1 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA...GASKINS BENNETT BIRRELL SCHUPP ANDREWS. BIRRELL, ESQ. 333 South Seventh Street Suite 3000 ... GLENN P. BRUDER, ESQ. 7505 Metro

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CASE 0:15-cr-00049-MJD-FLN Document 33 Filed 05/01/15 Page 1 of 155 1

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

UNITED STATES OF AMERICA,

Plaintiff,

vs.

File No. 15-mj-312 (BRT)

Saint Paul, Minnesota April 23, 2015

ADNAN ABDIHAMID FARAH (2) ZACHARIA YUSUF ABDURAHMAN (4) HANAD MUSTAFE MUSSE (5)

9:05 a.m.

GULED ALI OMAR (6),

Defendants.

BEFORE THE HONORABLE BECKY R. THORSON UNITED STATES DISTRICT COURT MAGISTRATE JUDGE

(PRELIMINARY AND DETENTION HEARING)

APPEARANCES For the Plaintiff:

For Defendant Adnan Abdihamid Farah:

For Defendant Zacharia Yusuf Abdurahman:

For Defendant Hanad Mustafe Musse:

UNITED STATES ATTORNEY JOHN F. DOCHERTY, AUSA CHARLES J. KOVATS, JR., AUSA 300 South Fourth Street Suite 600 Minneapolis, Minnesota 55415

PAUL ENGH LAW OFFICE PAUL C. ENGH, ESQ. 220 South Sixth Street Suite 1225 Minneapolis, Minnesota 55402

FELHABER LARSON FENLON & VOGT PA JON M. HOPEMAN, ESQ. 220 South Sixth Street Suite 2200 Minneapolis, Minnesota 55402-4504

GASKINS BENNETT BIRRELL SCHUPP ANDREWS. BIRRELL, ESQ. 333 South Seventh Street Suite 3000 Minneapolis, Minnesota 55402

CARLA R. BEBAULT, CRR, RMR (651) 848-1220

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For Defendant Guled Ali Omar:

Court Reporter:

MITCHELL BRUDER & JOHNSON GLENN P. BRUDER, ESQ. 7505 Metro Boulevard Suite 325 Edina, Minnesota 55439

CARLA R. BEBAULT, RMR, CRR, FCRR Suite 146 U.S. Courthouse 316 North Robert Street Saint Paul, Minnesota 55101

Proceedings recorded by mechanical stenography; transcript produced by computer.


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I N D E X

SPECIAL AGENT HARRY SAMIT Direct Examination by Mr. Docherty Cross-Examination by Mr. Engh Cross-Examination by Mr. Bruder Cross-Examination by Mr. Hapeman Cross-Examination by Mr. Birrell Redirect Examination by Mr. Docherty Recross-Examination by Mr. Engh Recross-Examination by Mr. Bruder

GOVERNMENT'S EXHIBITS Exhibit 1 Exhibit 2 Exhibit 3

DEFENSE EXHIBITS Exhibit 1


PAGE 7

36 51 61 75 93

101 103

REC'D 15 15 15

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P R O C E E D I N G S

IN OPEN COURT

THE COURT: Good morning, everyone. We are here

for preliminary hearings and detention hearings in the

matters entitled -- they all have the same main number here,

15-mj-312 (BRT). We have the United States of America

versus Adnan Farah, and that is matter 2 of the same case

number. We have United States of America versus Zacharia

Yusuf Abdurahman, and that is matter number 4. We have

United States of America versus Hanad Mustafe Musse, and

that is matter number 5. And we have United States of

America versus Guled Ali Omar, and that is matter number 6.

Let's begin with the appearances of counsel,

starting with the Government.

MR. DOCHERTY: Good morning, your Honor.

Assistant U.S. Attorneys John Docherty and Charles Kovats

for the United States.

THE COURT: Good morning.

MR. ENGH: Good morning, your Honor. Paul Engh on

behalf of Adnan Farah.


MR. ENGH: He is here as well.

THE COURT: Good morning, sir.

DEFENDANT FARAH: Good morning, your Honor.


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THE COURT: And for other Defendants, do we have

appearances of counsel, please.

MR. BIRRELL: Good morning, your Honor. Andy

Birrell appearing for Hanad Musse.


MR. HOPEMAN: Jon Hapeman representing Zacharia

Abdurahman who is present.


MR. BRUDER: Good morning, your Honor. My name is

Glenn Bruder. I'm appearing on behalf of Guled Ali Omar who

is standing to my right.

THE COURT: Good morning and good morning, sir.

DEFENDANT OMAR: Good morning.

THE COURT: Well, we have both the detention

hearings and the preliminary hearings. Counsel, have you

talked about how you would like to proceed today?

MR. DOCHERTY: We've not talked about that, your

Honor. However, we would be prepared to put on a witness to

talk about probable cause. And if the Court finds probable

cause, then to proceed to detention which the Government

would plan to do by proffer.

THE COURT: All right. Counsel for the

Defendants, any objection to that order?

MR. ENGH: No, your Honor.

THE COURT: All right. Thank you.


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So, Mr. Docherty, if you would please put on your

witness.

MR. DOCHERTY: Yes, your Honor. Before I do that,

one brief matter for the record. Since this case was

arrested over last weekend, there have been a number of

attempted contacts with people who the folks trying to make

the contact apparently believe are either the CHS mentioned

in the complaint or members of the CHS's family. There have

been phone calls, there have been very ugly statements made

on social media, including Twitter. And I am not accusing

any of the Defendants of having any part in this but I am

wanting to say in public that the people engaged in such

behavior ought to stop because this is behavior that will be

intently investigated by law enforcement and any meritorious

cases brought to the U.S. Attorney's Office will be

prosecuted to the full extent of the law.

Thank you, your Honor.

THE COURT: Let's proceed.

MR. DOCHERTY: I would call Special Agent Harry

Samit, your Honor.

hand.

THE COURT: Would you please raise your right

(Witness Samit sworn by the Court.)

SPECIAL AGENT SAMIT: I do.

THE COURT: You can put your hand down. Please


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state your name and spell your last name for the record.

THE WITNESS: Special Agent Harry M. Samit,

S-A-M-I-T.

THE COURT: Thank you, sir. You may be seated.

And counsel, you may proceed.

MR. DOCHERTY: Thank you, your Honor.

DIRECT EXAMINATION

BY MR. DOCHERTY:

Q. Good morning, Agent Samit.

A. Good morning, sir.

Q. Whereabouts do you work and what do you do there?

A. I'm employed as a Special Agent of the FBI. I work at

the FBI Building, 1501 Freeway Boulevard in Brooklyn Center,

Minnesota.

Q. How long have you been an FBI agent?

A. Sixteen years.

Q. And over the course of the 16 years that you have been

with the Bureau, what sorts of cases have you investigated

primarily?

A. Almost exclusively international terrorism matters.

Q. Have you always worked in Minneapolis or have you worked

in other offices as well?

A. Just Minneapolis.

Q. Are you familiar with the facts of the case that's got

us here in court this morning?


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A. I am.

Q. Could you take a moment and just explain to her Honor

how you got that familiarity?

A. Through working this investigation myself, conducting

interviews of witnesses, subjects, operating confidential

human sources and debriefing them, and through conversation

with colleagues who have also conducted similar activities.

Q. I want to begin, Agent Samit, by talking about the

organization that's mentioned in the complaint, ISIL, ISIS,

the Islamic State. Are you familiar with that organization?

A. Yes, sir.

Q. And are you also familiar, Agent Samit, with the process

by which the Secretary of State can designate an

organization as a foreign terrorist organization?

A. I am.

Q. Have you looked into the designation status of what I

will call, consistent with the complaint, ISIL?

A. I have, sir.

Q. And can you please tell us what you found about the

designation status of ISIL as a foreign terrorist

organization?

A. So the original designation of the organization that

we're referring to as ISIL occurred on October 15th, 2004

when the group al-Qaeda in Iraq or AQI was designated. That

group has existed largely in part and continued and evolved


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today to the group we're calling ISIL. That group was

designated as a foreign terrorist organization in May of

2014.

Q. And that designation in May of 2014, and the designation

of October of 2004, does that mean that the designation has

been continuous?

A. It has, sir.

Q. The designation in May of 2014 was not intended to fill

any gap or anything like that in designation?

A. No, sir.

Q. I want to direct your attention, Agent Samit, to the

events of May the 28th of 2014. Was there something of

significance that happened in this case on that date?

A. There was, sir.

Q. And can you tell us what that was?

A. One of the Defendants in this case, a Mr. Abdullahi

Yusuf, attempted to depart the United States.

Q. You say "attempted to depart". So he wasn't allowed to

leave?

A. No, sir, he was not.

Q. Who stopped him?

A. The FBI.

Q. And where did they stop him?

A. At Minneapolis International Airport.

Q. Where was Mr. Yusuf on his way to on May the 28th of


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CASE 0:15-cr-00049-MJD-FLN Document 33 Filed 05/01/15 Page 10 of 155 1 o

2014?

A. His flight was manifested to Istanbul, Turkey; but

ultimately he was on his way to Syria to join ISIL.

Q. And Mr. Yusuf has now pleaded guilty before a District

Judge of this court; is that correct?

A. Yes, sir.

Q. What did he plead guilty to?

A. He pled guilty to one count of Title 18, Section 2339B,

which is Providing Material Support to a Designated

Terrorist Organization.

Q. At his guilty plea colloquy, are you familiar with what

he said to the judge that day?

A. I am, sir.

Q. And did he say which foreign terrorist organization he

was trying to provide support to?

