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Stephen R. Sady Chief Deputy Federal Public Defender steve_sady@fd.org Steven T. Wax Federal Public Defender steve_wax@fd.org Lisa Hay Assistant Federal Public Defender lisa_hay@fd.org 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 503-326-2123 Telephone 503-326-5524 Facsimile Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

UNITED STATES OF AMERICA, Plaintiff,

Case No. 3:10-cr-00475-KI-1

MOTION FOR A NEW TRIAL v. MOHAMED OSMAN MOHAMUD, Defendant. The defendant, Mohamed Osman Mohamud, through his attorneys, respectfully moves this Court for a new trial on the following grounds that, separately and cumulatively, deprived Mr. Mohamud of a fair trial.

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A.

The Jury Instructions And The Courts Response To The Jurys Note Diluted The Governments Burden Of Proof And Denied Adequate Instruction On The Theory Of Defense. The defense in this case depended on a narrow and demanding burden of proof for

predisposition to commit the crime charged in the indictment: attempted use of a weapon of mass destruction against persons or property in the United States. CR 2; 18 U.S.C. 2332a(a)(2). The defense requested jury instructions focused on the crime charged (CR 238 at 5, 29), specifically distinguishing domestic terrorism from overseas travel in the trial memorandum. CR 234 at 2 (Although Mr. Mohamud had expressed unpopular political ideas and fundamentalist religious beliefs, he was not ready and willing had not even contemplated using a weapon of mass destruction in the United States against his fellow citizens.); CR 234 at 16 (To establish predisposition at trial the government must do more than produce evidence that Mr. Mohamud wanted to travel abroad and associate with Islamic extremists. It must prove that he was disposed to commit the charged act of domestic terrorism.). The government, in contrast, asserted that predisposition could be to acts similar to the one charged. CR 227 at 35. The parties briefed the issue, with the defense asserting that the governments standard was derived from Rule 404(b) litigation, not the definition of predisposition required by Jacobson v. United States, 503 U.S. 540 (1992). Although the Court rejected the defense language in the jury instruction that referred to the crime charged, the Court resolved the legal dispute in favor of the defense: MR. SADY: And Im hoping that what I understood the Court was ruling was that in adopting the Ninth Circuit instruction, the crime refers to the crime charged, not similar crimes, which was the nature of our objection.

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THE COURT: CR 373 at 125.

It is the crime charged.

The government sought clarification that it could argue for predisposition based on similar conduct or willingness to engage in similar conduct. Id. at 126. The Court stated that the Courts statement regarding similar conduct was made before we knew that there were no FRE 404(b) prior bad acts that were going to be involved here. Id. at 127. The Court then stated that similar conduct is admissible as evidence of predisposition, but reaffirmed that [w]ith regard to the instruction, the instruction is going to be in the language of the 6.2, and commit the crime refers to the crime set forth in the indictment. Id. at 127. The Court declined to instruct on similar conduct as it declined to instruct on lack of wherewithal and vulnerability. Id. at 123. Based on that ruling, the defense opening and closing presented the predisposition issue expressly in terms of the charge in the indictment: the attempted use of a weapon of mass destruction in the United States. The phrase was used four times in the opening statement, five times in the closing argument. The governments closing argument, in contrast, never used the charge in the indictment as the standard for predisposition, while referring to similar conduct five times. Tr. at 2541, 2544, 2559, 2567, 2588. After jury deliberations began, the jury submitted the following note: We are looking for clarification of Instruction #18 if possible. Where it states the crime, does that refer strictly to the crime as stated in the indictment, or could it include a similar crime as stated by the prosecution in closing statements. CR 430 at 6. The defense contends the note indicated that a juror or jurors understood the defense theory of the case that, looking strictly to the crime charged, the government could not prove

