## Facts

- Mohamed Osman Mohamud, a U.S. resident, expressed support for violent jihad in writings and emails and communicated with persons sympathetic to extremist groups.
- The FBI began an undercover operation in which agents posed as al-Qaeda operatives and communicated with Mohamud.
- Mohamud repeatedly expressed eagerness to carry out an attack and to become “operational.”
- Over months, Mohamud helped plan an attack, selected the Portland Christmas Tree Lighting Ceremony as the target, discussed desired casualties, recorded a martyrdom-style video, and participated in assembling what he believed was a car bomb.
- On the night of the event, Mohamud attempted twice to detonate the device by dialing a cellphone number and was arrested; the bomb was inert.
- Separately, under FISA § 702 the government targeted a foreign national abroad; Mohamud’s emails with that target were incidentally collected and later used in the investigation.
- A jury convicted Mohamud of attempted use of a weapon of mass destruction under 18 U.S.C. § 2332a(a)(2)(A), and he received a 30-year sentence.

## Issues

1. Whether Mohamud was entrapped as a matter of law because the government induced the offense and he lacked predisposition.
2. Whether the undercover operation constituted outrageous government conduct violating due process and requiring dismissal.
3. Whether late notice that the government used FISA § 702-derived information required suppression or a new trial.
4. Whether the § 702 acquisition that incidentally collected Mohamud’s emails violated the Fourth Amendment.

## Decision

- The Ninth Circuit affirmed the conviction and sentence.
- The court held entrapment was not established as a matter of law because a reasonable jury could find Mohamud predisposed.
- The court held the government’s conduct, though aggressive, did not meet the high threshold for a due process violation.
- The court held late § 702 notice did not warrant suppression or a new trial absent prejudice or prosecutorial misconduct.
- The court held the § 702 acquisition was constitutional as applied: no warrant was required for targeting a foreign national abroad, and incidental collection of Mohamud’s emails was reasonable.

## Legal Principles

- Entrapment turns on inducement and predisposition; appellate relief is unavailable where the evidence permits a reasonable jury to find predisposition.
- “Outrageous government conduct” is an exceptional due process doctrine; supplying means or participating heavily in a sting does not alone require dismissal when the defendant is an active and willing participant.
- Late disclosure of surveillance or investigative methods supports suppression or a new trial only upon a showing of prejudice and, where asserted, prosecutorial misconduct.
- For FISA § 702 surveillance targeting a non-U.S. person abroad, the Fourth Amendment does not require a warrant for the foreign target’s communications; incidental collection of a U.S. person’s communications may be upheld as reasonable based on national-security interests and court-approved targeting and minimization procedures.
- The reasonableness analysis may consider a reduced expectation of privacy in communications conveyed to third parties.

## Conclusion

The Ninth Circuit upheld Mohamud’s terrorism-sting conviction, finding sufficient evidence of predisposition to defeat entrapment, rejecting a due process challenge to the sting’s aggressiveness, denying suppression or a new trial based on late § 702 notice for lack of prejudice, and holding that § 702 targeting of a foreign national abroad with incidental collection of Mohamud’s emails was reasonable under the Fourth Amendment.


United States v. Mohamud, 843 F.3d 420 (9th Cir. 2016)