FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MOHAMED OSMAN MOHAMUD,

Defendant-Appellant.

No. 14-30217

D.C. No.

3:10-cr-00475-KI-1

OPINION

Appeal from the United States District Court

for the District of Oregon

Garr M. King, District Judge, Presiding

Argued and Submitted July 6, 2016

Portland, Oregon

Filed December 5, 2016

Before: Harry Pregerson, Carlos T. Bea,

and John B. Owens, Circuit Judges.

Opinion by Judge Owens
2 UNITED STATES V. MOHAMUD

SUMMARY*

Criminal Law

The panel affirmed Mohamed Osman Mohamud’s

conviction for attempting to detonate a large bomb during the

annual Christmas Tree Lighting Ceremony in downtown

Portland, Oregon, in violation of 18 U.S.C. § 2332a(a)(2)(A).

The panel held that the district court properly rejected

Mohamud’s defense of entrapment as a matter of law. The

panel could not say that no reasonable jury could have

concluded that Mohamud was predisposed to commit the

charged offense. Rejecting Mohamud’s alternative argument

that the case should be dismissed because the government

overreached in its “sting,” the panel wrote that while the

government’s conduct was quite aggressive at times, it fell

short of a due process violation. 

The panel held that, under the circumstances of this case,

the district court did not err in denying Mohamud’s motion to

suppress, based on tardy disclosure, information collected

pursuant to § 702 of the Foreign Intelligence Surveillance Act

of 1978. The panel wrote that Mohamud cannot demonstrate

prejudice, and that the district court did not err in finding that

the late disclosure was not due to prosecutorial misconduct.

The panel held that the § 702 acquisition of Mohamud’s

email communications did not violate the Fourth

Amendment. The panel noted that all this case involved was

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. MOHAMUD 3

the targeting of an overseas foreign national under § 702,

through which Mohamud’s email communications were

incidentally collected. The panel held that no warrant was

required to intercept the overseas foreign national’s

communications or to intercept a U.S. person’s

communications incidentally. Assuming that Mohamud had

a Fourth Amendment right in the incidentally collected

communications, the panel held that the search was

reasonable under the Fourth Amendment. The panel wrote

that declassified facts foreclosed the argument that the

discovery in this case strayed from protecting the country

from a terrorist threat into the conduct of foreign affairs. 

Because no retention and querying of the incidentallycollected communications is at issue in this case, an argument

regarding reasonableness was outside the scope of this court’s

review. The panel held that under the third-party doctrine,

Mohamud had a reduced expectation of privacy in his

communications to third parties. The panel held that Foreign

Intelligence Surveillance Court-approved targeting and

minimization procedures, which were followed in practice,

sufficiently protected Mohamud’s privacy interest, in light of

the government’s compelling interest in national security.

COUNSEL

Stephen R. Sady (argued), Chief Deputy Federal Public

Defender; Mark Ahlemeyer, Assistant Federal Public

Defender; Lisa C. Hay, Federal Public Defender; Office of

the Federal Public Defender, Portland, Oregon; Steven Toby

Wax, Portland, Oregon; for Defendant-Appellant.
4 UNITED STATES V. MOHAMUD

KellyA. Zusman (argued), Appellate Chief; Ethan D. Knight,

Pamala R. Holsinger, and Ryan W. Bounds, Assistant United

States Attorneys; Billy J. Williams, Acting Assistant United

States Attorney; United States Attorney’s Office, Portland,

Oregon; Joseph F. Palmer, Attorney, Appellate Unit; John P.

Carlin, Assistant Attorney General; National Security

Division, United States Department of Justice, Washington,

D.C.; for Plaintiff-Appellee.

Patrick C. Toomey (argued) and Alex Abdo, New York, New

York; Andrew Crocker and Mark Rumold, San Francisco,

California; Mathew W. dos Santos, Portland, Oregon; as and

for Amici Curiae American Civil Liberties Union, American

Civil Liberties Union of Oregon, and Electronic Frontier

Foundation.

Joshua L. Dratel, Law Offices of Joshua L. Dratel P.C., New

York, New York; John D. Cline, Law Office of John D.

Cline, San Francisco, California; for Amicus Curiae National

Association of Criminal Defense Lawyers.
UNITED STATES V. MOHAMUD 5

OPINION

OWENS, Circuit Judge:

Mohamed Osman Mohamud appeals from his conviction

for attempting to detonate a large bomb during the annual

Christmas Tree Lighting Ceremony in Pioneer Courthouse

Square in downtown Portland, Oregon, in violation of

18 U.S.C. § 2332a(a)(2)(A). We have jurisdiction under

28 U.S.C. § 1291, and we affirm.1

I. FACTUAL BACKGROUND

A. Mohamud’s Activities BeforeContactwith the FBI

In many respects, Mohamud was like any other American

teenager. He liked music, the Los Angeles Lakers, and

hanging out with his friends. Born in Somalia, he immigrated

to the United States at the age of three, and grew up in the

Portland area.

But after a December 2008 incident at London’s

Heathrow Airport, things changed. Believing that airport

security racially profiled him, Mohamud wrote an email in

London stating that it is “the evil zionist-crusader lobbyists

who control the world,” and calling on Allah to send fighters

against them. He also created a new email account while in

London—truthbespoken@googlemail.com. That email

account would play a significant role in the prosecution’s

case.

1 We resolve several of Mohamud’s arguments in a concurrently filed

memorandum disposition.
6 UNITED STATES V. MOHAMUD

In 2009, Mohamud began communicating over the

Internet with Samir Khan, a United States citizen then living

in North Carolina.2 Khan published Jihad Recollections, an

online magazine aimed at English-speaking al-Qaeda

supporters. From February to August 2009, Mohamud and

Khan exchanged roughly 150 emails, with Mohamud using

his truthbespoken email account. Topics included Islamic

law and advice about personal relationships. They also

outlined Mohamud’s support for Osama bin Laden.

During this time period, Mohamud wrote four articles for

Jihad Recollections.

3 Among other things, the articles

recommended physical exercise to prepare for war with the

West and analyzed Europe’s vulnerability to a jihadi attack. 

Mohamud’s initial drafts of these articles contained more

incendiary content. For example, Mohamud praised the

proficiency of the September 11, 2001, hijackers who “hit

them so fast the Americans became dumbfounded,” the 2008

Mumbai attackers, who were “a great display of quickly

entering the arena of battle and just decimating the kuffar

[unbelievers],” and the fighters in Afghanistan who attacked

landing American helicopters and then “finish[ed] off the

wounded American soldiers.” Mohamud also prayed for

Allah to help the reader “prepar[e] you to meet Allah as a

martyr” and included a photograph of the Twin Towers

burning during the September 11th attacks. Khan removed

2 The September 2011 drone strike in Yemen that killed Anwar alAwlaki, an al-Qaeda leader, also killed Khan.

3 Three of the articles were published under the pen name Ibn alMubarak. Mohamud was not credited with publishing the fourth article,

which appeared in Jihad Recollections under a different pseudonym, Abu

Talha.
UNITED STATES V. MOHAMUD 7

this more inflammatory material from the final versions of

Mohamud’s articles. On August 15, 2009, Mohamud

informed Khan that he would no longer write for Jihad

Recollections because he was “going through alot [sic] of

things and i have a lot of things to do.”4

Mohamud also struck up a relationship with Amro Al-Ali,

a Saudi citizen who Mohamud met at a Portland mosque and

who subsequently left the United States.5 On August 31,

2009, Al-Ali sent information to Mohamud at his

truthbespoken email account about an Islamic school in

Yemen. That same day, Mohamud called his father to say

that he was leaving the country. His father begged him to

stay in the United States, but Mohamud told him it was too

late—he had his passport, visa, and ticket ready to go. When

his parents confirmed that his passport was missing, they

feared that Mohamud might return to Somalia, his place of

4 Mohamud also engaged in other pro-jihadi Internet activities. In

June 2009, for example, he posted on a website that he was working on an

“Islam’s [M]ost Wanted List,” which would be a “Black list” of people

who had “offended Allah.”

5 Saudi officials suspected Al-Ali had links to terrorist groups, and

requested an Interpol Red Notice for his arrest. A Red Notice serves as

an international wanted notice and provides information on the

identification of fugitives charged with or convicted of serious crimes. 

Although Interpol will not publish requested Red Notices that violate

Interpol’sConstitution, which prohibits the organization fromundertaking

any activities of a political, military, religious or racial character, see

Interpol Const., art. 3, Interpol does not independently vet the

governmental request for a Red Notice for its factual and legal

justification. The Red Notice led the FBI to consider Al-Ali a “dangerous

[person] overseas” and to view Mohamud’s communications with Al-Ali

with concern. There was no evidence at trial that Mohamud knew of the

Red Notice, which was non-public, or the FBI’s interest in Al-Ali.
8 UNITED STATES V. MOHAMUD

birth. And when they could not reach Mohamud, they called

the FBI and asked an agent to stop their son from leaving the

country. Eventually, Mohamud’s mother got in touch with

her son, scolded him, and brought him home. Mohamud did

not actually have a visa or plane ticket, and he returned his

passport to his parents. A few days later, Mohamud’s father

called the FBI agent back and told him that Mohamud had

agreed to finish college and would not leave the country until

he graduated. He also explained that his son had wanted to

go to Yemen to study Arabic and Islam. Mohamud’s father

forwarded the FBI an email from his son about a school in

Yemen, which allowed the FBI to identify Mohamud as the

user of the truthbespoken email account.

