United States v. Basaaly Moalin

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50572

Plaintiff-Appellee,

D.C. No.

v. 3:10-cr-04246-JM-1

BASAALY SAEED MOALIN, AKA

Basal, AKA Muse Shekhnor

Roble,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 13-50578

Plaintiff-Appellee,

D.C. No.

v. 3:10-cr-04246-JM-2

MOHAMED MOHAMED

MOHAMUD, AKA Mohamed

Khadar, AKA Sheikh Mohamed,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 13-50580

Plaintiff-Appellee,

D.C. No.

v. 3:10-cr-04246-JM-3

ISSA DOREH, AKA Sheikh Issa,

Defendant-Appellant.

2 UNITED STATES V. MOALIN

UNITED STATES OF AMERICA, No. 14-50051

Plaintiff-Appellee,

D.C. No.

v. 3:10-cr-04246-JM-4

AHMED NASIR TAALIL

MOHAMUD, OPINION

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of California

Jeffrey T. Miller, District Judge, Presiding

Argued and Submitted November 10, 2016

Pasadena, California

Filed September 2, 2020

Before: Marsha S. Berzon and Jacqueline H. Nguyen,

Circuit Judges, and Jack Zouhary, * District Judge.

Opinion by Judge Berzon

*

The Honorable Jack Zouhary, United States District Judge for the

Northern District of Ohio, sitting by designation.

UNITED STATES V. MOALIN 3

SUMMARY **

Criminal Law

The panel affirmed the convictions of four members of

the Somali diaspora for sending, or conspiring to send,

$10,900 to Somalia to support a foreign terrorist

organization, in an appeal that raised complex questions

regarding the U.S. government’s authority to collect bulk

data about its citizens’ activities under the auspices of a

foreign intelligence investigation, as well as the rights of

criminal defendants when the prosecution uses information

derived from foreign intelligence surveillance.

The panel held that the government may have violated

the Fourth Amendment when it collected the telephony

metadata of millions of Americans, including at least one of

the defendants, pursuant to the Foreign Intelligence

Surveillance Act (FISA), but that suppression is not

warranted on the facts of this case. Having carefully

reviewed the classified FISA applications and all related

classified information, the panel was convinced that under

established Fourth Amendment standards, the metadata

collection, even if unconstitutional, did not taint the evidence

introduced by the government at trial. The panel wrote that

to the extent the public statements of government officials

created a contrary impression, that impression is inconsistent

with the contents of the classified record.

**

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

has been prepared by court staff for the convenience of the reader.

4 UNITED STATES V. MOALIN

The panel rejected the government’s argument that the

defendants lacked standing to pursue their statutory

challenge to the (subsequently discontinued) metadata

collection program. On the merits, the panel held that the

metadata collection exceeded the scope of Congress’s

authorization in 50 U.S.C. § 1861, which required the

government to make a showing of relevance to a particular

authorized investigation before collecting the records, and

that the program therefore violated that section of FISA. The

panel held that suppression is not clearly contemplated by

section 1861, and there is no statutory basis for suppressing

the metadata itself. The panel’s review of the classified

record confirmed that the metadata did not and was not

necessary to support the requisite probable cause showing

for the FISA Subchapter I warrant application in this case.

The panel wrote that even if it were to apply a “fruit of the

poisonous tree” analysis, it would conclude that evidence

from the government’s wiretap of defendant Moalin’s phone

was not the fruit of the unlawful metadata collection. The

panel wrote that if the statements of the public officials

created a contrary impression, that impression is inconsistent

with the facts presented in the classified record.

The panel confirmed that the Fourth Amendment

requires notice to a criminal defendant when the prosecution

intends to enter into evidence or otherwise use or disclose

information obtained or derived from the surveillance of that

defendant conducted pursuant to the government’s foreign

intelligence authorities. The panel did not decide whether

the government failed to prove any required notice in this

case because the lack of such notice did not prejudice the

defendants.

UNITED STATES V. MOALIN 5

The panel held that evidentiary rulings challenged by the

defendants did not, individually or cumulatively,

impermissibly prejudice the defense.

The panel held that sufficient evidence supported

defendant Doreh’s convictions.

COUNSEL

Joshua L. Dratel (argued), Joshua Dratel P.C., New York,

New York; Alexander A. Abdo (argued), Jameel Jaffer,

Patrick Toomey, and Brett Max Kaufman, American Civil

Liberties Union, New York, New York; David J. Zugman,

Burcham & Zugman, San Diego, California; Elizabeth

Armena Missakian, Law Office of Elizabeth A. Missakian,

San Diego, California; Benjamin L. Coleman, Coleman &

Balogh LLP, San Diego, California; for Defendants-

Appellants.

Jeffrey M. Smith (argued), Appellate Counsel; John P.

Carlin, Assistant Attorney General; National Security

Division, United States Department of Justice, Washington,

D.C.; Caroline P. Han, Assistant United States Attorney;

United States Attorney’s Office, San Diego, California; for

Plaintiff-Appellee.

Michael Price, Brennan Center for Justice, New York, New

York; Faiza Patel, Brennan Center for Justice at New York

University School of Law, New York, New York; Alan

Butler, Electronic Privacy Information Center (EPIC),

Washington, D.C.; David M. Porter, Co-Chair, NACDL

Amicus Committee; Sacramento, California; Bruce D.

Brown, Katie Townsend, and Hannah Bloch-Wehba,

Reporters Committee for Freedom of the Press, Washington,

6 UNITED STATES V. MOALIN

D.C.; Michael Filipovic, Federal Public Defender, Seattle,

Washington; Tony Gallagher, Executive Director, Federal

Defenders of Montana, Great Falls, Montana; Lisa Hay,

Federal Public Defender, Portland, Oregon; Heather Erica

Williams, Federal Public Defender, Sacramento, California;

Steven Gary Kalar, Federal Public Defender, San Francisco,

California; Hilary Potashner, Federal Public Defender, Los

Angeles, California; Reuben Cahn, Executive Director,

Federal Defenders of San Diego Inc., San Diego, California;

Jon M. Sands, Federal Public Defender, Phoenix, Arizona;

Rich Curtner, Federal Public Defender, Anchorage, Alaska;

John T. Gorman, Federal Public Defender, Mong Mong,

Guam; Peter Wolff, Federal Public Defender, Honolulu,

Hawaii; Samuel Richard Rubin, District of Idaho

Community Defender, Boise, Idaho; R.L. Valladares,

Federal Public Defender, Las Vegas, Nevada; for Amici

Curiae Brennan Center for Justice, American Library

Association, Electronic Privacy Information Center,

Freedom to Read Foundation, National Association of

Criminal Defense Lawyers, Ninth Circuit Federal and

Community Defenders, and Reporters Committee for

Freedom of the Press.

OPINION

BERZON, Circuit Judge:

INTRODUCTION

Four members of the Somali diaspora appeal from their

convictions for sending, or conspiring to send, $10,900 to

Somalia to support a foreign terrorist organization. Their

appeal raises complex questions regarding the U.S.

government’s authority to collect bulk data about its

UNITED STATES V. MOALIN 7

citizens’ activities under the auspices of a foreign

intelligence investigation, as well as the rights of criminal

defendants when the prosecution uses information derived

from foreign intelligence surveillance. We conclude that the

government may have violated the Fourth Amendment and

did violate the Foreign Intelligence Surveillance Act

(“FISA”) when it collected the telephony metadata of

millions of Americans, including at least one of the

defendants, but suppression is not warranted on the facts of

this case. Additionally, we confirm that the Fourth

Amendment requires notice to a criminal defendant when the

prosecution intends to enter into evidence or otherwise use

or disclose information obtained or derived from

surveillance of that defendant conducted pursuant to the

government’s foreign intelligence authorities. We do not

decide whether the government failed to provide any

required notice in this case because the lack of such notice

did not prejudice the defendants. After considering these

issues and several others raised by the defendants, we affirm

the convictions in all respects.

BACKGROUND 1

I.

Somalia’s turbulent recent history forms the backdrop

for this case. After military dictator Siad Barre was ousted in

1991, the country spiraled into civil war. Fighting between

rival warlords led to a humanitarian crisis in Mogadishu,

Somalia’s capital, and other parts of the country. An

estimated 30,000 people died in Mogadishu alone, and

hundreds of thousands more were displaced. As the war

1

All the factual information presented in this opinion comes from

unclassified or declassified sources.

8 UNITED STATES V. MOALIN

continued, its impact on the populace was exacerbated by

recurring periods of severe drought and famine.

In 2004, an interim government for Somalia, the

Transitional Federal Government (“TFG”), was established

in Kenya. Although the TFG received significant

international support, it faced widespread distrust and

opposition in Somalia. The TFG installed itself in Somalia

with the protection of Ethiopian military forces, which

occupied Somalia beginning in 2006. Somali opposition to

the TFG and the Ethiopian occupation developed into a

broad-based, violent insurgency undertaken by a variety of

groups with disparate agendas.

One element of the insurgency was a group called “al-

Shabaab,” which means “the youth” in Arabic. Al-Shabaab

used distinctive types of violence, such as improvised

explosive devices and suicide bombings. In March 2008, the

United States designated al-Shabaab a foreign terrorist

organization. A key figure in al-Shabaab, Aden Hashi

Ayrow, was killed in a U.S. missile strike on May 1, 2008.

Many Somalis have fled the country. An estimated three

million live abroad, creating a global Somali diaspora.

Somalis abroad often remain actively engaged in

developments in Somalia, and contributions from the

diaspora are a critical source of financial support within the

troubled country. As Somalia has no formal banking system,

members of the diaspora who wish to send money back

frequently rely on informal money transfer businesses called

“hawalas.”

II.

Defendants Basaaly Saeed Moalin (“Moalin”),

Mohamed Mohamed Mohamud (“M. Mohamud”), Issa

UNITED STATES V. MOALIN 9

Doreh (“Doreh”), and Ahmed Nasir Taalil Mohamud

(“Nasir Mohamud”) immigrated to the United States from

Somalia years ago and lived in Southern California. 2 Moalin

and Nasir Mohamud were taxicab drivers; M. Mohamud was

an imam at a mosque; and Doreh worked at Shidaal Express,

a hawala.

Between October 2010 and June 2012, the United States

(“the government”) charged defendants in a five-count

indictment with conspiring to send and sending $15,900 to

Somalia between January and August of 2008 to support al-

Shabaab. 3 The charges against all four defendants were:

conspiracy to provide material support to terrorists, in

violation of 18 U.S.C. § 2339A(a); conspiracy to provide

material support to a foreign terrorist organization, in

violation of 18 U.S.C. § 2339B(a)(1); and conspiracy to

launder monetary instruments, in violation of 18 U.S.C.

§ 1956(a)(2)(A) and (h). Moalin, M. Mohamud, and Doreh

were charged with an additional count of providing material

support to a foreign terrorist organization, in violation of

18 U.S.C. § 2339B(a)(1) and (2), and Moalin was charged

with a further count of conspiracy to provide material

support to terrorists in violation of 18 U.S.C. § 2339A(a),

based on his alleged provision of a house in Somalia to

members of al-Shabaab.

Shortly after filing the initial indictment, the government

filed notice that it intended to use or disclose in the

proceedings “information obtained or derived from

2

Moalin and Doreh are U.S. citizens, M. Mohamud has refugee

status, and Nasir Mohamud has a visa.

