Courthouse News on April 18, 2012 released the following:
“By NICK MCCANN
PORTLAND, Ore. (CN) – A federal judge ordered the government to hand over certain communications to the public defense team representing a man accused of plotting to detonate a truck full of explosives during a Christmas tree-lighting ceremony in 2010.
Attorneys for 20-year-old Mohamed Mohamud have been building a case that their client was entrapped by the government when he was a teen-ager, and undercover FBI agents coaxed him into the attack.
Mohamud’s public defenders for months have been fruitlessly trying to get information from the prosecution, which claims that the information they seek is confidential, nonexistent, or inadmissible at trial.
Mohamud was arrested on Nov. 26, 2010 after undercover agents foiled the bomb plot they apparently helped him hatch. Mohamud pleaded not guilty to attempted use of a weapon of mass destruction.
Investigators said in an affidavit that the Somali-American planned “a spectacular show” and did not care if he killed innocent people. The affidavit claimed Mohamud told an undercover agent that he “had been thinking of committing some form of violent jihad since the age of fifteen.”
The defense team said in federal court filings last year that the government knew about their client’s “vulnerabilities” and noted “the sophisticated efforts used to induce Mr. Mohamud to cooperate with undercover agents.”
“The initial discovery demonstrates that, regardless of opinions or activities that raised governmental interest, extensive evidence remains in the government’s possession that may be helpful in establishing the lack of predisposition to commit the charged crime,” according to the Memorandum in Support of Second Motion to Compel Discovery.
Mohamud’s attorneys say the government won’t let them see key pieces of information crucial to their case.
Because many of the issues deal with classified information, Tuesday’s hearing centered on the government’s duty to disclose exculpatory information to the defense, without detailing many specifics of the disputed information.
Mohamud entered U.S. District Judge Garr King’s courtroom in handcuffs wearing a blue jumpsuit, and appeared to be smiling and talking with his defense team before the proceedings.
Mohamud had shaved his curly hair and kept his head low throughout the proceedings.
Public defender Stephen Sady referred to a “whole universe of statements by Mr. Mohamud” that the government won’t let the defense see.
“We have nothing to work with five and a half months before trial,” Sady said.
The government claims it has disclosed all of the information needed.
Most of the information the defense wants relates to the government’s undercover operations in seeking out Mohamud when he was a teen-ager.
For example, Sady referred to evidence that Mohamud was placed on a no-fly list 10 days before he was contacted by an undercover agent. Much of the dispute over disclosure regards those communications, between Mohamud and the undercover agent he knew as “Bill Smith.”
“According to previous pleadings, the government apparently views ‘this case’ to encompass only the interactions between Mr. Mohamud and the undercover agents,” the defense team wrote in its February memorandum for the motion to compel discovery. “Such a narrow view is not supported by the case law on entrapment,” it continued.
Prosecutor Ethan Knight bristled at Sady’s request for information about Portland’s participation in the nationwide Joint Terrorism Task Force “and any other political interests related to the investigation of Mr. Mohamud.”
Knight said that argument was based on a “speculative notion that agents acted unethically for a political purpose.”
Judge King denied the request for information about the Joint Terrorism Task Force, as well as the request for disclosure of grand jury proceedings against Mohamud.
However, the judge agreed with some of Sady’s arguments on the government’s duty to disclose necessary information that is not classified or privileged as work product.
King said he will deliberate on certain issues, such as the disclosure of information relating to government infiltration of Mohamud’s mosque, which Sady called “fairly chilling undercover activity.”
Regarding the “Bill Smith” emails, Knight took the position that there was no more information about that agent that would benefit the defense.
Judge King disagreed, and ordered the prosecution to produce information about “Smith” to the defense. He noted that the information sought is not likely to be classified, but if it is, it can be dealt with before trial.
The judge also ordered production of transcripts of Smith’s conversations with Mohamud, to be made available “for attorneys’ eyes only.”
“Smith” first contacted Mohamud in 2009, and the two discussed Islam and other topics before talking about jihad in America.
“It looks like there has been some action against the west in the last few weeks,” the agent wrote in December 2009. “i cant tell you how easy it should be to bring any community here in the west to its knees.”
Mohamud responded, “brother, i don’t think you should talk about such issues, especially online.”
The prosecution contends that Mohamud picked the time and date of the attack, and that “Smith” had “provided [Mohamud] numerous opportunities to steer him away from violence.”
All disclosures in the case are to be filed by Aug. 7. Mohamud’s trial is set to begin Oct. 2.”
Douglas McNabb – McNabb Associates, P.C.’s
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