B. Mohamud Attends College and the FBI Initiates

Its Investigation

In September 2009, Mohamud began studying

engineering at Oregon State University in Corvallis, where he

had a “typical” college experience: he had a roommate, made

friends, and attended parties (where he drank alcohol and

used marijuana). His activities and religious principles often

clashed, and in November 2009 he sought advice from a

Muslim website on the difficulties of living a pious life on a

college campus.

After the urgent August 31, 2009 call from Mohamud’s

father, the FBI opened an investigation into Mohamud. 

Agents conducted physical and electronic surveillance of

Mohamud, but did not identify any overtly dangerous

communications. The case agent believed that Mohamud’s

communications lacked “the same radical speak that he had

espoused early on when he was communicating with Samir

Khan.” The agent opined that Mohamud had “left behind his
UNITED STATES V. MOHAMUD 9

radical thinking” and was a “pretty manipula[ble], conflicted

kid.”

C. The FBI’s First Direct Contacts with Mohamud

In November 2009, a contractor working undercover for

the FBI—using the alias “Bill Smith”—emailed Mohamud at

his truthbespoken account. Pretending to be an isolated

Muslim in eastern Idaho, the contractor asked Mohamud for

advice on how to get more involved in “the fight” for the

Islamic community, and he stated that he wanted “to help rid

the occupiers from [P]alestine.” Although Mohamud gave

some general advice to move to a community with more

Muslims, take care when talking about such issues online,

and look out for “spies,” he never openly encouraged the

contractor to commit acts of violence. By May 2010, their

email communications had ended.

Mohamud planned to work in Alaska with his college

roommate during the summer of 2010. But when his parents

brought him to the Portland airport, he was not permitted to

fly to Alaska. Instead, FBI agents met with Mohamud and

his parents at the airport and questioned them. When asked,

Mohamud denied having a ticket or visa to travel to Yemen,

or having any interest in jihadi websites. When asked if he

knew anyone in Yemen, he said “Amr,” but provided little

detail. Mohamud made no mention of his Jihad Recollections

articles or similar writings. When Mohamud returned home,

he drafted a “To do list” which included “Find a job,” “Work

till September,” get help from his parents for food and rent,

and “you might have to take less classes” at Oregon State.
10 UNITED STATES V. MOHAMUD

D. Introduction to FBI Undercover Agent “Youssef”

1. The Initial Email Contacts

On June 23, 2010, an FBI undercover agent, using the

alias “Youssef,” emailed Mohamud at his truthbespoken

account and instructed him to set up a new “hushmail” email

account that would be secure and encrypted. Mohamud

responded later that same day: “assalamu alaykum [God be

with you] brother how are you[?]” Two days later, Youssef

emailed Mohamud again:

Wa alaikoom salem. hamdullah i am good

brother thank you for asking. i’m sorry for

the delay in our communication, we’ve been

on the move. jazakallah khairan for

responding so soon. are you still able to help

the brothers? in sha’allah, i’ll hear from you

soon. Salem, Youssef.

Mohamud responded the same day that he was unable to

travel:

i have been betrayed by my family, i was

supposed to travel last year but Allah had

decreed that i stay here longer than my heart

desired. i am trying to find a way to go. i do

not think i will be able to go for a while. i

need to save up and also clear up somethings

[sic]. look for my emails inshallah, i will

contact you when i am able to travel. pray for

me that allah will free my passage from the

lands of the polytheists, peace be upon the
UNITED STATES V. MOHAMUD 11

messenger of Allah, his family and his

companions.

Three days later, on June 28, 2010, Youssef replied that

“Allah (SWT) i’m sure has good reason for you to stay where

you are” and asked to meet Mohamud. About two weeks

later, when Mohamud had still not responded, Youssef sent

a follow-up email. A week later, on July 16, 2010, Mohamud

responded and agreed to meet.

Youssef declined Mohamud’s suggestion to meet at the

local mosque because he wanted to meet privately and “the

kuffar [unbelievers] have eyes and ears in almost all masjids

in the US.” Mohamud responded that he would “have a set

of questions for you when we meet” to “make [s]ure you are

not a spy yourself.” Mohamud also wrote that “amr” (as in

Amro Al-Ali) was the only person who could have given

Youssef his email address, so he would want to know how

Youssef knew Al-Ali as a “precaution.” Youssef praised

Mohamud for thinking about security.

2. The First Meeting with Youssef

On July 30, 2010, Youssef met Mohamud for the first

time in downtown Portland.6 Youssef told Mohamud he was

from an “ihataa” (a religious “council”) and was interviewing

seven people in the United States and Canada for possible

6 Although Youssef was wearing a transmitter and a recording device,

the meeting was not recorded because the battery accidentally had been

drained. An FBI agent listened to their conversation and summarized it

in a report. The agent could not hear the first ten minutes, so he relied on

Youssef to tell him what occurred. Every other in-person meeting

between Mohamud and undercover agents was recorded and proffered as

evidence at trial.
12 UNITED STATES V. MOHAMUD

inclusion in a council project.7 Youssef asked Mohamud

“what he had been doing lately to continue being a good

Muslim.” Mohamud said that he had been writing poetry and

articles for Jihad Recollections. Mohamud asked Youssef

how he got his email address, and Youssef explained that the

council had forwarded it to him.

When asked about travel, Mohamud described his

unsuccessful attempt to go to Alaska. And when asked what

he was “willing to do for the cause,” Youssef testified that

Mohamud said that “originally he had planned to wage war

within the United States,” but then he dreamt that he traveled

to Yemen, received training, and “went to Afghanistan where

he led an army against the kuffar or the unbelievers.”

Youssef asked Mohamud again what he would do for the

cause, and Mohamud responded, “anything.” When offered

five ways to be a good Muslim—(1) pray five times a day;

(2) go to school to learn something that would help the

brothers overseas, such as engineering or medicine; (3) raise

money for the brothers; (4) become operational; or

(5) become a martyr—Mohamud almost immediately picked

“become operational.” Mohamud explained “operational”

meant “doing like the other brothers do when they get a car,

fill it with explosives, park it near a target location, and

detonate the vehicle.” When asked about targets, Mohamud

said he had thought about Washington, D.C., because of all

the government buildings, but admitted he was not familiar

with the area. Youssef told Mohamud to research possible

7 The FBI invented this “council” to serve as a fictional intermediary

between Al-Ali and Youssef because Youssef would not be able to answer

many questions about Al-Ali.
UNITED STATES V. MOHAMUD 13

targets in Portland, and that he had a “brother that could help

him with explosives.”

About four hours after their meeting, Mohamud sent

Youssef an unprompted email with copies of his three articles

published in Jihad Recollections.

8 Youssef replied that

Mohamud was “talented.”9

E. Meeting with “Hussein”

A few weeks later, on August 19, 2010, Youssef met with

Mohamud again in downtown Portland and introduced him to

“Hussein,” an undercover FBI agent posing as an al-Qaeda

explosives expert. Youssef described Mohamud as a “jewel

in the rough.” During the meeting, Mohamud told the agents

he admired the Mumbai terrorist attack (in which ten men

stormed buildings in Mumbai, India, and killed 164 people).

About thirty-four minutes into the meeting, Mohamud

told the agents that he wanted to detonate a bomb in Pioneer

Courthouse Square during the annual Christmas Tree

Lighting Ceremony on November 26, 2010, the day after

Thanksgiving. Mohamud explained that he had researched

other potential targets, but this was the best option because:

8 Mohamud also sent Youssef an article he had recently submitted to

Inspire, the successor to Jihad Recollections, observing that: “Much can

be done to hurt the enemy or prepare for Jihad. According to your

circumstances you could perform Jihad against the enemy where you are

currently living by Mumbai style attacks, but my article is directed

towards those brothers waiting to travel to the lands of Jihad rather than

touch upon the issue of attacks within the Western nations.”

9 The undercover agents frequently flattered and praised Mohamud

for his good writing or behavior.
14 UNITED STATES V. MOHAMUD

(1) he could drive a car right into the Square from the street;

(2) many people would be there; (3) nobody expected an

attack in Portland; and (4) security would be light. Mohamud

said that he planned on being in the car when it blew up. The

agents (who were not familiar with Portland) had no input

into Mohamud’s chosen target.

Youssef wanted Mohamud to realize the seriousness of

what he was saying. Mohamud assured them he did. He said

that “since I was fifteen I thought about all this things

before,” and explained:

[I]magine every day we see you know in

Arab, you know, newspapers and news you

know our people are killed you know. So for

us to see that you know it would be a smile

from me to see them in the same. You know,

you know what I like, what makes me happy?

You know, what I like to see? Is when I see

the enemy of Allah then they are you know

their bodies are torn everywhere. . . . That

gives me you know like high hope and

happiness you know.

