Case: USA v. Moalin

3:10-cr-04246 | U.S. District Court for the Southern District of California

Filed Date: Oct. 22, 2010

Case Ongoing

Clearinghouse coding complete

Case Summary

On October 22, 2010, three immigrants from Somalia were indicted on criminal charges in the U.S. District Court for the Southern District of California. The case was assigned to Judge Jeffrey Miller. A superseding indictment added a fourth defendant to the charges on January 14, 2011. Each defendant was represented by private counsel, and one was additionally represented by the Civil Rights Clinic in Austin, Texas. The charges were related to the defendants’ alleged material and financial supp…

On October 22, 2010, three immigrants from Somalia were indicted on criminal charges in the U.S. District Court for the Southern District of California. The case was assigned to Judge Jeffrey Miller. A superseding indictment added a fourth defendant to the charges on January 14, 2011. Each defendant was represented by private counsel, and one was additionally represented by the Civil Rights Clinic in Austin, Texas. The charges were related to the defendants’ alleged material and financial support for the terrorist group Al-Shabab, and consisted of five counts: (1) Conspiracy to Provide Material Support for Terrorism, in violation of 18 U.S.C. §2339A(a); (2); Conspiracy to Provide Material Support to a Foreign Terrorist Organization (“FTO”), in violation of 18 U.S.C. §2339B(a)(1); (3) Conspiracy to Kill in a Foreign Country, in violation of 18 U.S.C. §956; (4) Conspiracy to Launder Monetary Instruments, in violation of 18 U.S.C. § 1956(a)(2)(A) and (h); (5) Providing Material Support for Terrorism, in violation of 18 U.S.C. § 2339A(a).

The four defendants were convicted by jury verdict on February 22, 2013. 2013 WL 8351225. The named defendant was convicted on all five counts; two defendants were convicted only on counts 1, 2, 3, and 5; the fourth was convicted only on counts 1, 2, and 5. After several months of pre-sentence investigation, the defendants filed a joint motion for a new trial on September 5, 2013. The motion was based on congressional testimony from the NSA and the FBI relating to materials provided by Edward Snowden regarding NSA surveillance in this particular case. In their new trial motion, the defendants argued: (1) that collection by the NSA of electronic data related to the named defendant violated the First and Fourth Amendment, as well as the Foreign Intelligence Surveillance Act (FISA); (2) that cleared defense counsel should have been provided with the Government’s confidential response to their FISA motion and the ex parte request for a protective order under the Confidential Information Protection Act ("CIPA"); and (3) that the Government failed to provide required discovery and exculpatory materials.

The court denied each of these arguments in its November 14, 2013 order denying the defendants’ motion for a new trial, finding that the public disclosures made by the NSA and the FBI provided no new facts to alter the court's FISA and CIPA rulings. 2013 WL 6079518. The court also denied the defendants' arguments that the Government had violated the First and Fourth Amendments, as well as FISA and CIPA. Finally, the court found that the Government had complied with its obligations to provide required discovery and exculpatory materials. The four defendants were sentenced to 15 years, 13 years, 10 years, and 6 years, respectively.

Each of the four defendants filed appeals to the United States Court of Appeals for the Ninth Circuit in late November 2013.

On October 29, 2015, the defendants submitted their joint appeal. They alleged that (1) the convictions should be reversed because the government, through the NSA’s surveillance program, acted beyond the authority granted to it by 50 U.S.C. §1861; (2) the NSA’s surveillance program violated the Fourth Amendment; (3) the convictions should be dropped and a new trial ordered because the government did not provide exculpatory information and/or notice of its surveillance activities; (4) the district court excluded the appellants’ access to relevant evidence while at the same time allowed the government’s irrelevant and prejudicial evidence; and (5) there was insufficient evidence for the jury to support the fourth appellant’s convictions.

On November 10, 2016, Judges Marsha S. Berzon, Jacqueline H. Nguyen, and Jack Zouhary heard oral arguments. On July 18, 2018, a defendant's lawyer wrote the court asking them to consider how the Supreme Court's recent decision in Carpenter v. United States affects the current case. 2018 WL 3073916. The lawyer argued that the reasoning animating the holding in Carpenter is what is at issue in this case's challenge of the government’s bulk collection, retention, and subsequent review of phone records.