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predisposition or lack of inducement, regardless of alarming speech and inchoate interest in overseas activities. The defense requested that the jury be instructed that commit the crime meant the crime charged in the indictment. Tr. at 2694. The government agreed with the defense proposal with an additional however that the jury may consider evidence of similar conduct or willingness to engage in similar conduct as evidence of predisposition. Id. Over defense objection, the Court provided the following reply to the jurys note: The jury may consider evidence of similar conduct or willingness to engage in similar conduct, along with all the evidence, in deciding if the defendant was predisposed to commit the crime set forth in the indictment. Please review all of Instruction No. 18. CR 430 at 7. Because the defense believed the response was inconsistent with the pretrial ruling upon which the defense based its case, and muddied the standard in a manner favorable to the government, the defense supplemented the objection with a motion to withdraw the answer and alternative motion for a mistrial. CR 421. The Court denied the motion. CR 422. The defense theory of the case depended on a narrow area of reasonable doubt: whatever thoughts and plans Mr. Mohamud may have had for going overseas, he never had planned, prepared, or thought about action in the United States until the government agents conduct induced the crime charged in the indictment. The jurys note demonstrated that the initial instructions were inadequate to communicate the governments burden, as well as the defense theory of the case. The note also demonstrated that at least some juror or jurors understood the difference between the crime charged and other similar conduct. Instead of simply answering the question and clarifying the standard commit the crime strictly refers to the crime charged in the indictment the response commented on a particular kind of predisposition evidence beyond what was included in the instructions and did not clearly answer the jurys question about what predisposition was strictly required to be proven.

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In doing so, the response communicated approval of the jurys misunderstanding of the prosecution argument and disapproval of the strict standard advocated by the defense. The jury instructions, especially the failure to provide instruction equivalent to the defense proposed instructions on entrapment and the theory of defense, and the response to the note, diluted the reasonable doubt standard, failed to provide the legally supported theory of defense, and violated the right to a fair trial. B. The Governments Improper, Unconstitutional, And Uncorrected Closing Argument Requires A New Trial. The government began its closing argument by telling the jury that the entrapment defense was not available: An individual simply cannot be entrapped to commit an offense such as this. Tr. at 2359. The defense objected and requested a corrective instruction. Id. at 2574-75 ([W]e ask the Court to instruct the jury that that was an improper argument because a person can be entrapped to commit this offense, and it was improper for the Government to state otherwise.). The prosecution argument also left the jury believing predisposition to commit a similar crime sufficed to establish guilt. CR 430 at 6. The governments argument was improper because it directly contravened this Courts instructions, nullified the legal authority upon which the entire defense rested, and shifted the constitutional burden of proof. The objection was overruled and no corrective instruction was given. Tr. at 2575-76. The failure to correct a prosecutors nullification argument, even without objection, constitutes reversible error. In United States v. Segna, the Ninth Circuit overturned a conviction on plain error review when a prosecutors argument diluted the burden of proof where an insanity defense had been raised, even though the Courts instructions were correct and defense counsel failed to object. 555 F.2d 226, 231 (9th Cir. 1977) (prosecutor improperly invited jury to return a guilty
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verdict not if it found Segna sane beyond a reasonable doubt, but rather if Segna failed to convince the jury by scientific evidence that he was not sane). In Segna, as in the present case, the improper argument related to the only defense raised and the case was a close one. Mr. Mohamud relied entirely on the entrapment defense and presented substantial evidence from which a jury could have found that the government failed to meet its burden to prove beyond a reasonable doubt that he was not entrapped. As in Segna, the effect of allowing the government to argue, as it did, that one simply cannot be entrapped to commit the offense charged was to shift the burden of proof and to deprive [the defendant] of the reasonable doubt standard. Segna, 555 F.2d at 230; see also United States v. Perlaza, 439 F.3d 1149, 1169-73 (9th Cir. 2006) (prosecutors incorrect statement of law that was not adequately corrected constituted constitutional error); accord United States v. SandovalGonzalez, 642 F.3d 717, 726-27 (9th Cir. 2011). C. The Government Knew Or Should Have Known That Argument And Testimony Adduced Through Exhibit 80, Evan Kohlmann, And SA Dwyer, Which Asserted That Amro Al Ali Was An Al Qaeda Recruiter In October 2009, Was False, Thereby Requiring A New Trial. Beginning with opening statement, the government argued that Mr. Mohamuds contacts with Amro Al Ali were with a member of Al Qaeda who was recruiting him: FBI agents repeatedly testified regarding their state of mind based on Exhibit 80; Evan Kohlmann testified that his opinion was based in part on Amro being Al Qaeda; and SA Dwyer testified that, contrary to SA Johnsons testimony out of the presence of the jury, the he in the second sentence of Exhibit 80s summary of charges unequivocally referred to Amro, not the fugitive. The denial of cross-examination of SA Johnson before the jury (Tr. at 1805, 1882), in conjunction and independently, constituted prejudicial error.

