Mohamud’s Terrorism Conviction Stands, Despite FBI’s “Imperfect” Entrapment
December 8, 2016 (Fault Lines) — Somali-American Mohamed Mohamud went to trial in federal court and was convicted of the 2010 non-bombing of Portland’s Pioneer Courthouse Square during Black Friday. Why a “non-bombing?” Because the attempt involved an elaborate sting by the FBI, which began with its first interactions with the teen as far back as November of 2009 and culminated with Mohamud’s “detonation” of a fake bomb, also provided by the feds.
The “imperfect” reference in the title is a quote from the U.S. District Judge who sentenced Mohamud to thirty years in prison following a contentious trial that involved a strong (but ultimately unsuccessful) claim of entrapment, the government’s use of warrantless surveillance under FISA (deemed kosher by the federal court), and the government’s disclosure of the latter after trial (but before sentencing, as noted by the 9th Circuit Court of Appeals). On December 5, 2016, the 9th Circuit affirmed Mohamud’s judgment and sentence.
The first 24 pages of its 50 page opinion described Mohamud’s exchanges with a foreign national, two FBI agents and one FBI contractor, and in essence laid the groundwork for rejecting Mohamud’s entrapment defense. The Court focused on Mohamud’s apparent sympathy for the terrorist cause via online articles before the FBI came into the picture, and on his “complete lack of reluctance to participate in the bombing” during his cajoling by the FBI. From the Court’s Opinion:
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 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.
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 ½ years to convincing him that he had or should have the right to engage in the very behavior proscribed by law.”
Mohamud, whilst going to Oregon State University, fighting with his parents during their divorce, and going through some young man blues, decided to go online and publish articles and poems embracing jihad. Add to that the fact that his parents unwittingly put him on the government’s radar when they falsely believed he was fleeing the U.S. for Somalia, the rest was history for him.
The FBI agents met with him on several occasions, and even coached him through a bombing “dry run” in the woods to build its case. Yes, at times they asked the teen if he wanted to back out, that he didn’t have to do this, but Mohamud decided to keep going forward. That is what sealed his entrapment’s defense’s fate, as “predisposition” for criminal activity is the death knell. Mohamud’s lack of any reluctance to engage in the Black Friday bombing drove it home for the government on this point. However, the opinion’s last paragraph is not on point with Mohamud’s case:
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.
Aside from the fact that Whitman, McVeigh, and Holmes’ cases involved completely different circumstances and subjects not involving government involvement and cooperation before the tragic event was carried out, it bears mentioning that should any troubled young lad be caught by a government ear saying crazy things, an investigation and a strong “cultivation of emotional intimacy” by federal agents might result in an indictment.
Mohamud also cried foul at the government’s use of his emails in its case in chief, which were gathered sans warrant under FISA Amendments Act of 2008 on domestic soil. The 9th circuit said no dice on this Fourth Amendment claim as well, since the collection of Mohamud’s e-mails were “incidental” to an ongoing investigation of a non-U.S. person. This is the answer to a reader’s question, “What’s this got to do with me?” Or better yet, “What, me worry?”