United States Court of Appeals

For the Eighth Circuit

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No. 16-4363

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Mohamed Abdihamid Farah

lllllllllllllllllllllDefendant - Appellant

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No. 16-4364

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Abdirahman Yasin Daud

lllllllllllllllllllllDefendant - Appellant

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No. 16-4366

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United States of America

lllllllllllllllllllllPlaintiff - Appellee
v.

Guled Ali Omar

lllllllllllllllllllllDefendant - Appellant

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Appeals from United States District Court 

for the District of Minnesota - St. Paul

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Submitted: June 14, 2018

Filed: August 10, 2018

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Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.

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GRUENDER, Circuit Judge.

Appellants Mohamed Farah, Abdirahman Daud, and Guled Omar were

convicted of several federal offenses related to their participation in a conspiracy to

join the foreign terrorist organization known as the Islamic State of Iraq and the

Levant (“ISIL”). They now appeal their convictions for conspiracy to commit murder

abroad, see 18 U.S.C. § 956(a), arguing that the district court’s jury instructions did

1

not require the Government to prove the requisite mens rea and that they were

entitled to instructions on two affirmative defenses. They also challenge their

sentences on both procedural and substantive grounds, and Farah claims that the

district court improperly denied his motion to substitute counsel. For the reasons that

follow, we affirm.

The Honorable Michael J. Davis, United States District Judge for the District 1

of Minnesota.

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I.

A.

In 2014, a group of Somali-Americans from the Twin Cities agreed to travel

to Syria and join ISIL. Federal law enforcement disrupted the plot, but not before

several of the conspirators made it to the front lines. Other members of the group

eventually cooperated with the authorities. Appellants Farah, Daud, and Omar were

the only conspirators to face trial. Because the thrust of their appeal relates to their

convictions for conspiracy to commit murder abroad—and specifically to the intent

element of this offense—our recitation of the facts focuses on that issue. 

In March 2014, Omar, Daud, Farah, and others gathered at a local mosque. 

One of their friends had recently left to fight against the Assad regime in Syria, so

they discussed the ongoing conflict and spent much ofthe evening watching pro-ISIL

propaganda videos. One of the attendees, Abdullahi Yusuf, claims that Omar

recruited him that night to join a local group whose purpose was to “get to Syria and

fight . . . for ISIL.”

The group began meeting at least three times per week to watch jihadi videos

and discuss the possibility of fighting in Syria. At one such meeting in April 2014,

Omar gave an “ultimatum”: leave the group or prepare for “a long and hard

journey . . . to get to Syria and fight.” After thisspeech, the group launched into more

concrete planning. They considered a variety of logistical challenges, including how

they would secure passports, raise funds, and get from Minneapolis to Syria. They

planned to fly to Turkey and arranged for ISIL handlers to facilitate transportation

acrossthe border into Syria. Yusuf later testified that, upon arriving in Syria, the goal

was to join ISIL, attend a training camp, and do whatever ISIL required. He also

recalled having specific conversations with Farah, Daud, and Omar about their desire

to join the fight in Syria, and he confirmed that all three appellants understood this

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meant “killing people.” According to another cooperating witness, the group had

forged an “agreement to go kill people for ISIL.” 

As the group’s leader, Omar decided that the first group of conspirators would

leave for Syria by June 1, 2014. Some made it to Syria and joined ISIL, while others

were detained by the authorities. Sensing obstacles to departing directly from the

United States, Omar and two other conspirators planned to drive from Minnesota to

California, crossthe border into Mexico, obtain fradulent travel documents, and make

their way to Syria. They rented a car for the drive, but Omar’s family intervened to

prevent them from leaving.

A second round of attempts to reach Syria took place in late 2014, prompted

by the group’s increased awareness of government surveillance. Daud pushed

everyone to leave the country on November 8, 2014. Though his own passport

application had been denied, Daud used his money to help Farah travel to Syria. 

Farah took a Greyhound bus from Minnesota to New York but was detained while

boarding a flight to Istanbul at JFK Airport. Similarly, Omar attempted to fly from

Minneapolis to San Diego with his passport, but he was prevented from boarding the

flight. Omar claims that he was not trying to leave the country, but he was recorded

admitting that he was attempting to “get out right then and there.” Both Farah and

Omar were subsequently released.

In December 2014, one of the conspirators, Abdirahman Bashir, had a change

of heart about ISIL after learning that several of his cousins had died fighting in

Syria. He withdrew from the conspiracy and decided to cooperate with the FBI. 

Bashir later began recording conversations with his former co-conspirators. These

recordings reveal that, despite previous setbacks, all three appellants remained

committed to fighting and killing for ISIL. Omar, for example, discussed the thrill

of conducting night raids with ISIL and his desire to serve as a “tank-hunter.” The

recorded conversations also capture the appellants’ increasing animosity toward the

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United States. Daud and Farah longed for an opportunity to participate in an ISIL

operation on American soil, and Omar looked forward to the demise of the United

States: “[The infidels] are getting it. Allah will not let America be a superpower for

this long . . . . [T]heir time is coming.”