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This basic premise of the governments case that Amro was a member of and recruiter for Al Qaeda is false. Dr. Marc Sageman testified regarding his expert assessment of the document, supplemented with open source material, that the he referred to the fugitive, not Amro. Tr. at 2468-70. After being alerted not to go beyond open sources (Tr. at 2330), the government adduced that other material that may be classified supported Dr. Sagemans assessment. Tr. at 2469-70. This material should be produced to the Court under the Classified Information Procedures Act to supplement the record on the factual issues regarding the state of mind of government agents as well as the exculpatory fact that the government knew, and the prosecution team reasonably should have known, that the contention that Exhibit 80s reference to Amro as a member of and recruiter for Al Qaeda in October 2009 was false. The Court should order discovery that was denied pretrial regarding the results of interrogations of Amro Al Ali. Well before trial, the defense requested that information be produced regarding statements from Amro after he came into the custody of Saudi Arabia. Third Ex Parte Statement In Supp. of Disc. Mots., filed under seal Apr. 13, 2012, at 2-3. The government denied having such information, but did not take the reasonably available steps to obtain the information and present it to the Court through CIPA procedures. The Court should require the production of all reports obtained by United States intelligence services regarding Amros statements under interrogation, as well as material underlying Exhibit 80 to demonstrate that he did not refer to Amro, which would debunk the governments repeated claim during trial that, at the relevant time, Amro was a member of and recruiter for Al Qaeda. Relatedly, admission of Exhibit 80 to show the government agents state of mind was also error that requires a new trial. Before and during trial, defense counsel repeatedly argued that