A. Yes, sir.

Q. Which one?

A. The Islamic State of Iraq and the Levant.

Q. Or ISIL?

A. Or ISIL.

Q. Now the next day, May the 29th of 2014, did someone else

leave the Twin Cities bound for Istanbul, Turkey?

A. They did, another Defendant in this case, an Abdi Nur.

Q. And Abdi Nur, did he stop or did he get out?

A. He was successful in leaving the country.


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Q. Since -- were there connections between Abdi Nur, who

left on May 29th, and Abdullahi Yusuf, who tried to leave on

May 28th?

A. Yes, sir. Our investigation has revealed that they were

travelling together and there were extensive connections

between the two.

Q. And in particular, was there a particular car that was

used to transport Abdullahi Yusuf to a light rail station

near the airport?

A. There was a blue Volkswagen Jetta that was used for that

purpose, sir.

Q. Who does that car register to?

A. The car registers to an acquaintance of a family member

of Mr. Nur.

Q. And who was it that drove the car when Abdullahi Yusuf

was taken to the light rail station?

A. The person was not fully identified, but we believe it

was Mr. Nur, as our investigation indicated that he had

possession of the car during this time.

Q. Were there also telephone contacts between Mr. Nur and

Mr. Yusuf on the 28th of May, the day that Mr. Yusuf tried

to go to the airport?

A. Yes, sir, there were two contacts, one call to each

person by each other's phones.

Q. Since leaving the country, has Abdi Nur been active on


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social media?

A. He has.

Q. Have you reviewed that social media?

A. Yes, sir.

Q. And from that social media content, what can you say

about where Abdi Nur is and what he is doing there?

A. Mr. Nur was successful in reaching Syria, in joining

ISIL, and in acting on their behalf, on behalf of that

terrorist organization.

Q. Does he continue to do so as we stand here today?

A. Yes, sir.

Q. Was one of Mr. Nur's relatives -- I don't mean to say

only one, but did one in particular get upset and take some

action after Abdi Nur left?

A. Yes, sir, a close family member began travelling to

different destinations in the Twin Cities in an attempt to

find out what happened to Mr. Nur.

Q. Did she go to a particular mosque?

A. She did, sir. She visited Dar al-Farooq Masque in

Bloomington, Minnesota.

Q. Did she speak with someone there who is connected with

this case?

A. She did. She spoke with Defendant Mohamed Farah.

Q. He's not here today. He is still in California; is that

correct?


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A. Correct.

Q. Later did she go to the Farah home in the City of

Minneapolis?

A. She did.

Q. And did she speak there with anyone in connection with

this case?

A. She spoke with Defendant Adnan Farah, Mr. Mohamed

Farah's brother.

Q. Did Mr. Adnan Farah say anything to this relative of

Abdi Nur's about his safety and her safety?

A. Yes, sir. He cautioned the relative that if he was to

tell her what had happened, then they would be in danger.

Q. Did he say anything that -- and by "he" I mean Mr. Adnan

Farah -- say anything about the logistics of how young men

get from the Twin Cities to Syria to fight for ISIL?

A. Adnan Farah explained that when people were ready to

travel, the tickets just showed up. That they didn't

exactly know the departure dates or times.

Q. And in particular when you say they didn't exactly know

the departure dates or times, did Mr. Adnan Farah have an

example that he could give to Abdi Nur's relative?

A. Yes, sir. He specifically commented that he had not

known when Mr. Nur would be leaving, and that Mr. Nur did

not know when he, Adnan Farah, intended to leave.

Q. And is this person, Special Agent Samit, this relative


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identified in the complaint as Witness 1?

A. That is Witness 1, yes, sir.

Q. Have you also in connection with this investigation seen

Adnan Farah's Facebook page?

A. I have.

Q. Are there photographs on that page that were of

particular interest to you?

A. Yes, sir.

MR. DOCHERTY: Your Honor, if I could approach the

witness, please?

THE COURT: You may. Have counsel for the Defense

seen the exhibits?

MR. DOCHERTY: They have, your Honor -

THE COURT: Thank you.

MR. DOCHERTY: before the Court came in.

BY MR. DOCHERTY:

Q. Special Agent Samit, I've just placed in front of you on

the witness stand three sheets of 8 and a half by 11 paper,

each one bearing a photograph. They are marked for

identification for this hearing as Government's 1, 2 and 3.

Would you just take a moment, make sure that those are

things you've seen before, and when you're ready to proceed,

indicate.

A. I'm ready, sir. I've seen them.

Q. And are these photographs that were taken from Adnan


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Farah's Facebook page?

A. They are.

MR. DOCHERTY: Your Honor, I would move, for

purposes of today's hearing only, Government's Exhibit 1, 2,

3.

THE COURT: Any objection?

MR. ENGH: No objection.

MR. HOPEMAN: No objection.

MR. BRUDER: No objection.

MR. BIRRELL: No objection.

THE COURT: Thank you. They will be received for

purposes of this hearing.

(Government's Exhibits 1, 2 and 3 received.)

BY MR. DOCHERTY:

Q. Special Agent Samit, can you see on the screen beside

you?

A. I can.

Q. Do you recognize the individual in Government Exhibit

Number l?

A. I do, sir.

Q. Who is in Government Exhibit Number l?

A. That person's name is Anwar Awlaki.

Q. Who is Anwar Awlaki?

A. He is a U.S. born, now deceased since 2011, Islamic

cleric who spoke very aggressively and eloquently in favor


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of violent jihad.

Q. Did Mr. al-Awlaki have a particular audience to whom he

pitched his entreaties?

A. Primarily to the English-speaking world because he was

American born.

THE REPORTER: Could you spell that name for me,

please?

THE WITNESS: First name is Anwar, A-N-W-A-R. And

last name Awlaqi, A-W-L-A-Q-I [sic].

BY MR. DOCHERTY:

Q. And now showing you, Special Agent Samit, Government

Exhibit Number 2. Now, you testified at the beginning of

your testimony about your experiences with the FBI. Besides

being an investigator, have you had other duties with the

Bureau?

A. I have.

Q. And in particular are you or have you been a member of

the SWAT Team?

A. Yes, sir.

Q. What role did you have on the SWAT Team?

A. One of my duties on the SWAT Team was as a sniper.

Q. And as a sniper on the SWAT Team, do you recognize

not the make and model -- but the variety of weapon that the

individual in Government's Exhibit 2 is holding?

A. Yes, sir. That's a large caliber sniper rifle.


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CASE 0:15-cr-00049-MJD-FLN Document 33 Filed 05/01/15 Page 17 of 155 1 7

Q. What's that sort of thing used for?

A. For long-range precision shooting of targets.

Q. Now, looking at Government Exhibit 3, there's a

landscape there, but I would ask you to focus your attention

on the flag and the writing on the flag. In your time as an

international terrorism investigator, are you familiar with

that flag?

A. I am, sir.

Q. What is that flag?

A. That is the flag used by the Islamic State and by

violent jihadists in general.

Q. Have you familiarized yourself, Agent Samit, with Adnan

Farah's passport application in this case?

A. Yes, sir.

Q. When abouts did Adnan Farah apply for a passport?

A. Mr. Farah's passport application was on April 25th,

2014.

Q. On his application did he say where he intended to go

and when he intended to go?

A. He did. His timing would have been later that month or

the end of the next month in May of 2014, and his

destination was China.

Q. Were his parents interviewed as part of this

investigation?

A. They were, sir.


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Q. Were they aware that their son had applied for a

passport?

A. They were not.

Q. Were they aware that their son had said that he wanted

to go to China?

A. They did not know that.

Q. Were they concerned when they realized this during the

course of law enforcement's interview of them?

A. Yes, sir, they were extremely concerned about that.

Q. What did they say about that?

A. They said that they were aware that youth in the

community were travelling to places like Somalia and Syria,

that it was dangerous, and that they feared that Mr. Farah,

Mr. Adnan Farah, might be engaged in that activity.

Q. And as a result of that what did they do?

A. They took his passport.

Q. Changing to a different Defendant, we're now up to about

April of 2014. I want to ask some questions now about

Mr. Guled Ali Omar. In late May of 2014, did he make an

effort to leave the country and go to Syria and join ISIL?

A. Yes, sir, he did.

Q. How abouts -- how was he going to do that?

A. Mr. Omar's plan was to drive to California with two

other individuals. From there they would independently

they would separate and independently make their way out of


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the country, and then ultimately to Syria.

Q. From Mexico?

A. From Mexico, yes, sir.

Q. You said he was going with two other people. Who were

those two other people?

A. One individual was Yusuf Jama. Shall I spell that?

Y-U-S-U-F, J-A-M-A. And another was the CHS, the

confidential human source.

Q. At that time was that person a confidential human source

for the FBI?

A. He was not.

Q. But since then that person has become a confidential

human source?

A. Yes, sir.

Q. About when did the person become a confidential human

source?

A. In early 2015.

Q. Since that person became a confidential human source,

has the FBI paid him for his work in this case?

A. We have, sir.

Q. Can you tell us how much that person has been paid?

A. As of mid April of 2015, he's been paid $12,725.54.

Q. This plan to go to California with Mr. Guled Ali Omar,

Yusuf Jama, and the CHS, did they succeed in getting there?

A. No, sir.


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Q. Why not?

A. Because on the date of departure when Mr. Jama arrived

at Mr. Omar's house, Mr. Omar's family figured out what they

were attempting to do and they, Mr. Omar's own family, put a

stop to the plot.

Q. Are you aware of Mr. Omar's family saying anything to

any law enforcement agency concerning this?

A. No.

Q. Before this trip, have you reviewed Mr. Guled Ali Omar's

bank activity before this attempted departure to California?

