Ward, AUSA; William Cole, AUSA). (Defendant Attorney Attorney (1) Joshua L Dratel, RET; (2) Linda Moreno, RET; (3) Ahmed Ghappour, RET; (4) Thomas Durkin, RET; Janis Roberts, RET). (no document attached) (gac) (Entered: 02/25/2013)
303 REDACTED JURY VERDICT on Superseding Indictment as to Basaaly Saeed Moalin (1) Guilty on Count 1, 2, 3, 4, and 5(See Court Exhibit 8 for clarification on Count 5 as to Basally Saeed Moalin (1); Mohamed Mohamed Mohamud (2) Guilty on Count 1, 2, 3, and 5; Issa Doreh (3) Guilty on Count 1, 2, 3, and 5 and Ahmed Nasir Taalil Mohamud (4) Guilty on Count 1, 2, and 3. (gac). Modified on 3/12/2013 Original Sealed per order dated 3/11/2013 docket entry 308 (gac). (Entered: 02/25/2013)
304 COURT EXHIBIT LIST (gac) (Additional attachment(s) added on 3/12/2013: # 1 Court Exhibit 1) (gac). (Additional attachment(s) added on 3/12/2013: # 2 Court Exhibit 2, # 3 Court Exhibit 3, # 4 Court Exhibit 4, # 5 Court Exhibit 5, # 6 Court Exhibit 6, # 7 Court Exhibit 7, # 8 Court Exhibit 8) (gac). Modified on 3/12/2013 (gac). Redacted per order dated 3/11/2013 docket entry 308 (Entered: 02/25/2013)
305 EXHIBIT LIST by Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (gac) (Entered: 02/25/2013)
306 EXHIBIT LIST by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (gac) (Entered: 02/25/2013)
307 WITNESS LIST by USA, Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (gac) (Entered: 02/25/2013)
308 ORDER re: Court Exhibits and Verdict Form as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. Signed by Judge Jeffrey T. Miller on 3/11/2013. (jao) (Entered: 03/11/2013)
315 Joint MOTION to Continue post−trial motions and sentencings by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Proof of Service)(Sullivan, Holly) (jao). (Entered: 04/03/2013)
316 ORDER granting 315 Joint Motion to Continue Post−Trial Motions and Sentencing as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). Sentence With PSR reset for 6/27/2013 09:00 AM in Courtroom 5D before Judge Jeffrey T. Miller. Signed by Judge Jeffrey T. Miller on 4/5/2013.(jao) (Entered: 04/05/2013)
317 PRE−SENTENCE REPORT as to Basaaly Saeed Moalin. Report prepared by: Marvin E. English. (Document applicable to USA, Basaaly Saeed Moalin.) (Lara, R.) (jao). (Entered: 05/23/2013)
318 PRE−SENTENCE REPORT as to Issa Doreh. Report prepared by: Alexandra Adame. (Document applicable to USA, Issa Doreh.) (Luna, G.) (jao). (Entered: 05/23/2013)
319 PRE−SENTENCE REPORT as to Ahmed Nasir Taalil Mohamud. Report prepared by: Jill Johnson−Pogue. (Document applicable to USA, Ahmed Nasir Taalil Mohamud.) (lhn) (jao). (Entered: 05/23/2013)
320 PRE−SENTENCE REPORT as to Mohamed Mohamed Mohamud. Report prepared by: Kevin Pagay. (Document applicable to USA, Mohamed Mohamed Mohamud.) (lhn) (jao). (Entered: 05/23/2013)
321 Amended PRE−SENTENCE REPORT as to Ahmed Nasir Taalil Mohamud. Report prepared by: Jill Johnson−Pogue. (Document applicable to USA, Ahmed Nasir Taalil Mohamud.) (lhn) (jao). (Entered: 05/31/2013)

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 37 of 56

06/06/2013 06/10/2013
06/11/2013
07/31/2013 07/31/2013 07/31/2013 07/31/2013 08/02/2013 08/02/2013 08/02/2013 08/12/2013 08/14/2013 08/15/2013

322 NOTICE OF HEARING as to Defendants Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. Telephonic Status Conference set for 6/10/2013 02:30 PM in Courtroom 5D before Judge Jeffrey T. Miller. Defendants presence is waived. (no document attached) (gac) (Entered: 06/06/2013)
323 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Telephonic Status Hearing re Scheduling as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 6/10/2013. Appearance as to all defendants, Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud, is waived. Parties oral motion to continue Sentencing Hearing set for 06/27/2013at 09:00 AM before Judge Miller is granted. Written scheduling order setting new dates to follow. (Court Reporter/ECR Jeannette Hill). (Plaintiff Attorney Caroline Han, AUSA; Steven Ward, AUSA; William Cole, AUSA). (Defendant Attorney (1) Alice L Fontier, RET; Joshua L. Dratel, RET; (2) Linda Moreno, RET ; (3) Ahmed Ghappour, RET; (4) Thomas Durkin, RET). (no document attached) (gac) (Entered: 06/11/2013)
324 SCHEDULING ORDER as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. The sentencing hearing for Defendants 1−3, Basaaly Saeed Moalin, Mohamed Mohamed Mohamud and Issa Doreh, currently scheduled for June 26, 2013 is hereby continued to September 16, 2013 at 9:00 a.m. The sentencing hearing for Defendant 4, Ahmed Nasir Taalil Mohamud, is hereby continued to September 30, 2013 at 9:00 a.m. Any objections to the PSRs are due on or before August 2, 2013. Any Addendums to the PSRs are due by August 16, 2013. All sentencing papers from all parties (memoranda, requests for departures and variances, sentencing summary charts, letters and exhibits) are due by September 3, 2013. Signed by Judge Jeffrey T. Miller on 6/11/2013. (jao)(jrd) (Entered: 06/11/2013)
325 OBJECTION TO PRESENTENCE INVESTIGATION REPORT by USA as to Basaaly Saeed Moalin (Attachments: # 1 Proof of Service)(Cole, William). (jah). (Entered: 07/31/2013)
326 OBJECTION TO PRESENTENCE INVESTIGATION REPORT by USA as to Issa Doreh (Attachments: # 1 Proof of Service)(Cole, William). (jah). (Entered: 07/31/2013)
327 OBJECTION TO PRESENTENCE INVESTIGATION REPORT by USA as to Mohamed Mohamed Mohamud (Attachments: # 1 Proof of Service)(Cole, William). (jah). (Entered: 07/31/2013)
328 OBJECTION TO PRESENTENCE INVESTIGATION REPORT by USA as to Ahmed Nasir Taalil Mohamud (Attachments: # 1 Proof of Service)(Cole, William). (jah). (Entered: 07/31/2013)
329 OBJECTION TO PRESENTENCE INVESTIGATION REPORT by Basaaly Saeed Moalin (Fontier, Alice). (jah). (Entered: 08/02/2013)
330 OBJECTION TO PRESENTENCE INVESTIGATION REPORT by Mohamed Mohamed Mohamud (Moreno, Linda). (jah). (Entered: 08/02/2013)
331 OBJECTION TO PRESENTENCE INVESTIGATION REPORT by Issa Doreh (Ghappour, Ahmed). Modified on 8/5/2013 − Applied to all Dfts in error. QC Email sent to Atty re selecting correct party. Edited text to remove non−applicable Dfts (jah). (Entered: 08/02/2013)
332 Unopposed MOTION for Extension of Time to File Objections to the Amended Presentence Report Instanter by Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Exhibit A)(Durkin, Thomas). Modified on 8/12/2013 − Edited text (jah). (Entered: 08/12/2013)
333 ORDER granting Defendant's 332 Unopposed Motion for Extension of Time to File Objections to Amended Presentence Investigation Report Instanter as to Ahmed Nasir Taalil Mohamud (4). Dft's Objections to the Presentence Investigation Report, filed on 8/12/103 as Exhibit A to Document 332 are accepted as filed. Signed by Judge Jeffrey T. Miller on 8/14/2013. (jah)(jrl). (Entered: 08/14/2013)
334 ADDENDUM TO PRE−SENTENCE REPORT as to Basaaly Saeed Moalin. Report prepared by: Marvin E. English. (Document applicable to USA, Basaaly Saeed

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08/15/2013 08/16/2013 08/20/2013 08/28/2013 08/28/2013 08/29/2013 08/30/2013 08/30/2013 08/30/2013 08/30/2013
09/05/2013
09/05/2013