3

At trial, the government sought only to prove that defendants had

sent $10,900 to support al-Shabaab.

10 UNITED STATES V. MOALIN

electronic surveillance conducted pursuant to the authority

of the Foreign Intelligence Surveillance Act.” At trial, the

government’s principal evidence against defendants

consisted of a series of recorded calls between Moalin, his

codefendants, and individuals in Somalia, obtained through

a wiretap of Moalin’s phone. The government obtained

access to Moalin’s calls after receiving a court order under

FISA Subchapter I, 50 U.S.C. §§ 1801–1812. Several of the

recorded calls involved a man who went by “Shikhalow”

(sometimes spelled “Sheikalow”) or “Majadhub,” whom the

government contends was Ayrow, the important al-Shabaab

figure. In addition to the intercepted phone calls, the

government introduced records of money transfers

completed by Shidaal Express, the hawala where Doreh

worked.

In a recorded call from December 2007, Shikhalow

requested money from Moalin for “rations.” The two men

also discussed other fundraising efforts relating to a school.

Moalin then spoke with Doreh, reporting that “[o]ne dollar a

day per man” was needed for forces stationed “where the

fighting [is] going on.” Moalin also spoke with Nasir

Mohamud, telling him that money was needed for “the

young men who are firing the bullets” and that, within the

last month, “these men cut the throats of 60” Ethiopians and

destroyed up to five vehicles.

Ten days later, Moalin called Shikhalow to tell him that

he had sent $3,300 using the recipient name “Yusuf

Mohamed Ali.” Transaction records from the Shidaal

Express reveal two transfers of $1,950 each to “yusuf

mohamed ali” from “Duunkaal warsame warfaa” and “safiya

Hersi.” Two days later, Moalin called Shikhalow again, and

Shikhalow told him he had “received the three.” Moalin also

offered Shikhalow the use of one of his houses in Somalia,

UNITED STATES V. MOALIN 11

which, Moalin noted, had an attic suitable for hiding

documents and weapons. A half-hour after making the call

to Shikhalow, Moalin told another acquaintance he “was

talking to the man who is in charge of the youth.”

Later, in January 2008, Moalin called Shikhalow again,

urging him to allow another group to handle “overall

politics” while Shikhalow dealt with “military matters.”

Shikhalow disagreed, stating, “we, the Shabaab, have a

political section, a military section and a missionary

section.” Shikhalow recounted recent incidents in which his

group had planted a landmine and launched mortar shells at

the presidential palace, and requested more money “to

support the insurgent.”

Communications between Moalin and Shikhalow

continued through April 2008, during which time several

money transfers were made to “yusuf mohamed ali,”

“YUSUF MOHAMED ALI,” “DUNKAAL MOHAMED

YUSUF,” and “mohamed yusuf dunkaal.” Ayrow was killed

on May 1, 2008. A week later, Moalin told an acquaintance

that he did not want “the assistance and the work that we

were performing” to stop, even though “the man that we

used to deal with is gone.”

In July 2008, a senior operational figure in al-Shabaab

gave Moalin contact information for Omar Mataan. Later

that day, Moalin got in touch with Mataan and promised to

send money. The following week, Moalin spoke with Nasir

Mohamud, reporting that they were being “closely

watched,” but that they could still support “the orphans” and

“people in need” and would “go under that pretense now.”

Shidaal Express records show a series of transfers over the

12 UNITED STATES V. MOALIN

next few weeks, including one to “Omer Mataan” and

another to “Omer matan.” 4

Defendants did not dispute that they sent money to

Somalia through Shidaal Express, but they did dispute that

the money was intended to support al-Shabaab. They

maintained that Shikhalow was not Ayrow but a local police

commissioner, and that their money went to support the

work of regional administrations governing in the absence of

an effective central government. Moalin also presented

evidence that he supported humanitarian causes in Somalia

during the time period of the indictment.

In February 2013, the jury convicted defendants on all

counts.

III.

Before trial, Moalin moved to suppress, among other

things, “all interceptions made and electronic surveillance

conducted pursuant to [FISA], 50 U.S.C. § 1801, et seq., and

any fruits thereof, and/or for disclosure of the underlying

applications for FISA warrants.” Moalin contended that

information in the government’s applications for the FISA

wiretap may have been “generated by illegal means”—that

is, that the government may have violated the Fourth

Amendment or its statutory authority under FISA in

collecting information supporting the FISA warrants. The

district court denied Moalin’s suppression motion and did

not grant security-cleared defense counsel access to the

documents supporting the FISA orders.

4

We review the call transcripts in greater deal in Part V of the

Discussion section of the opinion, infra pp. 53–57.

UNITED STATES V. MOALIN 13

Two days before trial, the prosecution disclosed an email

from a redacted FBI email address to the government’s

Somali linguist, who was monitoring Moalin’s phone calls

during the wiretap. The email said: “We just heard from

another agency that Ayrow tried to make a call to Basaaly

[Moalin] today, but the call didn’t go through. If you see

anything today, can you give us a shout? We’re extremely

interested in getting real-time info (location/new #’s) on

Ayrow.”

Months after the trial, in June 2013, former National

Security Agency (“NSA”) contractor Edward Snowden

made public the existence of NSA data collection programs.

One such program, conducted under FISA Subchapter IV,

involved the bulk collection of phone records, known as

telephony metadata, from telecommunications providers.

Other programs, conducted under the FISA Amendments

Act of 2008, involved the collection of electronic

communications, such as email messages and video chats,

including those of people in the United States.

Subsequent statements of public officials defending the

telephony metadata collection program averred that the

program had played a role in the government’s investigation

of Moalin. These statements reported that the FBI had

previously closed an investigation focused on Moalin

without bringing charges, then reopened that investigation

based on information obtained from the metadata program.

For instance, in a hearing before the House Permanent

Select Committee on Intelligence held shortly after the

Snowden disclosures, then-FBI Deputy Director Sean Joyce

described a post-9/11 investigation conducted by the FBI

that initially “did not find any connection to terrorist activity.

Several years later, under [FISA Subchapter IV], the NSA

provided us a telephone number only in San Diego that had

14 UNITED STATES V. MOALIN

indirect contact with an extremist outside the United States.”

Joyce explained that the FBI “served legal process to

identify who was the subscriber to this telephone number,”

then, after “further investigation and electronic surveillance

that we applied specifically for this U.S. person with the

FISA Court, we were able to identify co-conspirators, and

we were able to disrupt” their financial support to a Somali

designated terrorist group. According to Joyce, “if [the FBI]

did not have the tip from NSA, [it] would not have been able

to reopen that investigation.” In another congressional

hearing, Joyce specifically named Moalin as the target of the

investigation.

On September 30, 2013, defendants filed a motion for a

new trial. Defendants argued that the government’s

collection and use of Moalin’s telephony metadata violated

the Fourth Amendment, and that the government had failed

to provide notice of the metadata collection or of any

surveillance of Moalin it had conducted under the FISA

Amendments Act, including, potentially, the surveillance

referred to in the email to the linguist. The district court

denied the motion, concluding that “public disclosure of the

NSA program adds no new facts to alter the court’s FISA . . .

rulings,” and that the telephony metadata program did not

violate the Fourth Amendment. United States v. Moalin, No.

10-CR-4246 JM, 2013 WL 6079518, at *4, *8 (S.D. Cal.

Nov. 18, 2013).

This appeal followed. On appeal, defendants continue to

challenge the metadata collection and the lack of notice of

both the metadata collection and of any additional

surveillance not disclosed by the government. They also

make arguments regarding the government’s obligation to

produce exculpatory evidence; the district court’s

evidentiary rulings; and the sufficiency of the evidence to

UNITED STATES V. MOALIN 15

convict Doreh. We present the facts relating to each

argument as we analyze it.

DISCUSSION

I. The Telephony Metadata Collection Program

The government’s telephony metadata collection

program was authorized in a series of classified orders by the

FISA Court under FISA Subchapter IV, the “business

records” subchapter. 5 See In re Application of the FBI for an

Order Requiring the Prod. of Tangible Things from

[redacted], No. BR 13-80, 2013 WL 5460137, at *1 (FISA

Ct. Apr. 25, 2013). These orders required major

telecommunications providers to turn over to the

government on an “ongoing daily” basis a “very large

volume” of their “call detail records.” In re Application of

the FBI for an Order Requiring the Prod. of Tangible Things

from [redacted], No. BR 13-109, 2013 WL 5741573, at *1

(FISA Ct. Aug. 29, 2013) (“In re Application II”).

Specifically, providers were ordered to produce “all call

detail records or ‘telephony metadata’ . . . for

communications (i) between the United States and abroad;

or (ii) wholly within the United States, including local

telephone calls.” Id. at *10. These records included

5

The FISA Court was established by Congress to entertain

applications by the government to take investigative actions authorized

by FISA. 50 U.S.C. § 1803(a). Broadly, “FISA authorizes the federal

government to engage in four types of investigative activity [in the

United States]: electronic surveillance targeting foreign powers and

agents of foreign powers; physical searches targeting foreign powers and

agents of foreign powers; the use of pen registers and trap-and-trace

devices . . . ; and court orders compelling the production of tangible

things in connection with certain national security investigations.” David

Kris & J. Douglas Wilson, National Security Investigations and

Prosecutions § 4:2 (3rd ed. 2019).

16 UNITED STATES V. MOALIN

information such as the phone numbers involved in a call and

the time and duration of the call, but not the voice content of

any call. Id. at *1 n.2.

The court orders authorized the NSA to compile the

records into a database and to query the database under

certain conditions to obtain foreign intelligence information.

See id. at *1. During the time period relevant to this case, the

government was permitted to search the database when

certain NSA officials determined that “reasonable,

articulable suspicion” existed connecting a specific selection

term—for example, a particular phone number—with “one

of the identified international terrorist organizations.” Id.

The government was also allowed to search phone numbers

within three “hops” of that selector, i.e., the phone numbers

directly in contact with a selector, the numbers that had been

in contact with those numbers, and the numbers that had

been in contact with those numbers. In re Application of the

FBI for an Order Requiring the Prod. of Tangible Things

from [redacted], No. BR 14-96, 2014 WL 5463290, at *2 &

n.2 (FISA Ct. June 19, 2014).

Snowden’s disclosure of the metadata program

prompted significant public debate over the appropriate

scope of government surveillance. In June 2015, Congress

passed the USA FREEDOM Act, which effectively ended

the NSA’s bulk telephony metadata collection program. Pub.

L. No. 114-23, 129 Stat. 268 (codified at 50 U.S.C. § 1861).

The Act prohibited further bulk collection of phone records

after November 28, 2015. Id.; see Smith v. Obama, 816 F.3d

1239, 1241 (9th Cir. 2016). Besides ending the bulk

collection program, Congress also established new reporting

requirements relating to the government’s collection of call

detail records. Pub. L. No. 114-23, § 601, 129 Stat. at 291.

UNITED STATES V. MOALIN 17

Defendants contend that the discontinued metadata

program violated both the Fourth Amendment and FISA

Subchapter IV, under which it was authorized. They argue

that the “fruits” of the government’s acquisition of Moalin’s

phone records should therefore have been suppressed.