A. Yes, sir.

Q. Can you tell her Honor, please, what you found in that

review?

A. Between the dates of May 8th and May 21st, Mr. Omar

emptied his federal student aid account, debit card account,

of $5,000. And then on May 23rd he emptied his personal

bank account of $1,200.

Q. So there's nothing left in either account?

A. Correct.

Q. Was Mr. Guled Ali Omar employed before this attempt to

go to California?

A. He was, sir.

Q. And has the FBI spoken with that employer?

A. We have.

Q. And was Mr. Guled Ali Omar showing up for work in late


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May of 2014?

A. Beginning on May 17th Mr. Omar was no longer showing up

for work.

Q. After the family intervention stopped the trip, was

there redeposits into the bank accounts?

A. There was, sir. On May 29th, Mr. Omar redeposited

$5,500 into his personal account.

Q. Did Mr. Omar start going to work again?

A. He did. He resumed I believe the next day, May 30th.

Q. Turning to one of the other people on that trip, Yusuf

Jama, was he able eventually to make it to Syria?

A. Eventually, yes, sir.

Q. How did he do that?

A. Mr. Jama ultimately purchased a Greyhound bus ticket

from Minneapolis to JFK, to New York City. From there he

reached JFK and took a flight from John F. Kennedy Airport

to Turkey.

Q. When Abdi Nur went over to Turkey, did he phone home?

A. He did after his arrival, yes, sir.

Q. And was there caller ID on his family's phone back here

in Minnesota?

A. There was.

Q. And did the family record the number he was calling

from?

A. They recorded it and provided it to the FBI.


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Q. And after Yusuf Jama went over, did he also phone home?

A. He did.

Q. And did he also phone to a family phone that had Caller

ID on it?

A. He did.

Q. And did his family note that number?

A. They did, and provided it to the FBI.

Q. Have you compared those two numbers?

A. We have, and the numbers are the same.

Q. I'm going to move several months forward now to the 6th

of November of 2014. On that date, staying with Guled Ali

Omar, was there an attempt on his part to fly from here to

San Diego?

A. Yes, sir.

Q. Was he allowed to take his flight?

A. No, sir, the FBI stopped Mr. Omar from taking that

flight.

Q. Was there anything unusual about the way that Mr. Omar

presented himself when he showed up for that domestic

flight?

A. The unusual thing about his presentation for that flight

was that he was carrying his U.S. passport for a domestic

flight.

Q. Later on did Guled Ali Omar have a conversation with the

CHS about this attempt to fly?


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A. He did, sir.

Q. In that conversation did Mr. Omar say anything about

what he had been trying to do that day on November 6th,

2014?

A. He indicated he was attempting to leave the United

States, and in fact he said he was trying to get out right

then and there.

Q. After he got turned around, did he make any telephone

calls?

A. He did.

Q. Who did he phone?

A. He called one of the co-conspirators that was attempting

to leave via Greyhound bus to JFK, Mr. Hanad Musse,

Defendant Hanad Musse.

Q. And following Mr. Omar being turned around and sent home

from the airport on November 6th, by midnight on November

6th, where were Defendants Zacharia Abdurahman, Hanad Musse,

Mohamed Farah, and Hamza Ahmed.

A. They were on Greyhound buses headed for New York City.

Q. And I mentioned Hamza Ahmed. Is that a name that is

familiar to you?

A. It is, sir.

Q. Has he been indicted?

A. He has.

Q. On November 8th in New York City, were there -- did the


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four people who had gone to New York purchase airline

tickets?

A. They did, sir.

Q. And concentrating on Hanad Musse and Zacharia

Abdurahman, the two who are here today, can you tell us what

their itinerary showed?

A. Yes, sir. Mr. Musse and Mr. Abdurahman had tickets -

THE WITNESS: Your Honor, may I consult my notes

briefly?

THE COURT: You may.

BY MR. DOCHERTY:

Q. Agent Samit, would it help if I showed you a copy of the

complaint?

A. I have it actually, sir. So Mr. Musse and

Mr. Abdurahman had tickets booked from Minneapolis -- or

from JFK, pardon me -- to Athens, Greece.

Q. Were any of the four at JFK that day allowed to board

their flights?

A. No, sir.

Q. That was a bad question because one was actually on an

airplane and escorted off.

A. None were allowed to fly.

Q. None were allowed to depart?

A. Correct.

Q. Were three of them then interviewed in New York?


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A. They were.

Q. Was Mr. Musse interviewed in New York?

A. He was, sir.

Q. And what did he say about where he was going and why he

was going there?

A. Mr. Musse informed the agents in New York at JFK that he

planned to go to Greece to chill for vacation. He noted

that he had purchased his ticket just that morning. He did

not know anyone in Greece and had no reservations, no

lodging reservations, in the country.

Q. And how long on the itinerary that he had booked, how

long did he have in Greece?

A. Just three days to visit Greece.

Q. Was Mr. Abdurahman interviewed back here in Minneapolis?

A. He was, sir.

Q. And the same sort of question. What did he say about

where he was going and what he was going to do when he got

there?

A. He indicated -- Mr. Abdurahman indicated that he was

going to Greece for vacation, as well. He noted that he

didn't know anyone in the country either; and then that he

was going alone. During the course of his interview he

subsequently amended that answer, changed that answer to

indicate that he was going with Mr. Musse. He noted that he

was going on vacation just to see the sights, Roman


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architecture and things of that nature.

Q. Did he say anything about ISIS?

A. He did. He made a comment, when agents pointed out to

him that his story was not consistent with what a normal

person does on vacation, he noted that if he was going to

join ISIS, he would have flown to Istanbul.

Q. Did all four of these Defendants return to the Twin

Cities?

A. Yes, sir.

Q. And upon their return to the Twin Cities, did they begin

having discussions about how to get to Syria?

A. They did.

Q. Did the CHS join them in those discussion?

A. In approximately February of 2015 the CHS joined those

discussions.

Q. And Defendant Guled Ali Omar wasn't at JFK, correct?

A. He was not.

Q. Did he also join these discussions?

A. He did.

Q. And also, although not here today, did Mr. Abdurahman

Daud join these discussions?

A. He did.

Q. By this time the CHS is a CHS?

A. That's correct.

Q. And is tape recording these conversations?


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A. He is.

Q. Late in November, November the 25th of 2014, is there

something of significance that happened in this case?

A. November the 25th, yes, sir.

Q. And what happened that day?

A. Well --

Q. That's okay. We can circle back to that.

A. Well, I'm sorry. I was just consulting. So there was

an arrest made in the investigation that date.

Q. Okay. And who was arrested?

A. Mr. Abdullahi Yusuf.

Q. And did Mr. Yusuf's arrest have any effect on the people

that were talking about getting to Syria?

A. It did not diminish their interest in going to Syria,

no, sir.

Q. And then on November 19th of 2015 [sic] was there an

event of significance to the investigation?

A. Yes, sir.

Q. What was that?

A. Mr. Hamza Ahmed was indicted and then subsequently

arrested.

Q. And those conversations were going on by the time

Mr. Hamza Ahmed was indicted?

A. Yes, sir.

Q. Did this do anything to diminish the zeal of the


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Defendants to get to Syria?

A. It did not.

Q. Did the Defendants have a plan to get to Syria?

A. They did.

Q. Can you describe that plan to her Honor, please?

A. Yes, sir. So the Defendants ultimately decided that

they needed to reach -- a more successful way to reach Syria

to exit the United States. And so their plan was to obtain

fake documents, false documents, and then cross over the

United States-Mexico border into Mexico; and then travel to

Turkey and then ultimately Syria via Mexico.

Q. Did Abdi Nur, the man who was in Syria, did he have

anything -- any role in this plan?

A. He did, sir.

Q. Could you describe his role, please?

A. Mr. Nur was communicating with a number of the

Defendants back here in the United States. And he indicated

to them that he had a contact in Mexico who could provide

them with fake documents, fake travel documents, and assist

them getting into Mexico; and then from Mexico onward to the

Islamic State.

Q. Did this plan work out?

A. It did not.

Q. And where did it fail?

A. Mr. Nur was never able to provide the Defendants with


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his contact in Mexico.

Q. When Mr. Nur was unable to come through with a

connection for forged passports, did the CHS make a

suggestion to the Defendants?

A. He did.

Q. And was that done at the FBI's direction?

A. It was.

Q. What was that suggestion?

A. The CHS suggested that he himself might have a Mexico-

based source for false documents.

Q. How was that news taken by the Defendants?

A. Very enthusiastically.

Q. I'm going to for the next couple of minutes, Special

Agent Samit, just go through not so much chronologically as

we have been doing, but rather defendant by defendant in

these conversations about going to Syria. And I'm going to

begin, if I could, with Defendant Zacharia Abdurahman.

In the middle of March, did Mr. Abdurahman in a

tape-recorded conversation have something to say about the

time frame with which he wanted to get to Syria?

A. He did, sir. He said that he wanted to be in Syria

within the month.

Q. Did he say anything about what time was doing to him or

time was doing to the group?

A. He mentioned that time was killing us, referring to the


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group.

Q. As part of this plan was the CHS collecting passport

photos purportedly to be forwarded to his source in

California?

A. He was, sir.

Q. And on April 1st of 2015, did Mr. Abdurahman provide

anything to the CHS?

A. He provided the CHS a copy of a passport photograph of

himself for use in the fake passport.

Q. Did that passport eventually get sent to the purported

forger?

A. It did. The passport photograph?

Q. The passport photograph.

A. Yes, sir, it did.

Q. Well, actually on April the 3rd was there conversation

with Mr. Abdurahman?