Moalin.) (Lara, R.). (jah). (Entered: 08/15/2013)
335 ADDENDUM TO PRE−SENTENCE REPORT as to Ahmed Nasir Taalil Mohamud. Report prepared by: J.Johnson−Pogue. (Document applicable to USA, Ahmed Nasir Taalil Mohamud.) (Maldonado−Olivo, I.). (jah). (Entered: 08/15/2013)
336 ADDENDUM TO PRE−SENTENCE REPORT as to Issa Doreh. Report prepared by: Alexandra Adame. (Document applicable to USA, Issa Doreh.) (Attachments: # 1 Sentence Summary Chart)(Luna, G.). (jah). (Entered: 08/16/2013)
337 ADDENDUM TO PRE−SENTENCE REPORT as to Mohamed Mohamed Mohamud. Report prepared by: Kevin Pagay. (Document applicable to USA, Mohamed Mohamed Mohamud.) (Hilliard, B.) (leh). (Entered: 08/20/2013)
338 Joint MOTION to Continue Sentencings of Defendants and for a Scheduling Order by Basaaly Saeed Moalin. (Dratel, Joshua) (cge). (Entered: 08/28/2013)
339 Certificate of Service by Basaaly Saeed Moalin re 338 Joint MOTION to Continue Sentencings of Defendants and for a Scheduling Order (Dratel, Joshua) (cge). (Entered: 08/28/2013)
340 ORDER denying 338 Joint Motion to Continue sentencing and for a scheduling order as to Basaaly Saeed Moalin (1). Signed by Judge Jeffrey T. Miller on 08/29/13.(jpp) (Entered: 08/29/2013)
341 Ex Parte MOTION to Continue Sentencings of Defendants and for a Scheduling Order by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Dratel, Joshua). (jah). (Entered: 08/30/2013)
342 Certificate of Service by Basaaly Saeed Moalin re 341 Ex Parte MOTION to Continue Sentencings of Defendants and for a Scheduling Order(Dratel, Joshua). Modified on 9/3/2013 − All Dfts selected as filers. Corrected text as to filer (jah). (Entered: 08/30/2013)
343 RESPONSE to Motion by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 341 Ex Parte MOTION to Continue Sentencings of Defendants and for a Scheduling Order (Attachments: # 1 Proof of Service)(Cole, William). (jah). (Entered: 08/30/2013)
344 ORDER granting Defendants' 341 Ex Parte Motion to Continue Sentencings and for a Scheduling Order as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). Sentence With PSR continued to 9/30/2013 09:00 AM before Judge Jeffrey T. Miller. Rule 33 motions shall be heard 9/30/2013. In event the Rule 33 motions are denied, sentencing shall proceed for all dfts immediately thereafter. Briefing schedule set forth in Court's 8/29/2013 Order is confirmed as follows: a) Dfts' Rule 33 motions shall be filed by 9/5/2013, b) Govt's response to Rule 33 motions shall be filed by 9/18/2013, c) Dfts' Reply to Rule 33 motions to be filed by 9/23/2013, and d) Sentencing Memorandums for all parties to be filed by 9/16/2013, two weeks before the Rule 33/Sentencing hearing date. Signed by Judge Jeffrey T. Miller on 8/30/2013. (jah) (jrl). (Entered: 08/30/2013)
345 Joint MOTION for New Trial by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Statement of Facts And Memo of Points and Authorities, # 2 Exhibit 1: FIG Assessment, # 3 Exhibit 2: Gen Alexander House Intelligence Committee Testimony, # 4 Exhibit 3: Gen Alexander Aspen Security Forum Transcript, # 5 Exhibit 4: Transcripy of Gen Alexander's Black Hat Speech, # 6 Exhibit 5: Sen Judiciary Comm Hearing on Oversight of the Surveillance Programs Under FISA, # 7 Exhibit 6: Liban Abdirahman Email, # 8 Exhibit 7: Memo In Support of Plaintiff's Mtn For Summary Judgment in Amnesty Intl v. McConnell, # 9 Exhibit 8: MoL in Support of Plaintiffs' Mtn for A Prelim Injunction in ACLU v. Clapper, # 10 Exhibit 9: Oct 2011 FISC Opinion)(Dratel, Joshua). Modified on 9/5/2013 − Edited attachment descriptions (jah). (Entered: 09/05/2013)
346 Certificate of Service by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 345 Joint MOTION for New Trial (Dratel, Joshua). (jah). (Entered: 09/05/2013)

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09/05/2013 09/05/2013 09/09/2013 09/09/2013 09/10/2013 09/11/2013
09/11/2013
09/30/2013 09/30/2013 10/07/2013

347 MOTION for Leave to File Excess Pages by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Dratel, Joshua). (jah). (Entered: 09/05/2013)
348 Certificate of Service by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 347 MOTION for Leave to File Excess Pages (Dratel, Joshua). (jah). (Entered: 09/05/2013)
349 ORDER granting 347 Motion for Leave to File Excess Pages as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). Dfts are permitted to file their joint motion for a new trial pursuant to FRCP Rule 33, in excess of 25−page limited set forth in Crim.L.R. 47.1(e). Signed by Judge Jeffrey T. Miller on 9/9/2013. (jah) (Entered: 09/09/2013)
350 Joint MOTION for Extension of Time to File Response as to 345 Joint MOTION for New Trial, and To Continue Sentencing by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Proof of Service)(Cole, William). Modified on 9/10/2013 (jah). Modified on 9/10/2013 − Multi part motion, one part filed. QC Email sent to Atty (jah). (Entered: 09/09/2013)
351 NOTICE OF HEARING as to Defendants Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. Scheduling Conference set for 9/11/2013 01:30 PM in Courtroom 5D before Judge Jeffrey T. Miller. Defendants not appearing. (no document attached) (gac) (Entered: 09/10/2013)
352 SCHEDULING ORDER as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. Following a telephonic scheduling conference with all parties on 9/11/2013, Court sets the following schedule on 345 Joint Motion for New Trial: Opposition to be filed by 9/30/2013, Optional Reply Brief may be filed by 10/7/2013. Oral argument on 345 Motion for New Trial set for 11/13/2013 01:30 PM. All sentencing related documents shall be filed by 10/28/2013. Any responses to the sentencing documents shall be filed by 11/4/2013. In event the motion for new trial is not granted, Sentencing hearing for all defendants will go forward on 11/18/2013 09:30 AM before Judge Jeffrey T. Miller. Signed by Judge Jeffrey T. Miller on 9/11/2013.(ok per CRD)(jah)(jrd) (Entered: 09/11/2013)
353 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Telephonic Scheduling Conference as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 9/11/2013. Oppositions to 345 Motion for New Trial to be filed and served by 9/30/2013. Reply to be filed and served by 10/7/2013. Motion Hearing set for 11/13/2013 01:30 PM in Courtroom 5D before Judge Jeffrey T. Miller. Sentence With PSR set for 11/18/2013 09:30 AM in Courtroom 5D before Judge Jeffrey T. Miller. Sentencing documents to be filed and served no later than 10/28/2013. Replies to be filed and served no later than 11/4/2013. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Caroline Han, AUSA; William Cole, AUSA). (Defendant Attorney (1) Alice L Fontier, RET; Joshua L. Dratel, RET; (2) Linda Moreno, RET ; (3) Ahmed Ghappour, RET; (4) Thomas Durkin, RET). (no document attached) (no document attached) (gac) Modified on 9/12/2013 edit hrg time (gac). (Entered: 09/11/2013)
354 NOTICE of Filing of United States' Ex Parte, In Camera Response and Opposition to Defendants' Motion for New Trial by USA re 345 Joint MOTION for New Trial (Attachments: # 1 Proof of Service)(Han, Caroline). (jah). (Entered: 09/30/2013)
355 REDACTED RESPONSE in Opposition by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 345 Joint MOTION for New Trial (Attachments: # 1 Proof of Service)(Han, Caroline). Modified on 10/1/2013 − Attached pleading is redacted. Added "Redacted" to text (jah). (Entered: 09/30/2013)
356 Joint MOTION for Extension of Time to File Reply to the Government's Response re 345 Joint Motion for a New Trial by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Proof of Service)(Dratel, Joshua). Modified on 10/7/2013 − Edited text and added link to Joint Motion for New Trial (jah). (Entered: 10/07/2013)

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 40 of 56

10/09/2013 10/09/2013
10/10/2013
10/10/2013 10/10/2013 10/11/2013 10/15/2013 10/24/2013 10/25/2013 10/25/2013 10/28/2013 10/28/2013 10/29/2013 10/30/2013