According to defendants, those fruits included the phone

records themselves and the evidence the government

obtained through its subsequent wiretap of Moalin’s phone.

A.

Moalin contends that the metadata collection violated his

Fourth Amendment “right . . . to be secure . . . against

unreasonable searches and seizures.” U.S. Const. amend. IV.

A person may invoke the protections of the Fourth

Amendment by showing he had “an actual (subjective)

expectation of privacy,” and “the expectation [is] one that

society is prepared to recognize as ‘reasonable.’” Katz v.

United States, 389 U.S. 347, 361 (1967) (Harlan, J.,

concurring). Moalin asserts he had a reasonable expectation

of privacy in his telephony metadata.

The district court held, and the government argues, that

this case is controlled by Smith v. Maryland, 442 U.S. 735

(1979), which helped establish the so-called third-party

doctrine in Fourth Amendment jurisprudence. Smith held

that the government’s use of a pen register to record the

numbers the defendant dialed from his home telephone did

not constitute a Fourth Amendment search, because

individuals have no reasonable expectation of privacy in

information they voluntarily convey to the telephone

company. Id. at 742–43. Smith relied on United States v.

Miller, 425 U.S. 435 (1976), which had held that defendants

had no legitimate expectation of privacy in their bank

records. The government argues that the NSA’s collection of

Moalin’s telephony metadata is indistinguishable, for Fourth

18 UNITED STATES V. MOALIN

Amendment purposes, from the use of the pen register in

Smith.

There are strong reasons to doubt that Smith applies here.

Advances in technology since 1979 have enabled the

government to collect and analyze information about its

citizens on an unprecedented scale. Confronting these

changes, and recognizing that a “central aim” of the Fourth

Amendment was “to place obstacles in the way of a too

permeating police surveillance,” the Supreme Court recently

declined to “extend” the third-party doctrine to information

whose collection was enabled by new technology. Carpenter

v. United States, 138 S. Ct. 2206, 2214, 2217 (2018) (quoting

United States v. Di Re, 332 U.S. 581, 595 (1948)).

Carpenter did not apply the third-party doctrine to the

government’s acquisition of historical cell phone records

from the petitioner’s wireless carriers. The records revealed

the geographic areas in which the petitioner used his cell

phone over a period of time. Id. at 2220. Citing the “unique

nature of cell phone location information,” the Court

concluded in Carpenter that “the fact that the Government

obtained the information from a third party does not

overcome [the petitioner’s] claim to Fourth Amendment

protection,” because there is “a world of difference between

the limited types of personal information addressed in Smith

. . . and the exhaustive chronicle of location information

casually collected by wireless carriers today.” Id. at 2219–

20.

There is a similar gulf between the facts of Smith and the

NSA’s long-term collection of telephony metadata from

Moalin and millions of other Americans. In Smith, a woman

was robbed and gave the police a description of the robber

and of a car she saw nearby. 442 U.S. at 737. After the

robbery, the woman received “threatening and obscene

UNITED STATES V. MOALIN 19

phone calls from a man identifying himself as the robber.”

Id. Police later spotted a man and car matching the robber’s

description and traced the license plate number to Smith. Id.

Without obtaining a warrant, they asked the telephone

company to install a “pen register,” a device that would

record the numbers dialed from Smith’s home telephone. Id.

The day the pen register was installed it recorded a call from

Smith’s home to the home of the robbery victim. Id. Based

on that and other evidence, police obtained a warrant to

search Smith’s home and arrested him two days later. Id.

Holding that the use of the pen register did not constitute

a “search” for Fourth Amendment purposes, id. at 745–46,

the Court reasoned, first, that it was unlikely “that people in

general entertain any actual expectation of privacy in the

numbers they dial,” id. at 742. Second, “even if [Smith] did

harbor some subjective expectation that the phone numbers

he dialed would remain private, this expectation is not ‘one

that society is prepared to recognize as “reasonable.”’” Id.

at 743 (quoting Katz, 389 U.S. at 361). Smith had

“voluntarily conveyed numerical information to the

telephone company” and in so doing had “assumed the risk

that the company would reveal to police the numbers he

dialed.” Id. at 744.

The distinctions between Smith and this case are legion

and most probably constitutionally significant. To begin

with, the type of information recorded in Smith was

“limited” and of a less “revealing nature” than the telephony

metadata at issue here. Carpenter, 138 S. Ct. at 2219. The

pen register did not disclose the “identities” of the caller or

of the recipient of a call, “nor whether the call was even

completed.” Smith, 442 U.S. at 741 (quoting United States v.

New York Tel. Co., 434 U.S. 159, 167 (1977)). In contrast,

the metadata in this case included “comprehensive

20 UNITED STATES V. MOALIN

communications routing information, including but not

limited to session identifying information (e.g., originating

and terminating telephone number, International Mobile

station Equipment Identity (IMEI) number, International

Mobile Subscriber Identity (IMSI) number, etc.), trunk

identifier, telephone calling card numbers, and time and

duration of call.” In re Application II, 2013 WL 5741573,

at *1 n.2. “IMSI and IMEI numbers are unique numbers

associated with a particular telephone user or

communications device.” Br. of Amici Curiae Brennan

Center for Justice 11. “A ‘trunk identifier’ provides

information about where a phone connected to the network,

revealing data that can locate the parties within

approximately a square kilometer.” Id. at 11–12.

Although the Smith Court perceived a significant

distinction between the “contents” of a conversation and the

phone number dialed, see 442 U.S. at 743, in recent years the

distinction between content and metadata “has become

increasingly untenable,” as Amici point out. Br. of Amici

Curiae Brennan Center for Justice 6. The amount of

metadata created and collected has increased exponentially,

along with the government’s ability to analyze it. “Records

that once would have revealed a few scattered tiles of

information about a person now reveal an entire mosaic—a

vibrant and constantly updating picture of the person’s life.”

Klayman v. Obama, 957 F. Supp. 2d 1, 36 (D.D.C. 2013),

vacated and remanded, 800 F.3d 559 (D.C. Cir. 2015).

According to the NSA’s former general counsel Stewart

Baker, “[m]etadata absolutely tells you everything about

somebody’s life. . . . If you have enough metadata you don’t

really need content . . . .” Laura K. Donohue, The Future of

Foreign Intelligence 39 (2016). The information collected

here was thus substantially more revealing than the

telephone numbers recorded in Smith.

UNITED STATES V. MOALIN 21

The duration of the collection in this case—and so the

amount of information collected—also vastly exceeds that in

Smith. While the pen register in Smith was used for a few

days at most, here the NSA collected Moalin’s (and millions

of other Americans’) telephony metadata on an ongoing,

daily basis for years. Carpenter distinguished between using

a beeper to track a car “during a discrete automotive

journey,” which the Court had upheld in United States v.

Knotts, 460 U.S. 276 (1983), and using cell phone location

information to reveal “an all-encompassing record of the

holder’s whereabouts” “over the course of 127 days.” 138

S. Ct. at 2215, 2217 (internal quotation marks omitted). As

the Court put it, “Sprint Corporation and its competitors are

not your typical witnesses. Unlike the nosy neighbor who

keeps an eye on comings and goings, they are ever alert, and

their memory is nearly infallible.” Id. at 2219.

Like the cell phone location information in Carpenter,

telephony metadata, “as applied to individual telephone

subscribers, particularly with relation to mobile phone

services and when collected on an ongoing basis with respect

to all of an individual’s calls . . . permit something akin to

. . . 24-hour surveillance . . . .” Am. Civil Liberties Union v.

Clapper, 785 F.3d 787, 824 (2d Cir. 2015). This long-term

surveillance, made possible by new technology, upends

conventional expectations of privacy. Historically,

“surveillance for any extended period of time was difficult

and costly and therefore rarely undertaken.” United States v.

Jones, 565 U.S. 400, 429 (2012) (Alito, J., concurring in the

judgment). Society may not have recognized as reasonable

Smith’s expectation of privacy in a few days’ worth of dialed

numbers but is much more likely to perceive as private

several years’ worth of telephony metadata collected on an

ongoing, daily basis—as demonstrated by the public outcry

following the revelation of the metadata collection program.

22 UNITED STATES V. MOALIN

Also problematic is the extremely large number of

people from whom the NSA collected telephony metadata,

enabling the data to be aggregated and analyzed in bulk. The

government asserts that “the fact that the NSA program also

involved call records relating to other people . . . is irrelevant

because Fourth Amendment rights . . . cannot be raised

vicariously.” Br. of United States 58. The government

quotes the FISA Court, which reasoned similarly that “where

one individual does not have a Fourth Amendment interest,

grouping together a large number of similarly-situated

individuals cannot result in a Fourth Amendment interest

springing into existence ex nihilo.” In re Application II, 2013

WL 5741573, at *2. But these observations fail to recognize

that the collection of millions of other people’s telephony

metadata, and the ability to aggregate and analyze it, makes

the collection of Moalin’s own metadata considerably more

revealing.

A couple of examples illustrate this point: A woman calls

her sister at 2:00 a.m. and talks for an hour. The record of

that call reveals some of the woman’s personal information,

but more is revealed by access to the sister’s call records,

which show that the sister called the woman’s husband

immediately afterward. Or, a police officer calls his college

roommate for the first time in years. Afterward, the

roommate calls a suicide hotline. These are simple

examples; in fact, metadata can be combined and analyzed

to reveal far more sophisticated information than one or two

individuals’ phone records convey. As Amici explain, “it is

relatively simple to superimpose our metadata trails onto the

trails of everyone within our social group and those of

everyone within our contacts’ social groups and quickly

paint a picture that can be startlingly detailed”—for

example, “identify[ing] the strength of relationships and the

structure of organizations.” Br. of Amici Curiae Brennan

UNITED STATES V. MOALIN 23

Center for Justice 21 (internal quotation marks and

alterations omitted). Thus, the very large number of people

from whom telephony metadata was collected distinguishes

this case meaningfully from Smith.

Finally, numerous commentators and two Supreme

Court Justices have questioned the continuing viability of the

third-party doctrine under current societal realities. The

assumption-of-risk rationale underlying the doctrine is “ill

suited to the digital age, in which people reveal a great deal

of information about themselves to third parties in the course

of carrying out mundane tasks.” Jones, 565 U.S. at 417

(Sotomayor, J., concurring). “Even our most private

documents—those that, in other eras, we would have locked

safely in a desk drawer or destroyed—now reside on third

party servers. Smith . . . teach[es] that the police can review

all of this material, on the theory that no one reasonably

expects any of it will be kept private. But no one believes

that, if they ever did.” Carpenter, 138 S. Ct. at 2262

(Gorsuch, J., dissenting).

For all these reasons, defendants’ Fourth Amendment

argument has considerable force. But we do not come to rest

as to whether the discontinued metadata program violated

the Fourth Amendment because even if it did, suppression

would not be warranted on the facts of this case. See United

States v. Ankeny, 502 F.3d 829, 836–37 (9th Cir. 2007)

(declining to decide “close” Fourth Amendment question

where suppression was “not appropriate”). Having carefully

reviewed the classified FISA applications and all related

classified information, we are convinced that under

established Fourth Amendment standards, the metadata

collection, even if unconstitutional, did not taint the evidence

introduced by the government at trial. See Wong Sun v.

