                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         DEC 05 2016

                                                                        MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No.   14-30217

              Plaintiff-Appellee,                D.C. No. 3:10-cr-00475-KI-1

 v.
                                                 MEMORANDUM*
MOHAMED OSMAN MOHAMUD,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Oregon
                      Garr M. King, District Judge, Presiding

                        Argued and Submitted July 6, 2016
                                Portland, Oregon

Before: PREGERSON, BEA, and OWENS, Circuit Judges.

      Mohamed Osman Mohamud appeals from his jury conviction and thirty-year

sentence for attempted use of a weapon of mass destruction within the United

States, in violation of 18 U.S.C. § 2332a(a)(2)(A). As the parties are familiar with

the facts, we do not recount them here. We have jurisdiction under 28 U.S.C.



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
§ 1291, and we affirm.1

      1. Mohamud challenges the government’s closing argument. Specifically,

Mohamud contends that the government treated the entrapment defense as

categorically unavailable by arguing that, based on the jury’s own “common

sense,” an individual could not be entrapped to commit the charged offense. There

was nothing improper about the government arguing that entrapment was

unsupported by the facts because common sense suggested that someone could not

be induced to commit a crime of this magnitude. The government did not imply

that entrapment was unavailable as a matter of law.

      Mohamud also contends that the government misstated the law, and diluted

its burden of proof, by implying that predisposition to commit “similar acts”

sufficed to prove predisposition to commit the charged offense. Although

“evidence that merely indicates a generic inclination to act within a broad range . . .

is of little probative value in establishing predisposition,” Jacobson v. United

States, 503 U.S. 540, 550 (1992), evidence of prior similar acts may be relevant to

show predisposition. See United States v. Williams, 547 F.3d 1187, 1198 (9th Cir.

2008) (holding that the defendant was not entrapped as a matter of law into dealing



      1
        A concurrently filed opinion, United States v. Mohamud, __ F.3d __ (9th
Cir. 2016), addresses Mohamud’s other arguments.
                                           2
cocaine in part because his prior bank robbery and illegal gun sales “suggest[ed]

that he was predisposed to this type of criminal activity”). Therefore, it was not

improper for the government to argue that the jury could consider evidence of

Mohamud’s willingness to commit prior similar acts.

      2. Contrary to Mohamud’s contention, the district court provided adequate

jury instructions. The instructions were consistent with case law and sufficiently

encompassed the defense’s theory of the case. See United States v. Whittemore,

776 F.3d 1074, 1078, 1080 (9th Cir. 2015) (Although “[a] defendant is entitled to

have the judge instruct the jury on his theory of defense, provided that it is

supported by law and has some foundation in the evidence,” he is “not entitled to

the instructions of his choice.” (citation omitted)). The district court also did not

err in its response to a jury question about the entrapment instruction. See United

States v. Verduzco, 373 F.3d 1022, 1030 n.3 (9th Cir. 2004) (setting forth standard

of review). The response instructed the jury to consider “all” the evidence, and did

not unfairly favor the prosecution’s evidence over the defense’s evidence.

      3. Mohamud challenges the withholding and handling of classified materials

under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3.

After reviewing the classified record, we are not persuaded by Mohamud’s

arguments regarding the classified materials.


                                           3
       The district court acted within its discretion in excluding information about

the true identities of FBI undercover agents “Youssef” and “Hussein” and FBI

undercover contractor “Bill Smith.” See United States v. Gil, 58 F.3d 1414, 1421

(9th Cir. 1995) (explaining that a court “must weigh the defendants’ rights to

confront the government’s witnesses against the government’s interest in not

compromising investigations and in protecting the informant’s identity” (citing

Roviaro v. United States, 353 U.S. 53, 60-62 (1957))). The district court also acted

within its discretion in declining to make “Bill Smith” available as a witness at

trial. See id.

       In addition, the challenged substitution adequately satisfied CIPA’s

requirement that the summary “provide the defendant with substantially the same

ability to make his defense as would disclosure of the specific classified

information.” 18 U.S.C. app. 3, § 6(c)(1); see also id. § 4. The classified record

does not support that the government “selectively declassified” materials, thereby

gaining an unfair advantage at trial. The classified record also does not support

that discoverable information which was “relevant and helpful” to the defense was

withheld, including information regarding Amro Al-Ali. United States v.

Sedaghaty, 728 F.3d 885, 904 (9th Cir. 2013) (quoting Roviaro, 353 U.S. at 60-

61).