In early 2015, Farah developed a contact he believed could provide fake

passports for the group. After making arrangements, Daud, Farah, and Bashir drove

cross-country to meet the contact in San Diego. During the drive, Daud reiterated his

desire to fight for ISIL, declaring both his hatred for the United States and his longing

to “shoot the lights out of” an AK-47 upon making contact with ISIL. After they

arrived in California and paid for the fraudulent documents, Daud and Farah were

arrested by the passport contact, who turned out to be an undercover FBI agent. 

Omar was also taken into custody shortly thereafter. 

A grand jury later indicted Omar, Farah, and Daud for a variety of offenses

related to their roles in the conspiracy. All three appellants were charged with one

count of conspiracy to murder outside the United States, in violation of 18 U.S.C.

§ 956(a), as well as multiple counts of attempt and conspiracy to provide material

support to a designated foreign terrorist organization, in violation of 18 U.S.C.

§ 2339B(a)(1). Additionally, Farah and Daud were charged with perjury, see id.

§ 1621; Farah was charged with making a false statement, see id. § 1001; and Omar

was charged with attempted financial aid fraud, see 20 U.S.C. § 1097(a).

B.

Before trial, the Government alerted the district court to a potential conflict of

interest involving a paralegal on Farah’s defense team. At a hearing on the matter

just over a month before trial, the attorney who employed the paralegal moved to

withdraw as counsel. The court then inquired as to whether Farah’s other attorney,

Murad Mohammad, was capable of trying the case alone. Mohammad assured the

court that he could, and Farah expressed complete confidence in Mohammad’s ability

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to do so. On the basis of these assurances, the district court granted the motion to

withdraw and allowed Mohammad to represent Farah alone. 

This arrangement appeared to beworking until Mohammadmoved to withdraw

four days before trial, citing a breakdown in communication and a lack of trust. The

district court conducted another hearing the morning that trial wasscheduled to begin. 

Farah explained that he had lost confidence in Mohammad and specifically alleged

that the two had not met regularly and that he did not have access to discovery

materials. But Mohammad contradicted Farah’s account. He testified about weekly

meetings, in addition to several phone calls, and confirmed that Farah had been

offered accessto discovery materials, which Farah declined. In light of Mohammad’s

explanation and Farah’s abundant confidence in himonlyone month prior, the district

court concluded that Farah had not shown “justifiable dissatisfaction” and denied the

request for substitute counsel. 

As trial began, the appellants raised several concerns about the district court’s

proposed jury instructions on the conspiracy-to-commit-murder counts, arguing that

it is impossible to conspire to commit murder without a specific intent to kill. The

district court overruled this objection. The appellants also objected to the denial of

their requested affirmative-defense instructions on combatant immunity and defense

of others, which the court overruled due to the lack of an evidentiary foundation.

After a three-week trial, the jury returned a verdict convicting the appellants

on all counts except the perjury charge against Daud. The presentence investigation

report (“PSR”) for each of the appellants calculated an offense level of 43, a criminal

history category of VI, and a resulting sentencing range of life imprisonment. After

considering the factors set out in 18 U.S.C. § 3553(a), the district court varied

downward for each of the appellants, sentencing Farah and Daud to 360 months’

imprisonment and Omar to 420 months’ imprisonment. 

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Farah, Daud, and Omar now appeal on several grounds. Farah argues that the

district court improperly denied his request to appoint substitute counsel. All three

appellants challenge their conspiracy-to-commit-murder convictions, claiming that

the district court erred in its jury instructions by improperly defining murder and by

refusing to instruct on two affirmative defenses. Lastly, the appellants challenge their

below-guidelines sentences.

II.

We first address Farah’s argument that the district court abused its discretion

by denying Mohammad’s motion to withdraw and by refusing to appoint substitute

counsel. “A motion for appointment ofsubstitute counsel is committed to the district

court’s sound discretion.” United States v. Delacruz, 865 F.3d 1000, 1008 (8th Cir.

2017). To prevail, a defendant must show “justifiable dissatisfaction” with his

attorney, which “can arise from irreconcilable conflict, a complete breakdown in

communication, or any other factor interfering significantlywith an attorney’s ability

to provide zealous representation.” United States v. Taylor, 652 F.3d 905, 908 (8th

Cir. 2011). “Given the importance of the attorney-client relationship, the court must

conduct an adequate inquiry into the nature and extent of an alleged breakdown in

attorney-client communications.” Id. (internal quotation marks omitted).