When Youssef pointed out that there would manywomen and

children at the event, Mohamud responded:

[I]n general just a huge mass that will, you

know like for them you know to be attacked

in their own element with their families

celebrating their holidays. And then for later

on to be saying this was done for you to

refrain from killing our children, women.
UNITED STATES V. MOHAMUD 15

The agents told Mohamud there was “no shame” in not

going through with his plan. They reminded him that “[w]ith

us you always have a choice.” When asked what he would

have done if he had not met the agents, Mohamud said that he

had planned to leave the country, “find the right people,” “be

somewhere they cannot capture you,” and meet up with AlAli. The three then walked to Pioneer Courthouse Square,

where Mohamud detailed the proposed attack.

Two days later, Youssef emailed Mohamud that he and

Hussein would present Mohamud’s plan to the “council.” He

also asked Mohamud to explain his rationale for the attack, as

“a bomb is a very serious matter.” Mohamud replied that he

had prayed for guidance and that his faith “was sky high for

no apparent reason,” which he saw as a sign “that the traffic[]

[l]ight is green lol.”

F. Youssef and Hussein Test Mohamud’s Resolve

On September 7, 2010, Youssef and Hussein met again

with Mohamud. They convinced Mohamud not to martyr

himself (i.e., to detonate the bomb remotely), and offered to

help him leave the country after the bombing. They also

advised that he did not have to go forward with the plan. The

agents showed Mohamud an FBI-produced mock jihadi

training video, which included an explosion being triggered

by cell phone. Mohamud said the video was “beautiful.”

To test his resolve, the agents gave Mohamud $2,800 to

carry out specific tasks: purchase a list of bomb components,

decide where to park the van with the bomb, and rent his own
16 UNITED STATES V. MOHAMUD

apartment.10 On October 3, 2010, they again met with

Mohamud and told him to rent a storage unit for the van. 

Mohamud completed these tasks.

G. The Test Bomb

On November 4, 2010, Mohamud, Youssef, and Hussein

drove to the Oregon countryside to explode a test bomb. On

the drive, when asked what he wanted to do once he was

overseas, Mohamud first said he wanted to learn Arabic, and

later that he wanted to learn “the inside and out of weaponry”

and “bomb-making.” When asked whether he saw himself

teaching, he said he also wanted to teach “special operations,”

and specialize in “making the enemies you know afraid.” 

During this conversation, Mohamud stated that “these people

who live in this country are the most evil people on earth.”

Hussein again advised that Mohamud did not have to go

through with the bombing. Mohamud ignored him, instead

commenting on the irony of the term “Black Friday,” the day

after Thanksgiving. When asked if he had told anybody

about the plan, Mohamud responded that his image was “just

a college student” and “nobody even knows that I have you

know, that I’m inclined toward jihad, or even towards even

like being Islamic.”

To test the bomb, Mohamud pushed buttons on a cell

phone, which appeared to trigger an explosion, though an FBI

agent actually detonated the bomb. After the explosion,

Mohamud said “God is great” in Arabic, that he felt “good,”

10 Youssef explained that the FBI did not want Mohamud to have a

roommate because it would be easier to maintain surveillance and reduce

the chance that Mohamud would take matters into his own hands.
UNITED STATES V. MOHAMUD 17

and that the bomb test was “just motivation for me.” When

Youssef and Hussein asked if he had ever seen dead bodies,

Mohamud responded that he thought it was “awesome” when

people were jumping from skyscrapers during the September

11th attacks.

On the ride home, Youssef suggested that Mohamud

make a “good-bye” video to explain his actions because it

could be “inspirational.”11 Mohamud ultimately agreed and

wrote a script for the video using topics Youssef suggested.

Mohamud made the video later that day, and explained

that this is a “message . . . to those who have wronged

themselves.” He described the “dark day” that was coming,

and said that no one would be safe “for as long as you

threaten our security.” He said that living in the United States

“is a sin,” and urged that Muslim parents living in the West

not do what his did to him—that is, not “hold others back

from completing their obligation” to Allah. Mohamud

finished by reading his own poem that extolled the virtues of

Muslims and jihad, and ended with a call to:

Carry on oh brothers, and march on ahead to

meet your creator and lie on silk beds, and the

martyrs don’t die, so don’t say they’re

dead. . . . Explode on these kuffar

[unbelievers]. Alleviate our pain. Assassinate

their leaders, commanders, and chiefs. From

your brother to his brother a poem in brief.

11 On cross-examination, Youssef agreed that he had his “finger on

the scale” and was trying to influence Mohamud to make the video, and

that Mohamud initially wanted to wait to make the video until he was

abroad.
18 UNITED STATES V. MOHAMUD

H. The Final Countdown

About a week after the test bomb, Mohamud exchanged

emails with a friend in Afghanistan. On November 13, 2010,

the friend asked Mohamud to “investigate” predator and

reaper strike drones to figure out “how to down them.” On

November 17, 2010, Mohamud responded: “[D]on’t worry,

brother, I will find you something inshallah. Please do not email this email any longer. If someone replies from now on

from this e-mail is not me, Remember that. I hope we meet

again soon inshallah.”

On November 18, 2010, an excited Mohamud met with

Youssef and Hussein for six hours. They went to the storage

unit Mohamud had rented, which he had selected in part

because there were no surveillance cameras. The three then

drove to a hotel in Portland, where Mohamud showed the

agents potential parking spots he had researched on his

computer. Next, they walked to Pioneer Courthouse Square

to discuss the plan further.

During the November 18th meeting, Youssef asked:

“What’s a victory gonna be for you?” Mohamud replied:

“Try to get most, the most casualties.” Mohamud thought the

bombing would get a lot of publicity because “America’s

boasting it so ‘oh we haven’t been attacked since 9/11.’” 

Hussein asked Mohamud if he had any doubts about the

bombing. He did not.

On November 23, 2010, Mohamud and Hussein went to

the storage unit to see the bomb parts. Mohamud helped load

purported bomb parts into Hussein’s car, including barrels,

wires, and nails. Mohamud also provided Hussein with items

for their disguises to pose as water workers.
UNITED STATES V. MOHAMUD 19

On November 25, 2010, Thanksgiving Day, Mohamud

drove to Portland and spent the day with friends. His friends

said he seemed “happy,” although at dinner he became

“reserved.” They all went shopping at an outlet mall that

night.

I. “Black Friday”—November 26, 2010

Earlythe next morning, on November 26th, Mohamud ran

into a friend and told him that “I’m having the greatest

morning of my life.” Around noon, Youssef picked up

Mohamud and they drove to a store to buy reflective vests as

part of their disguises. Then they met up with Hussein in

downtown Portland. Mohamud appeared “happy” and

“excited.”

The three drove about a mile to the parked van. When

shown the “bomb” in the back of the van (which an FBI agent

had constructed to look real but which was, in fact, inert),

Mohamud said it was “beautiful.” They returned to their

hotel, ate, talked, and prayed. Shortly before 5:00 p.m., the

three drove to the van. Youssef dropped off Mohamud and

Hussein, then drove to a pre-arranged meeting location a few

blocks west of Pioneer Courthouse Square.

Hussein and Mohamud drove the van to Pioneer

Courthouse Square. Before exiting the van, Hussein told

Mohamud to connect the wires for the detonator to work. 

Mohamud did so, and then they walked several blocks to join

Youssef in his car. The three drove toward a train station,

dropped off Youssef, and then Hussein and Mohamud parked

a few blocks from the station.
20 UNITED STATES V. MOHAMUD

Mohamud pulled out the cell phone and Hussein read him

the number to dial to detonate the bomb. When Mohamud

dialed the number and nothing happened, Hussein suggested

that they step out of the car for better reception—the arrest

signal. Mohamud was dialing the number into the cell phone

a second time when FBI agents arrested them both. Hussein

was shouting “Allahu Akbar! [God is great]” as he was being

arrested. Mohamud was quiet initially, but during transport

he began to kick and had to be restrained. Later, when

speaking with the jail’s psychiatric nurse, Mohamud cried

and said he could not understand “how he had gotten from

just being a student to being labeled a terrorist in jail.”

Agents found an undated email printout from Al-Ali in

Mohamud’s wallet. A search of Mohamud’s computer

revealed videos of the 2007 and 2008 Portland Christmas

Tree Lighting Ceremonies, as well as an al-Qaeda video, an

audio file titled “No Peace with the Jews,” and numerous

references to the word “jihad.” In a notebook found in his

apartment, Mohamud had written: “Non Muslims are the

eternal enemies of Islam and they must be subdued and

humiliated.” He also described the need to “mistrust”

everyone and to act normal “to secure myself from the FBI.”

II. PROCEDURAL HISTORY

A. Indictment and Trial

A one-count indictment charged Mohamud with

attempted use of a weapon of mass destruction in violation of

18 U.S.C. § 2332a(a)(2)(A). After several years of pretrial

litigation and review of immense discovery (including

considerable litigation under the Classified Information

Procedures Act, 18 U.S.C. app. 3), trial began in January
UNITED STATES V. MOHAMUD 21

2013 and lasted thirteen days. Both sides called numerous

witnesses, and the cross-examinations were sharp and

thorough.

There was no dispute that Mohamud had tried to blow up

Pioneer Courthouse Square while it was filled with people. 