                                          4
       Further, the district court did not abuse its discretion by using ex parte

proceedings for classified materials and denying Mohamud’s security-cleared

counsel access to classified materials and proceedings. See id. at 908-09 (rejecting

the defendant’s challenge to ex parte CIPA procedures and stating that “the simple

fact that defense counsel held security clearances does not mean that the attorneys

were entitled to access the government’s classified filings”).

       4. Mohamud challenges a number of the district court’s evidentiary rulings.

Although the district court likely did make several erroneous evidentiary rulings,

any error was cumulatively harmless.

       First, Mohamud contends that the district court erred in admitting an Interpol

“Red Notice” seeking the arrest of Amro Al-Ali. See Gov’t Exhibit 80. He

similarly argues that it was error to admit various FBI agents’ testimony explaining

how their knowledge of the Red Notice and Al-Ali’s status affected their targeting

and investigation of Mohamud. Generally, evidence of agents’ motivations or

justifications for an investigation are irrelevant, even where entrapment is at issue.

See United States v. Makhlouta, 790 F.2d 1400, 1402 (9th Cir. 1986) (explaining

that under the entrapment standard, “it is not the state of mind of the government

agent that is important; . . . it is the predisposition of the defendant . . . that counts”

(first alteration in original) (citation and internal quotation marks omitted)); see


                                             5
also United States v. Dean, 980 F.2d 1286, 1288 (9th Cir. 1992) (out-of-court

statements which were probative of why officer took certain actions were

inadmissible because they did “not bear on any issue involving the elements of the

charged offense”). However, as the defense argued that the government targeted

Mohamud because he was young and vulnerable, evidence that the government

instead investigated him because of his communications with a “known terrorist”

was relevant under Federal Rule of Evidence 401.2 Nonetheless, only the

testimony of the agents who actually directed the investigation was relevant to

rebut Mohamud’s “targeting” arguments; the comparable testimony of the

undercover agents was not relevant, nor was the Red Notice itself.3 Further, in

several instances the government used this evidence for the truth of the matter

asserted, rather than its effect on the agents.

      Second, Mohamud argues that the district court erroneously restricted his

cross-examination of the FBI agents’ bias and motivation by treating inadvertently

recorded government agent “outtakes” as prior inconsistent statements under


      2
        “Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence
in determining the action.” Fed. R. Evid. 401.
      3
        Because the Red Notice was admitted for a non-hearsay use, it did not
violate Mohamud’s right to confrontation. See United States v. Wahchumwah, 710
F.3d 862, 871 (9th Cir. 2012).
                                            6
Federal Rule of Evidence 613. It is not clear that the court abused its discretion in

so ruling, no error was by itself prejudicial, and any such errors were not

cumulatively prejudicial. Mohamud was permitted to question the agents about the

statements, and the only evidence excluded was the agents’ tone of voice on the

recording.

      Third, Mohamud contends that the district court erred in permitting

government witnesses to testify about what they believed Mohamud “meant” or

was “thinking” in some of his recorded statements. We agree that the witnesses’

speculation as to what Mohamud “meant” was not relevant under Rule 401.

      Finally, Mohamud argues that the district court erred in excluding certain of

his contemporaneous communications that reflected a lack of predisposition to

commit the crime charged.4 Such statements were admissible under Federal Rule

of Evidence 803(3) as indicative of Mohamud’s then-existing state of mind, and it

was likely error to exclude them. The government’s cited authority is not to the

contrary. Cf. United States v. Sayakhom, 186 F.3d 928, 937 (9th Cir.), amended by

197 F.3d 959 (9th Cir. 1999) (holding that the defendant’s statements were not

admissible because they were statements of belief to prove the fact believed, which



      4
      Mohamud was permitted to introduce some evidence of his
contemporaneous state of mind, but some statements were excluded.
                                          7
are inadmissible under the terms of Rule 803(3)).

      With respect to cumulative error, “[t]here are some cases where the

cumulative effect of multiple errors may so prejudice a defendant as to require

reversal, even though no single trial error examined in isolation is sufficiently

prejudicial to warrant reversal.” United States v. Cazares, 788 F.3d 956, 990 (9th

Cir. 2015). We consider here any error related to: (1) admitting the Red Notice

and the undercover agents’ related testimony,5 and any improper hearsay use of the

Red Notice; (2) excluding the recorded government agent “outtakes”; (3) allowing

the agents to speculate about what Mohamud meant in certain recorded statements;

and (4) excluding some of Mohamud’s contemporaneous statements.