357 Joint MOTION for Extension of Time to File Reply to the Government's Response to the Defendants' Motion for a New Trial by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Proof of Service)(Dratel, Joshua). Modified on 10/9/2013 − Edited text (jah). (Entered: 10/09/2013)
358 ORDER Extending Time: Granting Defendants' 356 Joint Motion for Extension of Time to File Reply to Government's Response re 345 Joint Motion for New Trial as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). Time to file Dfts' Reply extended from 10/7/2013 until 10/9/2013. Signed by Judge Jeffrey T. Miller on 10/9/2013.(jah)(jrd) (Entered: 10/09/2013)
359 ORDER Extending Time: Granting 357 Joint Motion for Extension of Time to File Reply to Government's Response to 345 Joint Motion for New Trial as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). Time for Dfts to file Reply extended from 10/9/2013 until 10/10/2013. Signed by Judge Jeffrey T. Miller on 10/10/2013.(jah)(jrd) (Entered: 10/10/2013)
360 MOTION for Leave to File Excess Pages As to Joint Reply Motion by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Proof of Service)(Dratel, Joshua) (cxl). (Entered: 10/10/2013)
361 REPLY TO RESPONSE to Motion by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 345 Joint MOTION for New Trial (Attachments: # 1 Proof of Service)(Dratel, Joshua) (cxl). (Entered: 10/10/2013)
362 ORDER Granting 360 Motion for Leave to File Excess Pages as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). Signed by Judge Jeffrey T. Miller on 10/11/2013.(cxl)(jrd) (Entered: 10/11/2013)
363 NOTICE Regarding Exhibit Attachment: 215 Bulk Primary Order by Basaaly Saeed Moalin re 361 Reply to Response, (Dratel, Joshua). Modified on 10/16/2013 − Not properly captioned. QC Email sent to Atty re Local Rule 5.1 (jah). (Entered: 10/15/2013)
364 NOTICE of Supplemental Authority by USA re 355 Response in Opposition, (Attachments: # 1 Proof of Service)(Han, Caroline). (jah). (Entered: 10/24/2013)
365 Joint MOTION for Extension of Time to File Defendants' Sentencing Submissions by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Proof of Service)(Dratel, Joshua). (jah). (Entered: 10/25/2013)
366 ORDER Granting 365 Joint Motion For An Extension Of Time For The Filing of The Defendants' Sentencing Submissions as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). Time to file Dfts' sentencing submissions is extended to 10/30/2013. Signed by Judge Jeffrey T. Miller on 10/25/2013.(jah)(jrd) (Entered: 10/25/2013)
367 SENTENCING MEMORANDUM by USA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Attachments: # 1 Proof of Service)(Cole, William). (jah). (Entered: 10/28/2013)
368 MOTION for Extension of Time to File Document Sentencing Memorandum by Ahmed Nasir Taalil Mohamud. (Durkin, Thomas). (jah). (Entered: 10/28/2013)
369 ORDER Granting Defendant Ahmed Nasir Taalil Mohamud's 368 Motion for Extension of Time to File Sentencing Memorandum as to Ahmed Nasir Taalil Mohamud (4). Counsel for Dft may have until 11/4/2013 to file sentencing documents. Signed by Judge Jeffrey T. Miller on 10/29/2013.(jah)(jrd) (Entered: 10/29/2013)
370 SENTENCING MEMORANDUM by Basaaly Saeed Moalin (Attachments: # 1 Exhibit 2: Sponsored Students, # 2 Exhibit 3: Educational Support, # 3 Exhibit 4:

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 41 of 56

10/30/2013 10/31/2013
10/31/2013 11/04/2013 11/05/2013 11/05/2013
11/07/2013 11/08/2013 11/08/2013 11/08/2013 11/08/2013 11/12/2013 11/13/2013

Photos, # 4 Exhibit 5: Rahmo Abdi Letter, # 5 Exhibit 6: General Support Letters, # 6 Exhibit 7: Bashir Hassan Letter, # 7 Exhibit 8: Non−violence Petition, # 8 Exhibit 9: Elders' Signatures, # 9 Exhibit 10: Summary of Reengagement, # 10 Proof of Service, # 11 Exhibit 1: Family Letters)(Dratel, Joshua). (jah). (Entered: 10/30/2013)
371 SENTENCING MEMORANDUM by Mohamed Mohamed Mohamud (Attachments: # 1 Exhibit)(Moreno, Linda). Modified on 10/31/2013 − Does not comply w/ Local Rule 5.1a, pdf is 12−point Times New Roman. Notice of Non−Compliance prepared (jah). (Entered: 10/30/2013)
372 SENTENCING MEMORANDUM by Issa Doreh (Attachments: # 1 Exhibit Letter of Support, # 2 Exhibit Letter of Support, # 3 Exhibit Letter of Support, # 4 Exhibit Letter of Support, # 5 Exhibit Letter of Support, # 6 Exhibit Letter of Support, # 7 Exhibit Letter of Support, # 8 Exhibit Letter of Support, # 9 Exhibit Enclosure (Letters of Support from Community Members), # 10 Exhibit San Diego Union Tribune, # 11 Exhibit Transcript of N.A.Yusuf Sentencing)(Ghappour, Ahmed). (jah). (Entered: 10/31/2013)
373 NOTICE of Non−Compliance with Local Rule 5.1(a) Legibility re 371 Sentencing Memorandum filed by Mohamed Mohamed Mohamud. (Do Not Refile Sentencing Memorandum. No further action required) (jah) (Entered: 10/31/2013)
374 Unopposed MOTION for Extension of Time to File Sentencing Memorandum and to Continue Sentencing Date by Ahmed Nasir Taalil Mohamud. (Durkin, Thomas). Modified on 11/5/2013 − Edited text (jah). (Entered: 11/04/2013)
375 NOTICE OF HEARING as to Defendant Ahmed Nasir Taalil Mohamud. Telephonic Status Conference set for 11/5/2013 11:00 AM in Courtroom 5D before Judge Jeffrey T. Miller. (no document attached) (gac) (Entered: 11/05/2013)
376 Minute Entryfor proceedings held before Judge Jeffrey T. Miller:Telephonic Status Conference as to Ahmed Nasir Taalil Mohamud held on 11/5/2013. Counsel waives defendant presence. Granting 374 Motion for Extension of Time to File Document and to Continue Sentencing Date by Ahmed Nasir Taalil Mohamud (4); Sentence With PSR set for 11/18/2013 is vacated and continued to 1/31/2014 10:00 AM in Courtroom 5D before Judge Jeffrey T. Miller as to Ahmed Nasir Taalil Mohamud (4) only. (Court Reporter Debra Henson). (Attorney William P Cole, AUSA). (Defendant Attorney Janis D Roberts, RET; Thomas Anthony Durkin, RET). (no document attached) (gac) (Entered: 11/05/2013)
377 SENTENCING MEMORANDUM −− Reply Sentencing Memorandum by Basaaly Saeed Moalin (Dratel, Joshua) Qc mailer sent re: missing certificate of service (cxl). (Entered: 11/07/2013)
378 SENTENCING SUMMARY CHART by USA as to Basaaly Saeed Moalin (Attachments: # 1 Proof of Service)(Han, Caroline) (cxl). (Entered: 11/08/2013)
379 SENTENCING SUMMARY CHART by USA as to Mohamed Mohamed Mohamud (Attachments: # 1 Proof of Service)(Han, Caroline) (cxl). (Entered: 11/08/2013)
380 SENTENCING SUMMARY CHART by USA as to Issa Doreh (Attachments: # 1 Proof of Service)(Han, Caroline) (cxl). (Entered: 11/08/2013)
381 SENTENCING SUMMARY CHART by USA as to Ahmed Nasir Taalil Mohamud (Attachments: # 1 Proof of Service)(Han, Caroline) (cxl). (Entered: 11/08/2013)
382 Certificate of Service by Basaaly Saeed Moalin re 377 Sentencing Memorandum (Dratel, Joshua). Modified on 11/12/2013 − Pleading does not list document served (jah). (Entered: 11/12/2013)
383 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Motion Hearing as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud held on 11/13/2013. Submitting 345 Motion for New Trial as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). Written Order re Motion for New Trial to filed by 2:00PM 11/14/2013. Court Exhibits Marked/Received. (Court Reporter Chari Possell)(Interpreter Fanik Jama). (Plaintiff Attorney William Cole, AUSA; Steven Ward, AUSA; Caroline Pineda Han, AUSA). (Defendant Attorney (1) Joshua L Dratel,

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11/13/2013 11/14/2013 11/14/2013 11/15/2013 11/18/2013
11/18/2013
11/18/2013
11/18/2013
11/21/2013

RET; Alice L Fonier, RET; (2) Linda Moreno, RET; (3) Ahmed Ghappour, RET; (4) Thomas Durkin, RET). (no document attached) (gac) Modified on 1/29/2014 add Court Reporter (gac). (Entered: 11/13/2013)
384 COURT EXHIBIT LIST (gac) (Entered: 11/13/2013)
385 SUPPLEMENTAL MEMORANDUM of Law in Support of Defendants' Joint Motion For a New Trial Pursuant to Rule 33, Fed.R.Crim.P. by Basaaly Saeed Moalin as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud (Attachments: # 1 Proof of Service)(Dratel, Joshua). (jah). (Entered: 11/14/2013)
386 ORDER denying Defendants' 345 Joint Motion for New Trial as to Basaaly Saeed Moalin (1), Mohamed Mohamed Mohamud (2), Issa Doreh (3), Ahmed Nasir Taalil Mohamud (4). Court denies the motion for a new trial in its entirety. Signed by Judge Jeffrey T. Miller on 11/14/2013. (jah) (Entered: 11/14/2013)
387 NOTICE of Filing of United States' Ex Parte, In Camera Supplemental Filing Regarding Order Denying Motion for New Trial by USA (Attachments: # 1 Proof of Service)(Han, Caroline). Modified on 11/18/2013 − Pdf only has title of document. no content. QC Email sent to Atty (jah). (Entered: 11/15/2013)
388 AMENDED ORDER Denying Motion for a New Trial as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. Court issues this Amended Order to correct a factual misstatement in its 386 Order on Motion for New Trial. 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.". In sum, Court denies in its entirety 345 Joint MOTION for New Trial. Signed by Judge Jeffrey T. Miller on 11/18/2013. (jah) (jrl). (Entered: 11/18/2013)
389 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Sentence With PSR Hearing held on 11/18/2013 for Basaaly Saeed Moalin (1), Counts 1, 2, 3, 5 Committed to Custody of BOP 15 years as to each count to run concurrently; Count 4, Committed to Custody of BOP 15 years, with 3 years to run consecutive to and 12 years to run concurrent with Counts 1, 2, 3, and 5. For a total custodial term of 18 years. Count 1, Assessment $100.00. Counts 2, 3, 4, and 5, Assessment $100.00 as to each count, waived. Fine waived; Supervised Release 3 years as to each count to run concurrently. Defendant advised of appeal rights. Remaining counts dismissed by the Government. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney William P. Cole, AUSA; Caroline Pineda, AUSA). (Defendant Attorney Alice L Fontier, RET; Holly A Sullivan, RET; Joshua L. Dratel, RET). (no document attached) (gac) Modified on 11/19/2013 (gac). (Entered: 11/19/2013)
390 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Sentence With PSR Hearing held on 11/18/2013 for Mohamed Mohamed Mohamud (2), Counts 1, 2, 3, 5 Committed to Custody of BOP 13 years, as to each Count to run concurrently for a total of 13 years; Assessment $100.00, as to Count 1; Assessment $100.00 as to each Count 2, 3, and 5, waived; Fine waived; Supervised Release 3 years, to run concurrently. Remaining count dismissed by the Government. Defendant advised of appeal rights. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney William Cole, AUSA; Caroline Han, AUSA). (Defendant Attorney Linda Moreno, RET). (no document attached) (gac) (Entered: 11/19/2013)
391 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Sentence With PSR Hearing held on 11/18/2013 for Issa Doreh (3), Committed to Custody of BOP 10 years as to each Counts 1, 2, 3, and 5 to run concurrently for a total of 10 years custody; Count 1, Assessment $100.00; Counts 2, 3, 5 Assessment $100.00 as to each Count, waived; Fine waived; Supevised Release 3 years, to run concurrently; Remaining counts dismissed by the Government. Defendant advised of appeal rights. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney William Cole, AUSA; Caroline Han, AUSA). (Defendant Attorney Ahmed Ghappour, RET). (no document attached) (gac) Modified on 11/22/2013 (gac). (Entered: 11/19/2013)
393 JUDGMENT as to Mohamed Mohamed Mohamud (2), Counts 1ss, 2ss, 3ss, 5ss Committed to Custody of BOP 13 years, as to each Count to run concurrently for a