A. Yes, sir, I'm sorry. Mr. Abdurahman actually requested

to have that photograph returned to him, so it was not sent.

Q. It was not. And when Mr. Abdurahman asked to get the

photograph back, was that because he no longer wanted to go

to Syria?

A. No, sir.

Q. Why did he say he wanted it back?

A. Mr. Abdurahman expressed concern to the CHS that the

number of people involved in the plot presented a security


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risk. And so his concern was that they would be caught if

he travelled with the group.

Q. Turning now to Defendant Adnan Farah. On March the

16th -- well, let me back up. Are you familiar with your

experience with the FBI and with an Arabic term, word,

dunya?

A. Yes, sir.

Q. Can you tell us what dunya means in English?

A. Dunya generally means worldly or of the earth, of this

earth.

Q. As opposed to?

A. Spiritual or heavenly.

THE REPORTER: Could you spell that for me,

please?

THE WITNESS: D-U-N-Y-A.

BY MR. DOCHERTY:

Q. On the 16th of March was there a conversation between

Defendant Adnan Farah and the CHS in which the word dunya

was used?

A. Yes, sir. Mr. Farah said to the CHS, Mr. Adnan Farah

said to the CHS, "It's dunya. There's nothing for me in

this world, bro."

Q. Did he also have any congratulations for the CHS that

day?

A. He was very happy that the CHS had come up with a source


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for fraudulent passports for the group to use to travel.

Q. Moving forward a couple of weeks to March the 30th of

2015, was there a conversation between Adnan Farah and the

CHS, and did Adnan Farah on that day provide the CHS with

anything?

A. Yes, sir, he provided him with a photograph for his fake

passport.

Q. And did two other Defendants also provide passports

[sic] that day

A. They did.

Q. -- that are not here today?

A. Yes, sir, they did.

Q. The passport -- the supposed passport forger was going

to need to be paid, correct?

A. He was.

Q. Did Adnan Farah provide any money to pay for his forged

passport?

A. On April 3rd Mr. Farah gave a down payment of $100 for

his passport. Mr. Adnan Farah did.

Q. And then two days later on April the 5th, did Adnan

Farah give someone else's photograph?

A. He did. He did. Mr. Farah provided an additional down

payment for -- or I'm sorry, a photograph -- Mr. Hanad

Musse's, Defendant Musse's photograph for his passport.

Q. And then lastly, two of the Defendants and the CHS left


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for San Diego on the 17th of April; is that right?

A. That's correct.

Q. And on that day, the date of departure, did Mr. Adnan

Farah learn something about whether he would be going or

not?

A. He did. He learned --

Q. Can you tell us what?

A. He learned that he would not be making the car trip with

that group, with Mr. Mohamed Farah with the CHS and with

Daud.

Q. Why was he not able to go?

A. He was unable to go because they had spoken with an ISIS

member in Syria and determined that the route that they

would be taking once they reached Syria was considerably

more involved and expensive than previously; and so the

decision had been made that there was not enough money for

all of them to travel.

Q. Did Mr. Adnan Farah tell the CHS about an alternate plan

that he had -- or excuse me, did someone tell the CHS about

an alternate plan that Adnan Farah had?

A. Yes, sir, the CHS learned that Mr. Adnan Farah had an

alternative plan. That he was planning on traveling to the

Horn of Africa, to east Africa, Somalia area, with his

father. While there, he would obtain a Somali passport and

then make his way to Syria via that route.


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Q. Turning now to Defendant Hanad Musse. You testified

already that Adnan Farah gave the CHS Hanad Musse's passport

photograph on the 5th of April. Several days later did

Mr. Musse ask for his photograph back?

A. He did. Well, he did not ask for his photograph back

but on April 8th he noted that he would no longer be

travelling with the group. He noted that he wasn't going to

go with the group because his father had confronted him and

asked if he was planning to leave the country. And so

Mr. Musse decided not to go.

Q. And so, again, were Mr. Musse's reasons for not going

related to not wanting to go to Syria anymore?

A. No, sir, he didn't want to go because he had been

caught, at least with that group.

Q. Is there any indication in anything that you've seen

that Hanad Musse's father called law enforcement after he

confronted his son about his plans to leave the country?

A. No, sir.

Q. And then lastly, Special Agent Samit, I want to spend

just a minute or two talking about the activities of

Defendant Guled Ali Omar. You testified earlier about this

conversation where Mr. Abdurahman said the time was killing

us and he wanted to leave within a month. Was Mr. Omar also

a participant in that conversation?

A. Yes, sir.


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MR. DOCHERTY: Excuse me, your Honor. I'm just

finding myself in my notes here.

(Pause in proceedings.)

BY MR. DOCHERTY:

Q. And who was it -- excuse me. Who was it that originally

told the CHS about the plan involving Abdi Nur and fake

passports?

A. That was Mr. Abdurahman.

Q. At some point did Mr. Omar also say that he did not wish

to continue with this particular group in getting to Syria?

A. He did, sir.

Q. And, again, did he do that because he no longer wanted

to go to Syria?

A. No.

Q. And about when was it that he said he no longer wished

to go with this particular group?

A. It would have been in March of 2015.

Q. And what reasons did he give for not wanting to continue

to participate?

A. He indicated that he didn't want to go anywhere with the

group that had been stopped by the FBI at JFK, at John F.

Kennedy Airport in New York. He said that he felt like

doing anything or going anywhere with them would have been

an automatic failure because of the law enforcement scrutiny

on them.


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Q. And then lastly, when was it that a vehicle left for San

Diego to pick up the forged passports, cross into Mexico and

get to Syria?

A. On April 17th, 2015.

Q. And who was in the car?

A. The CHS, Daud, and Mohamed Farah.

Q. And were those individuals arrested in San Diego?

A. They were.

moment?

MR. DOCHERTY: Your Honor, could I have one

THE COURT: Yes.


MR. DOCHERTY: No further questions.

THE COURT: Thank you, counsel.

CROSS-EXAMINATION

BY MR. ENGH:

Q. Agent Samit, you're referring to several notes during

your testimony today?

A. I am, sir.

Q. Were the notes a part of the complaint, the 38-page

complaint, or are they separate from the complaint?

A. They are separate from the complaint, sir.

MR. ENGH: May I review those notes, your Honor?

MR. DOCHERTY: Your Honor, I object to that. The

notes are to refresh the witness's memory. This is a long


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and complicated complaint. The facts that he has are

extracted from the complaint. They are not separate. They

are not additional.

MR. ENGH: He has used his notes to refresh his

recollection. I'm entitled to see them. That's my view.

THE COURT: Well, I'll take that under

consideration and review that, but I'm not going to allow

you to look at them now.

MR. BIRRELL: For the record, your Honor, we ask

for those notes under the Jencks Act, 18 U.S. Code 3500, and

Rule 26 of the Federal Rules of Criminal Procedure.

MR. HOPEMAN: On behalf of Zacharia Abdurahman I

request them as well. And I further cite Federal Rule of

Criminal Procedure 46(j) which says that the Jencks Act and

Rule 26(a) apply to a detention hearing.

THE COURT: Thank you, Counsel.

MR. BRUDER: On behalf of Mr. Omar, I join in

that, your Honor, and add that the witness already testified

that he used those notes to refresh his recollection.

THE COURT: Thank you, Counsel. I'll take that

under advisement.

And, Counsel, if you could make sure for the

record you identify yourself, since we do have more than one

counsel here and more than one defendant, so that it's

clear. Thank you.


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MR. ENGH: The record should reflect that I'm Paul

Engh, E-N-G-H. I represent Adnan Farah. He's first listed

in the complaint so I'm going first.

MR. DOCHERTY: Your Honor, could we approach on

the notes issue, please?

THE COURT: You may.

(Sidebar conference held on the record.)

MR. DOCHERTY: Your Honor, as is often true, I

just needed a moment to get over my reflexively oppositional

nature. We'll show them the notes.

MR. ENGH: And maybe we can have a short break to

review the notes in a reasonable way?

MR. DOCHERTY: Sure. But, I mean, they are names

and dates from the complaint.

MR. ENGH: Well --

MR. DOCHERTY: That's fine.

THE COURT: We can take a short break.

MR. ENGH: Why don't we do that.

(End of bench conference.)

THE COURT: Thank you, Counsel. The Government

has withdrawn its objection to the review of the notes and

so we will take a short recess so Defense Counsel may review

the notes. We are in recess and I'm hoping this won't take

too long, but I want to give Defense Counsel the opportunity

to review what it seeks and what the Government doesn't


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object to.

Thank you. We are in recess.

(Recess taken from 9:48 to 10:21 a.m.)

THE COURT: Thank you, everyone. Please be

seated. We are back on the record and thank you, everyone,

for your patience. I understand that the Defense Counsel

now has copies of the notes and, Counsel, are you prepared

to proceed now after having a chance to review the notes?

MR. ENGH: I am, your Honor. Thank you.


BY MR. ENGH:

Q. Agent Samit, your investigation has revealed with

respect to Adnan Farah that he lived at a residence on Van

White Memorial Boulevard; is that correct?

A. Yes, sir.

Q. In fact, you visited that household in May of 2014,

true?

A. I did.

Q. At that point in time you spoke with his parents; is

that right?

A. I did.

Q. And they willingly discussed their son or sons with you;

is that correct?

A. They discussed their son Adnan, yes, sir.

Q. And you learned from that interview and from your other


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investigation that there are seven children in the family,

correct?

A. Yes, sir.

Q. And this Mr. Adnan himself is 19 years old?

A. At the time I believe he was 18.

Q. Nineteen now?

A. Yes, sir.

Q. A graduate from high school, correct?

A. He was not at the time.

Q. But he is now?

A. He is, yes, sir.

Q. And, of course, you did a criminal history check of the

family and found none with respect to my client, true?

