United States v. Hinda Dhirane

Citation: 896 F.3d 295Docket: 17-4205

Court: Court of Appeals for the Fourth Circuit; July 16, 2018; Federal Appellate Court

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Muna Osman Jama and Hinda Osman Dhirane, both naturalized American citizens born in Somalia, were found guilty by the district court of conspiracy to provide material support to al-Shabaab, a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B. The court determined that they collected money through online chat rooms and transmitted these funds to coconspirators in Somalia and Kenya to aid al-Shabaab's terrorist activities. Jama received a sentence of 144 months, while Dhirane was sentenced to 132 months. 

On appeal, the defendants raised three main arguments: (1) the district court improperly denied their motion to suppress evidence obtained through warrants issued under the Foreign Intelligence Surveillance Act (FISA), claiming the evidence was unconstitutionally obtained; (2) the court applied an incorrect legal standard in determining that the recipients of their funds in Somalia and Kenya were "part of" al-Shabaab; and (3) the court erred in applying sentencing enhancements under U.S.S.G. § 2M5.3(b)(1)(E) for providing support to a foreign terrorist organization with intent or knowledge that it would further violent acts. 

The court affirmed the district court's rulings, noting that al-Shabaab has been designated as a foreign terrorist organization since 2008 and was actively engaged in terrorist activities in the Horn of Africa during the relevant period. The defendants participated in online discussions about current events in Somalia and were involved in a smaller chat group, the "Group of Fifteen," where they pledged financial support to al-Shabaab.

Representatives associated with al-Shabaab solicited support, including financial resources, from the Group of Fifteen. The collected funds were transmitted to individuals involved with al-Shabaab in Nairobi, Kenya, and Hargeisa, Somalia. Defendant Jama actively solicited contributions, monitored payments, and ensured their successful transmission, while Defendant Dhirane primarily focused on the Hargeisa side. Funds sent to Nairobi were directed to Fardowsa Jama Mohamed, who used them for safehouses for al-Shabaab fighters. In Hargeisa, Barira Hassan Abdullahi received funds to procure vehicles and supplies for fighters in the Golis Mountains. Evidence against the defendants was obtained through electronic surveillance authorized under FISA, revealing coded communications and discussions of their financial support's impact on al-Shabaab operations. Following an indictment in June 2014 for conspiracy and substantive counts of providing material support to a designated foreign terrorist organization, the defendants sought to suppress the FISA evidence, claiming unlawful acquisition. The district court denied access to classified materials but conducted an in camera review, concluding that the warrants were properly issued and the surveillance complied with legal requirements. The defendants waived a jury trial, and during the bench trial that began in July 2016, they argued their financial contributions were solely for medical purposes, asserting an exception under 18 U.S.C. 2339B.

The court found both defendants guilty of conspiracy, with Jama convicted on all substantive counts and Dhirane on counts related to conduct after joining the conspiracy, while being acquitted of others. In a written opinion dated November 4, 2016, the court presented its findings, establishing that both defendants were active supporters of al-Shabaab, aware that it was a designated terrorist organization, and understood the illegality of providing support to it. They played significant roles in a chat room where they facilitated fund solicitation for al-Shabaab, coordinating the transfer of funds primarily to their co-conspirators in Kenya and Somalia, who used the money to support al-Shabaab’s military operations.

The court detailed how Mohamed in Nairobi operated safehouses for injured al-Shabaab members and military staging, while Abdullahi in Hargeisa utilized funds for transportation and logistical support for al-Shabaab soldiers. The defendants had access to al-Shabaab's leadership and financial needs, coordinating their fundraising efforts with the group's military activities. Consequently, the court concluded that the defendants intended their financial contributions to support al-Shabaab.

Jama received a 144-month sentence, and Dhirane received 132 months, with sentencing enhancements applied under U.S.S.G. 2M5.3(b)(1)(E) for their intent to aid violent acts. The defendants appealed, arguing that the statutory framework allowing the district court to review the legality of government surveillance under FISA without their counsel's access was incompatible with the adversarial system, undermining their right to challenge the warrant's validity. They argued that the determination of useful defense material should be made by counsel, not the court, and expressed concerns about not being able to obtain a Franks hearing to contest the warrant based on alleged falsehoods. They did not contest the district court's conclusions but rather the process by which those conclusions were reached.

Defendants moved to suppress surveillance evidence before trial. The Attorney General submitted an affidavit asserting that revealing classified materials related to warrant acquisition would jeopardize national security. Consequently, the district court reviewed the warrant applications and supporting documents ex parte and in camera, as permitted under the Foreign Intelligence Surveillance Act (FISA). The court determined it could assess the legality of the FISA surveillance without defense counsel, despite having the option to involve them, and concluded that the surveillance was appropriately authorized and executed.

FISA aims to balance individual constitutional rights with national security interests. When a suppression motion is filed and the Attorney General submits an affidavit claiming potential harm to national security from disclosure or an adversarial hearing, the court must conduct an ex parte and in camera review to evaluate the lawfulness of the surveillance (50 U.S.C. 1806(f) and 1825(g)). The court may disclose materials to the moving party only if necessary for an accurate legality assessment.

Every federal court examining FISA's constitutionality has deemed its procedures reasonable and constitutional, aligning with the principle that the right to adversarial proceedings in factual disputes is not absolute. The court has consistently rejected the necessity of adversarial procedures for probable cause determinations. 