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admission of Exhibit 80 to show the agents state of mind, motivations, strategy, or intentions was improper because the agents state of mind was irrelevant, discovery had been denied the defense on that very ground, and the information was unfairly prejudicial. See, e.g., CR 373 at 41-44; Tr. of Jan. 8, 2013, at 61-66; Tr. of Jan. 14, 2013, at 429; 578; Tr. of Jan. 15, 2013, at 587, 640-42; Tr. of Jan. 23, 2013, at 1431. In combination with the error of allowing the government to represent incorrectly that Exhibit 80 demonstrated that Amro Al-Ali was an Al Qaeda recruiter, a new trial is warranted. D. Allowing The Unsupervised Replaying Of Recordings In The Jury Room, Especially In A Form Different From Their Admission At Trial, Violated The Ninth Circuits Prohibition On Sending Recordings Into The Jury Room, The Defendants Right To Be Present At All Stages Of The Proceedings, And Constituted An Abuse Of Discretion. The Court initially doubted that the recordings should be available in the jury room. Tr. at 2199. During the last days of the trial, the government filed a pleading based on a Seventh Circuit case contending that the government had a right to send the recordings to the jury room. CR 415. Over defense objection, the government was permitted to send to the jury room the recordings, even though the recordings did not include the scrolled or subtitled transcript, which was the form in which the exhibits were actually received during trial. The Court provided the option of sending transcripts which had not been presented as separate documents at trial to accompany the recording. The defense declined to have the transcripts separated from the recordings sent to the jury room. The Ninth Circuit is firmly on the side of the authority that prohibits sending recordings unsupervised to the jury room. United States v. Noushfar, 78 F.3d 1442, 1444-45 (9th Cir. 1996); United States v. Felix-Rodriguez, 22 F. 3d 964, 967 (9th Cir. 1994). Although Noushfar applied to recordings not played during trial, the language of the case as well as the precedent upon which
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it relied explicitly refer to replaying of recordings. Noushfar, 78 F. 3d at 1444 (citing United States v. Kupau, 281 F. 2d 740, 743 (9th Cir. 1986)). Further, because the tapes without accompanying scrolled words or subtitles were not before the jury, the full impact of Noushfar applied the recordings were only available in a form different from what was presented at trial. The reasoning and mode of analysis of the Ninth Circuit cases were binding on the Court. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Sending recordings back to the jury without supervision creates a wide range of risks that the material will be used improperly. See State v. Dixon, 259 Neb. 976, 987, 614 N.W. 2d 288, 297 (2000) (We do not ordinarily stray from the common-law rule, i.e., a trial court should not allow unrestricted review of previously played portions of tape recordings, any more than a court would allow unrestricted rereading of the testimony of an actual witness at trial). Because recordings are testimonial, the Ninth Circuit rule is the same as the common law rule articulated in Dixon: Accordingly, once a tape recording is properly admitted as testimonial evidence, such evidence should be marked as any other exhibit and included in the record for review in the event of an appeal. After being admitted, however, the exhibit should be played once in open court so that the jury can hear the tape in the same manner that it does other evidence . . . . It is only under circumstances where the jury makes a request to rehear certain evidence during deliberations that the trial court must proceed to weigh the probative value of the evidence against the danger of undue emphasis, in open court in the presence of both parties or their counsel, before determining whether portions of the evidence should be reheard by the jury. Id. at 987-88; see Noushfar, 78 F.3d at 1444 (It is clear that the court erred in sending the tapes to the jury room. On three occasions, we have considered problems associated with having a jury rehear tapes that have already been played in open court.) (citing Felix-Rodriguez, Kupau, and United States v. Brown, 832 F.2d 128 (9th Cir. 1987)). The Court should have advised the jury that, upon request, exhibits could be played back in the form admitted at trial, with proper judicial

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oversight regarding their use along with any appropriate limiting instructions. Failure to do so violated Rule 43, the constitutional right to be present at all stages of the trial, and the governing law of the Circuit. E. The Denial Of Discovery Regarding The Identities Of The Undercover Operatives, As Well As The Testimony Using Pseudonyms And A Non-Public Trial, Violated Mr. Mohamuds Confrontation Clause And Due Process Rights. Well before trial, the defense repeatedly sought discovery of the identities of UCE 1 and UCE 2, also referred to as Youssef and Hussein, whose testimony formed the bulk of the case against Mr. Mohamud at trial. CR 27 at 12-13; CR 58 at 49-53; Second Supp. to Suppression and Disc. Mots, filed under seal Sept. 18, 2012 (Second Supp.), at 3-4; Fourth Supp. to Suppression and Disc. Mots., filed under seal Nov. 6, 2012 (Fourth Supp.). Although the government initially took the position that it would disclose the identities of the undercover operatives, on October 10, 2012, the government changed its position. Fourth Supp. at 2 (citing CR 28, CR 91, and Govt. Resp. to Second Supp., filed under seal Oct. 10, 2012)). The undercover operatives were percipient witnesses, had direct contact with the defendant over a prolonged period during which all the critical events in the case took place, and were primary participants in the alleged criminal activity. In order to effectively confront the primary witnesses against him, the defense should have been able to investigate the agents backgrounds. See Smith v. Illinois, 390 U.S. 129, 131 (1968) ([W]hen the credibility of a witness is in issue, the very starting point in exposing falsehood and bringing out the truth through cross-examination must necessarily be to ask the witness who he is . . . . To forbid this most rudimentary inquiry at the threshhold is effectively to emasculate the right of cross-examination itself.). Even where the government asserts the state secrets privilege, the defense must be able to perform this investigative