United States, 371 U.S. 471, 488 (1963). To the extent the

24 UNITED STATES V. MOALIN

public statements of government officials created a contrary

impression, that impression is inconsistent with the contents

of the classified record. 6

B.

Defendants also argue that the metadata collection

program violated FISA Subchapter IV, under which the

FISA Court authorized it.

1.

At the outset, the government asserts that Moalin lacks

standing to pursue his statutory challenge. The government

6

Defendants, relying on Alderman v. United States, 394 U.S. 165

(1969), urge us to remand to the district court for a suppression hearing.

Alderman held that where the government conducted electronic

surveillance of defendants in violation of the Fourth Amendment, the

government had to turn over to defendants “the records of those

overheard conversations” so that they could intelligently litigate the

question whether the unlawful eavesdropping had tainted the evidence

introduced at trial. Id. at 183. The Court in Alderman was concerned that

if it were left solely to the trial judge to review the recorded

conversations in camera, the judge might lack the time or knowledge to

grasp the significance of an “apparently innocent phrase” or “chance

remark” that in fact shaped the subsequent investigation. Id. at 182–84.

We decline to extend Alderman’s holding to the facts of this case.

Here, the material whose collection may have been unlawful but was not

disclosed was not Moalin’s conversations but his telephony metadata;

the records of the overheard conversations obtained pursuant to the FISA

warrants were fully disclosed. We express no opinion as to whether

Alderman could appropriately apply to the government’s unlawful

collection of metadata in a different case. But in the particular

circumstances of this case, based on our careful review of the classified

record, there is no concern similar to the Court’s concern in Alderman

and thus no need to apply the case here, given the countervailing national

security concerns.

UNITED STATES V. MOALIN 25

relies on United States v. Plunk, 153 F.3d 1011 (9th Cir.

1998), overruled on other grounds by United States v.

Hankey, 203 F.3d 1160, 1169 n.7 (9th Cir. 2000). Plunk held

that a defendant lacked Fourth Amendment “standing” to

challenge a subpoena to his telephone company requesting

his telephone records. Id. at 1020. We reasoned in Plunk that

the subpoena was directed not at the defendant “but rather at

third party businesses,” and that “individuals possess no

reasonable expectation of privacy in telephone records.” Id. 7

The government challenges Moalin’s standing on the same

basis, which it contends “is simply an application of the

broader rule that ‘the issuance of a subpoena to a third party

to obtain the records of that party does not violate the rights

of a defendant.’” Br. of United States 51 (quoting Miller,

425 U.S. at 444).

As our cases have explained, “Fourth amendment

standing is quite different . . . from ‘case or controversy’

determinations of article III standing.” United States v.

Taketa, 923 F.2d 665, 669 (9th Cir. 1991). Whereas Article

III standing concerns our jurisdiction, Fourth Amendment

standing “is a matter of substantive fourth amendment law;

to say that a party lacks fourth amendment standing is to say

that his reasonable expectation of privacy has not been

infringed.” Id. 8

7

Plunk also concluded that the defendant had “not demonstrated

that he was within the ‘zone of interests’ intended to be protected by” the

statutory provision at issue in that case, id., but the government does not

raise a similar argument here.

8

Unlike Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013), this

case is a criminal prosecution, so there is no Article III standing issue

here.

26 UNITED STATES V. MOALIN

We reject the government’s invitation to dispense with

defendants’ statutory argument on the basis of Fourth

Amendment standing. First, as Carpenter clarified after this

case was briefed, there is no categorical rule preventing

criminal defendants from challenging third-party subpoenas.

Carpenter, 138 S. Ct. at 2221. Second, as discussed above,

Moalin likely had a reasonable expectation of privacy in his

telephony metadata—at the very least, it is a close question.

Finally, and most importantly, defendants’ statutory and

Fourth Amendment arguments rest on independent legal

grounds, and we see no reason why Moalin’s “standing” to

pursue the statutory challenge should turn on the merits of

the Fourth Amendment issue. We therefore proceed to the

merits of the statutory challenge.

2.

Section 1861 of FISA Subchapter IV authorizes the

government to apply to the FISA Court for an “order

requiring the production of any tangible things (including

. . . records . . .) for an investigation to obtain foreign

intelligence information not concerning a United States

person or to protect against international terrorism or

clandestine intelligence activities.” 50 U.S.C. § 1861(a)(1). 9

At the time relevant to this case, the statute required the

government to include in its application “a statement of facts

showing that there are reasonable grounds to believe that the

tangible things sought are relevant to an authorized

investigation (other than a threat assessment).” 50 U.S.C.

9

All citations to the U.S. Code are to the current version unless

otherwise indicated.

UNITED STATES V. MOALIN 27

§ 1861(b)(2)(A) (2006) (emphasis added). 10 Defendants

argue that the metadata program defied this relevance

requirement because the government collected phone

records in bulk, without regard to whether any individual

record was relevant to any specific, already-authorized

investigation.

The government’s theory, expressed in its initial

application to the FISA Court to authorize the metadata

collection, was that “[a]lthough admittedly a substantial

portion of the telephony metadata that is collected would not

relate to operatives of [redacted], the intelligence tool that

the Government hopes to use to find [redacted]

communications—metadata analysis—requires collecting

and storing large volumes of the metadata to enable later

analysis.” Mem. of Law in Supp. of Appl. for Certain

Tangible Things for Investigations to Protect Against

International Terrorism 15, In re Application of the FBI for

an Order Requiring the Prod. of Tangible Things, No. BR

06-05 (FISA Ct. May 23, 2006). According to the

government, “[a]ll of the metadata collected is thus relevant,

because the success of this investigative tool depends on

bulk collection.” Id.

Defendants respond that Congress intended for the

relevance requirement to be a limiting principle. They argue

that the government’s interpretation of the word “relevant”

is essentially limitless and so contravenes the statute.

Defendants rely principally on Clapper, which held that the

text of section 1861 “cannot bear the weight the government

10

The USA Freedom Act later expanded on the application

requirements. See 50 U.S.C. § 1861(b)(2)(A)–(C).

28 UNITED STATES V. MOALIN

asks us to assign to it, and . . . does not authorize the

telephone metadata program.” 785 F.3d at 821. We agree.

As the Second Circuit noted, the “expansive concept of

‘relevance’” used by the government to justify the metadata

program “is unprecedented and unwarranted.” Id. at 812.

The government had argued in Clapper that Congress’s

intention in adopting section 1861 was to give the

government “broad-ranging investigative powers analogous

to those traditionally used in connection with grand jury

investigations into possible criminal behavior.” Id. at 811.

Although the Second Circuit agreed with that premise, it

concluded that the metadata collection orders were

dissimilar from grand jury subpoenas with respect to both

the quantity and the quality of the information sought. First,

“while . . . subpoenas for business records may encompass

large volumes of paper documents or electronic data, the

most expansive of such evidentiary demands are dwarfed by

the volume of records obtained pursuant to the orders in

question here.” Id. at 813. Second, “document subpoenas

typically seek the records of a particular individual or

corporation under investigation, and cover particular time

periods when the events under investigation occurred,” but

the metadata collection orders “contain[ed] no such limits.”

Id.

The Second Circuit also reasoned that the term

“relevant” in section 1861 takes meaning from its context:

records sought must be “relevant to an authorized

investigation.” 50 U.S.C. § 1861(b)(2)(A) (2006) (emphasis

added). The court faulted the government for referring to the

records collected under the metadata program “as relevant to

‘counterterrorism investigations,’ without identifying any

specific investigations to which such bulk collection is

relevant.” Clapper, 785 F.3d at 815.

UNITED STATES V. MOALIN 29

Here, the government, in the two pages it devotes to

defending the metadata program’s compliance with FISA,

maintains that the Second Circuit got it wrong because

“[t]here were in fact multiple specified counterterrorism

investigations for which the [FISA Court], in repeatedly

approving the program, found reasonable grounds to believe

the telephony metadata would be relevant.” Br. of United

States 53. But, as the Second Circuit noted, referring to the

findings of the Privacy and Civil Liberties Oversight Board

(“PCLOB”) in a 2014 report on the metadata collection

program:

[T]he government’s practice is to list in

§ [1861] applications multiple terrorist

organizations, and to declare that the records

being sought are relevant to the

investigations of all of those groups. . . . As

the [PCLOB] report puts it, that practice is

“little different, in practical terms, from

simply declaring that they are relevant to

counterterrorism in general. . . . At its core,

the approach boils down to the proposition

that essentially all telephone records are

relevant to essentially all international

terrorism investigations.”

785 F.3d at 815 (quoting Privacy and Civil Liberties

Oversight Board, Rep. on the Tel. Records Program

Conducted Under Section 215 of the USA PATRIOT Act

and on the Operations of the Foreign Intelligence

Surveillance Court 59–60 (Jan. 23, 2014)). The

government’s approach “essentially reads the ‘authorized

investigation’ language out of the statute.” Id. at 815–16.

30 UNITED STATES V. MOALIN

Finally, we do not accept the government’s justification

in this case that “the call detail records at issue here—the

records that suggested that a particular U.S.-based telephone

number may have been associated with a foreign terrorist—

were clearly relevant to a counterterrorism investigation.”

Br. of United States 52 (emphasis added). That argument

depends on an after-the-fact determination of relevance:

once the government had collected a massive amount of call

records, it was able to find one that was relevant to a

counterterrorism investigation. The problem, of course, is

that FISA required the government to make a showing of

relevance to a particular authorized investigation before

collecting the records. 50 U.S.C. § 1861(b)(2)(A) (2006).

We hold that the telephony metadata collection program

exceeded the scope of Congress’s authorization in section

1861 and therefore violated that section of FISA. See

Clapper, 785 F.3d at 826.

3.

As a remedy for the FISA violation, defendants ask us to

suppress the alleged “fruits” of the unlawful metadata

collection, including the evidence from the government’s

wiretap of Moalin’s phone. Because “suppression is a

disfavored remedy,” we impose it to remedy a statutory

violation “only . . . where it is clearly contemplated by the

relevant statute.” United States v. Forrester, 512 F.3d 500,

512 (9th Cir. 2008). 11 To decide whether suppression is

11

In some circumstances a court may order suppression to remedy

the violation of a statute that “enforce[s] constitutional norms,” even if

the statute does not expressly call for suppression. United States v.

Dreyer, 804 F.3d 1266, 1278 (9th Cir. 2015). We decline to impose

suppression on that basis in this case for the same reason we conclude

UNITED STATES V. MOALIN 31

clearly contemplated by FISA in this context, we begin with

50 U.S.C. § 1861, the section under which Moalin’s

metadata was collected and which that collection violated.

Section 1861 authorizes the recipient of a production

order to “challenge the legality” of the order. Id.

§ 1861(f)(2)(A)(i). But it does not expressly provide for a

challenge by the subject of the records collected—that is, the

person whose records are collected from a third party. Nor

does section 1861, either as it read at the time relevant to this

case, or as it reads now, after amendment by the USA

Freedom Act, contain any provision for suppressing in a

criminal trial evidence obtained in violation of the section.

Compare 50 U.S.C. § 1861 with 50 U.S.C. § 1861 (2006).

The remainder of Subchapter IV likewise makes no mention

of a suppression remedy.