A. Correct.

Q. And one of the reasons you were there at the household

that day is that you were aware that he had applied for a

passport, correct?

A. Yes, sir.

Q. On an expedited basis, as I understand it?

A. It was.

Q. And one of the places he wanted to see was China. Isn't

that correct?

A. Yes, sir.

Q. You were curious as to why he wanted to go to China and

asked him parents about that, fair?


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A. Yes, sir.

Q. They indicated, or the father indicated, that he had

some old acquaintances of the family who may have been in

China as students; is that correct?

A. Yes, sir.

Q. Were you able to confirm that?

A. No, sir.

Q. Did you try to confirm that?

A. We didn't have enough information to begin to try to

confirm it. We didn't have a phone number. There was no

e-mail address. There was no way for us to confirm that.

Q. But you don't know either way whether he had an interest

in China because of these distant relatives?

A. I know what his father told me, sir, which is that he

doubted that his son was in conversation with those

acquaintances.

Q. Had he had a conversation with his son about those

acquaintances, though?

A. I don't know.

Q. You asked whether or not Adnan's behavior or demeanor

had changed during that same interview?

A. Yes, sir.

Q. And by this time the parents, the mom and dad, were in

the same room with you?

A. They were.


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Q. And they indicated to you that his behavior had not

changed?

A. Correct.

Q. And to give us a context of the time, this was shortly

after Mr. Nur made it to Syria, fair enough?

A. Yes, sir.

Q. The parents indicated as to their son and my client that

he was not particularly religious?

A. They did, sir, yes.

Q. That his plan was to get married and start a family?

A. Yes, sir.

Q. You confirmed that, haven't you?

A. Well, what the father told me was -- or the mother, I'm

not sure which that they were concerned that that wasn't

really his plan.

Q. But he had indicated to them that he had a plan to be

married; is that right?

A. I don't know what he indicated to them, sir.

Q. Did you do an independent investigation to determine

whether he had a fiancee' or had proposed to someone?

A. No, sir.

Q. But what you did find out is that once this passport had

arrived at the residence where he lived, the parents had

taken it; isn't that right?

A. Yes, sir, they told me that.


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Q. So there was no question as to the identity of the

passport, where it was being sent, and the correct address.

Fair enough?

A. Fair enough, yes, sir.

Q. And unlike some of the other individuals that you have

described here, do you have any evidence that Mr. Adnan

Farah had travelled to New York City on a Greyhound bus?

A. No, sir.

Q. You had no evidence that he has ever been overseas?

A. No, sir.

Q. Did you have -- do you have any evidence that he had

ever gone to San Diego as the two other individuals in this

complaint have recently done?

A. No, sir.

Q. Do you have any information of how he paid for that $300

expedited fee for his passport?

A. I do not.

Q. Was it cash?

A. I don't know, sir.

Q. Done on a credit card?

A. I don't know.

Q. He is a United States citizen?

A. Yes, sir.

Q. Do you have any evidence that connects him with this

blue Jetta car that you discussed earlier in your testimony?


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A. No, sir.

Q. What you did tell us is that a witness, shortly after

Mr. Nur had disappeared, arrived at the Farah residence and

talked to both brothers; isn't that correct?

A. She arrived at the residence of both brothers. The

information we heard from the witness was that she spoke

with your client, sir.

Q. I wanted to ask you about that conversation. Was that

taped?

A. No, sir.

Q. Was that while the witness was cooperating with you or

did she relay that information thereafter?

A. She relayed it subsequent to the events. She was not

cooperating with us.

Q. Did she keep contemporaneous notes of that interview?


Q. When you indicate -- and you did indicate in direct

testimony and in the complaint, although you didn't sign it,

I know -- that the witness indicated Mr. Farah, my client,

told her that what happened -- if he told the witness what

happened, they would not be safe. Are you familiar with

that line?

A. Yes, sir.

Q. That's not in quotations in the complaint but is that

close from your interviews with Witness l?


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A. I did not interview Witness 1; but from what my

colleagues who did inform me, that is very close to what

your client said to Witness Number 1.

Q. Who is "they" when the phrase "they would not be safe"

is mentioned?


Q. And what is the danger that was stated during this

interview with Witness 1 and my client?

A. I would have to assume it comes from the terrorist group

ISIL.

Q. Have you been able to confirm what the danger was?

A. No, sir. Your client hasn't participated in any

interviews.

Q. Did he mention anything else besides that they would not

be safe if he told the witness what happened?

A. He did.

Q. What else did he mention?

A. He also said that people who are travelling to Syria do

not know when they will be travelling. The travel

documents, the tickets, just show up. And that Mr. Nur -

he did not know when Mr. Nur had been scheduled to travel

and Mr. Nur did not know when he was scheduled to travel.

Q. Did the Witness 1 indicate anything else to you

regarding this conversation?

A. No.


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Q. Or have you sufficiently summarized it?

A. I think it's sufficiently summarized.

Q. So at this point in the investigation on -- shortly

after Mr. Nur disappeared, Mr. Farah did not himself have a

passport in his possession, right?

A. Correct.

Q. His parents had taken it away, right?

A. Yes, sir.

Q. At this point in the investigation he had no fake

passport, right?

A. I don't know that, sir.

Q. He never -- well, did you ever find a fake passport?

A. No, sir.

Q. You have conducted various searches and seizures in the

case, I assume?

A. Yes, sir.

Q. And besides the discussions of your CHS witness, do you

have any evidence that Mr. Farah had another passport at

all?

A. No, sir.

Q. You mentioned some pictures on Facebook, and one of them

is Exhibit Number 1. Fair enough?

A. Yes, sir.

Q. How long was that Facebook site of Mr. Farah inactive?



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Q. Do you know if it was active when you seized this

picture off it?

A. I do not know.

Q. Do you know who does?

A. One of my colleagues who was responsible for the online

portion of the investigation.

Q. And this picture of Mr. al-Awlaki is readily available

on the Internet. Fair enough?

A. Many photos of Mr. al-Awlaki are. I'm not familiar with

that one in particular.

Q. Well, they all look kind of the same.

A. Well, he looks the same in the various photographs, yes,

sir.

Q. In fact, his YouTubes are readily available as well on

the Internet; fair?

A. Yes, sir.

Q. Do you know when then Mr. Farah posted this picture of

Mr. Al-Awlaki on his website or his Facebook?

A. I do not, sir.

Q. And the same question could be asked about this

photograph of a sniper gun. Do you know when he posted

that?

A. I do not.

Q. Do you know if he himself had posted that?

A. I do not.


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Q. It is possible that other people can post things on a

Facebook?

A. It is possible, yes, sir.

Q. And you haven't excluded that possibility?

A. We have not. However, sir, we should note it is your

client's Facebook page over which he has control.

Q. That's true.

A. And so he has the capability of removing things from it

should he not agree or should they be distasteful to him.

Q. I appreciate that. That wasn't my question, though.

The question was whether or not anyone else had access to

his Facebook.

A. I am not aware of that, sir.

Q. And the same question with Number 3, this flag from the

Islamic State. This is available on the Internet and can be

placed on anybody's Facebook?

A. Are you referring to this specific photograph?

Q. Yeah.

A. I don't know if it's widely available on the Internet or

not.

Q. You've seen pictures of this flag before?

A. Absolutely, sir. Pictures of that flag are certainly

available on the Internet. This specific picture I don't

know.

Q. And that's someone else in your office that did that,


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right?

A. Yes, sir.

Q. One of the things you asked the parents about is whether

or not their son had the ability to go to China in terms of

fiscal ability, fair enough?

A. Yes, sir.

Q. And he didn't have any ability to get to China, right?

A. Well, his parents replied that they didn't believe he

had the financial capabilities to get to China.

Q. Have you done an independent investigation of his bank

accounts?

A. Yes, sir.

Q. His credit cards?

Did he have access to funds at about the same time

he wanted to go to China in the spring of 2014?

A. No, sir.

Q. Did Mr. Farah have any discussions with your CHS witness

that would suggest that it was his idea to buy a fake

passport from this witness?

A. No, sir. However, he did congratulate --

Q. Yes or no?

A. No, sir.

Q. In fact, he never got a fake passport; isn't that right?

A. That's correct. He never physically obtained it. He

did ask for one to be provided him.


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Q. Which your witness was never going to provide anyway,

right?

A. No, that's not true, sir. They were going to be

provided them immediately prior to arrest.

Q. And this is the same CHS that you've paid $12,000 to?

A. Correct, sir.

Q. Was it your idea, Agent Samit, to suggest a fake

passport to CHS who would then relay the suggestion to the

client of mine?

A. Was it my specific idea as one of the agents? No, sir.

Q. Was it the FBI's idea?

A. I'm sorry, could you --

Q. Was it the FBI's idea?

A. Yes, sir.

MR. ENGH: One moment, your Honor.


BY MR. ENGH:

Q. In your investigation, have you ever uncovered

communications sent to Mr. Farah indicating that he would be

going to Syria?

A. No, sir.

Q. Has he been the subject of wiretaps?

A. I'm not sure if he has specifically, sir. I don't know

the answer to that.

Q. I assume you've made every effort possible to trace

CARLA R. BEBAULT, CRR, RMR ( 651) 848-1220

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Mr. Nur in Syria in terms of what he's doing and his

communications; is that right?

A. Correct.

Q. Do you have any evidence of Mr. Nur's personal

communications to my client?

A. No.

Q. When was the last time that my client had contact with

Mr.Nurthen?


Q. You don't know if he ever did?

A. I don't.

MR. ENGH: No further questions.