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function, which is necessary to a fair trial. Roviaro v. United States, 353 U.S. 53, 59 (1953); see Fourth Supp. at 3 (citing discussions at CR 27; CR 94 at 9-11; CR 143, CR 160). Accordingly, disclosure of the undercover operatives identities was required. See United States v. Ordonez, 737 F.2d 793, 809 (9th Cir. 1984) (reversible constitutional error to deny disclosure of identity of informer on grounds of potential danger to the informer where identity is essential to fair resolution of case); United States v. Hernandez, 608 F.2d 741, 744-45 (9th Cir. 1979); United States v. Longoria, CR No. 89-225-ER, 1990 WL 11418, at *1 (D. Or. Jan. 31, 1990). Indeed, failure to investigate a prosecution witnesss background so that he can be impeached effectively may constitute ineffective assistance of counsel. See Reynoso v. Giurbino, 462 F.3d 1099, 1010-12 (9th Cir. 2006). If defense counsel is obligated to investigate a prosecution witnesss background to protect the defendants right to confrontation, the government cannot be permitted to shield a key witnesss background so completely that the defendants confrontation right is eviscerated. Withholding information regarding the identities of the undercover operatives resulted in denial of Mr. Mohamuds right to confront the central witnesses against him. The two agents testimony should be analyzed separately. First, Youssefs testimony addressed a critical disputed issue of fact: what was said during the first unrecorded face-to-face meeting. Youssef testified to statements, as well as to his benevolent intentions, without being exposed to cross-examination based on investigation of his past. Further, the insulated testimony was only the start: Youssef testified to events on recordings which speak for themselves with spin regarding his intentions and reactions, again with the insulation of anonymity preventing effective cross-examination. The

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defense should have either received discovery or the testimony should have been excluded, at least as to recordings that spoke for themselves. As emerged before and during trial, the crucial first meeting between Mr. Mohamud and Youssef was not recorded. Special Agent Elvis Chan destroyed his notes. Mr. Mohamud should have had a fair opportunity to cross-examine Youssef regarding what transpired at that meeting based on full investigation of Youssefs past. If the government could not make the required disclosure, the testimony should have been excluded or the indictment should have been dismissed. Fundamental notions of fairness and basic confrontation rights foreclose trial and conviction based on the testimony of witnesses who were shielded from confrontation at every turn. See, e.g., Roviaro, 353 U.S. at 60-61; Jencks v. United States, 353 U.S. 657, 672 (1957). In contrast, there was no reason for Hussein to testify because all his conversations were recorded. As with Youssef, he provided a superfluous government narration regarding intentions and reactions that should have been excluded in the absence of the normal discovery necessary to effective cross-examination. The Court should have either granted discovery or excluded Husseins testimony in its entirety. The lack of effective cross-examination was exacerbated by the due process violation of the manner of testimony. The operatives used their false names, communicating to the jury the danger perhaps from the defendant and the defense that bolsters the operatives stature, creates sympathy and identification with them, and undermines the defendant.

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F.

Denial Of Discovery And Testimony From Bill Smith Violated The Constitutional Rights To Compulsory Process, Confrontation, And Presentation Of The Theory Of Defense. This Court initially ordered the production of the identity and background information