Defendants argued that the FISA framework infringed on their right to a Franks hearing, which allows challenges to the accuracy of warrant affidavits. The Supreme Court's Franks ruling mandates that a defendant must specify alleged falsehoods in the affidavit and provide supporting evidence for an evidentiary hearing. FISA permits court review of warrant application veracity and legality, and the court relies on input from executive officials and its review of materials to determine the need for a hearing (50 U.S.C. 1806(e), g). The judge assesses whether the validity of the Franks challenge can be determined without disclosing classified materials to the defense, recognizing that adversarial proceedings could aid in identifying potential falsehoods in affidavits.

Congress acted within constitutional boundaries by prioritizing national security over the benefits of an unconditional adversarial process in the context of foreign threats. To balance this, it established a FISA-warrant application process requiring involvement of high-ranking executive officials and oversight by the Attorney General, as outlined in 50 U.S.C. 1804. The district court's decision to withhold classified FISA materials from the defendants’ counsel was upheld, despite their security clearance.

On appeal, the defendants argued that the district court improperly redefined an element of § 2339B by interpreting "a foreign terrorist organization" to include anyone engaging significantly in activities for such an organization, thus linking coconspirators Mohamed and Abdullahi to al-Shabaab. They contended this broadened definition was crucial for the conviction because it countered their defense that the coconspirators were independent and that their financial support was lawful. The defendants asserted that this judicial redefinition violated the principle that only Congress can define federal crimes and contravened the Due Process Clause by applying a new, retroactive standard. They claimed that the court's non-exclusive seven-factor test for defining an element of a federal offense breached the void-for-vagueness doctrine, ultimately transforming an element of a federal crime into an undefined legal concept. The district court's findings began with factual determinations but seemingly assumed that for the defendants' actions to meet the statute's criteria, the funds must be sent to individuals directly linked to al-Shabaab. This assumption arose in response to the defendants’ argument that their intent was not to support al-Shabaab, but to provide lawful assistance to the individuals they funded.

The court identified a lack of established case law regarding the standard for determining an individual's association with a foreign terrorist organization (FTO) and independently formulated a seven-part balancing test to assess whether individuals Mohamed and Abdullahi were part of al-Shabaab. Upon applying this test, the court concluded that both individuals, along with the defendants, were associated with al-Shabaab. The defendants contested this decision on appeal, claiming that the district court improperly created a new legal standard during the criminal prosecution, thereby acting unconstitutionally by adding a requirement to the statute.

The court clarified that the statute, 18 U.S.C. § 2339B, does not stipulate that individuals like Mohamed and Abdullahi must be part of the FTO for a violation to occur. Instead, it prohibits knowingly providing or attempting to provide material support to an FTO, irrespective of direct membership. The statute requires that a defendant must be aware that the organization is designated as a terrorist entity or has engaged in terrorist activities. 

To establish a violation, the government must prove that the defendant (1) knowingly provided material support, (2) to an FTO, and (3) that the defendant knew the organization was designated as such or engaged in terrorism. The requisite mental state pertains to knowledge of the organization's terrorist connections rather than intent to further its activities.

In this case, the defendants solicited and transmitted funds to individuals associated with al-Shabaab, fulfilling the statute's requirements. The funds were used to support al-Shabaab’s operations, including maintaining safehouses and acquiring necessary resources. The court deemed the defendants' assertion that such support could potentially be used for legitimate purposes, like medical supplies, irrelevant to their violation of § 2339B.

Defendants were charged with providing monetary support to al-Shabaab, a designated foreign terrorist organization, rather than medical supplies, despite their claims. The Supreme Court has clarified that any material support to a terrorist group can facilitate terrorism by reallocating resources for violent purposes and damaging international relations aimed at preventing terrorism. The district court found that al-Shabaab was actively engaged in terrorist activities and that the defendants were aware of this, being "ardent, committed, and active supporters" of the group. 

The court established that the defendants facilitated communication between al-Shabaab representatives and their chat room members to solicit financial contributions. Specifically, Jama was responsible for monitoring and enforcing monthly contributions, while Dhirane took on a similar role. The court also noted that they coordinated with other supporters, including co-defendants Mohamed and Abdullahi, who were exclusively involved with al-Shabaab. 

Ultimately, the defendants were found to have systematically collected and sent money to al-Shabaab, fully aware of its terrorist nature. This conduct constituted an attempt to provide material support under 18 U.S.C. § 2339B, satisfying all elements necessary for conviction. Despite some procedural disagreements with the district court's analysis, the appellate court affirmed the defendants' guilt under the statute.

Defendants challenged the district court's application of a two-level enhancement under U.S.S.G. § 2M5.3(b)(1)(E) for providing material support to a terrorist organization, arguing that the enhancement requires proof of their intent or knowledge that their support was specifically linked to a violent act. They contended that the court's findings did not adequately establish this connection. However, the guideline does not necessitate a direct link to a specific violent act; it only requires evidence that the defendants intended, knew, or had reason to believe their support would aid in acts of violence by the organization. The district court found that al-Shabaab was actively engaged in terrorist operations in Somalia and Kenya, and that the defendants coordinated their fundraising efforts in response to specific needs arising from these military operations. The court concluded that the defendants’ financial support was aimed at bolstering al-Shabaab's military efforts, providing sufficient basis to apply the enhancement. The district court's judgments convicting and sentencing the defendants were affirmed.