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 43 of 56

11/21/2013
11/22/2013
11/26/2013 11/26/2013 11/26/2013
11/28/2013 11/29/2013 11/29/2013
11/29/2013 12/02/2013 12/02/2013

total of 13 years; Assessment $100.00, as to Count 1ss; Assessment $100.00 as to each Count 2ss, 3ss, and 5ss, waived; Fine waived; Supervised Release 3 years, to run concurrently. Remaining count dismissed by the Government. Signed by Judge Jeffrey T. Miller (gac) (Entered: 11/22/2013)
394 JUDGMENT as to Issa Doreh (3), Committed to Custody of BOP 10 years as to each Counts 1ss, 2ss, 3ss, and 5ss to run concurrently for a total of 10 years custody; Count 1ss, Assessment $100.00; Counts 2ss, 3ss, 5ss Assessment $100.00 as to each Count, waived; Fine waived; Supevised Release 3 years, to run concurrently; Remaining counts dismissed by the Government. Signed by Judge Jeffrey T. Miller. (gac) (gac). (Entered: 11/22/2013)
392 JUDGMENT as to Basaaly Saeed Moalin (1), Counts 1ss, 2ss, 3ss, 5ss Committed to Custody of BOP 15 years as to each count to run concurrently; Count 4ss, Committed to Custody of BOP 15 years, with 3 years to run consecutive to and 12 years to run concurrent with Counts 1ss, 2ss, 3ss, and 5ss. For a total custodial term of 18 years. Count 1, Assessment $100.00. Counts 2ss, 3ss, 4ss, and 5ss, Assessment $100.00 as to each count, waived. Fine waived; Supervised Release 3 years as to each count to run concurrently. Remaining counts dismissed. Signed by Judge Jeffrey T. Miller. (gac) (cap). (Entered: 11/22/2013)
395 NOTICE OF APPEAL by Basaaly Saeed Moalin re 392 Judgment. (Filing fee $ 455 receipt number 0974−6537967.) (Notice of Appeal electronically transmitted to US Court of Appeals.) (Dratel, Joshua). (akr). (Entered: 11/26/2013)
396 USCA Case Number 13−50572 for 395 Notice of Appeal filed by Basaaly Saeed Moalin. (akr) (Entered: 11/26/2013)
397 USCA Time Schedule Order for 395 Notice of Appeal filed by Basaaly Saeed Moalin. (NOTICE TO PARTIES of deadlines regarding appellate transcripts: Appellant shall file transcript designation and ordering form with the US District Court (see attached), provide a copy of the form to the court reporter, and make payment arrangements with the court reporter on or by 12/17/2013 (see Ninth Circuit Rule 10−3.2); Due date for filing of transcripts in US District Court is 1/16/2014.) (cc: Court Reporters). (Attachments: # 1 Transcript Designation and Ordering Form). (akr) (Entered: 11/26/2013)
398 NOTICE OF APPEAL by Mohamed Mohamed Mohamud re 393 Judgment. (Filing fee $ 455 receipt number 0974−6543976.) (Notice of Appeal electronically transmitted to US Court of Appeals.) (Moreno, Linda). Modified on 11/29/2013 to link to Judgment. (akr). (Entered: 11/28/2013)
399 USCA Case Number 13−50578 for 398 Notice of Appeal, filed by Mohamed Mohamed Mohamud. (skh) (Entered: 11/29/2013)
400 USCA Time Schedule Order for 398 Notice of Appeal, filed by Mohamed Mohamed Mohamed. (NOTICE TO PARTIES of deadlines regarding appellate transcripts: Appellant shall file transcript designation and ordering form with the US District Court (see attached), provide a copy of the form to the court reporter, and make payment arrangements with the court reporter on or by 12/19/2013 (see Ninth Circuit Rule 10−3.2); Due date for filing of transcripts in US District Court is 1/21/2014.) (cc: Court Reporter). (Attachments: # 1 Transcript Designation and Ordering Form). (skh) (Entered: 11/29/2013)
401 NOTICE OF APPEAL by Issa Doreh re 394 Judgment. (Filing fee $ 455 receipt number 0974−6545526.) (Notice of Appeal electronically transmitted to US Court of Appeals.) (Ghappour, Ahmed). Modified on 12/1/2013 to remove docket text relating the filing to other parties. (akr). (Entered: 11/29/2013)
402 USCA Case Number 13−50580 for 401 Notice of Appeal, filed by Issa Doreh. (akr) (Entered: 12/02/2013)
403 USCA Time Schedule Order for 401 Notice of Appeal, filed by Issa Doreh. (NOTICE TO PARTIES of deadlines regarding appellate transcripts: Appellant shall file transcript designation and ordering form with the US District Court (see attached), provide a copy of the form to the court reporter, and make payment arrangements with the court reporter on or by 12/20/2013 (see Ninth Circuit Rule 10−3.2); Due date for

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12/05/2013 12/06/2013 12/10/2013 12/11/2013 12/16/2013 01/06/2014 01/06/2014
01/08/2014
01/15/2014 01/15/2014 01/16/2014