regarding the undercover online employee who engaged in a seven-month email correspondence with Mr. Mohamud. CR 109 at 21-23. After an ex parte filing, the Court reversed its decision and held that the identification of Bill Smith was not required, apparently accepting the governments assertion that the emails speak for themselves. CR 146 (Govt. Resp. to Mot. for Reconsid. of Disc. Order) at 6; CR 195 at 4 (order denying discovery regarding Bill Smith because the emails speak for themselves). While preventing the defense from subpoenaing Bill Smith or otherwise investigating him, Special Agent Jason Dodd was allowed to testify regarding the emails over defense objection that the emails spoke for themselves. Tr. at 1507. The testimony of SA Dodd confirms that the denial of discovery and process regarding Bill Smith violated a range of constitutional rights. Without the testimony of Bill Smith, SA Dodd was able to provide an unchallenged progovernment spin on the emails. Without the actual sender of the emails, SA Dodd was able to testify, among other things, that bringing the west to its knees referred to religious supplication (id. at 1516), that the fight referred to in emails referenced non-violent Muslim taxi boycotts in Chicago (id. at 1542-43), and that the west did not refer to the United States but to Europe (id. at 1554). Under these circumstances, the testimony of Bill Smith was essential, either as contradicting the testimony of SA Dodd, providing inconsistent explanations, or by demonstrating uniformly incredible testimony, which would provide reasons to distrust the government testimony.

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The government was permitted to bolster its case by offering the testimony of government agents who were permitted to testify conclusorily and at length regarding the meaning of and intentions behind the Bill Smith emails. See, e.g., id. at 1497-1528 (SA Dodds testimony regarding intentions and strategy regarding Bill Smith); id. at 1507 (allowing Dodd to explain Bill Smiths motivations) id. at 1528 (direct examination of SA Dodd, And did you ever . . . try to implant the defendants mind with some intent to commit a violent act here? and answer, Absolutely not.); id. at 1314-15 (testimony of SA Chan regarding intentions of SA Dodd in sending Bill Smith emails). Compounding the prejudice and unfairness, when, on cross-examination, defense counsel immediately sought to follow up on SA Dodds testimony by asking, But doesnt it matter what the effect of Bill Smiths actions were and not his intent? and the government objected, the objection was sustained. Id. at 1529. Again, defense counsel sought to elicit from SA Dodd testimony that would clarify for they jury that, regardless of Dodds proclaimed intentions, the effect of particular words on Mr. Mohamud could well have been different, and again, government objection was sustained. Id. The failure to provide discovery regarding Bill Smith infringed on the defendants confrontation rights regarding both SA Dodd and the undercover operative Bill Smith, denied the compulsory process of Bill Smith as a defense witness, and prevented the effective presentation of the full defense theory regarding the emails. G. The Pervasive And Unfair Admission Of Federal Agents Self-Serving And Irrelevant Testimony Regarding Their Own State Of Mind, As Well As Speculation As To Mr. Mohamuds State Of Mind, Together With The Exclusion Of Admissible Evidence Of Mr. Mohamuds State Of Mind, Denied Mr. Mohamud A Fair Trial. Throughout this case, the defense sought to exclude testimony by federal agents regarding their reasons for and reactions to investigative actions. See, e.g., CR 362 (motion to preclude
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course of the investigation testimony at trial because why an investigation or particular investigative step took place has repeatedly been held to be irrelevant); CR 369 (motion for clarification of ruling on whether Court would limit Exhibit 80 to the mental state of the investigating agents); CR 379 (motion for Rule 104 hearing to preclude opinion testimony based on hearsay rather than personal observation by agents Miltiadis Trousas and Brad Petrie); CR 407 at 2-3 (motion for limiting instructions regarding Exhibit 80 and other hearsay so that jurys consideration of hearsay limited to consideration of effect on mental state of agents and Mr. Mohamud and not for truth of matters asserted). Although the recordings and the agents actions spoke for themselves, the government was able to provide step-by-step self-serving testimony regarding the agents reasons for taking particular actions and their subjective reactions. While government agents were permitted to testify[] about the origin of this investigation and things that motivated them, the government was simultaneously allowed to withhold (as classified or irrelevant) evidence that would have allowed the defense to demonstrate alternate motivations for government action. CR 373 at 46. At an early and critical stage in the litigation, this Court specifically denied the defense discovery regarding government agents on the ground that the agents motivations, intent, strategy, and state of mind were irrelevant. CR 195 at 4; Tr. at 872. Similarly, the Court denied discovery regarding motivation based on the Joint Terrorism Task Force (CR 127 at 4) and refused to rule and to instruct regarding commission of constitutional violations by the investigating agents (CR 373 at 111-14). During trial, after agents repeatedly testified regarding actions and intentions during pre- and post-meeting meetings, the government continued to successfully oppose discovery regarding the agents planning and debriefing sessions. CR 386; Tr. at 927.