The lack of a suppression remedy in section 1861, and in

Subchapter IV more generally, is significant because all the

other FISA subchapters authorizing intelligence collection

do contain a suppression remedy. See id. § 1806(g)

(Subchapter I, concerning electronic surveillance); id.

§ 1825(h) (Subchapter II, concerning physical searches); id.

§ 1845(g) (Subchapter III, concerning pen registers and trap-

and-trace devices); id. § 1881e(b) (Subchapter VI, or the

FISA Amendments Act, concerning surveillance of persons

outside the United States).

Of particular significance is that Congress added

Subchapters III and IV to FISA in the same legislation. It

chose expressly to authorize a suppression remedy in

suppression would not be warranted were we to decide that the metadata

program violated the Fourth Amendment. See supra p. 23.

32 UNITED STATES V. MOALIN

Subchapter III 12 but not in Subchapter IV. See Pub. L. No.

105-272, Title VI, §§ 601–602, 112 Stat. 2396, 2404–2412

(1998). “[W]here Congress includes particular language in

one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983)

(alteration in original). This presumption is “strongest in

those instances in which the relevant statutory provisions

were considered simultaneously when the language raising

the implication was inserted,” as is the case with Subchapters

III and IV. Gomez-Perez v. Potter, 553 U.S. 474, 486 (2008)

(internal quotation marks omitted). We therefore conclude

that suppression is not “clearly contemplated” by section

1861, Forrester, 512 F.3d at 512, and that there is no

statutory basis for suppressing Moalin’s metadata itself.

Recognizing the gap in Subchapter IV, defendants urge

us to rely on the suppression remedy in Subchapter I. See

50 U.S.C. § 1806(g). As discussed, the government obtained

an order from the FISA Court under Subchapter I

authorizing a wiretap of Moalin’s phone, and introduced

evidence obtained from the wiretap at trial. Defendants were

entitled to “move to suppress the evidence obtained or

derived from such electronic surveillance on the grounds that

. . . the information was unlawfully acquired.” Id. § 1806(e).

The statute instructs that, if the “district court . . . determines

that the surveillance was not lawfully authorized . . . it shall,

in accordance with the requirements of law, suppress the

12

Upon finding that the use of a pen register “was not lawfully

authorized or conducted,” a district court “may . . . suppress the evidence

which was unlawfully obtained or derived from the use of the pen

register.” 50 U.S.C. § 1845(g)(1).

UNITED STATES V. MOALIN 33

evidence which was unlawfully obtained or derived from

electronic surveillance.” Id. § 1806(g) (emphases added).

To obtain the Moalin wiretap order, the government

submitted an application to the FISA Court including,

among other things, “a statement of the facts and

circumstances relied upon by the applicant to justify his

belief that . . . the target of the electronic surveillance is a

foreign power or an agent of a foreign power.” 50 U.S.C.

§ 1804(a)(4)(A) (2006). The government’s application is

classified, and the district court denied defendants’ request

to see it. Nonetheless, defendants assume, based on the

public statements of government officials following the

Snowden disclosures, see supra pp. 13–14, that the

application relied at least in part on Moalin’s metadata.

Defendants contend that because the metadata was obtained

in violation of the “relevance” provision in Subchapter IV,

50 U.S.C. § 1861(b)(2)(A) (2006), the evidence obtained

from the subsequent wiretap was therefore “unlawfully

acquired” for purposes of Subchapter I, 50 U.S.C. § 1806(e).

Contrary to defendants’ assumption, the government

maintains that Moalin’s metadata “did not and was not

necessary to support the requisite probable cause showing”

for the Subchapter I application in this case. Our review of

the classified record confirms this representation. Even if we

were to apply a “fruit of the poisonous tree” analysis, see

Wong Sun, 371 U.S. at 487–88, we would conclude, based

on our careful review of the classified FISA applications and

related information, that the FISA wiretap evidence was not

the fruit of the unlawful metadata collection. Again, if the

statements of public officials created a contrary impression,

that impression is inconsistent with the facts presented in the

classified record. Because the wiretap evidence was not

34 UNITED STATES V. MOALIN

“unlawfully acquired,” suppression is not warranted.

50 U.S.C. § 1806(e).

II. Notice of Surveillance Activities

Separately from their contention that the metadata

collection violated their Fourth Amendment rights,

defendants maintain that the Fourth Amendment required

the government to provide notice to defendants of its

collection and use of Moalin’s telephony metadata. They

also contend that they were entitled to notice of any

additional surveillance, other than FISA Subchapter I

surveillance, that the government conducted of them during

the course of its investigation. 13

A.

After defendants were indicted, the government notified

them and the district court that it intended to “use or

disclose” in “proceedings in this case information obtained

or derived from electronic surveillance conducted pursuant

to the authority of [FISA].” See 50 U.S.C. § 1806(c) (FISA

Subchapter I notice requirement). That information turned

out to be recordings and transcripts of defendants’ phone

calls stemming from the government’s wiretap of Moalin’s

cell phone under FISA Subchapter I.

13

The government asserts that defendants forfeited their argument

that they were entitled to notice of the metadata collection by failing to

raise it before the district court. Defendants adequately raised the issue

in their motion for a new trial, arguing that they were “not provided any

notice” of the metadata collection and that the government’s response to

defendants’ motion to suppress FISA surveillance was therefore

incomplete. The government does not address defendants’ argument that

they were entitled to notice of any additional surveillance the

government conducted.

UNITED STATES V. MOALIN 35

The government did not notify defendants that it had

collected Moalin’s phone records as part of the metadata

program. Defendants learned that after trial—from the

public statements that government officials made in the

wake of the Snowden disclosures. See supra pp. 13–14. Nor

did the government provide notice of any additional

surveillance, apart from FISA Subchapter I surveillance, it

had conducted of defendants. Defendants contend that at

least some such surveillance may have occurred, because the

email to the linguist produced by the government two days

before trial referred to a phone call to Moalin that had not

gone through and therefore presumably would not have been

captured by the wiretap of Moalin’s phone. See supra p. 13.

According to defendants, any additional surveillance of

Moalin, depending on when it began (and regardless of

whether it targeted Moalin), may have provided information

used in the wiretap applications or may otherwise have

contributed to the evidence used by the government at trial.

Just months after defendants’ convictions, news articles

in the wake of the Snowden disclosures revealed that the

government had been using evidence derived from foreign

intelligence surveillance in criminal prosecutions without

notifying the defendants of the surveillance. Five years

earlier, Congress had passed the FISA Amendments Act

(“FAA”), which provided congressional authorization for a

surveillance program the government had previously

conducted outside the auspices of FISA. Pub. L. No. 110-

261, 122 Stat. 2436 (2008); see Kris & Wilson, supra note

5, § 17:1. The FAA permits the government to conduct

electronic surveillance of people it believes are located

outside the United States without using the procedures

required by FISA Subchapter I. 50 U.S.C. §§ 1881a, 1881b,

1881c. If the government intends to use evidence “obtained

or derived from” FAA surveillance in a criminal

36 UNITED STATES V. MOALIN

prosecution, however, it must provide notice to the

defendants as required by FISA Subchapter I. Id. §§ 1806(c),

1881e(a)(1). In 2013, it came to light that the government

had been using evidence derived from FAA surveillance in

criminal prosecutions without providing the mandated

notice. See Charlie Savage, Door May Open for Challenge

to Secret Wiretaps, N.Y. Times, Oct. 16, 2013,

http://nyti.ms/1r7mbDy.

Additionally, the government conducts other foreign

intelligence surveillance outside the United States, beyond

the scope of FISA or the FAA, under Executive Order

12,333. See Exec. Ord. No. 12,333, as amended by Exec.

Ord. Nos. 13,284 (2003), 13,355 (2004), and 13,470 (2008);

Kris & Wilson, supra note 5, §§ 2:7, 17:1. Following the

passage of the FAA, Executive Order 12,333 no longer

authorizes surveillance targeting U.S. persons, but such

persons’ communications and metadata may be incidentally

collected. 14 See Kris & Wilson, supra note 5, § 17:19.

Executive Order 12,333 does not contain any notice

requirement.

B.

The Fourth Amendment requires that a person subject to

a government search receive notice of the search, absent

“exigent circumstances.” Berger v. State of New York, 388

U.S. 41, 60 (1967); see United States v. Freitas, 800 F.2d

1451, 1456 (9th Cir. 1986). Courts have excused advance

notice in the wiretapping context for a practical reason: if the

14

Executive Order 12,333 and FISA contain similar definitions of

“United States person.” Both definitions include U.S. citizens and

permanent residents. See 50 U.S.C. § 1801(i); Exec. Ord. No. 12,333, as

amended, § 3.5(k).

UNITED STATES V. MOALIN 37

subject of a wiretap were “told in advance that federal

officers intended to record his conversations, the point of

making such recordings would obviously [be] lost.” Katz,

389 U.S. at 355 n.16. In such circumstances, the government

must provide a “constitutionally adequate substitute for

advance notice.” Dalia v. United States, 441 U.S. 238, 248

(1979). Dalia explained that the Wiretap Act, which governs

the use of electronic surveillance in criminal investigations,

meets this requirement by instructing that “once the

surveillance operation is completed the authorizing judge

must cause notice to be served on those subjected to

surveillance.” Id. (citing 18 U.S.C. § 2518(8)(d)); see United

States v. Donovan, 429 U.S. 413, 429 n.19 (1977).

The government argues that Berger and Dalia are

inapposite here because they dealt with ordinary criminal

investigations, and the Fourth Amendment requirements are

different in the foreign intelligence context. The government

points to United States v. Cavanagh, which quoted United

States v. United States District Court (Keith), 407 U.S. 297,

322–23 (1972), for the proposition that a different standard

may be compatible with the Fourth Amendment in the

intelligence-gathering context if it is “reasonable both in

relation to the legitimate need of Government for

intelligence information and the protected rights of our

citizens.” 807 F.2d 787, 790 (9th Cir. 1987). Cavanagh held

that “FISA satisfies the constraints the Fourth Amendment

places on foreign intelligence surveillance conducted by the

government.” Id. For our purposes, the essential insight of

Cavanagh is that even if the Fourth Amendment applies

38 UNITED STATES V. MOALIN

differently in the foreign intelligence context, it still applies,

at least if U.S. persons are involved. 15

Cavanagh did not address the Fourth Amendment’s

notice requirement, but the insight we glean from it bears on

our analysis here: because the Fourth Amendment applies to

foreign intelligence investigations, U.S. criminal defendants

against whom the government uses evidence obtained or

derived from foreign intelligence surveillance may have

Fourth Amendment rights to protect. The principal remedy

for a Fourth Amendment violation is the exclusionary rule:

a criminal defendant may seek suppression of evidence

obtained from an unlawful search or seizure, as well as of

the “fruits” of that evidence—additional evidence to which

it led. See Wong Sun, 371 U.S. at 488. But criminal

defendants who have no knowledge that a potentially

unconstitutional search has played a part in the government’s

case against them have no opportunity to vindicate any

Fourth Amendment-protected rights through suppression.