Would the Government like to do any redirect now

or should we have all of the Defense Counsel do

cross-examinations and then follow up that way?

MR. DOCHERTY: I would suggest the latter, your

Honor.


Any other cross-examination?

CROSS-EXAMINATION

MR. BRUDER:

Q. Good morning, Agent Samson [sic]. My name is Glenn

Bruder and I represent Guled Ali Omar.

A. Good morning, Mr. Bruder.


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Q. Good morning. Your testimony began when you talked

about two individuals who are not part of this case.

Mr. Yusuf and Mr. Nur. Do you recall that?

A. Yes, sir.

Q. And Mr. Yusuf has already been charged and pled guilty

in a separate matter, correct?

A. He has.

Q. And Mr. Nur, to the best of your knowledge, is presently

in Syria?

A. Yes, sir.

Q. Mr. Nur successfully left the United States in May of

2014?

A. He did.

Q. And Mr. Yusuf attempted to leave the United States at

the same time?

A. Yes, sir, roughly the same time; a day before.

Q. And both were taking the same route, essentially. They

were travelling to Istanbul, I believe, from JFK in New

York, correct?

A. No, sir. They were travelling to Istanbul from

Minneapolis International Airport.

Q. Well, they have to change planes at Kennedy, don't they?

A. Yes, sir.

Q. Okay. So the route was Minneapolis to New York to

Istanbul?


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A. Yes.

Q. Do you have any evidence that Mr. Omar ever purchased an

airplane ticket from Minneapolis to New York and onto

Istanbul?

A. No, sir.

Q. Now, I'd like to talk about this May 2014 incident.

That's the incident where my client was supposedly going to

be travelling to California by car, correct?

A. Yes, sir.

Q. And you were unaware of these travel plans at all until

your paid informant showed up at your office and told you

about it; is that correct?

A. It was not at our office, but until our CHS told us

that, yes, sir.

Q. Okay. So until the paid informant came to you, you

didn't know about this at all?

A. Yes, sir.

Q. And according to the information your paid informant

supplied you, did Mr. Omar rent the vehicle that was going

to be used?

A. No, sir.

Q. Okay. And the people who were involved, which included

your paid informant, were going to be travelling to San

Diego, correct?

A. I believe the CHS reported to California. He wasn't


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specific to the city.

Q. Nothing inherently illegal about travelling to

California, correct?

A. No, sir.

Q. And in that particular instance, according to your

informant, Mr. Omar never even left Hennepin County.

A. That's correct, sir.

Q. You testified that the Government was aware, however,

that Mr. Omar attempted to fly to California in November of

2014?

A. Yes, sir.

Q. And I believe at that time he was flying to San Diego,

correct?

A. Yes, sir, correct.

Q. Tens of thousands of Minnesotans fly to San Diego from

Minnesota in the winter, correct?

A. I couldn't give you a number on that, sir. I'm sure

plenty do.

Q. In fact, I suspect you have taken winter vacations as

well, haven't you?

A. Yes.

Q. And on that particular occasion, do you have any

evidence that Mr. Omar purchased any plane ticket other than

the one from Minneapolis to San Diego?

A. No, sir.


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Q. And he purchased, I am assuming, since he was in your

mind travelling to Syria, he purchased only a one-way plane

ticket because he wasn't coming back to Minnesota?

A. No, sir, it was a round-trip ticket.

Q. Oh, okay. So he purchased a round-trip ticket to San

Diego and you have no evidence that he purchased any other

plane tickets, correct?

A. Yes, sir.

Q. And you said that what was suspicious about his travel

was that he had his passport with him, correct?

A. Yes, sir.

Q. How far is San Diego from Tijuana?

A. Very close. Right within minutes.

Q. And if somebody wants to visit Tijuana while they are in

San Diego, a passport would be useful, correct?

A. Yes, sir.

Q. Nothing illegal about visiting Tijuana?

A. There is not.

Q. Okay. Now, I noticed when you were talking about other

Defendants you mentioned that when they were interviewed by

Government agencies they had kind of only a vague

description of what their plans were and where they were

travelling. Are you aware of any effort to interview

Mr. Omar about his travel plans to California?

A. Yes, sir.


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Q. Okay. And did he indicate that he had hotel

reservations in California?

A. He did.

Q. Did you confirm whether he had those reservations or

not?

A. I don't know if those were confirmed by the case agent.

Q. Okay. Did Mr. Omar tell you that he give you the

names of people he was planning to visit in California?

A. I believe he did, yes, sir.

Q. And did you confirm whether in fact he was visiting

those people?

A. I don't know if the case agent did that, sir.

Q. Okay. So at this point you received an innocuous

explanation from Mr. Omar and you have no idea whether the

Government made any effort to confirm that information or

not?

A. On those two questions that you asked as to the hotel

reservations and the associates, yes, sir.

Q. Okay. Now, you indicated that your paid informant

offered you a different narrative for what my client's

purpose was in travelling to California, correct?

A. Yes, sir.

Q. Now, you mentioned that your informant recorded his

conversations with Mr. Omar and others after he became

involved with your agency, correct?


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A. Yes, sir.

Q. Did he record all of his conversations with them?

A. No, sir.

Q. I see. So some of the conversations you have been

relating today are based solely on information provided to

you by your paid informant. There's no recording to verify

it?

A. Yes, sir. And in a small number of cases that is true.

Q. I'm assuming that -- well, let me put it this way. You

didn't just take all of the information that your paid

informant gave you and accept it as gospel. You did try to

explore whether he was being truthful?

A. Yes, sir.

Q. Okay. And you conducted a broader investigation than

just relying on Mr. Paid Informant, right?

A. Absolutely, sir. Not only did we conduct a broader

investigation, but we took steps to confirm that what the

paid informant was telling us were true.

Q. Okay. And did you, for example, obtain any wiretaps,

specifically of Mr. Omar?

A. Yes, sir.

Q. Okay. So you do have wiretaps of his phone

conversations?

A. Sir, I'm not exactly sure of what was covered by the

wiretaps. I'd have to check on that.


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Q. Okay. The reason I wonder is because in the complaint

there's not a single reference to any conversation involving

a wiretap in which my client admitted to anything.

A. Yes, sir.

Q. And I'm sure if there was, you would have put it in the

complaint, right?

A. Yes, sir.

Q. Okay. Now, there was a discussion at some point in

which your paid informant came to you and said, Hey, these

guys are talking again about leaving for Syria, correct?

A. Yes, sir, that's correct.

Q. And that was sometime in early 2015? I believe you said

February 2015.

A. Yes, sir.

Q. And at some point you suggested to the informant that he

report that he had the ability to secure false passports,

correct?

A. We did.

Q. And that was, I assume, at least in part to gather

evidence and to gauge interest in these suspects in whether

they were really interested in travelling to Syria?

A. Yes, sir.

Q. And again, focusing on my client, Mr. Omar, did he pay

Mr. Informant any money for a fake passport?

A. No, sir.


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Q. Did my client, Mr. Omar, offer up any passport

photograph to be used as a fake passport?

A. He did not.

Q. And did he at this point in time make any flight

arrangements to New York or to Istanbul?

A. No, sir.

Q. Did he withdraw any funds from his bank account?

Because that had been mentioned earlier.

A. I am not aware that he did, sir.

Q. Okay. And, in fact, he told your informant that he had

no interest at this point in going to Syria with the other

people who were coming forward with that

photographs and that money, correct?

those

A. Sir, what he said was he had no interest in travelling

with them.

Q. Was that, by the way, a recorded conversation?

A. Yes, sir, I believe so.

Q. Okay. And to the best of your recollection, the

statement that was specifically made by Mr. Omar is

reflected in the complaint. Is that correct?

A. It is.

Q. And do you have the complaint in front of you?

A. I do.

Q. Okay. And if you would turn to page 26, the exact

statement that Mr. Omar made is, "I don't want to go


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anywhere with them." Correct?

A. Yes, sir.

Q. And then he termed any effort to travel with them "an

automatic failure," correct?

A. Yes, sir.

Q. So at this point, just to clarify, you believe that

Mr. Omar was attempting to enlist the services of a

terrorist organization?

A. Yes, sir, ISIL.

Q. He never purchased a plane ticket outside the United

States?

A. Correct.

Q. His only travel plans that you were able to identify

were to California in the winter?

A. Yes, sir.

Q. And in this incident in May 2014, he never left Hennepin

County?

A. Correct.

Q. And you only discovered it because your paid informant

told you about it?

A. Yes, sir.

MR. BRUDER: I have no further questions.


/I/I/I/Ill///


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CROSS-EXAMINATION

BY MR. HOPEMAN:

Q. Good morning, Mr. Samit. I'm Jon Hapeman and I

represent Zacharia Abdurahman.

A. Good morning, Mr. Hapeman.

Q. Do you know much about my client's personal background?

A. No, sir.

Q. You are aware that he was born here in Minnesota and is

a U.S. citizen, aren't you?

A. Yes, sir.

Q. And that he is a high school graduate?

A. Yes, sir.

Q. That he's never lived outside of Minnesota at all,

right?

A. Yes, sir.

Q. And he travelled once abroad with his mother when he was

11 years old to Sweden and Somalia, I think. Are you

familiar with that?

A. I believe his mother told me that, yes, sir.

Q. And he was living with his mother and about six brothers

and sisters at the time he was arrested, right?

A. Yes, sir.

Q. And, in fact, during the entire time of your

investigation, that's where he lived with them, right?

A. Correct.


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Q. And he is the oldest?

A. I don't know that for sure, sir.

Q. You were aware that he was -- he has worked numerous

part-time jobs over the last few years, weren't you?