The Ninth Circuit released an opinion (by Judge Berzon) on September 2, 2020, upholding the charges against the defendants but stating that the government may have violated the Fourth Amendment through the bulk telephony metadata collection program. 2020 WL 5225704. Judge Berzon relied on the Carpenter decision to state that bulk telephony metadata collection may violate the Fourth Amendment because the information wireless carriers collect off cell phones is so revealing about an individual's habits that warrantless collection would be an unreasonable search without a warrant. She added that the bulk telephony metadata collection program violated FISA Subchapter IV, stating that the “statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation" language in the Subchapter is intended to limit the scope of the government's ability to request FISA warrants, and that bulk metadata collection was not sufficiently limited to comply with the statute's intent. However, she declined to suppress the evidence collected against the defendants as a result of the FISA violation, writing that the FISA Subchapter IV does not allow suppression as a remedy in contrast to other areas of the statute that do, and that, upon review of the classified FISA warrants at issue, the information collected from the metadata program was not material to the successful FISA warrant application. Turning to the Fourth Amendment's notice requirement, Judge Berzon wrote that, while the defendants found out about the collection of their metadata in an unusual way through the Snowden disclosures, they were given notice to contest the metadata collection in the form of this lawsuit, and that the lack of notice at the District Court was not prejudicial from in-camera review of the record. However, she did mention that the government is obligated to disclose impending use of foreign intelligence surveillance data in order to give the defendants a chance to contest it.

The case remains open until the window for a petition for review by the Supreme Court closes.

Summary Authors

Nicholas Hazen (4/3/2017)

Dawn Lui (6/19/2020)

Ellen Aldin (9/7/2020)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4191578/parties/united-states-v-moalin/


Judge(s)

Berzon, Marsha Siegel (California)

Miller, Jeffrey T. (California)

Nguyen, Jacqueline Hong-Ngoc (California)

Zouhary, Jack (Ohio)

Attorneys(s) for Plaintiff

Cole, William P. (California)

Duffy, Laura E. (California)

Fontier, Alice L. (New York)

Han, Caroline Pineda (California)

Smith, Jeffrey Michael (District of Columbia)

Sullivan, Holly A. (California)

Judge(s)

Berzon, Marsha Siegel (California)

Miller, Jeffrey T. (California)

Nguyen, Jacqueline Hong-Ngoc (California)

Zouhary, Jack (Ohio)

Attorneys(s) for Plaintiff

Cole, William P. (California)

Duffy, Laura E. (California)

Fontier, Alice L. (New York)

Han, Caroline Pineda (California)

Smith, Jeffrey Michael (District of Columbia)

Sullivan, Holly A. (California)

Ward, Steven Philip (District of Columbia)

Zipp, Daniel Earl (California)

Attorneys(s) for Defendant

Abdo, Alex (New York)

Coleman, Benjamin L. (California)

Dratel, Joshua L. (New York)

Durkin, Thomas Anthony (Illinois)

Geller, Marc B. (California)

Ghappour, Ahmed (Texas)

Hanover, Holly S. (California)

Missakian, Elizabth (California)

Moreno, Linda (Florida)

Roberts, Janis D. (Illinois)

Sherif, Mahir Tewfik (California)

Toomey, Patrick Christopher (New York)

Troiano, Kenneth J. (California)

Zugman, David J. (California)

Other Attorney(s)

Patel, Faiza (New York)

Documents in the Clearinghouse

Document

Docket [PACER]

Sept. 23, 2015 Docket

Court of Appeals Docket

U. S. Court of Appeals for the Ninth Circuit

Sept. 4, 2020 Docket
1

Introductory Allegations Common to All Counts

United States of America v. Moalin, Mohamed, and Doreh

Oct. 22, 2010 Other
345-1

Statement of Facts and Memorandum of Points and Authorities in Support of Joint Motion Pursuant to Rule 33, R.Crim. P., For a New Trial

Sept. 5, 2013 Pleading / Motion / Brief
387

Order Denying Motion for New Trial

2013 WL 6079518

Nov. 14, 2013 Order/Opinion
85-1

Opinion

United States of America v. Moalin

U. S. Court of Appeals for the Ninth Circuit

973 F.3d 977, 2020 WL 5225704

Sept. 2, 2020 Order/Opinion

Resources

Title Description External URL

EPIC.org U.S. v. Moalin

General background, news articles, and additional filings related to this case. https://www.epic.org/...