Notice is therefore a critical component of the Fourth

Amendment in the context of a criminal prosecution. And

although the Fourth Amendment may apply differently to

foreign intelligence surveillance than to searches undertaken

in ordinary criminal investigations, notice of a search plays

the same role in the criminal proceeding: it allows the

defendant to assess whether the surveillance complied with

15

In some circumstances, surveillance targeting a non-U.S. person

does not require a warrant, even if a U.S. person’s communications are

incidentally collected. See United States v. Mohamud, 843 F.3d 420,

439–41 (9th Cir. 2016). But we have assumed that, even in such

circumstances, the incidental collection affects the Fourth Amendment

rights of the U.S. person, id. at 441 n.26, and therefore the search must

be “reasonable in its scope and manner of execution,” id. at 441 (quoting

Maryland v. King, 569 U.S. 435, 448 (2013)).

UNITED STATES V. MOALIN 39

the Fourth Amendment’s requirements, whatever the

parameters of those requirements are. Indeed, the Supreme

Court has recognized that the notice provisions in FISA and

the FAA serve precisely that function. See Amnesty Int’l

USA, 568 U.S. at 421 & n.8.

At the same time, the need for secrecy inherent in foreign

intelligence investigations justifies a more circumscribed

notice requirement than in the ordinary criminal context. See

Kris & Wilson, supra note 5, § 29:2 (discussing the need for

secrecy). Whereas the Wiretap Act requires notice at the end

of an investigation regardless of whether an indictment is

filed, 18 U.S.C. § 2518(8)(d), the FISA and FAA notice

provisions are more limited, requiring notice only when the

“Government intends to enter into evidence or otherwise use

or disclose in any trial . . . or other proceeding in or before

any court . . . or other authority of the United States, against

an aggrieved person, any information obtained or derived

from an electronic surveillance of that aggrieved person

pursuant to the authority of this subchapter,” 50 U.S.C.

§ 1806(c); see id. §§ 1825(d) (physical search), 1845(c) (pen

register and trap-and-trace surveillance); 1881e(a)(1)

(FAA). 16 According to the Senate Judiciary Committee

Report accompanying FISA, Congress was aware that it was

“depart[ing] from traditional Fourth Amendment criminal

procedures,” but it concluded that the “need to preserve

secrecy for sensitive counterintelligence sources and

methods justifies elimination” of the “requirement of

subsequent notice to the surveillance target . . . unless the

16

An “aggrieved person” is “a person who is the target of an

electronic surveillance or any other person whose communications or

activities were subject to electronic surveillance.” Id. § 1801(k).

40 UNITED STATES V. MOALIN

fruits are to be used against him in legal proceedings.”

S. Rep. No. 95-701, at 11–12 (1978) (emphasis added).

At a minimum, then, the Fourth Amendment requires

notice to a criminal defendant when the prosecution intends

to enter into evidence or otherwise use or disclose

information obtained or derived from surveillance of that

defendant conducted pursuant to the government’s foreign

intelligence authorities. See Dalia, 441 U.S. at 248; Berger,

388 U.S. at 60.

This constitutional notice requirement applies to

surveillance conducted under FISA and the FAA, which

codify the requirement with respect to several types of

surveillance. 50 U.S.C. §§ 1806(c), 1825(d), 1845(c),

1881e(a)(1). It also applies to surveillance conducted under

other foreign intelligence authorities, including Executive

Order 12,333 and the FAA’s predecessor programs. Indeed,

the notice requirement is of particular importance with

regard to these latter, non-statutory programs precisely

because these programs lack the statutory protections

included in FISA. Where statutory protections are lacking,

the Fourth Amendment’s reasonableness requirement takes

on importance as a limit on executive power, and notice is

necessary so that criminal defendants may challenge

surveillance as inconsistent with that requirement.

We emphasize that notice is distinct from disclosure.

Given the need for secrecy in the foreign intelligence

context, the government is required only to inform the

defendant that surveillance occurred and that the

government intends to use information obtained or derived

from it. Knowledge of surveillance will enable the defendant

to file a motion with the district court challenging its legality.

If the government avers that disclosure of information

relating to the surveillance would harm national security,

UNITED STATES V. MOALIN 41

then the court can review the materials bearing on its legality

in camera and ex parte. See, e.g., 50 U.S.C. § 1806(f)

(allowing in camera, ex parte review of the legality of

electronic surveillance under FISA Subchapter I if “the

Attorney General files an affidavit under oath that disclosure

or an adversary hearing would harm the national security of

the United States”).

C.

Here, assuming without deciding that the government

should have provided notice of the metadata collection to

defendants, the government’s failure to do so did not

prejudice defendants. Defendants learned of the metadata

collection, albeit in an unusual way, in time to challenge the

legality of the program in their motion for a new trial and on

appeal. See Mohamud, 843 F.3d at 436. The “purpose of the

[notice] rule has thereby been vindicated.” New York v.

Harris, 495 U.S. 14, 20 (1990).

Defendants also contend they should have received

notice of any other surveillance the government conducted

of Moalin, noting that there is some reason to think it did

conduct other surveillance. See supra p. 35. Based on our

careful review of the classified record, we are satisfied that

any lack of notice, assuming such notice was required, did

not prejudice defendants. Our review confirms that on the

particular facts of this case, information as to whether

surveillance other than the metadata collection occurred

would not have enabled defendants to assert a successful

Fourth Amendment claim. We therefore decline to decide

whether additional notice was required.

42 UNITED STATES V. MOALIN

III. Brady Claims

Defendants contend that the government violated their

rights under Brady v. Maryland, 373 U.S. 83 (1963), by

failing to produce exculpatory evidence. Brady held that the

Due Process Clause requires prosecutors to produce

“evidence favorable to an accused upon request . . . where

the evidence is material either to guilt or to punishment.” Id.

at 87. “[E]vidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different.” United States v. Bagley, 473 U.S. 667, 682

(1985). 17 We review de novo whether a Brady violation has

occurred. United States v. Cano, 934 F.3d 1002, 1022 n.14

(9th Cir. 2019).

The government submitted five requests for a protective

order under the Classified Information Procedures Act

(“CIPA”), which allows the court to “authorize the United

States to delete specified items of classified information

from documents” provided to the defendant in discovery, “to

substitute a summary of the information,” or “to substitute a

statement admitting relevant facts that the classified

information would tend to prove.” 18 U.S.C. App. 3 § 4. The

district court carefully reviewed the classified documents

submitted by the government to determine whether they

17

We note that, in general, the Brady materiality inquiry might

unfold differently if it were analyzed from the perspective of the

prosecution at the time of the pretrial decision whether to disclose. But

our case law has treated the inquiry on appeal as retrospective: we

analyze the withheld evidence in the “context of the entire record,”

including the “evidence each side presented at trial,” to decide whether

the failure to disclose favorable evidence “undermines confidence in the

outcome of the trial.” United States v. Jernigan, 492 F.3d 1050, 1054

(9th Cir. 2007) (en banc).

UNITED STATES V. MOALIN 43

contained information required to be disclosed under Brady.

The court held in camera, ex parte hearings; asked

defendants for a sealed memorandum identifying their legal

theories to aid the court in assessing materiality; requested

additional classified documents from the government; and

issued sealed orders discussing all the withheld information

in detail as to whether it met the Brady standard. For

information that it determined was both favorable to

defendants and material, the court ordered the government

to provide substituted statements that conveyed the material

substance of the information.

On appeal, defendants assert, first, that the government

was required to produce the evidence underlying an FBI

Field Intelligence Group Assessment (“FIG Assessment”),

and a 2008 General Assessment Questionnaire completed by

the Somali linguist who interpreted the intercepted calls. The

FIG Assessment evaluated “Moalin’s motivation for

providing financial support to al-Shabaab,” and the

questionnaire included a summary of Moalin’s “personality,

behavior, [and] attitudes.”

The government maintains that both documents present

opinions based only on the intercepted phone calls, which

the government provided in full to defendants in discovery.

Having carefully reviewed the classified record, we agree

with the district court that there is “no reason to suspect or

speculate that the Government may have faltered in its Brady

obligations” in this regard.

Second, defendants contend the government was

required to produce any favorable, material evidence relating

to the FISA surveillance or to the previously terminated

investigation of Moalin. Based on our review of the

classified record and of the district court’s extensive sealed

orders covering Brady issues, neither the classified FISA

44 UNITED STATES V. MOALIN

materials nor the file concerning the previously terminated

investigation of Moalin contained favorable, material

information. More generally, we are satisfied that the district

court’s several determinations regarding Brady issues in its

sealed orders were correct.

IV. Evidentiary Challenges

Defendants contend that certain evidentiary rulings by

the district court impermissibly prejudiced the defense.

A.

At trial, defense witness Halima Ibrahim testified to

Moalin’s support of her organization, IIDA, which was

dedicated to the education of girls and the advancement of

women’s rights in Somalia. Ibrahim testified that IIDA was

still in existence; that Moalin provided financial support to

IIDA and allowed the organization to use his house; and that

IIDA’s goals were antithetical to al-Shabaab’s. The district

court did not, however, permit Ibrahim to testify that Moalin

helped organize a conference in Somalia in 2009 addressing

the kidnapping of aid workers, after which al-Shabaab

announced on the radio that the organizers of the conference

were against al-Shabaab. The district court concluded that

this evidence was minimally probative as to Moalin’s intent

during the time period relevant to the indictment, 2007 to

2008. Defendants challenge this ruling.

An erroneous evidentiary ruling provides grounds for

reversal if the ruling “more likely than not affected the

verdict.” United States v. Pang, 362 F.3d 1187, 1192 (9th

Cir. 2004). Here, any error on the part of the district court

was harmless. A significant amount of evidence in the record

demonstrated that Moalin was at times affiliated with causes

that took positions disapproved by al-Shabaab, including

UNITED STATES V. MOALIN 45

Ibrahim’s testimony regarding Moalin’s support of projects

benefitting girls and the government’s stipulation that one of

the charities with which Moalin was involved was opposed

to al-Shabaab. To the degree the excluded evidence had any

pertinence to whether Moalin was ideologically aligned with

al-Shabaab in 2007 and 2008, it served at best marginally to

reinforce Ibrahim’s uncontested testimony directly

concerning the relevant time period. We cannot say that the

exclusion of Ibrahim’s testimony regarding the 2009

conference “more likely than not affected the verdict.” See

id.

B.

Before trial, Moalin and his co-defendants moved to take

depositions of defense witnesses residing in Somalia who

could not or would not travel to the United States to testify.

The court ultimately granted defendants’ motion to the

extent the depositions could be taken in neighboring

Djibouti. 18

One proposed defense witness was Farah Shidane, also

called Farah Yare. The indictment against defendants listed

four transfers of funds for which “Farah Yare” (or, in one

instance, “farahyare”) was named as the recipient on Shidaal

Express’s transaction register. Defendants anticipated that

Shidane would testify that he was part of the local

administration for Moalin’s home region in Somalia, that he

fought against al-Shabaab, and that the money he received

from defendants was used for humanitarian purposes.

18

The government represented that it would not be safe for

prosecutors to travel to Somalia.

46 UNITED STATES V. MOALIN

After the government identified Shidane as an unindicted

co-conspirator in the case, defendants sought an order

compelling the government to give Shidane “safe passage,”

i.e., a guarantee that it “would not arrest or otherwise detain

[him] because he appeared at the deposition in Djibouti.”

