Case 3:10-cr-00475-KI

Document 431

Filed 02/14/13

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Page ID#: 5291

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, v. MOHAMED OSMAN MOHAMUD, Defendant.

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

MOTION FOR JUDGMENT OF ACQUITTAL AFTER JURY VERDICT

The defendant, Mohamed Osman Mohamud, through his attorneys, respectfully moves this Court for a judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure because the evidence during both the government and defense cases, under the law set out in CR 234

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at 3-9 (citing Jacobson v. United States, 503 U.S. 540 (1992), Sherman v. United States, 356 U.S. 369 (1958), and United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000)), was insufficient to negate entrapment beyond a reasonable doubt on grounds including but not limited to the following: First, under Sherman, regardless of any disposition evinced during the summer of 2009, the intervention of the parents, and the agreement to complete college in the United States, are directly analogous to Sherman, where the intervention of an undercover informant into a rehabilitative drug program was deemed entrapment as a matter of law. In the present case, the testimony of both Osman Barre and Mariam Barre established that Mr. Mohamud had agreed to complete college in the United States. This agreement was confirmed not only by his attendance at college, but by the Beau Stuart email of May 29 (Defense Exhibit 1047), the to do list of June 15 (Defense Exhibit 1012a), as well as the composition notebook notes on July 6 regarding finishing college (Government Exhibit 18 at 19). Where the family had intervened to prevent the overseas travel that caused the government concern, the intervention of undercover agents, both through Bill Smith and the Youssef emails and direct contact, to redirect Mr. Mohamud out of the rehabilitative and corrective program his parents had designed for him, and toward committing acts in the United States, require acquittal under Sherman. Second, the testimony in both the government and defense cases established that, prior to November 9, 2009, the only interest Mr. Mohamud had expressed was in overseas travel and potential support for defensive jihad overseas. The crime charged in this case is directly and strictly limited to attempted use of weapons of mass destruction against persons and property in the United States. CR 2. Throughout the testimony, both FBI agents and the civilian witnesses established the absence of interest in committing acts of domestic terrorism by Mr. Mohamud until well after the

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Case 3:10-cr-00475-KI

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government contact began. Further, the contemporaneous FBI emails demonstrate that, at the crucial time of November 9, 2009, Mr. Mohamud was conflicted, confused, and not looking to commit any bad acts in the United States. No rational finder of fact could find a predisposition for Mr. Mohamud to commit the charged offense of terrorism in the United States at the relevant time. Third, the expert testimony of the three defense experts established at least a reasonable doubt regarding predisposition to commit the crime charged in the indictment as well as inducement by the FBI. Most critically, Dr. Sageman testified that he had conducted seven hours of interviews with Mr. Mohamud and determined that, relying on his database and social science studies, Mr. Mohamud had not turned away from the discursive community and to violence prior to November 9, 2009. In fact, Dr. Sageman testified that the emails of Bill Smith were specifically, though inadvertently, directed to fomenting frustration with the discursive community, thereby moving Mr. Mohamud toward bad acts and away from just talk. The government intervention provided the key impetus the inducement toward commission of the offense charged in the indictment. The lack of predisposition for the crime charged was supported by the uniform and unimpeached testimony of defense civilian witnesses. Coupled with Professor Cauffman and Professor Moghaddams testimony regarding inducement, the Court should enter a judgment of acquittal based on the lack of predisposition to commit the crime charged in the indictment and the failure to establish no inducement beyond a reasonable doubt. Lastly, the evidence established that Mr. Mohamud was incapable lacked the wherewithal to commit the offense on his own. While impossibility is not a defense, Mr. Mohamuds inaction in taking any steps toward commission of the crime charged in the indictment establishes lack of predisposition. Witness after witness testified to the absence of research or other planning or

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preparation until after the first face-to-face meeting. In conjunction with the other evidence on lack of predisposition and the presence of government inducement, no rational finder of fact could find no entrapment on the narrow crime charged in the indictment. For the foregoing reasons and those stated in the defense trial memorandum, we respectfully request that the Court grant the motion for judgment of acquittal after jury verdict. 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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