The spirited (and supportable) defense was entrapment—

Mohamud, a teenager with no criminal record, had neither the

means nor the intent to commit domestic terrorism until he

became involved with the undercover FBI contractor (Bill

Smith) and FBI agents (Youssef and Hussein). The

government countered that Mohamud’s actions before any

contact with the FBI—including his Jihad Recollections

articles—as well as his readiness to commit such a horrific

act of violence proved that he had the necessary

predisposition to commit the crime. After the close of

evidence and argument, the jury returned a guilty verdict,

rejecting the entrapment defense.

B. Post-Trial Motions

Mohamud challenged his conviction on numerous

grounds. He cited Sherman v. United States, 356 U.S. 369

(1958), to argue that the government had entrapped him as a

matter of law. Mohamud contended that he had intended to

complete college in the United States, and only the FBI’s

aggressive and coercive actions had led him down the

bombing path. The district court rejected that argument,

pointing to evidence that before any contact with the FBI,

Mohamud: (1) originally planned to wage war in the United

States until a dream refocused him on Yemen; (2) wrote

articles for Jihad Recollections which advised how best to

prepare to carry out “jihad” on non-believers; and (3) had

lengthy email conversations with men that the FBI believed
22 UNITED STATES V. MOHAMUD

promoted terrorism. The court also highlighted that

Mohamud never showed any reluctance (unlike the defendant

in Sherman), and only thirteen minutes after meeting Youssef

in person, he said that he wanted to become “operational” by

using a car bomb.

After the verdict (but before sentencing), the government

filed a supplemental notice that it had “offered into evidence

or otherwise used or disclosed in proceedings, including at

trial” information derived from information collected

pursuant to § 702 of the Foreign Intelligence Surveillance Act

of 1978 (“FISA”), 50 U.S.C. § 1881a (hereinafter referred to

as “§ 702”).

12 Mohamud argued that this late notice

warranted suppression of this evidence (and any fruits

thereof). The government countered that FISA did not

provide for suppression in these circumstances, and in any

case, there was no substantial prejudice, as the district court

could conduct a post-trial suppression analysis. The district

court agreed, finding no misconduct in the late disclosure,

and that Mohamud had suffered no prejudice from the

delayed disclosure.

Mohamud also argued that suppression was warranted

because § 702 violates the First and Fourth Amendments, as

well as the separation of powers doctrine.13 As a threshold

12 Section 702 was added to by the FISA Amendments Act of 2008,

Pub. L. No. 110-261, 122 Stat. 2436, and was amended by the USA

FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268.

13 Here, Mohamud contended that U.S. Foreign Intelligence

Surveillance Court (“FISC”) review of targeting and minimization

procedures under § 702 amounts to “providing a non-judicial advisory

opinion” and authorizes a rule-making role for judges in violation of the

non-delegation doctrine.
UNITED STATES V. MOHAMUD 23

matter, the district court first held that § 702 did not

“interfere[] with the prerogatives of another branch of

government beyond requiring the executive branch to

conform to the statute.” It also reasoned that because the

FISC either approves or denies the requested acquisition (and

electronic communication service providers must follow the

directives or challenge them), its opinions are not advisory. 

The court then explained that Mohamud had not raised an

independent First Amendment claim, because motions to

suppress based on First Amendment violations are analyzed

under the Fourth Amendment.

Finally, the district court held that § 702 does not violate

the Fourth Amendment. The court reasoned that § 702

surveillance does not trigger the Fourth Amendment’s

warrant requirement because U.S. persons’ data is collected

only incidentally, but even if it did, no warrant would be

required because the foreign intelligence exception would

apply.

14 The court then balanced the government’s interests

in the search against the intrusions on Mohamud’s privacy,

and held that the § 702 collection here was reasonable under

the Fourth Amendment.

C. Sentencing

The Sentencing Guidelines called for a life sentence. The

government recommended a sentence of forty years’

imprisonment, whereas Mohamud urged a sentence of ten

years’ imprisonment.

14 The district court further held that subsequent querying of § 702-

acquired data, without obtaining an additional search warrant, would also

be constitutional, though it was “a very close question.”
24 UNITED STATES V. MOHAMUD

During the sentencing hearing, the district court

acknowledged that, although the jury had rejected the

entrapment defense, Youssef and Hussein “imperfect[ly]”

entrapped Mohamud through their frequent praise and

religious references, especially considering his youth. But the

“horrific” nature of the intended crime, which would have

resulted “in a great deal of death and mutilation,” still

warranted a sentence of thirty years’ imprisonment.

III. DISCUSSION

A. Standard of Review

We review the district court’s ruling on a motion for

acquittal de novo. See United States v. Sanchez, 639 F.3d

1201, 1203 (9th Cir. 2011). When a defendant pursues an

entrapment defense, we “should not disturb the jury’s finding

unless, viewing the evidence in the light most favorable to the

government, no reasonable jury could have concluded that the

defendant[] [was] predisposed to commit the charged

offenses.” United States v. Davis, 36 F.3d 1424, 1430 (9th

Cir. 1994). We review the denial of a motion to dismiss

based on a violation of constitutional rights de novo. United

States v. Brobst, 558 F.3d 982, 994 (9th Cir. 2009).

We review de novo the denial of a motion to suppress

evidence, but underlying factual findings are reviewed for

clear error. United States v. Crawford, 372 F.3d 1048, 1053

(9th Cir. 2004) (en banc). We review for an abuse of

discretion a district court’s decision whether to use its

supervisory powers—in this case, the supervisory power to

decide whether to suppress evidence as a sanction for the

government’s late supplemental FISA notice. United States

v. Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011). Discovery
UNITED STATES V. MOHAMUD 25

rulings and the denial of an evidentiary hearing are also

reviewed for an abuse of discretion. United States v.

Mazzarella, 784 F.3d 532, 537 (9th Cir. 2015).

We review de novo the constitutionality of a statute. 

United States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir.

2010).

B. Entrapment as a Matter of Law

As the district court stated at sentencing, the defense

made a solid case for entrapment. But the jury rejected that

defense, and found Mohamud guilty despite the actions and

encouragement of Youssef and Hussein and the

communications (and attempted communications) from other

government agents. And in light of that verdict, Mohamud

has a steep hill to climb. “To establish entrapment as a matter

of law, the defendant must point to undisputed evidence

making it patently clear that an otherwise innocent person

was induced to commit the illegal act by trickery, persuasion,

or fraud of a government agent.” United States v. Smith,

802 F.2d 1119, 1124 (9th Cir. 1986); see also United States

v. Williams, 547 F.3d 1187, 1197 (9th Cir. 2008).

To avoid a finding of entrapment, the government must

prove that: (1) Mohamud was predisposed to commit the

crime before government agents contacted him, or

(2) government agents did not induce him to commit the

crime. United States v. McClelland, 72 F.3d 717, 722 (9th

Cir. 1995). We focus our inquiry on Mohamud’s

predisposition.

When evaluating predisposition, we often analyze five

factors: (1) the character and reputation of the defendant;
26 UNITED STATES V. MOHAMUD

(2) whether the government made the initial suggestion of

criminal activity; (3) whether the defendant engaged in the

activity for profit; (4) whether the defendant showed any

reluctance; and (5) the nature of the government’s

inducement. Id. “Although none of these factors is

controlling, the defendant’s reluctance to engage in the

criminal activity is the most important.” Id.

We can assume that factors (1), (3), and (5) are in

Mohamud’s favor. The second factor—whether the

government made the initial suggestion of criminal activity—

weighs against Mohamud. Although Youssef discussed with

Mohamud five options of how to be a good Muslim,

including the option to become “operational,” Mohamud—

not Youssef—made the initial suggestion to fill a car with

explosives near a target location. Mohamud also told

Youssef that he wanted to “wage war” within the United

States before Youssef mentioned the possibility of an

“operational” role. The government can rely upon

Mohamud’s statements to prove predisposition even though

he made them after the initial contact by the government. 

United States v. Tucker, 133 F.3d 1208, 1217 (9th Cir.

1998).15 Here, Mohamud discussed placing explosives in

vehicles near target locations after the government’s initial

15 In Tucker, a jury convicted the defendant of extortion and filing

false tax returns. This court affirmed his conviction and sentence, and

rejected his argument that the evidence proved entrapment as a matter of

law. This court considered statements made by the defendant even after

the initial contact between the defendant and the government, noting that

“[t]o prove the defendant’s predisposition, the government can rely upon

evidence occurring after the initial contact with a government agent.” 

Tucker, 133 F.3d at 1217.
UNITED STATES V. MOHAMUD 27

contact with him but before Youssef suggested criminal

activity. The second factor therefore weighs against

Mohamud.

The fourth and “most important” factor also weighs

overwhelmingly in the government’s favor. The government

initiated its contact with Mohamud in November 2009 with

the Bill Smith emails, and the more aggressive Youssef and

Hussein operation began in June 2010. Despite being

provided numerous opportunities to deviate from or terminate

the plan, Mohamud never displayed any reluctance in going

through with a horrific attack that would have killed and

maimed countless people, including young children. Indeed,

he expressed great enthusiasm in seeing it through. He

picked the target—the Pioneer Courthouse Square Christmas

Tree Lighting Ceremony—and planned where the van

containing the explosives would be parked. He praised the

terror attack in Mumbai, described the victims jumping from

the Twin Towers on September 11th as “awesome,” and

stated that he would be “happy” to see the bodies of “enemies

of Allah” torn apart.