filing of transcripts in US District Court is 1/21/2014.) (cc: Court Reporters). (Attachments: # 1 Transcript Designation and Ordering Form). (akr) (Entered: 12/02/2013)
404 ORDER of USCA as to Issa Doreh re 401 Notice of Appeal. Court Reporter Debra M. Henson's motion for an extension of time to file the transcripts is granted. Briefing schedule issued. (Copy to Court Reporters.) (akr) (Entered: 12/05/2013)
405 ORDER of USCA as to Mohamed Mohamed Mohamud re 398 Notice of Appeal. Court Reporter Debra M. Henson's motion for an extension of time to file the transcript is granted. Briefing schedule issued. (Copy to Court Reporters.) (akr) (Entered: 12/06/2013)
406 ORDER of USCA as to Basaaly Saeed Moalin re 395 Notice of Appeal. Court Reporter Debra M. Henson's motion for an extension of time to file the transcript is granted. Briefing schedule issued. (Copy to Court Reporters.) (akr) (Entered: 12/10/2013)
407 Amended ORDER of USCA as to Basaaly Saeed Moalin re 395 Notice of Appeal. Court Reporter Debra M. Henson's motion for an extension of time to file the transcript is granted. Briefing schedule issued. (Copy to Court Reporters.) (akr) (Entered: 12/11/2013)
408 TRANSCRIPT DESIGNATION AND ORDERING FORM by Basaaly Saeed Moalin for proceedings held on 1/25/13, 1/28/13 − 1/31/13, 2/4/13 − 2/8/13, 2/11/13 − 2/14/13, 2/19/13, 2/22/13, 11/13/13, 11/18/13 re 395 Notice of Appeal. (Dratel, Joshua). (akr). (Entered: 12/16/2013)
409 Notice of Document Discrepancies by the Chambers of Judge Jeffrey T. Miller Accepting Document: Letter to Judge from Mohamed Mohamed Mohamud. Non−compliance with local rule(s), OTHER: Ex parte communication prohibited pursuant to Local Rule 83.9. IT IS HEREBY ORDERED: The document is to be filed nunc pro tunc to date received. (All non−registered users served via U.S. Mail Service) (jah) (Entered: 01/07/2014)
410 Letter Dated 12/15/2013 from Defendant Mohamed Mohamed Mohamud requesting appointment of CJA Appellate Attorney. NUNC PRO TUNC 12/19/2013. (jah). Modified on 1/8/2014 to note that the USCA Case Number is 13−50578. The Letter is being transmitted to the US Court of Appeals (via regenerated NEF) per direction of the US District Court in 411 Notice. (akr). (Main Document 410 replaced on 3/13/2015 − Corrected second page's view from landscape to portrait.) (mdc) Modified on 3/13/2015 − NEF was not regenerated re image replacement. (mdc) (Entered: 01/07/2014)
411 NOTICE: On or about January 7, 2014, Defendant Mohamed Mohamed Mohamud filed a 410 request for appointment of appellate counsel. The court notes that the filing of a notice of appeal has jurisdictional significance. Consequently, any request for appointment of counsel should be directed to the Ninth Circuit, and not this court. Until retained counsel are relieved as counsel of record, they continue to represent Defendants. In order to expedite the appointment of new counsel, the court suggests that Defendants complete and submit the in forma pauperis form, CJA Form 23. The court also instructs the Clerk of Court to forward Defendant Mohamud's request to the Ninth Circuit. (The 410 Letter requesting appointment of CJA attorney is being transmitted electronically to the US Court of Appeals via regenerated NEF. This Notice is being electronically transmitted to the US Court of Appeals. The USCA Case Number is 13−50578. This Notice is being served on Defendant Mohamed Mohamed Mohamud via U.S. mail service.) (akr) (Entered: 01/08/2014)
412 MOTION to Continue Sentencing Date and for Extension of Time for the Filing of His Sentencing Memorandum (Unopposed) by Ahmed Nasir Taalil Mohamud. (Durkin, Thomas) (yeb). (Entered: 01/15/2014)
413 ORDER denying 412 Motion to Continue as to Ahmed Nasir Taalil Mohamud (4). Signed by Judge Jeffrey T. Miller on 1/15/2014.(kcm) (Entered: 01/15/2014)
414 Minute Order by Judge Jeffrey T. Miller: Telephonic Status Conference set for 1/17/2014 09:00 AM in Courtroom 5D before Judge Jeffrey T. Miller. (no document

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 45 of 56

01/17/2014
01/17/2014
01/17/2014 01/23/2014 01/24/2014 01/24/2014 01/28/2014 01/28/2014 01/28/2014 01/28/2014

attached) (gac) (Entered: 01/16/2014)
415 ORDER of USCA as to Mohamed Mohamed Mohamud re 398 Notice of Appeal. The motion of appellant's retained counsel, Linda Moreno, Esq., to withdraw as counsel of record is granted. Appellant's motion to proceed in forma pauperis and for appointment of new counsel is granted. Counsel will be appointed by separate order. The Clerk shall electronically serve this order on the appointing authority for the Southern District of California, who will locate appointed counsel. The appointing authority shall send notification of the name, address, and telephone number of appointed counsel to the Clerk of the USCA at counselappointments@ca9.uscourts.gov within 14 days of locating counsel. Updated time schedule issued. The Clerk shall serve a Form CJA 24 on the appointing authority, who shall provide it to newly appointed counsel. If appellant seeks transcripts of proceedings requiring special authorization, that authorization should be obtained from the USDC. Upon filing of the transcripts, the court reporter shall submit the Form CJA 24 to the USCA for payment. The Clerk shall amend the USCA's docket to reflect that appellant is now proceeding in forma pauperis. The Clerk shall serve this order on former counsel. The Clerk shall also serve this order on appellant individually at Reg. No. 22868−298, Federal Correctional Institution, 5701 8th Street−Camp Parks, Dublin, California 94568. (Appointing authority served electronically by the USCA Clerk. Copy to Court Reporters.) (akr) (Entered: 01/17/2014)
416 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Telephonic Status Conference re Scheduling as to Ahmed Nasir Taalil Mohamud (n/a) held on 1/17/2014. Defendant presence waived. Sentence w/ PSR Hearing set for 1/31/2014 before Judge Miller is confirmed. Any requests to continue sentencing hearing must be presented to the court no later than 1/29/2014. Defense to file sentencing documents on or by 1/24/2014. Response by the Government to be filed on or by 1/26/2014. (Court Reporter/ECR Debra Henson). (Plaintiff Attorney William Cole, AUSA). (Defendant Attorney Thomas Durkin, RET; Janis Roberts, RET). (no document attached) (gac) (Entered: 01/17/2014)
417 ORDER Appointing Counsel on Appeal as to Mohamed Mohamed Mohamud. Attorney David J Zugman for Mohamed Mohamed Mohamud added. Signed by Magistrate Judge Nita L. Stormes on 1/17/2014. (USCA Case Number 13−50578. Order electronically transmitted to the US Court of Appeals. Copy to Attorney, Defendant.) (akr) (Entered: 01/17/2014)
418 Mail Returned as Undeliverable re 409 Notice of Document Discrepancies (Yellow Discrepancy). Mail sent to Mohamed Mohamed Mohamud. No forwarding address. (jah) (Entered: 01/23/2014)
419 Supplemental Sentencing Document: Supplemental Sentencing Memorandum by USA as to Ahmed Nasir Taalil Mohamud (Cole, William). Modified on 1/27/2014 − Additional text addded in all caps. QC Email sent to Atty re caps. Edited text (jah). (Entered: 01/24/2014)
420 Sentencing Document: Position Paper and Commentary on Sentencing Factors by Ahmed Nasir Taalil Mohamud (Durkin, Thomas). (jah). (Entered: 01/24/2014)
421 Minute Order by Judge Jeffrey T. Miller: At the unopposed request of counsel, Sentence With PSR set for 1/31/2014 10:00 AM is reset to 11:00 AM 1/31/2014 in Courtroom 5D before Judge Jeffrey T. Miller. (no document attached) (gac) (Entered: 01/28/2014)
422 WITHDRAWN BY FILER ON 1/28/2014 PER NOTICE OF WITHDRAWAL OF DOCUMENT 423 − Supplemental Sentencing Document: Character Letters by Ahmed Nasir Taalil Mohamud (Attachments: # 1 Exhibit)(Durkin, Thomas). (jah). Modified on 1/29/2014 − Edited to reflect as withdrawn (jah). (Entered: 01/28/2014)
423 NOTICE OF WITHDRAWAL OF DOCUMENT filed by Ahmed Nasir Taalil Mohamud (Durkin, Thomas). (jah). (Entered: 01/28/2014)
424 Sentencing Document: Amended Position Paper and Commentary on Sentencing Factors by Ahmed Nasir Taalil Mohamud (Durkin, Thomas). (jah). (Entered: 01/28/2014)

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01/28/2014 01/30/2014 01/30/2014 01/30/2014
01/30/2014 01/31/2014
01/31/2014 01/31/2014
01/31/2014

425 Supplemental Sentencing Document: Character Letters by Ahmed Nasir Taalil Mohamud, re 424 Sentencing Document (Attachments: # 1 Exhibit)(Durkin, Thomas). (jah). (Entered: 01/28/2014)
426 Notice of Document Discrepancies by the Chambers of Judge Jeffrey T. Miller Accepting Document: Petition for Status of Case from Issa Doreh. Non−compliance with local rule(s), OTHER: Filer is represented by counsel. IT IS HEREBY ORDERED: The document is to be filed nunc pro tunc to date received. (Copy of Order mailed to Dft Doreh)(All non−registered users served via U.S. Mail Service)(jah)(jrd) (Entered: 01/31/2014)
427 MOTION to Appoint Appellate Counsel (Filed as Petition for Status of Case) by Issa Doreh. NUNC PRO TUNC 1/24/2014. (cc: Appeals) (jah). (Modified on 1/31/2014 to note that the USCA Case Number is 13−50580. This Motion is being transmitted to the US Court of Appeals (via regenerated NEF) per direction of the US District Court in 428 Notice and Order.) (akr). (Entered: 01/31/2014)
428 NOTICE AND ORDER as to Issa Doreh re 427 MOTION to Appoint Appellate Counsel filed by Issa Doreh. Dft filed on 1/27/2014 what Court construes as a request for appointment of appellate counsel. Any request for appointment of counsel should be directed to the Ninth Circuit. Court instructs Clerk to forward Dft's request to the Ninth Circuit. Signed by Judge Jeffrey T. Miller on 1/29/2014. (cc: Appeals)(jah)(Modified on 1/31/2014 to note that the 427 Motion to Appoint Appellate Counsel and this Notice and Order are being transmitted electronically to the US Court of Appeals via regenerated NEF. The USCA Case Number is 13−50580.)(akr)(jrd) (Entered: 01/31/2014)
429 ORDER Forwarding Document as to Issa Doreh. Pursuant to Local Rule 83.9 it is inappropriate for a party to directly communicate by letter with the judge. Court is forwarding the letter to Dft's attorney. Signed by Judge Jeffrey T. Miller on 1/29/2014. (Original Letter and copy of this Order mailed to Atty Ghappour) (jah) (Entered: 01/31/2014)
430 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Sentence With PSR Hearing held on 1/31/2014 for Ahmed Nasir Taalil Mohamud (4), Counts 1s, 2s, and 3s Committed to Custody of BOP 6 years, as to each count to run concurrently, for a total of 6 years. Assessment: Count 1s $100.00; Count 2s, $100.00, waived; Count 3s, $100, waived; Fine waived as to all counts; Supervised Release 3 years, as to each count to run concurrently. Remaining counts dismissed by the Government. Matter referred to Magistrate Judge for appointment of counsel on appeal. (Interpreter Fanik Jama). (Court Reporter/ECR Debra Henson). (Plaintiff Attorney Thomas Anthnoy Durkin, RET). (Defendant Attorney William P Cole, AUSA; Caroline Pineda Han, AUSA). (no document attached) (gac) (Entered: 01/31/2014)
431 JUDGMENT as to Ahmed Nasir Taalil Mohamud (4),Count 1s, CBOP 6 years; Assessment $100.00; Fine waived; S/R 3 years; Count 2s, CBOP 6 years, concurrent with Count 1; Assessment $100.00, waived; Fine waived; S/R 3 years, concurrent with Count 1; Count 3s, CBOP 6 years, concurrent with Counts 1 and 2; Assessment $100.00, waived; Fine waived; S/R 3 years, concurrent with Counts 1 and 2. Counts 1, 2, 3, 4, Dismissed by the Government. Signed by Judge Jeffrey T. Miller. (gac)(jrd) (Entered: 01/31/2014)
432 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Jury Trial, Day 1) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 1/28/2013 before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/21/2014. Redacted Transcript Deadline set for 3/3/2014. Release of Transcript Restriction set for 5/1/2014. (akr) (Entered: 01/31/2014)
433 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Jury Trial, Day 2) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil

