United States v. Ali

• Decision Date: 25 August 2015
• Docket Number: 13–2209.,Nos. 13–2208,s. 13–2208
• Citation: 799 F.3d 1008
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Amina Farah ALI, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Hawo Mohamed Hassan, also known as Halimo Hassan, also known as Halima Hassan, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

799 F.3d 1008

UNITED STATES of America, Plaintiff–Appellee

v.Amina Farah ALI, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Hawo Mohamed Hassan, also known as Halimo Hassan, also known as Halima Hassan, Defendant–Appellant.

Nos. 13–2208

13–2209.

United States Court of Appeals, Eighth Circuit.

Submitted: April 16, 2015.

Filed: Aug. 25, 2015.

Rehearing and Rehearing En Banc Denied Oct. 1, 2015 in Nos. 13-2208 and 13-2209.

Stanley L. Cohen, The Law Firm of Stanley Cohen & Associates, New York, N.Y., argued, for appellant Amina Farah Ali.

Sara A. Zalkin, Pier 5 Law Offices, San Francisco, CA, argued (Randolph E. Daar, on the brief), for appellant Hawo Mohamed Hassan.

Jeffrey S. Paulsen, Asst. U.S. Atty., Minneapolis, MN, argued, Jeffrey M. Smith, National Security Div., U.S. Dept. of Justice, Washington, DC, argued (Andrew M. Luger, U.S. Atty., Minneapolis, MN, Steven P. Ward, Counterterrorism Section, U.S. Dept. of Justice, Washington, DC, on the brief), for appellee.

Before MURPHY, SMITH, and GRUENDER, Circuit Judges.

Opinion

GRUENDER, Circuit Judge.

In this consolidated appeal, we consider the criminal prosecutions that were brought against two women living in Minnesota in connection with funds sent to al Shabaab, an organization in Somalia that the United States Secretary of State had designated a foreign terrorist organization. After a jury trial, Amina Farah Ali and Hawo Mohamed Hassan were convicted on all counts. The district court¹ sentenced Ali to 240 months in prison and Hassan to 120 months in prison. We affirm.

I. Background

Amina Farah Ali and Hawo Mohamed Hassan are naturalized citizens of the United States who live in Minnesota. Both are from Somalia. In the summer of 2008, the FBI learned that Ali had contacted members of al Shabaab, a foreign terrorist organization in Somalia. Al Shabaab had been so designated by the Secretary of State in February 2008. After a lengthy investigation, a federal grand jury returned an indictment charging (1) Ali and Hassan with one count of conspiring to provide material support to al Shabaab, see 18 U.S.C. § 2339B(a)(1) ; (2) Ali with twelve counts of providing material support to al Shabaab, see id.; and (3) Hassan with two counts of making a false statement, see 18 U.S.C. § 1001(a)(2).

Before trial, the Government informed Ali and Hassan that it intended to offer evidence obtained under the authority of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801 et seq. Ali and Hassan requested disclosure of the FISA materials and suppression of all FISA-obtained evidence. In turn, the Government filed a declaration by the Attorney General of the United States averring that disclosure of the FISA materials or an adversary proceeding would harm the national security of the United States. Under FISA, this declaration prompted an in camera, ex parte review of the FISA materials by the district court. Id. §§ 1806(f), 1825(g). After conducting this review, the court denied Ali's and Hassan's motions for disclosure and suppression.

At the final status conference before trial, Ali remained seated when court was convened. After learning of Ali's failure to stand, the court issued an order requiring all parties to stand when court is called to order. Yet when court convened for the first day of trial, Ali remained seated. The court confirmed that Ali was aware of its order and revoked her pretrial release status. On the second day of trial, Ali again refused to stand.

While Ali was incarcerated, the court allowed “three learned clerics” to visit her. They informed Ali that she could stand for the court if she was “in a difficult situation, if [she was] fearful of [her] own life.” When Ali returned to court, the court gave her a chance to speak, telling her that “your elders are even telling you that your interpretation [of the Hadith] is wrong.” In response, Ali stated that “my understanding is that I have to follow what I think is the right way and that's what I've been doing.” The court ultimately cited Ali for twenty instances of contempt. After two nights of incarceration, Ali informed the court that she would comply with its order. The court released Ali from custody, and Ali stood when court convened and recessed for the rest of the trial. Ali appealed the contempt citations, and we affirmed in part and vacated and remanded in part. United States v. Ali, 682 F.3d 705, 711 (8th Cir.2012).