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Repeatedly, the government introduced evidence including the unsupported self-serving assertions of numerous government agents as to their wholesome motivations that supposedly pertained to the agents state of mind, despite this Courts prior rulings and established law that the agents motivations in an investigation are irrelevant. See, e.g., CR 195 at 4 (Courts order denying discovery regarding Bill Smith because it is of [n]o matter who directed Bill Smith . . . , or what strategy was involved, or whether Bill Smith followed orders or deviated from them . . . ). The governments own proposed jury instruction regarding entrapment makes no reference to government agents motivations or state of mind, see CR 229 at 37-38, and the governments own briefing states, in boldface type, The Entrapment Defense Should Focus on Defendants Intent, and makes no mention of the intentions, motivations, or state of mind of government agents, see CR 241 at 2. See also CR 146 (Govt. Resp. to Mot. for Reconsid. of Discover Order) at 6 (Bill Smiths email communications have been provided to the defense and they speak for themselves. What he may or may not have meant by any particular email is not relevant.). In addition, in arguing that the governments own assessment of Mr. Mohamuds lack of dangerousness should not be admitted, the government argued that agents opinions of the defendants dangerousness or state of mind are not admissible. CR 373 at 58-59. In other words, while on the one hand, the government was permitted to introduce irrelevant and prejudicial evidence (including its own agents uncorroborated testimony regarding their own motivations and beliefs), Mr. Mohamud was forbidden from learning of countervailing evidence on the point, or putting before the jury evidence regarding his own state of mind indisputably the central issue in the case. See, e.g., Tr. at 70, 73-75, 325, 333-34, 363-64, 369, 374, 445, 527-531, 572, 593, 615, 619-20, 699-700, 789, 821, 827-28, 829-30, 837, 851, 870-75, 1010-12, 1026, 1086-

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87, 1171-72, 1214, 1317-18, 1322-23, 1441-42, 1758-59, 1761, 1768, 1796, 1804, 1805-06, 2330, 2371, 2521-22.1 The pervasive use of state of mind evidence that was irrelevant to the defendants state of mind, and prejudicial regarding the government agents state of mind, constituted an abuse of discretion and by diluting the burden of proof violated the right to a fair trial. H. A New Trial Is Required Because The Governments Selective Declassification Of Relevant Material Impermissibly Skewed The Fact-Finding Process. Throughout the discovery process and at trial, Mr. Mohamud objected to the governments selective declassification of material and the resultant skewing of the fact-finding process. Defense investigation into telephone and email records demonstrated that the government produced merely a fraction of the total communications it intercepted over the course of the investigation. Defendants Third Supplement To Suppression And Discovery Motions (Third Supp.) at 5-8. Indeed, the government refused to produce over 80 percent of the communications it seized while surveilling Mr. Mohamuds phone and email activity. Third Supp. at 6. Thus, while the government was able to present arguably inculpatory communications that it had chosen to declassify, Mr. Mohamud was unable to rebut or contextualize that evidence with the mass of communications that were benign or exculpatory but that had never been produced to the defense. This material was essential to countering the governments claim that Mr. Mohamud was living a double life because it would have shown the jury that, despite some inflammatory rhetoric online or in a tiny fraction of emails, the overwhelming majority of Mr. Mohamuds communications and daily activities were those of a normal, teenaged college student.