The record demonstrates that the district court conducted a sufficient inquiry

into Farah’s concerns about Mohammad. See United States v. Jones, 662 F.3d 1018,

1026 (8th Cir. 2011). Indeed, the court rejected his request for substitute counsel

with the benefit of not one but two hearings. In the hearing on Mohammad’s motion

to withdraw, the court specifically inquired into Farah’s claims of insufficient

communication and lack of access to discovery. Moreover, at the hearing just one

month earlier, Farah repeatedly expressed confidence in Mohammad. The court

admonished Farah at that time to give prompt notice if he was dissatisfied with

Mohammad, and Farah concedes that it was his own fault for failing to do so. Thus,

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the district court acted well within its discretion in refusing Farah’s request for

substitute counsel, particularly on the eve of trial. See id. at 1024 (“Last-minute

requests to substitute counsel remain disfavored, and a trial court’s discretion is at its

zenith when the defendant endeavors to replace counsel shortly before trial.” (internal

quotation marks, citations, and alterations omitted)).

III.

We next turn to the appellants’ claim that the district court improperly

instructed the jury as to conspiracy to commit murder. We review a district court’s

formulation of jury instructionsfor an abuse of discretion and its interpretation of law

de novo. United States v. Cornelison, 717 F.3d 623, 626 (8th Cir. 2013). An

instructional error does not warrant reversal of a conviction if it is harmless. United

States v. Dvorak, 617 F.3d 1017, 1024 (8th Cir. 2010). “An error in jury instructions

may be disregarded if it is clear beyond a reasonable doubt that a rational jury would

have found the defendant guilty absent the error.” Id. at 1025 (internal quotation

marks omitted).

The appellants first argue that the district court erred in defining the murder

element of the conspiracy-to-commit-murder offense. As provided in 18 U.S.C.

§ 956(a)(1), this offense encompasses a conspiracy to commit “an act that would

constitute the offense of murder . . . if committed in the . . . jurisdiction of the United

States.” Under federal law, murder is “the unlawful killing of a human being with

malice aforethought.” 18 U.S.C. § 1111(a). In defining this term for the jury, the

district court relied on language froma relevant Eighth Circuit model jury instruction,

which states that “‘malice aforethought’ means [1] an intent, at the time of a killing,

willfully to take the life of a human being, or [2] an intent willfully to act in callous

and wanton disregard of the consequences to human life.” Model Crim. Jury Instr.

8th Cir. 6.18.1111A-1 (2014); see also United States v. Johnson, 879 F.2d 331, 334

(8th Cir. 1989) (approving a similar instruction). Nevertheless, the appellants claim

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that the Government should have been required to prove a specific intent to kill and

thus argue that the district court erred in including the second portion of the

definition. 

Even assuming they are correct that “an intent willfully to act in callous and

wanton disregard” falls short of the requisite mens rea for this offense, we are

convinced that this error was harmless beyond a reasonable doubt, as “a rational jury

would have found the defendant[s] guilty” under an instruction requiring a specific

intent to kill. See Dvorak, 617 F.3d at 1025. Indeed, there is overwhelming evidence

in the record showing that Farah, Daud, and Omar each knew the object of the

conspiracy included intentionally taking lives. Yusuf offered compelling testimony

that all three appellants understood that they would engage in killing if they reached

Syria. And Bashir’s recorded conversations capture their intentions in vivid detail. 

Moreover, even were we to believe appellants’ claim that they themselves had no

desire to kill, all three agreed to join and support a plot aimed at sending young men

to Syria to fight for a known terrorist organization. They knew that some coconspirators actually reached Syria and were killed on the front lines, and they

continued until their arrest to aid and encourage othersin reaching the battlefield. On

this record, it is clear beyond a reasonable doubt that the jury would have convicted

them of the conspiracy even if the district court had adopted an instruction that

required the Government to prove a specific intent to kill. Thus, we find that any

error in the instruction was harmless beyond a reasonable doubt.2

Additionally, Farah and Daud argue that the district court erred in refusing to

instruct the jury on the affirmative defenses of combatant immunity and defense of

others. “To be entitled to a jury instruction on a justification defense, a defendant

Given that we resolve the appellants’ challenge on this basis, we need not

2

address their related claims that the instruction’s definition of murder violated their

due process rights or that the instruction made the conspiracy-to-commit-murder

offense duplicative of material support for terrorism.

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must show an underlying evidentiary foundation as to each element of the defense,

such that a reasonable person could conclude that the evidence supported the

defendant’s position.” United States v. Poe, 442 F.3d 1101, 1104 (8th Cir. 2006)

(internal quotation marks omitted). “Whether there is sufficient evidence to support

the submission of an instruction on an affirmative defense is a question of law which

we review de novo.” Id. at 1103. In this case, the district court did not err in

concluding that there was insufficient evidence to merit either instruction.