      As a preliminary matter, the government failed to argue that the evidentiary

errors were harmless, except with respect to the exclusion of Mohamud’s

contemporaneous statements. “Usually when the government fails to argue

harmlessness, we deem the issue waived and do not consider the harmlessness of

any errors we find.” United States v. Gonzalez-Flores, 418 F.3d 1093, 1100 (9th

Cir. 2005). However, we have discretion “to consider harmlessness sua sponte in

extraordinary cases.” United States v. Brooks, 772 F.3d 1161, 1171 (9th Cir.



      5
        The district court gave several limiting instructions that this evidence was
relevant only for its effect on the agents’ understanding (“mental state”).
                                           8
2014). In doing so, we must consider “(1) the length and complexity of the record,

(2) whether the harmlessness of an error is certain or debatable, and (3) the futility

and costliness of reversal and further litigation.” Id. (quoting Gonzalez-Flores,

418 F.3d at 1101). The second factor is the most important. Id.

      Here, in the context of the entire trial record, “the harmlessness of the

error[s] is not reasonably debatable,” and further litigation would be futile.

Gonzalez-Flores, 418 F.3d at 1101. Accordingly, we hold that any evidentiary

errors were cumulatively harmless.

      5. The district court denied Mohamud’s motion to suppress, in which he

argued that the FBI’s conduct related to a separate state police investigation was

unconstitutional, and therefore later national security investigation evidence was

the fruit of an illegal search. The district court reasoned that the later national

security investigation evidence was based on untainted, independent sources.

Contrary to Mohamud’s contention, the district court did not err by declining to

determine whether the FBI’s conduct violated Mohamud’s constitutional rights.

See United States v. Crawford, 372 F.3d 1048, 1053-54 (9th Cir. 2004) (en banc)

(affirming denial of motion to suppress on attenuation grounds, and stating that the

court “need not” decide whether the search violated the defendant’s Fourth

Amendment rights).


                                            9
      6. The district court did not abuse its discretion by denying Mohamud’s

security-cleared counsel access to classified materials under the Foreign

Intelligence Surveillance Act of 1978 (“FISA”). See 50 U.S.C. § 1806(f)

(providing that under FISA, “the court may disclose to the aggrieved person, under

appropriate security procedures and protective orders, portions of the application,

order, or other materials relating to the surveillance only where such disclosure is

necessary to make an accurate determination of the legality of the surveillance”);

United States v. Ott, 827 F.2d 473, 477 (9th Cir. 1987) (holding that FISA’s ex

parte in camera proceedings did not violate due process, even though defense

counsel had high security clearances).6 In addition, and as stated above, the

summary of classified materials provided by the FBI adequately satisfied CIPA’s

requirement that the summary “provide the defendant with substantially the same

ability to make his defense as would disclosure of the specific classified

information.” 18 U.S.C. app. 3, § 6(c)(1); see also id. § 4.

      7. Finally, Mohamud argues that we should vacate his thirty-year sentence

for two reasons, neither of which we find persuasive. First, we reject Mohamud’s


      6
        On appeal, Mohamud alternatively requested that we authorize
supplemental briefing with defense access to the relevant classified FISA
materials. We granted this request in part because, at our request post-argument,
the government declassified certain facts about Mohamud’s surveillance, and we
permitted the parties to file supplemental briefs.
                                          10
contention that his sentence should be vacated because the government’s forty-year

sentencing recommendation was allegedly based in part on unlawful

considerations.

      Second, Mohamud contends that the district court procedurally erred by

failing to resolve his future dangerousness on an individualized basis and by failing

to explain adequately its reasons for rejecting a departure from the terrorism

criminal history enhancement under U.S.S.G. § 4A1.3. These contentions are

belied by the record. The district court considered Mohamud’s arguments and

evidence about his purported lack of future dangerousness, weighed individualized

mitigating and aggravating factors, and adequately explained its reasons for

Mohamud’s below-Guidelines thirty-year sentence. See United States v. Sandoval-

Orellana, 714 F.3d 1174, 1181 (9th Cir. 2013) (“If the record ‘makes clear that the

sentencing judge listened to each argument’ and ‘considered the supporting

evidence,’ the district court’s statement of reasons for the sentence, although brief,

will be ‘legally sufficient.’” (quoting Rita v. United States, 551 U.S. 338, 358

(2007))).

      AFFIRMED.




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