Alternatively, defendants sought authorization to depose

Shidane in Somalia via videoconference. The district court

denied both requests.

Shidane refused to travel to Djibouti for his scheduled

deposition. Depositions of seven other witnesses proceeded

in Djibouti, and the defense presented six of the videotaped

depositions to the jury. The defense elicited testimony at trial

that Shidane was involved in the regional administration for

Moalin’s home region and presided over a drought relief

committee. Ultimately, the government did not rely on the

transfers to Shidane as part of the case it submitted to the

jury, and counsel for the prosecution told the jury that “the

government is not alleging that Farah Yare was part of al-

Shabaab.”

Defendants challenge the district court’s denial of their

request for “safe passage” for Shidane and of their motion to

conduct his deposition via videoconference. 19 We first

address the request for “safe passage.”

Under certain circumstances, due process may require a

court to compel the prosecution to grant, at least, use

19

After Shidane failed to appear at his deposition in Djibouti,

defendants renewed their motion to depose him by video. The district

court again denied the motion.

UNITED STATES V. MOALIN 47

immunity. 20 See 18 U.S.C. § 6002; Straub, 538 F.3d at 1148.

Use immunity guarantees witnesses that their testimony will

not be used against them in a criminal case (except that it

does not protect against a prosecution for perjury). See

18 U.S.C. § 6002. A request to compel immunity implicates

“important separation of powers concerns” because the

court, in granting the request, “impede[s] on the discretion

of the executive branch” to decide whether to prosecute a

case. Straub, 538 F.3d at 1156. Given these concerns, due

process requires a court to grant use immunity to a defense

witness only when the defense establishes that the testimony

would be relevant and that:

(a) the prosecution intentionally caused the

defense witness to invoke the Fifth

Amendment right against self-incrimination

with the purpose of distorting the fact-finding

process; or (b) the prosecution granted

immunity to a government witness in order to

obtain that witness’s testimony, but denied

immunity to a defense witness whose

testimony would have directly contradicted

that of the government witness, with the

effect of so distorting the fact-finding process

that the defendant was denied his due process

right to a fundamentally fair trial.

Id. at 1162.

Defendants’ request for immunity for Shidane from

arrest abroad was somewhat distinct from a request for use

20

Whether a district court erred by refusing to grant use immunity

is a mixed question of law and fact that we review de novo. United States

v. Straub, 538 F.3d 1147, 1156 (9th Cir. 2008).

48 UNITED STATES V. MOALIN

immunity and may implicate additional separation of powers

concerns. Even assuming defendants were required to satisfy

only the Straub test, however, that test was not met.

Defendants contend they met the first prong because the

government had named Shidane as “uncharged co-

conspirator #1.” But there is no indication that the

government “intentionally caused [Shidane] to invoke the

Fifth Amendment right against self-incrimination with the

purpose of distorting the fact-finding process.” Straub,

538 F.3d at 1162. The government referred to “uncharged

co-conspirator #1” in the October 2010 indictment and

subsequent indictments, suggesting the government had long

considered Shidane a person of interest and did not change

its position to discourage Shidane’s testimony. And the

district court found no evidence “to suggest that the

Government interfered in any manner with Mr. Shidane’s

ability to appear at his deposition.” Defendants were not

entitled to compel safe passage for Shidane.

As for defendants’ request to take a video deposition of

Shidane in Somalia, a court may grant a motion to depose a

prospective witness, including by video, “because of

exceptional circumstances and in the interest of justice.”

Fed. R. Crim. P. 15(a)(1); see United States v. Yida, 498 F.3d

945, 960 (9th Cir. 2007). Courts consider, “among other

factors, whether the deponent would be available at the

proposed location for deposition and would be willing to

testify,” as well as “whether the safety of United States

officials would be compromised by going to the foreign

location.” United States v. Olafson, 213 F.3d 435, 442 (9th

Cir. 2000). We review the district court’s denial of

defendants’ motion for abuse of discretion. United States v.

Omene, 143 F.3d 1167, 1170 (9th Cir. 1998).

UNITED STATES V. MOALIN 49

The district court reasoned that permitting defendants to

depose Shidane by video in Somalia would not be in the

interests of justice because defendants could not show that

there would be procedures in place to ensure the reliability

and trustworthiness of Shidane’s testimony. Specifically,

defendants could not show that an “oath in Somalia is subject

to penalties of perjury and judicial process like those

available in the United States.” In light of these concerns, the

district court did not abuse its discretion in denying

defendants’ motion.

Even if the district court did abuse its discretion, any

error, in denying either defendants’ request for “safe

passage” or their request to depose Shidane by video, was

harmless. Shidane’s anticipated testimony could have

marginally supported the defense’s showing that Moalin

contributed to humanitarian causes, including those opposed

to al-Shabaab. But, as we have noted, there was considerable

other evidence in the record that Moalin contributed to a

variety of humanitarian causes. Additionally, the

government made clear it was not alleging that Shidane was

part of al-Shabaab, and the government did not rely on the

money transfers to Shidane in its arguments to the jury. In

short, the district court’s refusal to compel “safe passage” or

to permit a video deposition in Somalia did not prejudice the

defense.

C.

Defendants’ final evidentiary challenge involves

testimony at trial relating to the so-called “Black Hawk

Down” incident. The district court permitted the

government’s expert to discuss briefly a 1993 incident in

which two U.S. helicopters were shot down in Mogadishu

by a group other than al-Shabaab. Defendants argue that the

50 UNITED STATES V. MOALIN

testimony’s probative value was substantially outweighed

by prejudice to defendants.

The district court did not abuse its discretion in

permitting the government expert’s very brief testimony

regarding the incident. On direct examination, the expert

said only that “18 American soldiers were killed, several

dozen injured, an estimated 1,000 Somalis were casualties of

that clash, and it was the event that led the United States

government to withdraw its forces the following year.” This

brief and matter-of-fact testimony was delivered as part of a

long chronology detailing Somalia’s recent history, which

both parties agreed was generally relevant. Defense counsel

revisited the incident on cross-examination, asking about the

number of Somali casualties, and also mentioned it in

passing during closing argument. The expert’s testimony

was not tied to defendants or to al-Shabaab in any way and

was therefore unlikely to have prejudiced the jury against

defendants. So, even if the district court did abuse its

discretion in admitting the testimony, the error was harmless.

See Pang, 362 F.3d at 1192.

D.

Defendants contend that the evidentiary rulings just

discussed, even if not prejudicial on their own, constituted

cumulative error. To the extent we have found the claimed

errors of the district court harmless, “we conclude that the

cumulative effect of such claimed errors is also harmless

because it is more probable than not that, taken together, they

did not materially affect the verdict.” United States v.

Fernandez, 388 F.3d 1199, 1256–57 (9th Cir. 2004). Even if

the district court did err in any respect, its rulings did not

affect any essential element of the case. Neither Moalin’s

involvement in the 2009 conference nor Shidane’s additional

testimony about Moalin’s humanitarian efforts would have

UNITED STATES V. MOALIN 51

undermined the validity of the government’s key evidence—

the recorded calls and the money transfer records. The

omission of that additional testimony, combined with the

brief discussion of the Black Hawk Down incident, did not

significantly undercut the persuasiveness of the defense. So

the evidentiary rulings do not support a determination of

cumulative error.

V. Sufficiency of the Evidence Against Issa Doreh

Defendant Issa Doreh challenges the sufficiency of the

evidence to support the jury’s verdict that he was guilty of

Counts One (conspiracy to provide material support to

terrorists in violation of 18 U.S.C. § 2339A(a)), Two

(conspiracy to provide material support to a foreign terrorist

organization in violation of 18 U.S.C. § 2339B(a)(1)), Three

(conspiracy to launder monetary instruments in violation of

18 U.S.C. § 1956(a)(2)(A) and (h)), and Five (providing or

aiding and abetting the provision of material support to a

foreign terrorist organization in violation of 18 U.S.C.

§ 2339B(a)(1) and (2)). We review de novo whether

sufficient evidence supports a conviction, asking whether,

“viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

United States v. Chung, 659 F.3d 815, 823 (9th Cir. 2011).

To prove Count One, the prosecution was required to

prove beyond a reasonable doubt that: (1) Doreh entered into

a conspiracy; (2) the objective of the conspiracy was to

provide material support or resources; and (3) he knew and

intended that the provision of such material support or

resources would be used in preparing for, or in carrying out,

a conspiracy to kill persons in a foreign country (18 U.S.C.

§ 956) or a conspiracy to use a weapon of mass destruction

outside of the United States (18 U.S.C. § 2332a(b)).

52 UNITED STATES V. MOALIN

18 U.S.C. § 2339A(a); see United States v. Hassan, 742 F.3d

104, 112 (4th Cir. 2014). To prove Count Two, the

prosecution had to prove beyond a reasonable doubt that

Doreh entered into a conspiracy to provide material support

or resources to al-Shabaab, knowing that al-Shabaab was a

designated terrorist organization or that it engaged in

terrorist activity. See 18 U.S.C. § 2339B(a)(1). To prove

Count Three, the prosecution had to prove beyond a

reasonable doubt that Doreh entered into an agreement to

transfer funds with an “intent to promote the carrying on of

specified unlawful activity,” namely, the provision of

material support to foreign terrorists and a foreign terrorist

organization, with intent to promote a conspiracy to kill

persons in a foreign country. Id. § 1956(a)(2)(A) and (h).

Finally, to prove Count Five, the government had to prove

beyond a reasonable doubt that Doreh either knowingly

provided material support and resources to a foreign terrorist

organization or that he “knowingly and intentionally aided”

in the commission of that offense. 18 U.S.C. §§ 2,

2339B(a)(1).

None of the three conspiracy counts required the

prosecution to prove that Doreh committed an overt act in

furtherance of the conspiracy. See id. §§ 2339A,

2339B(a)(1); Whitfield v. United States, 543 U.S. 209, 219

(2005); United States v. Stewart, 590 F.3d 93, 114–16 (2d

Cir. 2009). The prosecution also did not have to prove that

Doreh “kn[ew] all the conspirators, participated in the

conspiracy from its beginning, participated in all its

enterprises, or [knew] all its details.” United States v.

Torralba-Mendia, 784 F.3d 652, 664 (9th Cir. 2015)

(internal quotation marks and citations omitted).

Viewing the evidence in the light most favorable to the

prosecution, a rational jury could conclude beyond a

UNITED STATES V. MOALIN 53

reasonable doubt that the elements of Counts One, Two,

Three, and Five were satisfied.

Doreh maintains that the government could not prove

that “Shikhalow”—the person identified on the calls with

Moalin—was actually Aden Hashi Ayrow, the important al-

Shabaab figure. The call transcripts introduced by the

government reflect calls between Moalin and Shikhalow

from December 21, 2007, to April 25, 2008. It can be

inferred from Moalin’s conversations with Shikhalow and

others that “Shikhalow” was a code name for Ayrow. On

December 30, 2007, an unidentified man asked Moalin

whether “Aden Ayrow” was the leader of “these youth”; “al-

Shabaab” means “the youth” in Arabic. Moalin replied that

while Aden Ayrow had superiors, he was “involved in it

extensively.” On January 3, 2008, Moalin spoke to

Shikhalow and then told an unidentified man on a call

beginning about half an hour later that “right now, when . . .

you were calling me . . . I was talking to the man who is in

charge of the youth.” Later, on January 20, 2008, Shikhalow

told Moalin that “we, the Shabaab, have a political section,

a military section and a missionary section.” Further, on

February 17, 2008, an acquaintance of Moalin’s told Moalin

he had “heard that . . . [Moalin’s] friend, Aden Hashi Ayrow,

[was] in Dhusa Mareeb . . . and [was] taking part in the

fighting . . . and [was] pleading for support. . . .”