Turning first to defense of others, Farah and Daud argue that they were entitled

to an instruction on this defense because there was evidence showing that “the

objective of the conspiracy was to defend others from imminent bodily harm and

death.” Specifically, they suggest that the conspiracy to go to Syria and fight for ISIL

was motivated by a desire to prevent the atrocitiesthat the regime of Bashar al-Assad

was committing against innocent Muslimcivilians in Syria. But we have emphasized

that the defense of another must stem from “immediate danger of unlawful bodily

harm.” United States v. Oakie, 709 F.2d 506, 506-07 (8th Cir. 1983) (per curiam)

(emphasis added); see also Model Crim. Jury Instr. 8th Cir. 9.04. Even assuming that

Farah and Daud sought to join ISIL out of a desire to protect innocent civilians, they

never discussed killing in the context of defending individual Syrian civilians who

faced an immediate and specific threat. Indeed, their purported justification pertained

only, in the most general terms, to the Syrian civil war and civilian suffering. Thus,

they failed a show a sufficient evidentiary foundation to warrant this instruction. 

As for combatant immunity, Farah and Daud contend that their proposed

“instruction was not advanced as an affirmative defense, but in order to clarify the

government’s burden to prove beyond a reasonable doubt that defendants entered into

an agreement to kill with malice aforethought.” Although their argument is not

entirely clear, we understand Farah and Daud to suggest that, given their belief that

they would be fighting as lawful combatants once they joined ISIL, they could not

have knowingly agreed to engage in “unlawful” killings. Even under this charitable

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reading, their argument fails. While Farah and Daud are correct that a defendant must

generally know the facts that make his conduct illegal, see, e.g., Elonis v. United

States, 135 S. Ct. 2001, 2009 (2015), the lawfulness of a soldier’s belligerency is a

legal determination, see Ex Parte Quirin, 314 U.S. 1, 30-31 (1942), and a mistake of

law is no defense, see Elonis, 135 S. Ct. at 2009 (“This is not to say that a defendant

must know that his conduct is illegal before he may be found guilty. The familiar

maxim ‘ignorance of the law is no excuse’ typically holds true.”). Thus, there was

no basis for providing this instruction.

IV.

The appellants also claim that the district court committed procedural and

substantive error in imposing their sentences. In reviewing a challenged sentence, we

“first ensure that the district court committed no significant procedural error, such

as . . . failing to consider the § 3553(a) factors . . . or failing to adequately explain the

chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). “Assuming that the

district court’s sentencing decision is procedurally sound, [we] then consider the

substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard.” Id.

The appellants first argue that the district court procedurally erred by failing

to consider the need to avoid disparities between their sentences and those of their coconspirators who entered guilty pleas. Under § 3553(a)(6), a district court isrequired

to consider “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.” Although the

district court did not expressly address sentencing disparities with the appellants’ coconspirators, each ofthe appellantsthoroughly discussed thisissue in their sentencing

memoranda. We may therefore presume that the district court considered this

argument. See United States v. Johnson, 619 F.3d 910, 922 (8th Cir. 2010). In

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addition, the court thoroughly analyzed each of the other § 3553(a) factors in its

statement of reasons for each appellant. Thus, we find no procedural error.

Finally, the appellants contend that their sentences are substantively

unreasonable. Where, as here, a district court varies below a properly calculated

guidelines sentence, “it is nearly inconceivable that the court abused its discretion in

not varying downward still further.” United States v. Mohamed, 757 F.3d 757, 761

(8th Cir. 2014). In attacking the reasonableness of their sentences, Farah, Daud, and

Omar again emphasize the sentencing disparities with their co-conspirators. But as

we recently explained, “[t]he statutory direction to avoid unwarranted disparities

among defendants [in § 3553(a)(6)] refers to national disparities, not differences

among co-conspirators.” United States v. Pierre, 870 F.3d 845, 850 (8th Cir. 2017). 

In any event, the appellants were not similarly situated to their co-conspirators, who

cooperated with the Government and pleaded guilty to lesser charges. See Mohamed,

757 F.3d at 762 (explaining that defendants are not similarly situated for the purposes

of § 3553(a)(6) where one defendant accepts responsibility but the others do not). 

“[I]t is not an abuse of discretion for a district court to impose a sentence that results

in a disparity between co-defendants when there are legitimate distinctions between

the co-defendants.” Id. at 762 (internal quotation marks omitted). After careful

consideration, the district court chose to vary downward from the recommended

sentence of life imprisonment and adequately explained why it granted a lesser

variance to Omar than to Farah and Daud. Thus, we see no basis for finding these

sentences unreasonable and conclude that the district court did not abuse its

discretion. 

V.

Accordingly, we affirm the denial of Farah’s motion to substitute counsel,

appellants’ convictions for conspiracy to commit murder abroad, and their resulting

sentences. 

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