A. More specifically over the last year we were aware of

where he worked.

Q. All right. And he worked most recently at night as a

security guard at the Harriet Tubman Shelter, right?

A. Yes, sir.

Q. And was in fact, as far as you know, a financial support

to his mother and brothers and sisters?

A. I don't know, sir. I don't know where his funds were

going.

Q. He was also attending school at Metro Technical and

Community College, I think is the name of it, right?

A. Minneapolis Community and Technical College.

Q. Yeah, whatever it is. You knew that, right?

A. Yes, sir.

Q. All right. And he has no criminal record at all, right?

A. Yes, sir.

Q. Not even a misdemeanor, right?

A. Correct.

Q. He never did get a false passport, right?

A. He did not physically receive one, no, sir.

Q. He got a target letter in November of 2014


that you're

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aware of, right?

A. Yes, sir.

Q. And he still he remained here between November of

2014 and April 2015 when he was arrested, right?

A. He did.

Q. I want to ask you some more specific questions about

this affidavit.

A. Yes, sir.

Q. I want to know if you have examined a Facebook page for

Mr. Abdurahman?

A. I have not, no.

Q. Has anyone connected with the investigation done so?

A. I assume that that has happened. I can't state that

under oath.

Q. You don't know if there is one?

A. I don't know.

Q. In any event, you're unaware of any radical photographs

like the ones in Exhibits 1, 2, and 3 that are connected

with him, true?

A. I am not, sir, correct.

Q. Have you examined his bank records? I think you said a

little bit ago you knew nothing about his finances.

A. Yes, sir, someone in the FBI office has. The case agent

has. I have not certainly.

Q. Who is the case agent?


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A. I would have to check. I'm not sure.

Q. Is it the guy who signed this big affidavit?

A. Special Agent Marshall? No, sir.

Q. Okay. So do you know what the investigation of his bank

account showed?

A. No.

Q. I assume if it had showed suspicious activity, it would

have ended up in this affidavit, right?

A. Yes, sir, most likely.

Q. Now, you've talked about the November 8th attempt to get

on a flight from New York to Greece; and I want to know if

you have any detail as to what his plan was once he intended

to arrive in Greece.

A. Yes, sir, I have some detail because I interviewed your

client subsequent to that attempt.

Q. All right. He certainly didn't tell you what route he

was going to take to Syria, did he?

A. He did not.

Q. And he didn't tell you what means of travel he was going

to take to get to Syria, true?

A. Yes, sir. What he did say, though, is that if he was

going to Syria, he would fly to Istanbul.

Q. That's after an agent said that his story wasn't making

any sense, right?

A. Yes, sir.


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Q. Did you determine at the time of the November 8 incident

in New York whether he had a significant amount of money

with him?

A. We did not, sir.

Q. Do you know who he was going to meet in Syria?

A. We do not.

Q. Now, paragraph 42 of the affidavit says that -- this

talks about the very subject we're on. It says: "When

later interviewed by agents in Minneapolis, Abdurahman

claimed he was travelling overseas alone for a vacation."

Did you interview him yourself?

A. Yes, sir.

Q. Did I understand that?

A. That's correct.

Q. Who else was with you?

A. Special Agent John Thomas and Special Agent Vydym

Vimetsky.

Q. What's the second -- the last one?

A. Vydym Vimetsky. V-Y-D-Y-M, V-I-M-E-T-S-K-Y.

Q. And so there was just that one interview, right?


Q. Paragraph 46 talks about agents reviewing phone tolls

that show links between Mr. Abdurahman and Mr. Ahmed on

November 5th and 6th.

A. Yes, sir.


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Q. And it says that there were 25 text messages and phone

calls. I want to know, first, were the phone calls

intercepted or was it just determined that the calls were

A. I believe it was just a pen register, just that they

occurred. No content.

Q. All right. Have any of Mr. Abdurahman's phone calls

been intercepted?

A. Not to my knowledge.

Q. As for the 25 text messages, have you viewed them?

A. There would not be content with those either.

Q. Oh. So it was just determined that the contacts were

made?

A. Correct.

Q. And then it indicates that on November 6th -- between

November 6th and 8th, Mr. Abdurahman and Mr. Musse had 52

phone calls and 6 text messages. Is your answer the same

that you simply determined that the calls and messages were

sent?

A. Yes, sir, I believe that's true.

Q. You don't have any idea of content, right?

A. We do not.

Q. The affidavit talks about an examination of a Twitter

account belonging to Mr. Ahmed. This is in paragraph 49.

And it talks about hating the kuffars and the oppressors,

loving the Mumineen. "May this khilafa be the real


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thing ... " I want to know if you have any evidence that

Mr. Abdurahman participated in that activity, those Tweets?

A. I do not, sir.

Q. Did he re-Tweet any of them that you know of?


Q. Now, I want to know how it was determined that certain

conversations that the confidential human source had with

these young men were recorded and why others were not?

A. There are two reasons why the ones that were not

recorded were not. In the first case, before the

confidential human source had been fully developed, he was

not given recording equipment. And so it was early in his

operation as standard procedures, those weren't recorded

because he wasn't given that equipment yet.

In the second case, once he had been given

equipment, there would be technical reasons, either sound

quality -- so there would be recordings attempted but either

the equipment would fail or the sound quality would not be

sufficient to allow us to make out the recordings.

Q. Well, this guy lied to a U.S. Grand Jury about his

activities, didn't he?

A. Yes, sir.

Q. And he lied twice to federal agents about his

activities, right?

A. Correct.


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Q. And so when you first began having him meet with these

young men, you weren't recording it?


Q. You were taking his word for what they said, right?

A. We were taking his word and we were taking other steps

to verify it.

Q. And some of the statements that the CHS says that they

made end up in this affidavit, right?

A. Yes, sir.

Q. On page 22, paragraph 52, will you take a look at that?

It says that: "Beginning in February of 2015, the informant

was present for multiple conversations in which the

defendants discussed past efforts to leave the country as

well as their desire to again attempt to travel to Syria to

join ISIL."

Was this in February 2015 at a time when he was

working for the FBI?

A. It was, sir.

Q. Did he get any other benefits other than this 12,000 and

some dollars he has been given?

A. To date that's the only benefit he has received.

Q. Has anyone paid rent for him?

A. He's been provided money for expenses and services.

Specific to rent, he could certainly use that for that

purpose.


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Q. So the 12,000 was for his expenses and services?


Q. Okay. Has he been relocated at FBI expense?

A. Yes, sir.

Q. Has he been given -- and is this on top of the $12,000?

A. Yes, sir.

Q. Has he been given any other benefits by the FBI such as

educational benefits, trips to the doctor, that sort of

thing?

A. No, sir, not that I am aware of.

Q. Is he in custody?

A. No, sir.

Q. Is he attended night and day by an FBI agent?

A. Ah, attended night and day, you mean constant?

Q. What I mean is, is he under constant observations by

agents? We had a case in the past in which that was the

case.

A. No, sir.

Q. So can you give me an account of what these multiple

conversations were between the informant and the Defendants

beginning in February 2015?

A. The informant, the confidential human source, reported

that the group that you see there, Mr. Omar, Mohamed Farah,

Adnan Farah, Mr. Daud, your client, sir, and Hanad Musse,

were again discussing plans to travel to Syria to join ISIL.


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Q. Do you have any detail?

A. In terms of?

Q. As to who said what when, about what subject?

A. No, sir.

Q. Does anyone in the FBI know who said what when, about

what subject in those conversations?

A. Yes, sir, the CHS was debriefed in great detail so the

persons that were speaking, that would have been documented

in a report who said what to the best of the CHS's

recollection.

Q. Thank you. Do you have any evidence that Mr. Abdurahman

was in contact with Abdi Nur, the man that you say joined

ISIL?

A. No, sir.

Q. Who was in contact with Abdi Nur?

A. Mr. Daud. And actually Mr. Abdurahman, based on

statements he made, may also have been in contact.

Q. Statement he made to whom?

A. Statements he made to the confidential human source.

Q. Please look at paragraph 56 which talks about the CHS

learning from members of the conspiracy that others were in

current contact with Nur.

A. Yes, sir.

Q. All right. Do you have any detail other than what

you've given me that Mr. Abdurahman was in contact with Nur?


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A. Yes, sir. Well, as you can see there in paragraph 56,

Mr. Abdurahman indicated what could be firsthand knowledge

for Mr. Nur. That Mr. Nur in fact had a contact able to

supply them passports and assistance in travelling to

Mexico.

Q. And was that recorded?

A. I do not know, sir.

Q. When was it?

A. When did that conversation occur?

Q. Yes. I can't tell from your affidavit. Not your

affidavit but the affidavit.

A. It looks like it would have been in early to mid March.

Q. You don't have any evidence of any communications by

telephone or text between Mr. Abdurahman and Mr. Nur, do

you?

A. No, sir.

Q. Nor through any other communicative means?


Q. All right.

A. Just your client's reference that he was in touch with

him.

Q. Refer to paragraph 58, please. It speaks of the

recorded conversation in mid March of 2015?

A. Yes, sir.

Q. Abdurahman told Mr. Omar and the CHS that time is


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killing us and he wanted to leave for Syria in a month or

less, right?

A. Yes, sir.

Q. Is that all he said?

A. No, I'm sure the conversation

Q. There's quotes around it. Is that exactly what he said?

A. Yes, sir.

Q. Now, I want to ask you about one of the pages of your

notes. As it was handed to me, it's the very last page.

And do you have the last page?

A. Well, I'm not sure what your last page would be. Could

you show me?

