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 ...
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