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Mohamud for date of 1/29/2013 before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/21/2014. Redacted Transcript Deadline set for 3/3/2014. Release of Transcript Restriction set for 5/1/2014. (akr) (Entered: 01/31/2014)
434 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Jury Trial, Day 3) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 1/30/2013 before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/21/2014. Redacted Transcript Deadline set for 3/3/2014. Release of Transcript Restriction set for 5/1/2014. (akr) (Entered: 01/31/2014)
435 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Jury Trial, Day 4) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 1/31/2013 before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/21/2014. Redacted Transcript Deadline set for 3/3/2014. Release of Transcript Restriction set for 5/1/2014. (akr) (Entered: 01/31/2014)
436 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Jury Trial, Day 5) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 2/4/2013 before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/21/2014. Redacted Transcript Deadline set for 3/3/2014. Release of Transcript Restriction set for 5/1/2014. (akr) (Entered: 01/31/2014)
437 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Jury Trial, Day 6) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 2/5/2013 before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/21/2014. Redacted Transcript Deadline set for 3/3/2014. Release of Transcript Restriction set for 5/1/2014. (akr) (Entered: 01/31/2014)
438 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Jury Trial, Day 7) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 2/6/2013 before Judge Jeffrey T. Miller, re 395 Notice of

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Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/21/2014. Redacted Transcript Deadline set for 3/3/2014. Release of Transcript Restriction set for 5/1/2014. (akr) (Entered: 01/31/2014)
439 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Jury Trial, Day 8) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 2/7/2013 before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/21/2014. Redacted Transcript Deadline set for 3/3/2014. Release of Transcript Restriction set for 5/1/2014. (akr) (Entered: 01/31/2014)
440 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Jury Trial, Day 9) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 2/8/2013 before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/21/2014. Redacted Transcript Deadline set for 3/3/2014. Release of Transcript Restriction set for 5/1/2014. (akr) (Entered: 01/31/2014)
441 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Jury Trial, Day 10) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 2/11/2013 before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/21/2014. Redacted Transcript Deadline set for 3/3/2014. Release of Transcript Restriction set for 5/1/2014. (akr) (Entered: 01/31/2014)
442 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Jury Trial, Day 11) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 2/12/2013 before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/21/2014. Redacted Transcript Deadline set for 3/3/2014. Release of Transcript Restriction set for 5/1/2014. (akr) (Entered: 01/31/2014)
443 ORDER Appointing Counsel on Appeal as to Ahmed Nasir Taalil Mohamud. Ben Coleman is provisionally appointed to represent Ahmed Nasir Taalil Mohamud in this case. The appointment is dependent upon Defendant filing a financial affidavit to support his request for an attorney without payment of fee. The financial affidavit shall

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be filed by February 14, 2014. Signed by Magistrate Judge Nita L. Stormes on 1/31/2014. (Copy to Attorney.) (akr) (Entered: 01/31/2014)
444 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 11/13/2013 before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Chari L. Possell. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/21/2014. Redacted Transcript Deadline set for 3/3/2014. Release of Transcript Restriction set for 5/1/2014. (akr) (Entered: 02/03/2014)
445 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Jury Trial, Days 12, 13, and 14) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for dates of 2/13/2013, 2/14/2013, and 2/15/2013 before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/24/2014. Redacted Transcript Deadline set for 3/6/2014. Release of Transcript Restriction set for 5/5/2014. (akr) (Entered: 02/03/2014)
446 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Jury Trial, Day 15) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 2/19/2013 before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/24/2014. Redacted Transcript Deadline set for 3/6/2014. Release of Transcript Restriction set for 5/5/2014. (akr) (Entered: 02/03/2014)
447 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Jury Trial, Days 16, 17, and 18) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for dates of 2/20/2013, 2/21/2013, and 2/22/2013 before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/24/2014. Redacted Transcript Deadline set for 3/6/2014. Release of Transcript Restriction set for 5/5/2014. (akr) (Entered: 02/03/2014)
448 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Jury Trial, Master Index of Witnesses and Exhibits) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for proceedings held before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following

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02/21/2014

deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/24/2014. Redacted Transcript Deadline set for 3/6/2014. Release of Transcript Restriction set for 5/5/2014. (akr) (Entered: 02/03/2014)
449 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Sentencing Hearings) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh for date of 11/18/2013 before Judge Jeffrey T. Miller, re 395 Notice of Appeal. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 2/24/2014. Redacted Transcript Deadline set for 3/6/2014. Release of Transcript Restriction set for 5/5/2014. (akr) (Entered: 02/03/2014)
450 ORDER of USCA as to Issa Doreh re 401 Notice of Appeal. The USCA is in receipt of appellant's pro se motion, forwarded to the USCA by the USDC, for appointment of counsel. Because appellant is represented by counsel, only counsel may submit filings, and the USCA therefore declines to entertain the submission. On January 31, 2014 the USCA electronically served appellant's motion on retained counsel of record Ahmed Ghappour, Esq. Within 21 days after the date of this order, counsel Ghappour shall file a response. Briefing is stayed pending compliance with this order. (akr) (Entered: 02/05/2014)
451 NOTICE OF APPEAL by Ahmed Nasir Taalil Mohamud re 431 Judgment. Fee Waived. (Notice of Appeal electronically transmitted to US Court of Appeals.) (Attachments: # 1 Proof of Service)(Coleman, Benjamin). Modified on 2/7/2014 to add link to Judgment. (akr). (Entered: 02/07/2014)
452 USCA Case Number 14−50051 for 451 Notice of Appeal, filed by Ahmed Nasir Taalil Mohamud. (akr) (Entered: 02/10/2014)
453 USCA Time Schedule Order for 451 Notice of Appeal, filed by Ahmed Nasir Taalil Mohamud. (NOTICE TO PARTIES of deadlines regarding appellate transcripts: Appellant shall file transcript designation and ordering form with the US District Court (see attached), provide a copy of the form to the court reporter, and make payment arrangements with the court reporter on or by 2/28/2014 (see Ninth Circuit Rule 10−3.2); Due date for filing of transcripts in US District Court is 3/31/2014.) (cc: Court Reporters). (Attachments: # 1 Transcript Designation and Ordering Form). (akr) (Entered: 02/10/2014)
454 CJA 23 Financial Affidavit by Ahmed Nasir Taalil Mohamud. (akr) (Entered: 02/18/2014)
455 ORDER Confirming Appointment of Benjamin Coleman as Appellate Counsel as to Ahmed Nasir Taalil Mohamud. This court provisionally appointed Benjamin Coleman as defense counsel on appeal on January 31, 2014. The appointment was contingent upon Defendant filing a financial affidavit. That affidavit was filed on February 10, 2014. The court now removes the provisional aspect of Benjamin Coleman as appellate counsel and confirms his appointment. The appointment is made pursuant to 18 U.S.C. § 3006A(f). Signed by Magistrate Judge Nita L. Stormes on 2/18/2014. (USCA Case Number 14−50051. Order electronically transmitted to the US Court of Appeals.) (akr)(jrd) (Entered: 02/18/2014)
456 TRANSCRIPT DESIGNATION AND ORDERING FORM by Ahmed Nasir Taalil Mohamud for proceedings held on 12/3/2010, 1/20/2011, 2/22/2011, 3/10/2011, 4/8/2011, 6/16/2011, 8/8/2011, 9/23/2011, 2/9/2012, 4/5/2012, 8/22/2012, 8/30/2012, 9/6/2012, 9/10/2012, 9/13/2012, 9/17/2012, 10/1/2012, 10/15/2012, 10/24/2012, 10/29/2012, 11/5/2012, 12/12/2012, 1/10/2013, 1/17/2013, 1/25/2013, 1/28/2013, 1/29/2013, 1/30/2013, 1/31/2013, 2/4/2013, 2/5/2013, 2/6/2013, 2/7/2013, 2/8/2013, 2/11/2013, 2/12/2013, 2/13/2013, 2/14/2013, 2/19/2013, 2/20/2013, 2/21/2013, 2/22/2013, 6/10/2013, 11/5/2013, 11/13/2013, 11/18/2013, 1/17/2014, 1/31/2014 re 451 Notice of Appeal. (Attachments: # 1 Supplement, # 2 Proof of Service)(Coleman, Benjamin). (akr). (Entered: 02/21/2014)