The complete lack of reluctance on Mohamud’s part to

participate in the bombing—indeed, his immediate zeal to see

it through—separates this case from those in which courts

have found defendants entrapped as a matter of law. For

example, in Jacobson v. United States, 503 U.S. 540, 553

(1992), Jacobson was not predisposed in part because “[t]he

evidence that [Jacobson] was ready and willing to commit the

offense came only after the Government had devoted 2 1⁄2

years to convincing him that he had or should have the right

to engage in the very behavior proscribed by law.” In

Sherman, a government informant approached the defendant,

a recovering drug addict, and asked for narcotics, ostensibly
28 UNITED STATES V. MOHAMUD

because the informant was not responding to treatment. 

356 U.S. at 371. The defendant resisted—“[f]rom the first,

[he] tried to avoid the issue.” Id. Only “after a number of

repetitions of the request, predicated on [the informant’s]

presumed suffering, did [the defendant] finally acquiesce.” 

Id.; see also id. at 373 (“One request was not enough, for . . .

additional ones were necessary to overcome, first, [the

defendant’s] refusal, then his evasiveness, and then his

hesitancy in order to achieve capitulation.”). And in United

States v. Poehlman, 217 F.3d 692 (9th Cir. 2000), the

government agent aggressively pushed the idea of sexual

activities with children on an uninterested defendant until

eventually he gave in:

While Poehlman’s reluctance might have been

borne of caution . . . the fact remains that

Poehlman’s earliest messages (which would

be most indicative of his pre-existing state of

mind) provide no support for the

government’s case on predisposition. To the

contrary, Poehlman’s reluctance forced [the

agent] to become more aggressive in her

suggestions . . . .

Id. at 704; see also id. at 695–97. At least as to this factor,

this case is more akin to Williams, in which we held that the

defendant was not entrapped as a matter of law in part

because “[t]here is no evidence that [the defendant] expressed

any reluctance about the robbery that needed to be ‘overcome

by repeated government inducement or persuasion.’ The

evidence indicated that [he] was ready and willing at all times

to participate in the robbery.” 547 F.3d at 1198 (citation

omitted).
UNITED STATES V. MOHAMUD 29

Mohamud argues that his actions after the Bill Smith

emails are irrelevant for entrapment purposes, as they were

tainted by the government’s overwhelming inducement. And

with those post-Bill Smith actions set aside, the argument

goes, there was insufficient evidence for the jury to conclude

that he had the necessary predisposition to commit this crime. 

This is wrong for two reasons.

First, although “only those statements that indicate a state

of mind untainted by the inducement are relevant to show

predisposition,” statements made after the inducement which

make “clear that [Mohamud] would have committed the

offense even without the inducement” are evidence of

predisposition. Poehlman, 217 F.3d at 704–05. This would

include Mohamud’s statements that he made about the

“awesome” terrorist attacks in Mumbai and on September

11th, and that he had been thinking about these “things” since

he was fifteen years old. And a reasonable jury could infer

that his decisions to become “operational” and blow

something up the first time he met Youssef (and later, to

choose Pioneer Courthouse Square at its most crowded time)

were evidence that his predisposition existed long before FBI

contractor Bill Smith emailed him.

Second, even if there were a rigid wall between pre- and

post-inducement, there was sufficient evidence for a

reasonable jury to reject the entrapment defense. Mohamud’s

Jihad Recollections articles—both the draft and final

versions—provided ample evidence of his predisposition to

carry out the charged crime. In those articles, he, among

other things, coached people on how to prepare themselves

physically to attack and kill their Western enemies, and

saluted those in Afghanistan who “finish[ed] off” wounded

American soldiers. Although these articles may come across
30 UNITED STATES V. MOHAMUD

as a teenager trying to talk tough, they were enough to

support the jury’s finding, and for us to conclude that

Mohamud was not the “otherwise innocent person” that the

entrapment-as-a-matter-of-law doctrine requires. Smith,

802 F.2d at 1124; cf. United States v. Cromitie, 727 F.3d 194,

207–08 (2d Cir. 2013) (holding that the defendant in a similar

case was not entrapped as a matter of law, and observing that

“potential terrorists who are available to be recruited by Al

Qaeda or similar groups” may not have necessarily already

formed a specific plan, but “[t]heir predisposition is to have

a state of mind that inclines them to inflict harm on the

United States, be willing to die like a martyr, be receptive to

a recruiter’s presentation, . . . and welcome an invitation to

participate”).

In addition, the jury learned of Mohamud’s

correspondence with Al-Ali, which began months before the

first contact from Bill Smith. The jury also learned of

Mohamud’s desire to go abroad and study at the Islamic

school in Yemen that Al-Ali recommended to him. A

government expert testified that this school was founded by

a Muslim cleric who supported jihad and that it served as a

“stepping stone” to violent jihad, especially for people from

the West. As detailed above, the same day that Al-Ali told

Mohamud about the school in Yemen, Mohamud apparently

made plans to leave the United States. Though Mohamud

ultimately remained in the country, the jury could have

reasonably interpreted his attempt as evidence of a

predisposition to commit the crime charged. Further,

Mohamud continued to demonstrate interest in attending the

school in his December 2009 emails to Al-Ali, which

occurred after the Bill Smith emails.
UNITED STATES V. MOHAMUD 31

In sum, viewing the evidence in the light most favorable

to the government, we cannot say that “no reasonable jury

could have concluded that [Mohamud was] predisposed to

commit the charged offense[].” Davis, 36 F.3d at 1430. We

therefore conclude that the district court properly rejected his

defense of entrapment as a matter of law.

Mohamud’s alternative argument that we should dismiss

this case because the government overreached in its “sting”

and violated due process also fails. While the government’s

conduct in this case was quite aggressive at times, it fell short

of a due process violation.

In United States v. Black, we made clear that

“[d]ismissing an indictment for outrageous government

conduct . . . is limited to extreme cases in which the

defendant can demonstrate that the government’s conduct

violates fundamental fairness and is so grossly shocking and

so outrageous as to violate the universal sense of justice.” 

733 F.3d 294, 302 (9th Cir. 2013) (citation and internal

quotation marks omitted). This is an “extremely high

standard.” Id.; see also United States v. Pedrin, 797 F.3d

792, 797 (9th Cir. 2015) (“[I]n assessing whether the

government’s conduct was‘outrageous,’the relevant question

is what the government knew when it was setting up the sting,

not what it learned later.”). For example, we have denied

challenges to sting operations involving armed robberies of

phony drug stash houses which necessarily put law

enforcement and the defendant in grave peril. See Black,

733 F.3d at 302; Williams, 547 F.3d at 1200–01. Mohamud

argues that the six factors for evaluating outrageous
32 UNITED STATES V. MOHAMUD

government conduct set out in Black favor dismissal of the

indictment.16 We disagree.

In Cromitie, a comparable Second Circuit case, the

defendant was convicted of planning and attempting to carry

out domestic terrorism offenses. 727 F.3d at 199–204. The

defendant claimed that the government’s conduct in

persuading him to commit the charged offenses violated due

process. Id. at 217. The Second Circuit held that it did not. 

Even though the government “invented all of the details of

the scheme,” the defendant’s express desire to “do something

to America” and “die like a martyr” was sufficient to justify

the government’s testing of how far he would go. Id. at 219. 

Like Mohamud, Cromitie argued that the government took

advantage of his religious affiliation, but the court explained

that a government agent “is entitled to probe the attitudes” of

an individual who “volunteers that he wants to ‘do something

to America’ . . . to learn whether his religious views have

impelled him toward the violent brand of radical Islam that

poses a dire threat to the United States.” Id. at 219–20.

16 These factors are analyzed collectively in determining whether

government conduct is outrageous: “(1) known criminal characteristics of

the defendants; (2) individualized suspicion of the defendants; (3) the

government’s role in creating the crime of conviction; (4) the

government’s encouragement of the defendants to commit the offense

conduct; (5) the nature of the government’s participation in the offense

conduct; and (6) the nature of the crime being pursued and necessity for

the actions taken in light of the nature of the criminal enterprise at issue.” 

Black, 733 F.3d at 303. The first three are relevant to how the government

set up the sting, the fourth and fifth analyze the government’s role in the

sting, and the last relates to the justification for the operation. Id. at

303–04.
UNITED STATES V. MOHAMUD 33

Cromitie further claimed thatthe government had violated

due process because a government informant had exploited

his relationship with Cromitie to “manipulate Cromitie into

agreeing to the planned attacks”; the court cited our precedent

indicating that “the ‘illusory cultivation of emotional

intimacy’ does not exceed due process limits.” Id. at 220

(quoting United States v. Simpson, 813 F.2d 1462, 1467 (9th

Cir. 1987)). Even considering certain monetary benefits

offered by the government informant—including $250,000

cash, a barbershop valued at $70,000, a new BMW, and a

two-week vacation—the court held that the overall operation

did not rise to the level of a due process violation. Id. 