The transcripts also indicate that Doreh was aware of

Shikhalow’s identity as Aden Ayrow. Ayrow died in a U.S.

missile strike on May 1, 2008. That same day, Moalin

learned from an acquaintance that “the house where

Shikhalow . . . used to stay” was targeted. Moalin then

learned from another acquaintance that a missile was

dropped on a house “thought to be inhabited by the main

man.” Moalin then called M. Mohamud and told him that

54 UNITED STATES V. MOALIN

“mainly the news is that even Majadhub is among [the

people who are gone].” “Majadhub” was another name for

Shikhalow. Lastly, Moalin called Doreh and told him:

“[T]hat man is gone . . . . That news is highly reliable—that

he is gone. . . . [T]he people whom he was working with

reported that news.” Doreh responded: “You mean Aden?”

Moalin replied: “Yes.”

Further, a rational juror could conclude beyond a

reasonable doubt that Doreh was aware of Shikhalow’s

involvement with violent activity. On December 21, 2007,

Moalin discussed with Shikhalow the money Shikhalow

needed for the remainder of the month. Moalin told

Shikhalow that he would talk to “the Saleban clan cleric

whom you talked to, by the name of Sheikh Issa, who is a

very dear man.” (Issa is Doreh’s first name, and Moalin

addressed him directly as “Sheikh Issa.”) Minutes after

talking to Shikhalow, Moalin called Doreh and told him that

the “cleric whom you spoke with the other day” had just

called and requested money. Moalin told Doreh that the

money was “need[ed] for our forces stationed” in the “places

where the fighting are [sic] going on.” A few months later,

on April 21, 2008, Doreh told Moalin and another man that

“whoever fights against the aggressive non-Muslims . . . will

be victorious” and that “today there is no better cause for a

person . . . than to be martyr for his country, land and

religion.” When Doreh learned of “Aden’s” death, he told

Moalin that the “question is not how he died but the

important thing is what he died for[:] . . . the religion of

Islam . . . .”

While the transcripts do not include direct conversations

between Doreh and Shikhalow, they describe Doreh’s

involvement with Moalin and others in transferring funds

from San Diego to Shikhalow’s organization in Somalia,

UNITED STATES V. MOALIN 55

sometimes using names Doreh knew were invented. The

funds were transferred by Shidaal Express, the hawala where

Doreh worked. The transactions at issue, totaling $10,900,

took place in January, February, April, July, and August of

2008.

As described above, Moalin informed Shikhalow on

December 21, 2007, that Moalin would handle the sending

of funds to Shikhalow “with the . . . cleric whom you talked

to, by the name of Sheikh Issa.” On that call, Shikhalow told

Moalin that he needed $3,160 for the remainder of the

month. Minutes later, Moalin called Doreh and told him that

“[t]he cleric whom you spoke with the other day” had stated

that “an amount of . . . $3600.00 . . . is needed” for the

“forces stationed around” “where the fighting are [sic] going

on.” Moalin also told Doreh that he had been told that “the

most we spend for any one place is $4000.00.” Moalin called

Doreh again on December 28, 2007, telling him that “[t]he

men requested that we throw something to them for this

month” and asking if Sheikh Mohamed had fallen behind

schedule. Doreh told Moalin that he would speak with

Sheikh Mohamed about the issue if he saw Sheikh Mohamed

that day. Moalin called Sheikh Mohamed later on December

28, 2007, and received Sheikh Mohamed’s promise that he

would “complete the task, which pertains to the men,

tomorrow. . . .” On January 1, 2008, Shidaal Express

transferred two installments of $1,950 (totaling $3,900) to

“yusuf mohamed ali.” On January 3, 2008, Shikhalow told

Moalin: “[W]e received the three.”

Moalin and Shikhalow had a long discussion on the

morning of January 20, 2008. Later that day, 21 Moalin told

21

The second transcript is dated January 21 (Universal Time

Coordinated), but it was still the afternoon of January 20 in San Diego.

56 UNITED STATES V. MOALIN

an acquaintance: “[T]he gentlemen [sic] called me this

morning. . . . [W]e had a heated debate. He said . . . [‘]We

will use what you give us for bullets and drinking-water for

the people. So, don’t hold back anything.’” On February 3,

2008, Moalin asked Shikhalow for news. In response,

Shikhalow told Moalin: “You are running late with the stuff.

Send some and something will happen.” On February 9,

2008, Doreh called Moalin and told him: “We have sent it.”

When Moalin asked whether it was “the one for the youth

. . . I mean the orphans or was [sic] the other,” Doreh told

Moalin it was “the Dhunkaal one . . . [y]es, two.” The

Shidaal Express Transaction Records note two transfers

totaling $2,000 sent on February 13, 2008, from “dhunkaal

warfaa” to “YUSUF MOHAMED ALI.” On February 14,

2008, Moalin spoke to Shikhalow and asked him whether he

had “receive[d] Dhunkaal’s stuff” in “two pieces” with the

name of “Yusuf Mohamed Ali” listed as the receiver.

Shikhalow asked if the amount was $2,000, and Moalin

confirmed the amount was correct.

On April 23, 2008, Moalin called Sheikh Mohamed and

asked: “Did Dhunkaal go?” Upon hearing that “Dhunkaal

left,” Moalin asked Sheikh Mohamed for details about

“where . . . Dhunkaal [went],” and whether “it went to the

same name” for the “one whom it is addressed to.” Nine

minutes after this conversation began, Moalin spoke to

Doreh and asked him multiple questions about “the name

that you used for Dhunkaal” and “the name of the sender,”

explaining that he had just spoken to Sheikh Mohamed and

thought “you used the wrong name.” Doreh told Moalin: “He

told me the sender is the same as the name of [sic] previous

person.” On another call a few minutes later, Doreh, Moalin,

and Abdirizak, the manager of Shidaal Express, went over

the details of the sender, receiver, and location of receipt.

Doreh told Moalin: “I made Abdiweli Ahmed as the person

UNITED STATES V. MOALIN 57

sending it”; “the man who is receiving the money” was

“Dhunkaal Mohamed Yusuf”; and the location “we sent it to

[was] Bakara.” When Moalin asked to change to location to

Dhuusa Mareeb, Doreh told Moalin: “Then it will be

changed. . . . It is settled. We will transfer it there.”

Moalin learned from Shikhalow on April 25, 2008, that

Shikhalow had received $1,900. Moalin called Sheikh

Mohamed less than an hour later and asked “how many

stones” they had sent to “Majadhub.” After learning that

“three stones” had been sent, Moalin told Sheikh Mohamed

that Shikhalow had received “[t]wo stones minus one.”

Sheikh Mohamed told Moalin: “It was sent in installments.

That is what they did.” Later on April 25, 2008, Moalin

called Abdirizak and asked whether “[t]hat issue with []

Dhunkaal” had been sent in two installments. Abdirizak

confirmed that there were two installments: “[O]ne was for

19 and the other for 11.” Abdirizak noted that the second

installment was “still outstanding,” that the recipient was

“Mohamed Yusuf Dhunkaal,” that the sender was “Sahra

Warsame,” and that the location was “Dhusa Mareeb.” The

Shidaal Express Transaction Records note a transfer of

$1,900 on April 23, 2008, from “abdiwali ahmed” to

“DUNKAAL MOHAMED YUSUF” as well as a transfer of

$1,100 on April 25, 2008, from “Zahra warsame” to

“mohamed yusuf dunkaal”; both transfers record a receiver

city of “DHUUSAMAREEB.”

After Ayrow’s death, Moalin told an acquaintance on

May 8, 2008: “If the man that we used to deal with is gone—

I mean—that the assistance and the work that we were

performing—we want it not to stop.” Moalin appears to have

been asking the acquaintance to connect him to someone else

so that Moalin could continue supporting al-Shabaab: “So

now that man is gone we want to have contact with another

58 UNITED STATES V. MOALIN

man God willing. So we can continue the assistance as

before.” On July 11, 2008, Moalin made contact, apparently

for the first time, with Omar Mataan. After learning that the

man on the phone was Mataan, Moalin told him: “Man, our

contact got interrupted. You know that I had contact with the

scholar, don’t you? . . . After the man left the scene, the

whole contact was interrupted, you know?” Mataan told

Moalin that he would be in Dhusa Mareeb until “the Friday

after next Friday,” or July 25, 2008. Moalin then told

Mataan: “It will come under the name of the account we used

before, which was Dhunkaal. . . . [A]nd I will write your

name as it is: Omar Mataan.” On July 18, 2008, Moalin told

an unidentified man that Omar Mataan was “one of the guys

in the region and one of the youth.”

On July 22, 2008, Moalin told Mataan: “[W]e threw two

cartons addressed to . . . your name, Omar Mataan. . . . I sent

it to Dhusa Mareeb.” The next day, Moalin told Doreh:

“[A]sk your friend if the stuff reached the children.” Doreh

replied: “I personally checked the whole thing. . . . That

money had [sic] exchanged hand.” After a segment of the

conversation unintelligible to the interpreter, Moalin told

Doreh: “No, we are talking about something else now, about

the youngsters; . . . there were two cartons that I allocated

for them. . . .” Doreh responded throughout with “yes” and

finally told Moalin that the two of them should meet.

On July 24, 2008, Mataan reported to Moalin that he had

“received the stuff” and that it was “1, 6 eh 5, 0.” Moalin

told Mataan: “It should have been two cartons. . . . I

understood that you received 1, 6, 5, 0 and still short of 3, 5,

0.” The Shidaal Express Transaction Records note a transfer

of $1,650 on July 23, 2008, from “Kulan Muhumed” to

“Omer Mataan” with a receiver city of

“DHUUSAMAREEB,” and a further transfer of $350 on

UNITED STATES V. MOALIN 59

August 5, 2008, from “Hashi mohamed” to “Omer matan”

with a receiver city of “DHUUSAMAREEB.”

Viewing the evidence in the light most favorable to the

prosecution, a reasonable jury could have concluded beyond

a reasonable doubt that Doreh entered into an agreement to

provide material support, knowing the support would be

used in preparing for, or in carrying out, a conspiracy to kill

persons in a foreign country, see 18 U.S.C. § 2339A; that he

entered into an agreement to provide material support to al-

Shabaab, knowing that al-Shabaab was tied to terrorism, see

id. § 2339B(a)(1); that he entered into an agreement to

transfer funds with an intent to promote the provision of

material support to foreign terrorists and a foreign terrorist

organization, intending to promote a conspiracy to kill

persons in a foreign country; see id. § 1956(a)(2)(A) and (h);

and that he knowingly aided in the provision of material

support to a designated foreign terrorist organization, see id.

§§ 2, 2339B(a)(1). We therefore affirm Doreh’s convictions.

CONCLUSION

Defendants’ convictions are AFFIRMED.