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457 Judgment Returned Executed as to Mohamed Mohamed Mohamud on 1/8/2014. (jah) (Entered: 02/28/2014)
458 TRANSCRIPT DESIGNATION AND ORDERING FORM by Mohamed Mohamed Mohamud for proceedings held on 12/3/2010, 1/20/2011, 2/22/2011, 3/10/2011, 4/8/2011, 6/16/2011, 8/8/2011, 9/23/2011, 2/9/2012, 4/5/2012, 8/22/2012, 8/30/2012, 9/6/2012, 9/10/2012, 9/13/2012, 9/17/2012, 10/1/2012, 10/15/2012, 10/24/2012, 10/29/2012, 11/5/2012, 12/12/2012, 1/10/2013, 1/17/2013, 1/25/2013, 1/28/2013, 1/29/2013, 1/30/2013, 1/31/2013, 2/4/2013, 2/5/2013, 2/6/2013, 2/7/2013, 2/8/2013, 2/11/2013, 2/12/2013, 2/13/2013, 2/14/2013, 2/19/2013, 2/20/2013, 2/21/2013, 2/22/2013, 6/10/2013, 11/5/2013, 11/13/2013, 11/18/2013, 1/17/2014, 1/31/2014 re 398 Notice of Appeal. (Attachments: # 1 Exhibit Supplemental, # 2 Proof of Service)(Zugman, David). (akr). (Entered: 02/28/2014)
459 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motions/Status Hearing) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh for date of 12/3/2010 before Judge Jeffrey T. Miller, re 451 Notice of Appeal, 398 Notice of Appeal filed by Ahmed Nasir Taalil Mohamud. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/21/2014. Redacted Transcript Deadline set for 3/31/2014. Release of Transcript Restriction set for 5/29/2014. (akr) (Entered: 02/28/2014)
460 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) (includes proceedings held in 10−cr−04645−JM) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 1/20/2011 before Judge Jeffrey T. Miller, re 398 Notice of Appeal, 451 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/21/2014. Redacted Transcript Deadline set for 3/31/2014. Release of Transcript Restriction set for 5/29/2014. (akr) (Entered: 02/28/2014)
461 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Hearing) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 4/7/2011 before Judge Jeffrey T. Miller, re 398 Notice of Appeal, 451 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/21/2014. Redacted Transcript Deadline set for 3/31/2014. Release of Transcript Restriction set for 5/29/2014. (akr) (Entered: 02/28/2014)
462 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Hearing) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 9/10/2012 before Judge Jeffrey T. Miller, re 398 Notice of Appeal, 451 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due

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to Court Reporter/Transcriber 3/21/2014. Redacted Transcript Deadline set for 3/31/2014. Release of Transcript Restriction set for 5/29/2014. (akr) (Entered: 02/28/2014)
463 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Hearing) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 12/12/2012 before Judge Jeffrey T. Miller, re 398 Notice of Appeal, 451 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/21/2014. Redacted Transcript Deadline set for 3/31/2014. Release of Transcript Restriction set for 5/29/2014. (akr) (Entered: 02/28/2014)
464 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing/Motions in limine) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 1/10/2013 before Judge Jeffrey T. Miller, re 398 Notice of Appeal, 451 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/21/2014. Redacted Transcript Deadline set for 3/31/2014. Release of Transcript Restriction set for 5/29/2014. (akr) (Entered: 02/28/2014)
465 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Hearing) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 1/17/2013 before Judge Jeffrey T. Miller, re 398 Notice of Appeal, 451 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/21/2014. Redacted Transcript Deadline set for 3/31/2014. Release of Transcript Restriction set for 5/29/2014. (akr) (Entered: 02/28/2014)
466 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Hearing) as to Ahmed Nasir Taalil Mohamud for date of 11/5/2013 before Judge Jeffrey T. Miller, re 398 Notice of Appeal filed by Mohamed Mohamed Mohamud, 451 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/21/2014. Redacted Transcript Deadline set for 3/31/2014. Release of Transcript Restriction set for 5/29/2014. (akr) (Entered: 02/28/2014)
467 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Hearing) as to Ahmed Nasir Taalil Mohamud for date of 1/17/2014 before Judge Jeffrey T. Miller, re 398 Notice of Appeal filed by Mohamed Mohamed Mohamud, 451 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties

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have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/21/2014. Redacted Transcript Deadline set for 3/31/2014. Release of Transcript Restriction set for 5/29/2014. (akr) (Entered: 02/28/2014)
468 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Judgment & Sentence) as to Ahmed Nasir Taalil Mohamud for date of 1/31/2014 before Judge Jeffrey T. Miller, re 398 Notice of Appeal filed by Mohamed Mohamed Mohamud, 451 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/21/2014. Redacted Transcript Deadline set for 3/31/2014. Release of Transcript Restriction set for 5/29/2014. (akr) (Entered: 02/28/2014)
469 ORDER Forwarding Correspondence as to Issa Doreh. Court received two documents from Dft on or about 2/18/2014, a letter concerning personal property and a motion to remove his retained counsel. Pursuant to Civil Local Rule 83.9, it is inappropriate for any party to send correspondence directly to court. Court is forwaeding the communciations to Dft's counsel, Ahmed Ghappour. Signed by Judge Jeffrey T. Miller on 3/6/2014. (Original Documents t/w copy of this Order sent Dft's Counsel via U.S. Mail Service) (jah) (Entered: 03/10/2014)
470 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Telephonic Status Conference) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 6/10/2013 before Judge Jeffrey T. Miller, re 398 Notice of Appeal, 451 Notice of Appeal. Court Reporter/Transcriber: Jeannette N. Hill. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 4/10/2014. Redacted Transcript Deadline set for 4/21/2014. Release of Transcript Restriction set for 6/18/2014. (akr) (Entered: 03/20/2014)
471 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status/Discovery Hearing) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 2/22/2011 before Magistrate Judge William V. Gallo, re 398 Notice of Appeal, 451 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 4/10/2014. Redacted Transcript Deadline set for 4/21/2014. Release of Transcript Restriction set for 6/18/2014. (akr) (Entered: 03/20/2014)
472 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Status Hearing) as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 3/10/2011 before Magistrate Judge William V. Gallo, re 398 Notice of Appeal, 451 Notice of Appeal. Court Reporter/Transcriber: Debra M. Henson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 4/10/2014. Redacted Transcript Deadline

Case: 3:10-cr-4246 As of: 12/11/2016 10:02 AM PST 54 of 56

03/28/2014
03/28/2014 04/03/2014
04/07/2014 04/08/2014 04/08/2014 04/08/2014 04/10/2014