Although Mohamud may have been more vulnerable than

Cromitie, the government’s questionable actions in that case

far exceeded anything here.

In light of the extremely high standard set out in Black,

we hold that the government’s conduct here did not violate

due process.

C. Late Notice Of § 702-Derived Evidence

FISA requires the government to “notify the aggrieved

person and the court” prior to trial when it intends to use at

trial evidence “obtained or derived from electronic

surveillance” pursuant to FISA. 50 U.S.C. § 1806(c); see

also 50 U.S.C. § 1881e(a) (stating that information acquired

under § 702 is subject to the notice requirement in § 1806(c)). 

The government provided a supplemental notice regarding

evidence derived under § 702 after the trial concluded. 

Mohamud argues that this late disclosure mandates

suppression, or at a minimum, discovery and an evidentiary

hearing to explore the tardy disclosure.
34 UNITED STATES V. MOHAMUD

In answering this question, we must keep two principles

in mind. First, “[s]uppression of evidence . . . has always

been our last resort, not our first impulse.” Hudson v.

Michigan, 547 U.S. 586, 591 (2006); see also Davis v. United

States, 564 U.S. 229, 237 (2011) (“For exclusion to be

appropriate, the deterrence benefits of suppression must

outweigh its heavy costs.”); Sanchez-Llamas v. Oregon,

548 U.S. 331, 347 (2006) (“[T]he exclusionary rule is not a

remedy we apply lightly.”). Second, Congress has the power

to authorize suppression for statutory violations, as it has

done elsewhere in FISA. See 50 U.S.C. §§ 1806(g), 1825(h),

1845(g) (FISA); see also 18 U.S.C. § 2518(10)(a) (Title III

wiretap). However, Congress has not mandated suppression

as a remedy for late disclosure of a FISA notice, and, indeed,

it apparently anticipated the possibility of post-trial

notification. See 50 U.S.C. § 1806(e) (providing that a

motion to suppress “unlawfully acquired” or nonconforming

information “shall be made before the trial . . . unless . . . the

person was not aware of the grounds of the motion”). These

two principles strongly suggest that automatic suppression is

not a required remedy for delayed FISA disclosure.

And in any case, Mohamud cannot demonstrate how the

late disclosure prejudiced him. As the district court

explained, it fully evaluated the § 702-derived evidence as if

the motion had been brought before trial. This put Mohamud

in the same position he would have been in if the government

had provided timely notice.

Moreover, the district court found that the late disclosure

was not due to “prosecutorial misconduct.” Rather, the

government had changed its legal opinion about when

evidence could be considered “derived from” § 702

surveillance, performed another review of this case, and
UNITED STATES V. MOHAMUD 35

provided the late supplemental notice on its own initiative. 

Our review of the unclassified and classified record supports

that the district court did not clearly err in finding no

prosecutorial misconduct.17

As the district court recognized, it had the power to

suppress evidence, or even dismiss the indictment or grant a

new trial, under its supervisory and statutory authority. See

Stinson, 647 F.3d at 1210 (stating that a court may exercise

its supervisory powers “to remedy a constitutional or

statutory violation; to protect judicial integrity by ensuring

that a conviction rests on appropriate considerations validly

before a jury; or to deter future illegal conduct” (citation

omitted)); see also Fed. R. Crim. P. 16(d)(2). However, the

district court determined that suppression as a sanction for the

late supplemental FISA notice was not warranted here, and

we agree.

We conclude that, under the circumstances of this case,

the district court did not err in denying Mohamud’s motion to

suppress premised on the late supplemental FISA notice.18

17 We do not reach whether suppression is necessary as a deterrent in

light of the government’s apparent self-correction of its practices. See

United States v. Dreyer, 804 F.3d 1266, 1280 (9th Cir. 2015) (en banc).

18 We also conclude that the district court did not abuse its discretion

in denying discovery and an evidentiary hearing to explore the

government’s late disclosure. Mohamud’s reliance on United States v.

Hernandez-Meza, 720 F.3d 760, 769 (9thCir. 2013), is misplaced because

the record here does not “suggest[] that the government may have

deliberately withheld” the supplemental FISA notice. Therefore, we

decline Mohamud’s alternative request to remand for further fact finding.
36 UNITED STATES V. MOHAMUD

D. Section 702 Collection of Mohamud’s Email

Communications

1. Legal Background

In 1978, Congress enacted FISA “to authorize and

regulate certain governmental electronic surveillance of

communications for foreign intelligence purposes.” Clapper

v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143 (2013) (citing

50 U.S.C. § 1801 et seq.). To do so, the government must

obtain a FISA warrant from the FISC. Id. The FISA Court

of Review assesses any denials by the FISC of applications

for electronic surveillance. Id.

Thirty years later, Congress enacted § 702 as part of the

FISA Amendments Act of 2008. 50 U.S.C. § 1881a. Section

702 “supplements pre-existing FISA authority by creating a

new framework under which the Government may seek the

FISC’s authorization of certain foreign intelligence

surveillance targeting the communications of non-U.S.

persons located abroad.” Clapper, 133 S. Ct. at 1144. 

“Unlike traditional FISA surveillance, § [702] does not

require the Government to demonstrate probable cause that

the target of the electronic surveillance is a foreign power or

agent of a foreign power.” Id. “And, unlike traditional FISA,

§ [702] does not require the Government to specify the nature

and location of each of the particular facilities or places at

which the electronic surveillance will occur.” Id. Instead,

§ 702 mandates that the government obtain the FISC’s

“approval of ‘targeting’ procedures, ‘minimization’

procedures, and a governmental certification regarding

proposed surveillance.” Id. at 1145 (quoting 50 U.S.C.

§ 1881a(a), (c)(1), (i)(2), (i)(3)).
UNITED STATES V. MOHAMUD 37

2. No Fourth Amendment Violation

Although § 702 potentially raises complex statutory and

constitutional issues, this case does not. As explained below,

the initial collection of Mohamud’s email communications

did not involve so-called “upstreaming” or targeting of

Mohamud under § 702, more controversial methods of

collecting information.19It also did not involve the retention

and querying of incidentally collected communications. All

this case involved was the targeting of a foreign national

under § 702, through which Mohamud’s email

communications were incidentally collected. Confined to the

particular facts of this case, we hold that the § 702 acquisition

of Mohamud’s email communications did not violate the

Fourth Amendment.20

At our request post-argument, the government

declassified certain facts about Mohamud’s surveillance. 

Through the monitoring of a foreign national’s email account,

19 Under “upstream” collection, entire streams of Internet traffic

flowing across major U.S. networks are acquired and searched, as opposed

to “PRISM” collection, under which particular user accounts are

monitored, and communications to or from those accounts are collected,

including communications with U.S. persons. See, e.g., Privacy & Civil

Liberties Oversight Board (“PCLOB”), Report on the Surveillance

Program Operated Pursuant to Section 702 of the Foreign Intelligence

Surveillance Act (July 2, 2014), at 7 (hereinafter “PCLOB Report”); see

also id. at 33–41 (comparing PRISM and upstream collection).

20 In light of our holding, we do not reach the question of whether the

good faith exception to the exclusionary rule provides an independent

basis to affirm the district court’s denial of Mohamud’s motion to

suppress. See generally Davis, 564 U.S. at 240–42; Illinois v. Krull,

480 U.S. 340, 349–55 (1987); United States v. Leon, 468 U.S. 897, 925

(1984).
38 UNITED STATES V. MOHAMUD

the United States government learned that Mohamud was in

contact with that foreign national, who was located overseas. 

This contact—a limited number of emails between Mohamud

and the foreign national—was used to obtain a FISA warrant

to surveil Mohamud and his activities. None of these emails

was introduced at trial.21 We permitted the parties to file

supplemental briefs to address the facts offered in the postargument disclosure.

a. No Warrant Required to Intercept

Overseas Foreign National’s

Communications or to Intercept U.S.

Person’s Communications Incidentally

As a threshold matter, “the Fourth Amendment does not

apply to searches and seizures by the United States against a

non-resident alien in a foreign country.” United States v.

21 We address only Mohamud’s as-applied challenge. See United

States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a

legislative Act is, of course, the most difficult challenge to mount

successfully, since the challenger must establish that no set of

circumstances exists under which the Act would be valid.”). Though he

also purports to challenge § 702 facially, citing City of Los Angeles v.

Patel, 135 S. Ct. 2443, 2451 (2015), Mohamud does not explain why

techniques not employed in this case would require suppression of the

evidence gathered here. We do not read Patel to permit courts, in a

criminal prosecution, to suppress evidence based on a Fourth Amendment

challenge to techniques not employed in a particular case. See, e.g.,

United States v. Posey, 864 F.2d 1487, 1491 (9th Cir. 1989) (“[W]e think

it clear that appellant may not make a facial challenge to the FISA without

arguing that the particular surveillance against him violated the Fourth

Amendment. . . . Even if he is correct that the FISA’s language might be

applied in ways that violate the Fourth Amendment, he must show that the

particular search in his case violated the Fourth Amendment. Appellant

cannot invalidate his own conviction on the argument that others’ rights

are threatened by FISA.” (emphasis in original)).
UNITED STATES V. MOHAMUD 39

Zakharov, 468 F.3d 1171, 1179 (9th Cir. 2006) (citing United

States v. Verdugo-Urquidez, 494 U.S. 259, 274–75 (1990));

see also Verdugo-Urquidez, 494 U.S. at 274–75 (“At the time

of the search, [respondent] was a citizen and resident of

Mexico with no voluntary attachment to the United States,

and the place searched was located in Mexico. Under these

circumstances, the Fourth Amendment has no application.”). 