Guest Post: New Resource — Civil Rights Litigation Clearinghouse FISA Archives

Margo Schlanger

Obviously there have been load of disclosures about FISA matters over the past year—between the Snowden documents, the FOIA-driven ODNI declassifications, the FISA Court’s nifty new on-line docket, a… June 26, 2014 http://justsecurity.org/...

Docket

See docket on RECAP: https://www.courtlistener.com/docket/4191578/united-states-v-moalin/

Last updated May 12, 2022, 8 p.m.

ECF Number Description Date Link
1

Indictment (Sealed)

Oct. 22, 2010 PACER
3

Warrant Issued

Oct. 22, 2010 PACER
8

Notice of Attorney Appearance - USA

Nov. 3, 2010 PACER
9

Initial Appearance (w/ Schedules)

Nov. 3, 2010 PACER
10

Motion to Detain

Nov. 3, 2010 PACER
11

Notice of Attorney Appearance - USA

Nov. 4, 2010 PACER
12

Notice (Other)

Nov. 4, 2010 PACER
15

Detention Hearing Continued

Nov. 5, 2010 PACER
18

Order on Motion to Detain

Nov. 9, 2010 PACER
20

Findings of Fact and Order of Detention

Nov. 9, 2010 PACER
24

Warrant Returned Executed

Nov. 16, 2010 PACER
29

Motion Hearing/Trial Setting

Dec. 3, 2010 PACER
28

Supplemental Memorandum

Dec. 6, 2010 PACER
30

Notice of Hearing

Dec. 16, 2010 PACER
31

Motion for Protective Order

Dec. 17, 2010 PACER
32

Supplemental Memorandum

Dec. 20, 2010 PACER
33

Motion to Exclude 1

Dec. 28, 2010 PACER
34

Order on Motion for Protective Order

Jan. 3, 2011 PACER
38

Indictment

Jan. 14, 2011 PACER
39

Arraignment

Jan. 20, 2011 PACER
45

Order

Feb. 10, 2011 PACER
48

Notice of Hearing

Feb. 16, 2011 PACER
51

Terminate Deadlines

Feb. 22, 2011 PACER
52

Discovery Hearing

Feb. 22, 2011 PACER
54

Financial Affidavit - CJA23

Feb. 22, 2011 PACER
55

Motion to Amend/Correct

Feb. 24, 2011 PACER
56

Order on Motion to Amend/Correct

Feb. 25, 2011 PACER
57

Status Report

March 8, 2011 PACER
58

Status Hearing

March 10, 2011 PACER
64

Motion to Substitute Attorney

March 28, 2011 PACER
67

Certificate of Service

March 30, 2011 PACER
68

Motion to Substitute Attorney

March 30, 2011 PACER
71

Order on Motion to Substitute Attorney

April 7, 2011 PACER
74

Status Hearing

April 7, 2011 PACER
75

Motion to Exclude 1

April 27, 2011 PACER
76

Order on Motion to Exclude 1

April 28, 2011 PACER
77

Order

April 28, 2011 PACER
80

Notice of Hearing

June 7, 2011 PACER
81

Status Hearing

June 16, 2011 PACER
82

Transcript

June 24, 2011 PACER
83

Status Hearing

Aug. 8, 2011 PACER
84

Status Hearing

Sept. 23, 2011 PACER
85

Order

Oct. 12, 2011 PACER
86

Motion to Allow

Oct. 17, 2011 PACER
87

Response to Motion

Oct. 17, 2011 PACER
92

Motion to Suppress Wiretap Evidence

1 Memo of Points and Authorities

View on RECAP

2 Declaration of Joshua L. Dratel

View on RECAP

3 Exhibit 1

View on RECAP

4 Exhibit 2

View on RECAP

5 Exhibit 3

View on RECAP

6 Exhibit 4

View on RECAP

7 Exhibit 5

View on RECAP

8 Exhibit 6

View on RECAP

9 Proof of Service

View on RECAP

Dec. 9, 2011 PACER
103

Motion to Continue

Dec. 11, 2011 PACER
105

Notice (Other)