set for 4/21/2014. Release of Transcript Restriction set for 6/18/2014. (akr) (Entered: 03/20/2014)
473 ORDER of USCA as to Issa Doreh re 401 Notice of Appeal. The motion of retained counsel Ahmed Ghappour, Esq., to withdraw as counsel of record is granted. Appellant's submission of a completed Form CJA 23 is construed as a motion to proceed in forma pauperis and for appointment of counsel. So construed, the motion is granted. Counsel will be appointed by separate order. The Clerk shall electronically serve this order on the appointing authority for the Southern District of California, who will locate appointed counsel. The appointing authority shall send notification of the name, address, and telephone number of appointed counsel to the Clerk of the USCA at counselappointments@ca9.uscourts.gov within 14 days of locating counsel. Time schedule issued. The Clerk shall serve a Form CJA 24 on the appointing authority, who shall provide it to newly appointed counsel. If appellant seeks transcripts of proceedings requiring special authorization, that authorization should be obtained from the USDC. Upon filing of the transcripts, the court reporter shall submit the Form CJA 24 to the USCA for payment. The Clerk shall amend the court's docket to reflect that appellant is now proceeding in forma pauperis. The Clerk shall serve this order on former counsel. The Clerk shall also serve this order on appellant individually at Reg. No. 22869−298, Federal Correctional Institution, P.O. Box 23811, Tucson, Arizona 85734. (Appointing authority served electronically by the USCA Clerk. Copy to Court Reporters.) (akr) (Entered: 03/28/2014)
474 ORDER Appointing Counsel on Appeal as to Issa Doreh. Attorney Elizabeth Armena Missakian for Issa Doreh added. Signed by Magistrate Judge Nita L. Stormes on 3/28/2014. (USCA Case Number 13−50580. Order electronically transmitted to the US Court of Appeals. Copy to Attorney, Defendant.) (akr) (Entered: 03/31/2014)
475 TRANSCRIPT DESIGNATION AND ORDERING FORM by Issa Doreh for proceedings held on 12/3/2010, 1/20/2011, 2/22/2011, 3/10/2011, 4/7/2011, 6/16/2011, 8/8/2011, 9/23/2011, 2/9/2012, 4/5/2012, 8/22/2012, 8/30/2012, 9/6/2012, 9/10/2012, 9/13/2012, 9/17/2012, 10/1/2012, 10/15/2012, 10/24/2012, 10/29/2012, 11/5/2012, 12/12/2012, 1/10/2013, 1/17/2013, 1/25/2013, 1/28/2013, 1/29/2013, 1/30/2013, 1/31/2013, 2/4/2013, 2/5/2013, 2/6/2013, 2/7/2013, 2/8/2013, 2/11/2013, 2/12/2013, 2/13/2013, 2/14/2013, 2/15/2013, 2/19/2013, 2/20/2013, 2/21/2013, 2/22/2013, 6/10/2013, 9/11/2013, 11/5/2013, 11/13/2013, 11/18/2013, 1/17/2014, 1/31/2014 re 401 Notice of Appeal,. (Attachments: # 1 Proof of Service)(Missakian, Elizabeth). Modified on 4/3/2014 to add the designated dates to the docket text. (akr). (Entered: 04/03/2014)
476 ORDER of USCA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 401 Notice of Appeal, 398 Notice of Appeal, 451 Notice of Appeal, 395 Notice of Appeal. In appeals numbers 13−50572, 13−50578, 13−50580, and 14−50051, appellants' request for a telephonic case management conference is granted. Briefing of the appeals is stayed pending the conclusion of the conference. (See Order for full text.) (akr) (Entered: 04/07/2014)
477 Notice of Document Discrepancies by the Chambers of Judge Jeffrey T. Miller Accepting Document: Petition for Order Which Moves Former Counsel to Show Cause from Issa Doreh. Non−compliance with local rule(s), Civ. L. Rule 5.1: Missing time and date on motion and/or supporting documentation, Civ. L. Rule 7.1 or 47.1: Lacking memorandum of points and authorities in support as a separate document. IT IS HEREBY ORDERED: The document is to be filed nunc pro tunc to date received.(jah)(jrd) (Entered: 04/08/2014)
478 MOTION for Order to Move Former Counsel to Show Cause by Issa Doreh. NUNC PRO TUNC 3/31/2014. (jah) (Entered: 04/08/2014)
479 ORDER denying Defendant's 478 Motion for Order to Move Former Counsel to Show Cause as to Issa Doreh (3). Signed by Judge Jeffrey T. Miller on 4/7/2014. (jah) (Entered: 04/08/2014)
480 ORDER of USCA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 401 Notice of Appeal, 398 Notice of Appeal, 451 Notice of Appeal, 395 Notice of Appeal. Pursuant to the April 8, 2014 case management conference, appeal numbers 13−50572, 13−50578, 13−50580, and 14−50051 are consolidated. The Clerk shall change the court's docket to so reflect. The

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09/19/2014
11/24/2014 02/25/2015

USDC's February 25, 2011 amended protective order to prevent certain sensitive but unclassified discovery materials from being disclosed without limitation to persons not parties to the court proceedings in this matter, and the USDC's September 17, 2012 protective order to prevent the unauthorized use, disclosure or dissemination of classified national security information and documents, shall continue in effect on appeal. (See Order for full text.) (akr) (Entered: 04/10/2014)
481 MOTION to Unseal Document (Sealed Portion of Transcript of January 28, 2013) by Issa Doreh. (Attachments: # 1 Declaration In Support of Motion to Unseal, # 2 Proof of Service of Motion to Unseal)(Missakian, Elizabeth) (cxl). (Entered: 04/22/2014)
482 MOTION for Joinder in Codefendant's Motion for Copy of Sealed Transcripts by Mohamed Mohamed Mohamud as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud. (Attachments: # 1 Declaration of David Zugman)(Zugman, David) (cxl). (Entered: 04/22/2014)
483 NON Opposition by USA as to Issa Doreh re 481 MOTION to Unseal Document (Sealed Portion of Transcript of January 28, 2013), 482 MOTION for Joinder in Codefendant's Motion for Copy of Sealed Transcripts (Attachments: # 1 Proof of Service)(Han, Caroline) (cxl). (Entered: 04/22/2014)
484 ORDER Re: 481 Motion to Provide Sealed Portion of Reporter's Transcript of January 28, 2013 proceeding to Appellate Counsel. It is hereby ordered that the Motion to Provide Sealed Portion of the Reporters Transcript of January 28, 2013 Proceeding to Appellate Counsel is Granted. Signed by Judge Jeffrey T. Miller on 4/23/2014.(Notified Court Reporter)(cxl). (cap). (Entered: 04/23/2014)
485 ORDER Re 482 Joinder and Copies of Transcripts. The motions of Mohamed Mohamed Mohamud and Ahmed Nasir Taalil Mohamud to join the motion of Issa Doreh for copies of sealed transcripts (docket #481) are granted. The Court Reporter may provide copies of previously sealed transcripts to Appellate Counsel for review in connection with appeal. Signed by Judge Jeffrey T. Miller on 4/23/2014. (court reporter notified)(cxl) (cap). (Entered: 04/23/2014)
486 NOTICE OF FILING OF OFFICIAL TRANSCRIPT as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud for date of 9/11/2013 before Judge Jeffrey T. Miller, re 401 Notice of Appeal. Court Reporter/Transcriber: Lee Ann Pence. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 5/22/2014. Redacted Transcript Deadline set for 6/2/2014. Release of Transcript Restriction set for 7/30/2014. (akr) (Entered: 05/01/2014)
488 ORDER of USCA as to Issa Doreh re 401 Notice of Appeal. The request of Elizabeth A. Missakian, Esq., Esq., appointed counsel under the Criminal Justice Act, for advance travel authorization to meet with her client for two days is granted. Attorney Elizabeth A. Missakian, Esq. is authorized to incur expenses for roundtrip airfare from San Diego, CA to Tucson, AZ. Counsel is authorized one night lodging, car rental and meals, not to exceed the per diem limit. Counsel is instructed to contact Keith Bell, the USCA's travel coordinator, at 415/ 355−7993, with regard to travel logistics. Counsel is reminded that any future travel request may be made via the eVoucher system. (akr) (Entered: 09/19/2014)
489 ORDER of USCA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 401 Notice of Appeal, 398 Notice of Appeal, 451 Notice of Appeal, 395 Notice of Appeal. Appellants' unopposed motion for an extension of time to file the opening brief is granted. Briefing schedule issued. (akr) (Entered: 11/24/2014)
490 ORDER of USCA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 401 Notice of Appeal, 398 Notice of Appeal, 451 Notice of Appeal, 395 Notice of Appeal. Appellants' unopposed motion for an extension of time to file the opening brief is granted. Briefing schedule issued. (akr)

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03/11/2015 07/10/2015 09/23/2015 11/13/2015
05/16/2016 08/30/2016

(Entered: 02/25/2015)
491 Notice of Document Discrepancies and Order Thereon by Judge Jeffrey T. Miller Rejecting Document: Ex Parte Letter, from Defendant Issa Doreh. Non−compliance with local rule(s), OTHER: Ex Parte Communication; No Provision for Acceptance Defendant is represented by counsel. Signed by Judge Jeffrey T. Miller on 3/11/2015. (sjt) (Additional attachment(s) added on 3/11/2015: # 1 Rejected Document) (sjt). (Entered: 03/11/2015)
492 ORDER of USCA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 401 Notice of Appeal, 398 Notice of Appeal, 451 Notice of Appeal, 395 Notice of Appeal. The parties' unopposed requests for extensions of time to file the opening and answering briefs are granted. Briefing schedule issued. (akr) (Entered: 07/10/2015)
493 ORDER of USCA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 401 Notice of Appeal, 398 Notice of Appeal, 451 Notice of Appeal, 395 Notice of Appeal. Appellants' unopposed request for a final 30−day extension of time to file the opening brief is granted. Briefing schedule issued. (akr) (Entered: 09/23/2015)
494 ORDER of USCA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 395 Notice of Appeal, 401 Notice of Appeal, 398 Notice of Appeal, 451 Notice of Appeal. A review of appellants' proposed joint opening brief reveals that it may reasonably be shortened. Accordingly, appellants' unopposed motion for leave to file an oversize joint opening brief consisting of 51,727 words is granted in part. On or before December 14, 2015, appellants shall file a joint opening brief that does not exceed 45,000 words. Briefing schedule issued. (akr) (Entered: 11/13/2015)
495 ORDER of USCA as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 401 Notice of Appeal, 398 Notice of Appeal, 451 Notice of Appeal, 395 Notice of Appeal. Appellants' motion at docket entry 43 for an extension of time to file the joint reply brief is granted. Appellants' joint reply brief is due August 15, 2016. (akr) (Entered: 05/16/2016)
496 Transmitted Record on Appeal to the US Court of Appeals as to Basaaly Saeed Moalin, Mohamed Mohamed Mohamud, Issa Doreh, Ahmed Nasir Taalil Mohamud re 395 Notice of Appeal, 398 Notice of Appeal, 401 Notice of Appeal, 451 Notice of Appeal. (no document attached) (akr) (Entered: 08/30/2016)