Thus, the government’s monitoring of the overseas foreign

national’s email fell outside the Fourth Amendment.

Mohamud argues that under Verdugo-Urquidez, the

location of the search matters, and that here, the searches took

place in the United States.22

Indeed, the government

acknowledges that “collection from service providers under

Section 702 takes place within the United States.” Yet, as

one court put it, “what matters here is the location of the

target,” and not where the government literally obtained the

electronic data. United States v. Hasbajrami, No. 11-CR623, 2016 WL 1029500, at *9 n.15 (E.D.N.Y. Mar. 8, 2016)

(emphasis in original); see also Kris & Wilson, National

Security Investigations & Prosecutions § 17:3 (2016) (“For

non-U.S. person targets, there is no probable-cause

requirement; the only thing that matters is [ ]the

government’s reasonable belief about[ ] the target’s

location.”).

Consistent with Verdugo-Urquidez and our precedent, we

hold that this particular type of non-upstream collection—

22 Mohamud also argues that the targeted foreign national may have

had sufficient “voluntary connection[s]” to the United States for the

Fourth Amendment to apply. See Verdugo-Urquidez, 494 U.S. at 271,

273. We have reviewed the classified record, and are satisfied that is not

the case here.
40 UNITED STATES V. MOHAMUD

where a search was not directed at a U.S. person’s

communications, though some were incidentally swept up in

it—does not require a warrant, because the search was

targeted at a non-U.S. person with no Fourth Amendment

right.

The FISA Review Court in In re Directives Pursuant to

Section 105B of FISA, similarly applied this principle,

holding that “incidental collections occurring as a result of

constitutionally permissible acquisitions do not render those

acquisitions unlawful.” 551 F.3d 1004, 1015 (FISA Ct. Rev.

2008); see also United States v. Donovan, 429 U.S. 413, 436

n.24 (1977) (holding that a Title III wiretap warrant is not

made unconstitutional by “failure to identify every individual

who could be expected to be overheard,” but “the complete

absence of prior judicial authorization would make an

intercept unlawful”); United States v. Bin Laden, 126 F.

Supp. 2d 264, 280 (S.D.N.Y 2000) (explaining that “in the

Title III context, incidental interception of a person’s

conversations during an otherwise lawful surveillance” does

not violate the Fourth Amendment).

Mohamud and Amici23urge us not to apply this

“incidental overhear” approach. First, Amici contend that

surveillance of U.S. persons’ communications under § 702 is

not “incidental” because the monitoring of communications

between foreign targets and U.S. persons was specifically

contemplated and to some degree desired. We agree that

such communications were anticipated. As the Privacy and

Civil Liberties Oversight Board found with respect to PRISM

collection, “[t]he collection of communications to and from

23 Amici are the American Civil Liberties Union, American Civil

Liberties Union of Oregon, and the Electronic Frontier Foundation.
UNITED STATES V. MOHAMUD 41

a target inevitably returns communications in which nontargets are on the other end, some of whom will be U.S.

persons. Such ‘incidental’ collection of communications is

not accidental, nor is it inadvertent.” PCLOB Report at 82;

see also Laura K. Donohue, Section 702 and the Collection

of International Telephone and Internet Content, 38 Harv.

J.L. &Pub. Pol’y 117, 159–64, 259–62 (2015) (discussing the

relative volume and intrusiveness of surveillance authorized

under § 702). The fact that the government knew some U.S.

persons’ communications would be swept up during foreign

intelligence gathering does not make such collection any

more unlawful in this context than in the Title III or

traditional FISA context.

Mohamud and Amici also contend that the “sheer amount

of ‘incidental’ collection” separates § 702 from prior cases

where courts have found such collection permissible. We

agree with the district court’s observation that the most

troubling aspect of this “incidental” collection is not whether

such collection was anticipated, but rather its volume, which

is vast, not de minimis. See PCLOB Report at 114 (“The term

‘incidental’ is appropriate because such collection is not

accidental or inadvertent, but rather is an anticipated

collateral result of monitoring an overseas target. But the

term should not be understood to suggest that such collection

is infrequent or that it is an inconsequential part of the

Section 702 program.”). This quantity distinguishes § 702

collection from Title III and traditional FISA interceptions. 

However, the mere fact that more communications are being

collected incidentally does not make it unconstitutional to

apply the same approach to § 702 collection, though it does
42 UNITED STATES V. MOHAMUD

increase the importance of minimization procedures once the

communications are collected.24

Additionally, Mohamud and Amici contend that prior

cases upholding incidental collection involved prior judicial

review or a “narrowly drawn exception to the warrant

requirement,” as opposed to the collection here. See, e.g.,

United States v. Kahn, 415 U.S. 143, 156–57 (1974)

(upholding interception of communications of a woman that

were incidentally collected under a wiretap order targeting

her husband); United States v. Figueroa, 757 F.2d 466,

473–75 (2d Cir. 1985) (holding that wiretap order was not

made unconstitutional by permitting interception of

conversations of “others as yet unknown”); see also United

States v. Martin, 599 F.2d 880, 884–85 (9th Cir. 1979)

(holding that the Fourth Amendment does not require wiretap

application to show probable cause that non-targeted

individual named as a “probable converser” committed a

crime), overruled on other grounds by United States v. De

Bright, 730 F.2d 1255 (9th Cir. 1984) (en banc). However,

the searches in those cases targeted United States citizens and

took place within the United States, so a warrant was required

for the initial search to be constitutionally permissible. But

“the guiding principle behind them applies with equal force

here: when surveillance is lawful in the first place—whether

it is the domestic surveillance of U.S. persons pursuant to a

warrant, or the warrantless surveillance of non-U.S. persons

who are abroad—the incidental interception of non-targeted

U.S. persons’ communications with the targeted persons is

also lawful.” Hasbajrami, 2016 WL 1029500, at *9.

24 To the extent that Amici argue that the incidental overhear doctrine

permits the unconstitutional and widespread retention and querying of the

incidentally collected information, that issue is not before us.
UNITED STATES V. MOHAMUD 43

For these reasons, and because the target of the

surveillance was a non-U.S. person located outside of the

United States at the time of the surveillance, the government

was not required to obtain a search warrant to collect

Mohamud’s email communications with the overseas foreign

national as an incident to its lawful search of the foreign

national’s email.25

b. Collection of Mohamud’s Emails was

Reasonable

Assuming that Mohamud had a Fourth Amendment right

in the incidentally collected communications, the search at

issue was reasonable under the Fourth Amendment.26

“Even if a warrant is not required, a search is not beyond

Fourth Amendment scrutiny; for it must be reasonable in its

scope and manner of execution.” Maryland v. King, 133 S.

25 Because the incidental collection excepts this search from the

Fourth Amendment’s warrant requirement, we need not address any

“foreign intelligence exception.”

26 It is unclear whether Mohamud had a right to bar use of these

incidentally-collected communications in evidence against him on the

basis that the communications were seized in violation of the Fourth

Amendment. Commentators suggest that he does, so we will assume that

here. See, e.g., Orin S. Kerr, The Fourth Amendment and the Global

Internet, 67 Stan. L. Rev. 285, 313–14 (2015) (“Communicating with a

person who lacks Fourth Amendment rights should not waive the rights

of the person who has those rights. The Fourth Amendment should

continue to fully protect the U.S. person who communicates with those

lacking Fourth Amendment rights.”); PCLOB Report at 94 (“The

government has acknowledged that the Fourth Amendment rights of U.S.

persons are affected when their communications are acquired under

Section 702 incidentally or otherwise[.]”).
44 UNITED STATES V. MOHAMUD

Ct. 1958, 1970 (2013). In deciding reasonableness, we

examine the totality of the circumstances and weigh “‘the

promotion of legitimate governmental interests’ against ‘the

degree to which [the search] intrudes upon an individual’s

privacy.’” Id. (quoting Wyoming v. Houghton, 526 U.S. 295,

300 (1999)). We agree with the district court that under these

circumstances, the search was reasonable under the Fourth

Amendment.

i. Government Interest

“[T]he Government’s interest in combating terrorism is

an urgent objective of the highest order.” Holder v.

Humanitarian Law Project, 561 U.S. 1, 28 (2010). Neither

Mohamud nor Amici challenge this. Instead, they argue that

(1) the statutory definition of “foreign intelligence

information” in § 702 is overbroad because it is not confined

to national security information but also includes “the

conduct of [] foreign affairs”27; and (2) even if national

security justifies the initial acquisition, it is unreasonable to

then retain and later search U.S. persons’ § 702-acquired

communications without a warrant.

The declassified facts foreclose both arguments. First, as

the district court observed, “the discovery in this case all

concerned protecting the country from a terrorist threat and

did not stray into the broader category of the conduct of

foreign affairs.” Thus, we need not determine whether the

collection of foreign affairs communications is reasonable. 