During the ten-day trial in October 2011, the jury learned about the history of Somalia as well as al Shabaab's role in the country. The Government's expert witness, Matthew Bryden, explained that Somalia had not had an effective central government since 1991 but that the Transitional Federal Government (“TFG”) had been in place since 2004. With respect to al Shabaab, which is known as “the youth,” Bryden explained that its goal is “to impose [its] version of Islamic law on Somalia.” Bryden continued, explaining that al Shabaab seeks to “expel” and “dismantle” the TFG and “to replace it with [al Shabaab's] own rule by force.” Al Shabaab, Bryden explained, has used suicide bombs, roadside bombs, and assassinations.

The Government presented evidence that Ali and Hassan planned and participated in fundraising teleconferences in which a speaker, oftentimes a member of al Shabaab, would give a lecture. After the lectures, listeners would pledge money. One of these teleconferences, the jury learned, had over one thousand listeners. In another teleconference, listeners pledged $2,150, and Hassan kept track of the donors' phone numbers. The FBI later found a ledger from this task in Hassan's home. The jury listened to some of these teleconferences. For example, in one teleconference, Ali asked an al Shabaab leader “[w]hy wage jihad against [the TFG]? The goal was to adopt Islamic law and they adopted Islamic law.” The al Shabaab leader responded in part:

The reason is: Ugandan troops and Burundian troops are still in the country. They are Christians. They are carrying the cross. They invaded our country. They did not come here through our consent. That means[ ] they are to be considered infidels, who are aggressors, and the action to be taken against infidel aggressors is war.

Ali frequently spoke with members of al Shabaab. The jury listened to numerous recorded telephone calls between Ali and Hassan Afgoye, who at one time was responsible for al Shabaab's finances. The Government's expert witness explained that Afgoye later became the senior al Shabaab figure for an area of Somalia. In fact, the jury learned that Ali and Afgoye actually discussed his new position. In many of their conversations, Ali and Afgoye discussed money that she had arranged to be sent to him or his associates. Through the testimony of an FBI agent, the Government meticulously connected Ali to each transfer of money charged in the indictment—for example, through documentation for the money transfers, telephone conversations in which Ali spoke with the sender of the money about where to send it, and telephone conversations in which Afgoye or his associates discussed with Ali whether they had received the money. In one telephone call, Ali discussed with Afgoye how she sent money to al Shabaab as early as 2007, before it was designated a foreign terrorist organization. Ali stated that she later learned that the “young men”—a reference to al Shabaab—“should be isolated” and that her family members had warned her about being arrested.

Ali and Afgoye also talked about al Shabaab's activities in Somalia. For example, Afgoye told Ali about a recent battle, recounting that the enemy's leaders had been “captured alive and then slaughtered.” Ali responded: “Were they killed? Thanks God. Yes.” The Government's expert provided context for this conversation, explaining that Afgoye was referring to a battle between al Shabaab and forces aligned with the TFG. In another telephone call, Afgoye informed Ali about a recent al Shabaab suicide bombing. The Government's expert witness explained that dozens of people died in this particular attack. In yet another telephone call, Afgoye implored Ali to “send whatever you currently have in hand ... [a]nd after that we will race to confront the enemy, God willing.” Ali responded, “By the grace of God, [m]ay God defeat[ ] them. Around here, no one talks about the enemy; these people live in a different reality. May God show these people the truth.”

The Government also presented evidence that Hassan spoke with members of al Shabaab. In a telephone conversation with Ali, Hassan stated that the al Shabaab “guys” had told her about their battle strategy. Hassan stated that “[t]hey said [it] was [a] good idea. And they are right if you really look at it.” In another telephone conversation with Ali, Hassan described an al Shabaab suicide bombing where “they are still counting the dead,” which she described as “[t]he best joy ever” and a “delightful event.” Ali twice chimed in that this news was “[w]onderful.” The Government's expert witness stated that this particular attack targeted a TFG minister at a hotel and that al Shabaab claimed credit for the attack.

The jury also heard about al Shabaab's connections to groups both inside and outside of Somalia. For example, Ali and Hassan once discussed having Hassan Dahir Aweys speak during a fundraising teleconference. Aweys, the jury learned, was a specially designated global terrorist, see generally 31 C.F.R. § 594.310, and was in charge of another militia in Somalia. Aweys eventually spoke during a teleconference, and Ali told Afgoye that she sent him the money that was donated. The jury also heard about Ali's contact with Isse Kamboni, who was associated with another militia in Somalia that was led by another specially designated global terrorist. The Government also demonstrated that al Shabaab had connections to al Qaeda. For the most part, this evidence helped to explain the context of a telephone call between Ali and Afgoye, in which t...