The numerous record citations here do not reflect the occasions on which related errors occurred, including the previously discussed denial of the opportunity to question Bill Smith, and allowing Government Exhibit 80.
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In addition to preventing a fair overview of Mr. Mohamuds day-to-day activities and communications, the governments selective declassification severely impacted the jurys assessment of Mr. Mohamuds state of mind on numerous critical dates. These dates included the time of first government contact (no text messages produced between November 9 and November 20, 2009), the Beau Stuart martyr email of January 24, 2010 (one text message produced between January 23 and January 25 despite 81 text messages sent or received during that time), and the no-fly incident where the FBI prevented Mr. Mohamud from working in Alaska (no text messages produced on that date despite 24 text messages sent or received). Third Supp. at 6-7.2 The prejudice suffered by Mr. Mohamud at trial based on the skewed picture of his communications was heightened when the government sought to gain advantage based on its own lack of production. The defense had offered an exhibit compiling Mr. Mohamuds text messages in chronological order so the jury could view any material presented by the government in the context of what Mr. Mohamud was actually doing on a given day. Because the defense could only include communication content that it had received from the government, and because the government only provided a small fraction of the total text messages, the exhibit was necessarily an incomplete picture of Mr. Mohamuds activities. At times, this would be obvious, such as when a text message stated it was 1 of 2" but there was no corresponding 2 of 2. Rather than acknowledge outright that the government was the ultimate cause of the incomplete picture or, at a minimum, decline to attack the completeness of the content, the prosecution elicited from its case agent that context and completeness is critical when reviewing such communications:

Further, although later permitted, the defense was not permitted to contextualize the January 24th email under the rule of completeness during the testimony of SA Trousas. Tr. 447.
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Q:

And context is really helpful when you can see the three or four messages on either side of a particular statement? Absolutely.

A:

Tr. at 1808. Thus, despite being the cause of the lack of context as well as the lack of content on certain critical dates the government sought to take advantage of its selective declassification by casting doubt on the defenses attempt to portray a complete picture of Mr. Mohamuds activities. Later, after the erroneous impression had already been created for the jury, the government consented to a stipulation acknowledging the accuracy of the text message summary. The court rejected, however, the defense efforts to tell the jury that the government had withheld text messages. The abuse of the declassification process and the skewing of the fact-finding process resulted in fundamental unfairness under Wardius v. Oregon, 412 U.S. 470, 477-78 (1973), and an unfair trial. I. The Failure To Instruct The Jury And Permit Argument Regarding First Amendment Rights Requires A New Trial. The defense requested a jury instruction regarding protected First Amendment rights to freedom of speech, religion, association, and press. CR 238 at 8. The governments objection to the instruction was sustained, and the defense was not permitted to argue regarding the First Amendment. CR 373 at 25. Where the issues regarding speech, press, association, and religion were at the heart of the defendants participation in a discursive community, and the distinction between acts and talking was central to the defense, the defense should have been able to have an instruction explicitly recognizing the First Amendment rights at issue. United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985) (defense to tax counseling crime required First Amendment instruction) (Kennedy, J.); United States v. Smith, 555 F.2d 249, 252 n.1 (9th Cir. 1977) (Blumenfeld, D.J., concurring) (impact of First Amendment in criminal contempt case is more properly directed to the

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type of conduct that may be deemed wrongful.). Further, the defense should have been able to articulate in opening and closing the First Amendment rights at stake. Conde v. Henry, 198 F.3d 734, 739 (9th Cir.1999) (limitation precluding counsel from arguing theory of defense violated right to counsel and right to present a defense); see United States v. Miguel, 338 F.3d 995, 1001 (9th Cir.2003) (reversible error to limit argument regarding theory of defense supported by the evidence); United States v. Kellington, 217 F.3d 1084, 1101 (9th Cir.2000) (new trial properly granted because preventing counsel from arguing the importance of expert testimony in closing violated the rights to counsel and to present a defense). Conclusion The Court should grant a new trial because separately and cumulatively, trial errors denied Mr. Mohamud a fair trial and the ability to effectively present his defense. Dated this 14th day of February, 2013.

/s/ Stephen R. Sady Stephen R. Sady Chief Deputy Federal Public Defender /s/ Steven T. Wax Steven T. Wax Federal Public Defender /s/ Lisa Hay Lisa Hay Assistant Federal Public Defender

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