Similarly, the second argument is also outside the scope of

our review, as no such retention and querying is at issue in

this case.

27 See 50 U.S.C. §§ 1801(e)(2)(b), 1881(a).
UNITED STATES V. MOHAMUD 45

ii. Mohamud’s Privacy Interest

The parties agree that Mohamud had some expectation of

privacy in his electronic communications, but disagree as to

the strength of his interest. The government argues that U.S.

persons have a limited expectation of privacy when

communicating electronically with non-U.S. persons located

outside the United States because of the Fourth Amendment’s

“third-party” doctrine—that a person’s privacy interest is

diminished where he or she reveals information to a third

party, even in confidence. Mohamud contends that the

voluntary disclosure of information to third parties does not

reduce the expectation of privacy. The district court

determined that under the third-party doctrine, Mohamud had

a reduced expectation of privacy in his communications to

third parties. We agree.

With respect to a U.S. person’s privacy interest, we treat

emails as letters. See, e.g., [Redacted], 2011 WL 10945618,

at *26 (FISA Ct. Oct. 3, 2011) (“Whether they are transmitted

by letter, telephone or e-mail, a person’s private

communications are akin to personal papers.”); United States

v. Warshak, 631 F.3d 266, 285–86 (6th Cir. 2010) (“Given

the fundamental similarities between email and traditional

forms of communication, it would defy common sense to

afford emails lesser Fourth Amendment protection.”). 

Accordingly, until electronic communications reach the

recipient, they retain the same level of privacy interest as if

they were still in the home. See, e.g., United States v. Van

Leeuwen, 397 U.S. 249, 251 (1970).

But as with letters, “[a] person’s reasonable expectation

of privacy may be diminished in ‘transmissions over the

Internet or e-mail that have already arrived at the recipient.’” 
46 UNITED STATES V. MOHAMUD

United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir.

2007) (quoting United States v. Lifshitz, 369 F.3d 173, 190

(2d Cir. 2004) (citing Guest v. Leis, 255 F.3d 325, 333 (6th

Cir. 2001))); see also Guest, 255 F.3d at 333 (“[Users] would

lose a legitimate expectation of privacy in an e-mail that had

already reached its recipient; at this moment, the e-mailer

would be analogous to a letter-writer, whose ‘expectation of

privacy ordinarily terminates upon delivery’ of the letter.”

(citation omitted)).

It is true that prior case law contemplates a diminished

expectation of privacy due to the risk that the recipient will

reveal the communication, not that the government will be

monitoring the communication unbeknownst to the third

party. See, e.g., United States v. Miller, 425 U.S. 435, 443

(1976); United States v. White, 401 U.S. 745, 752 (1971);

Hoffa v. United States, 385 U.S. 293, 302 (1966). While

these cases do not address the question of government

interception, the communications at issue here had been sent

to a third party, which reduces Mohamud’s privacy interest at

least somewhat, if perhaps not as much as if the foreign

national had turned them over to the government voluntarily. 

See also Hasbajrami, 2016 WL 1029500 at *11 & n.18

(observing same distinction).

Thus, Mohamud’s interest in the privacy of his

communications received by the overseas foreign national is

diminished.

iii. Privacy Protecting Measures

An important component of the reasonableness inquiry is

whether the FISC-approved targeting and minimization

measures sufficiently protect the privacy interests of U.S.
UNITED STATES V. MOHAMUD 47

persons. Targeting and minimization procedures govern,

respectively, who may be targeted for surveillance and how

intercepted communications are to be retained and

disseminated.

In brief, targeting procedures must be “reasonably

designed” to “ensure that any acquisition authorized under

[the certification] is limited to targeting persons reasonably

believed to be located outside the United States” and to

“prevent the intentional acquisition of any communication as

to which the sender and all intended recipients are known at

the time of the acquisition to be located in the United States.” 

50 U.S.C. § 1881a(d)(1). Among other requirements,

minimization procedures must be “reasonably designed” “to

minimize the acquisition and retention, and prohibit the

dissemination, of nonpublicly available information

concerning unconsenting United States persons consistent

with the need of the United States to obtain, produce, and

disseminate foreign intelligence information.” 50 U.S.C.

§§ 1801(h)(1), 1881a(e)(1).

After evaluating the protections detailed in § 702 and the

classified minimization procedures, the district court

concluded that as applied to Mohamud, § 702 is reasonable

under the Fourth Amendment. Based on our review of the

classified record, we agree that the applicable targeting and

minimization procedures, which were followed in practice,

sufficiently protected Mohamud’s privacy interest.

The government also contends that certain oversight

procedures provide an important check on Executive Branch

actions. For example, § 702 requires the Attorney General

(“AG”) and Director of National Intelligence (“DNI”) to

certify, among other things, that (1) a significant purpose of
48 UNITED STATES V. MOHAMUD

the acquisition is to obtain foreign intelligence information,

(2) they have adopted guidelines to ensure compliance with

the statutory limitations in § 702(b), and (3) the targeting and

minimization procedures and guidelines are consistent with

the Fourth Amendment. 50 U.S.C § 1881a(g)(2)(A); see also

id. § 1881a(g)(1)(B) (providing that if the AG and DNI

determine that “time does not permit the submission of a

certification under this subsection prior to the implementation

of an authorization under subsection (a)” they shall submit

the certification “as soon as practicable but in no event later

than 7 days after such determination is made”). Further, the

AG and DNI must periodically assess whether the

government is complying with FISC-approved targeting and

minimization procedures and guidelines, which adds further

oversight and privacy protections. See 50 U.S.C. § 1881a(i).

While Executive Branch certification contributes some

degree of further protection, it does not weigh heavily. 

Typically in the Fourth Amendment context, review from a

neutral magistrate is considered the appropriate check on the

Executive, which otherwise may be motivated by its interest

in carrying out its duties. See, e.g., Leon, 468 U.S. at 913–14

(explaining that in obtaining a search warrant, a neutral

magistrate is “a more reliable safeguard against improper

searches than the hurried judgment of a law enforcement

officer ‘engaged in the often competitive enterprise of

ferreting out crime’” (citation omitted)). Under these

circumstances, where the only judicial review comes in the

form of the FISC reviewing the adequacy of procedures, this

type of internal oversight does not provide a robust safeguard. 

The government notes that in In re Sealed Case, 310 F.3d

717, 739 (FISA Ct. Rev. 2002), the FISA Review Court

observed that Congress recognized that certification by the

AG in the traditional FISA context would “‘assure [ ] written
UNITED STATES V. MOHAMUD 49

accountability within the Executive Branch’ and provide ‘an

internal check on Executive Branch arbitrariness.’” (citation

omitted). However, as described above, § 702 differs in

important ways from traditional FISA, and a mechanism that

might provide additional protections above and beyond those

already employed in a traditional FISA context provides far

less assurance and accountability in the § 702 context, which

lacks those baseline protections. See also Clapper, 133 S. Ct.

at 1144–45.

Accordingly, although we do not place great weight on

the oversight procedures, under the totality of the

circumstances, we conclude that the applied targeting and

minimization procedures adequately protected Mohamud’s

diminished privacy interest, in light of the government’s

compelling interest in national security.

In sum, even assuming Mohamud had a Fourth

Amendment right in the incidentally collected

communications, the search was reasonable. Thus, we hold

that the application of § 702 did not violate the Fourth

Amendment under the particular facts of this case.28

28 We also agree with the district court that the FISC survives

separation of powers and non-delegation challenges, as FISC review of

§ 702 surveillance applications does not “interfere[] with the prerogatives

of another branch of government beyond requiring the executive branch

to conform to the statute,” and is “central to the mission of the judiciary”

as it is similar to “the review ofsearch warrants and wiretap applications.” 

See Mistretta v. United States, 488 U.S. 361, 388 (1989). Further, we

agree with the district court that FISC opinions are not advisory because

the FISC either approves or denies the requested acquisition (and

electronic communication service providers must follow the directives or

challenge them). See 50 U.S.C. § 1881a(h), (i)(2). Finally, the district

court correctly rejected Mohamud’s First Amendment challenge, as

motions to suppress based on First Amendment violations are analyzed
50 UNITED STATES V. MOHAMUD

IV. CONCLUSION

Many young people think and say alarming things that

they later disavow, and we will never know if Mohamud—a

young man with promise—would have carried out a mass

attack absent the FBI’s involvement. But some “promising”

young people—Charles Whitman, Timothy McVeigh, and

James Holmes, to name a few from a tragically long

list—take the next step, leading to horrific consequences. 

While technology makes it easier to capture the thoughts of

these individuals, it also makes it easier for them to commit

terrible crimes. Here, the evidence supported the jury’s

verdict, and the government’s surveillance, investigation, and

prosecution of Mohamud were consistent with constitutional

and statutory requirements.

AFFIRMED.

under the Fourth Amendment. See, e.g., United States v. Mayer, 503 F.3d

740, 747 (9th Cir. 2007) (where a party alleges that a criminal

investigation violated the First Amendment rights of a third party, “we

have held that the Fourth Amendment provides the relevant benchmark”

(emphasis in original)); United States v. Aguilar, 883 F.2d 662, 697 (9th

Cir. 1989).