Dec. 13, 2011 PACER
106

Motion for Release of Brady Materials

Dec. 15, 2011 PACER
107

Motion to Withdraw Document

Dec. 15, 2011 PACER
109

Response in Opposition

Jan. 13, 2012 PACER
112

Notice (Other)

Jan. 13, 2012 PACER
113

Response in Opposition

Jan. 13, 2012 PACER
114

Motion for Hearing

Jan. 13, 2012 PACER
116

Reply to Response

Jan. 20, 2012 PACER
117

Reply to Response

Jan. 20, 2012 PACER
119

Notice (Other)

Jan. 30, 2012 PACER
120

Order on Motion for Miscellaneous Relief

Feb. 9, 2012 PACER
121

Motion for Extension of Time to File

Feb. 17, 2012 PACER
122

Motion for Leave to File Excess Pages

Feb. 17, 2012 PACER
123

Response in Opposition

Feb. 17, 2012 PACER
125

Order on Motion for Extension of Time to File

Feb. 21, 2012 PACER
126

Order on Motion for Leave to File Excess Pages

Feb. 21, 2012 PACER
127

Order

Feb. 23, 2012 PACER
128

Order

Feb. 23, 2012 PACER
130

Order on Motion for Extension of Time to File

March 1, 2012 PACER
132

Motion for Miscellaneous Relief

March 9, 2012 PACER
136

Order

March 15, 2012 PACER
138

Response in Opposition

March 23, 2012 PACER
139

Order

March 27, 2012 PACER
140

Pretrial Memorandum

March 30, 2012 PACER
141

Reply to Response

March 30, 2012 PACER
142

Status Report

April 2, 2012 PACER
143

Status Hearing

April 5, 2012 PACER
144

Transcript

May 25, 2012 PACER
145

Notice (Other)

June 1, 2012 PACER
146

Order on Motion to Suppress Wiretap Evidence

June 5, 2012 PACER
147

Indictment

June 8, 2012 PACER
148

Notice (Other)

June 15, 2012 PACER
149

Order

June 18, 2012 PACER
150

Supplemental Briefing

June 19, 2012 PACER
151

Notice (Other)

June 27, 2012 PACER
152

Motion to Take Deposition

July 9, 2012 PACER
153

Order

July 12, 2012 PACER
154

Motion to Take Deposition

July 20, 2012 PACER
155

Motion to Continue

July 24, 2012 PACER
156

Order on Motion to Continue

July 25, 2012 PACER
157

Motion to Withdraw Document

Aug. 1, 2012 PACER
158

Affidavit in Support of Motion

Aug. 1, 2012 PACER
159

Motion for Extension of Time to File

Aug. 2, 2012 PACER
160

Order on Motion for Extension of Time to File

Aug. 3, 2012 PACER
161

Response in Opposition

Aug. 7, 2012 PACER
162

Motion for Leave to File Excess Pages

Aug. 7, 2012 PACER
163

Supplemental Document

Aug. 9, 2012 PACER
164

Order on Motion for Leave to File Excess Pages

Aug. 9, 2012 PACER
165

Transcript

Aug. 10, 2012 PACER
166

Transcript

Aug. 10, 2012 PACER
167

Transcript

Aug. 10, 2012 PACER
173

Motion for Leave to File Excess Pages

Aug. 14, 2012 PACER
174

Reply to Response

Aug. 14, 2012 PACER

State / Territory: California

Case Type(s):

National Security

Special Collection(s):

Foreign Intelligence Surveillance Act -- All Matters

Foreign Intelligence Surveillance Act -- Telephony Metadata

Key Dates

Filing Date: Oct. 22, 2010

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

Four Somali immigrants, convicted on criminal charges related to providing aid to Al-Shabab.

Plaintiff Type(s):

Private Plaintiff

Attorney Organizations:

Brennan Center for Justice

ACLU Affiliates (any)

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

United States, Federal

Defendant Type(s):

Jurisdiction-wide

Law-enforcement

Case Details

Causes of Action:

42 U.S.C. § 1983

FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812

Constitutional Clause(s):

Unreasonable search and seizure

Availably Documents:

Trial Court Docket

Complaint (any)

Non-settlement Outcome

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Criminal Conviction

Source of Relief:

Litigation

Issues

General:

Records Disclosure

Search policies

Terrorism/Post 9-11 issues

Type of Facility:

Government-run