Q. Well, let's compare it so we're on the same last page.

Do you see that paragraph at the bottom that

refers to Abdurahman, 4-1?

A. Yes, sir, and it does refer to Mr. Abdurahman.

Q. Okay. Now, as I -- were any of these conversations

concerning the giving of the photograph to the informant or

the taking of the photograph back from the informant

recorded?

A. Yes, sir, I believe they were.

Q. Your note here says: "4-1 photo to CHS, 4-3 asks for it

back. No$." What does the "no$" mean?

A. It means that your client, although he provided the

photograph, did not ever provide the down payment for the


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passport to the CHS.

Q. All right. Would you please look at page 27 of this

affidavit, very top line starting on or about April 9, 2015?

A. Yes, sir.

Q. That says he did provide the down payment of $100 for

Farah's passport. That's just a mistake, right?

A. No, sir, he did not provide money for his own passport

but your client did provide a hundred dollar down payment

for Mohamed Farah's passport. So it's not a mistake.

Q. What happened to that hundred dollars?

A. It was -- it went into the custody of the FBI. But it

was provided to allow Mr. Farah to obtain a fake passport.

Q. And was that according to the confidential human source?

A. Yes, sir.

Q. And was that conversation recorded --

A. Yes, sir.

Q. -- in which the nature of the down payment was made?

Was it observed? Was the payment observed?

A. Observed by FBI?

Q. Agents.

A. No, sir.

Q. Mr. Abdurahman, however, never paid for a fake passport

for himself, right?

A. That is correct. He did not provide the down payment

for his own fake passport.


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Q. And forgive me if I asked you this already, but he

didn't obtain a false passport, right?

A. He did not. He never physically took possession of the

false passport.

Q. Well, no one ever offered it to him, right?

A. Well, he took the photo back.

Q. And didn't he say at the time, leave me alone, stay away

from me?

A. No, sir.

Q. And describing the trip to San Diego, Mr. Abdurahman was

not mentioned at all in connection with this trip. Do you

have any evidence, sir, that he had knowledge of the trip to

San Diego?

A. Yes, sir.

Q. If he was going -- if he was not going via San Diego

himself, what was his plan?

A. I don't know what his alternative plan was. I know what

he didn't want to do, and that is he did not want to travel

with a large group. But I don't know what his specific

plans were.

Q. Have you recovered the substance of any text

communications by Mr. Abdurahman or any other communications

in which he makes comments about the Caliphate coming?

A. I do not believe so, no.

Q. Any photos of him posing with a weapon or a black flag


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or anything like that?

A. No, sir.

Q. You can point to no time when he said he wanted to die

as a martyr, right?

A. That is correct, sir.

Q. He never spoke of Anwar al-Awlaki, right?

A. I'm sorry, can you repeat that?

Q. He never spoke of Anwar al-Awlaki?

A. Anwar Awlaki?

Q. Yes, Anwar al-Awlaki.

A. Not to my knowledge, no, sir.

Q. And you have no evidence that in recent months

Mr. Abdurahman became more religious in his speech or dress

or habits, right?

A. Correct, sir.

MR. HOPEMAN: No more questions.


MR. HOPEMAN: Thank you.

CROSS-EXAMINATION

BY MR. BIRRELL:

Q. Good morning, Agent Samit.

A. Good morning.

Q. My name is Andy Birrell. I represent Mr. Musse.

A. Hello, Mr. Birrell.

Q. So for some preliminaries, why aren't you -- you're not


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the case agent?

A. That's correct.

Q. And you don't know who is?

A. Specific to

Q. Do you know who the case agent is?

A. Well, there's a variety of different investigations,

sir. I need to know --

Q. Well, in this case here, the one we're in court on.

A. Well, each subject has an individual case agent.

Q. Oh. Who is my client's case agent?

A. Mr. Musse's?

Q. Yeah.


Q. But it's not you?

A. No, sir.

Q. Why isn't the case agent here?

A. Case agent is attending to other matters, sir.

Q. What's that?

A. Investigative duties.

Q. Okay. But you don't know who it is?

A. I'd have to look on a list, sir. I don't know who it

lS.

Q. But you know he has other duties?

A. Yes.

Q. Okay. So do you know my client was born in St. Louis


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Park?

A. Yes, sir.

Q. You know he's a United States citizen?

A. He is.

Q. You know he's never been arrested or charged with any

crime?

A. Until now you mean, sir?

Q. Until now, yes, that's exactly what I mean.

A. Until now he has not been arrested or charged with a

crime, yes, sir, you're correct.

Q. And when he was arrested, he was arrested Sunday about

noon?

A. Yes, sir.

Q. And he didn't run away?

A. He did not.

Q. He didn't resist in any way?

A. I wasn't at his arrest scene but I understand he was

arrested without incident.

Q. He didn't give any false names or try to conceal his

identity?

A. No, sir.

Q. Where was he

A. I believe he

Q. Which was in

A. I'm not sure

arrested?

was arrested in a vehicle.

Minneapolis?

what city it was in. As I


said, I was on a

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different arrest team, sir.

Q. Okay. You know he is a full-time student at Minneapolis

Community Technical College?

A. Yes, sir.

Q. You know he graduated high school here in Minnesota?

A. He did.

Q. Do you know he was a good student?

A. I'm not familiar with his grades, sir. I don't know.

Q. You didn't investigate his academic record?

A. Personally, no, sir.

Q. Did someone else?

A. Yes, I'm sure they did.

Q. Who was that?

A. I would have to assume it was the case agent.

MR. BIRRELL: Could I have these marked, please?

If you could just mark them as one exhibit.

(Defense Exhibit 1 marked for identification.)

THE WITNESS: And, sir, I've recalled the case

agent's name if you would like that.

MR. BIRRELL: We'll get to that in a minute.

If you could staple them together, whatever is

easier. Thank you very much.

BY MR. BIRRELL:

Q. I'm going to show you what's been marked as Exhibit 1.

Do you recognize it?


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A. No, sir, I have not seen this before.

Q. Do you know what it is?

A. It looks like a 12th grade grade report.

Q. For?

A. For your client, sir.

MR. BIRRELL: Offer 1.

MR. DOCHERTY: For purposes of today, no

objection.

THE COURT: All right. It will be received for

purposes of today's hearing.

(Defense Exhibit 1 received in evidence.)

MR. BIRRELL: Thank you.

BY MR. BIRRELL:

Q. He is a good student, isn't he?

A. Yes, sir.

Q. Thank you. What's the case agent's name?

A. Daniel Skipper (phonetically spelled).

Q. Skipper?

A. Yes, sir.

Q. Is he out of Minneapolis?

A. He is.

Q. Thank you.

Was there any search conducted of any computer

associated with my client?

A. Not that I am aware of, sir.


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Q. How about any Facebook examination?

A. If your client had a Facebook page and it was known to

us, it was certainly viewed, yes, sir.

Q. Did you -- you didn't view it?

A. No, sir.

Q. Did you hear anything back about what was on it?

A. I did not.

Q. Can we assume from that there was nothing interesting on

it?

A. I don't know that that would be a good assumption, no,

sir.

Q. Well, can we assume there was nothing on it about jihad

or going to Syria or flags or people with guns, that sort of

thing?

A. I can't assume that, sir. I don't know that.

Q. So you think someone might have seen that and not

mentioned it to you?

A. It's possible, yes, sir.

Q. And not put it in the affidavit that was filed in the

court here in support of probable cause?

A. It's possible, sir.

Q. It's possible. Do you think that happened really?

A. No.

Q. All right.

A. But in reply to your question, I don't know that that --


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that there was absolutely no mention of jihad or black

flags.

Q. All right. We can be pretty sure if some FBI agent saw

that, it would be in the affidavit in support of the

complaint, right?

A. Yes, sir.

Q. Yeah. All right.

A. But, sir, not certain.

Q. I get it.

Were you present when Mr. Musse was interviewed in

New York City?

A. I was not, sir.

Q. Did you read some reports about that?

A. I did.

Q. Was he in custody?

A. It was a noncustodial interview.

Q. So he was free to leave at any time?

A. Yes, sir, that's correct.

Q. And where was he when he was free to leave at any time?

A. I don't know the exact location. Having spoken to the

agents who conducted the interview, I understood it was

right there in the terminal at JFK.

Q. So out in the public space there?

A. Yes, sir.

Q. And who was conducting this interview where he was free


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to go at any time?

A. Special Agents of the FBI from the New York Division.

Q. So how many were there there?

A. I don't know.

Q. All right. Did they give him a Miranda warning?

A. They did not.

Q. So from your perspective, he was not informed that he

was suspected of any crime; is that right?

A. I don't know that, sir. I don't know what the agents

told him. I wasn't present.

Q. Well, they didn't give him a Miranda warning, you said?

A. Right. So that would have indicated he was not in

custody. I don't know whether they informed him of whether

he was suspected of a crime or not.

Q. So you don't know what they told him; is that what

you're saying?

A. That's correct. I know more what they asked him, less

what they told him.

Q. What did they ask him?

A. They asked him where he was going, who he was travelling

with.

Q. What else did they ask him?

A. Questions about his travel.

Q. And this occurred, to your way of saying, in a public

space with some unknown number of FBI agents there; is that


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right?

A. Yes, sir.

Q. And were there other agents there from other agencies?


Q. Wouldn't it be a fairly typical circumstance that there

would be Homeland Security people there, too?

A. It's possible, sir.

Q. Would that be the customary way this would be handled?

A. I can't speak to the customary way it would be handled

at JFK. I can tell you how we would handle it in

Minneapolis, and on those occasions there are typically

representatives of the Transportation Safety Administration

there.

Q. Do they work for Homeland Security?

A. I believe so.

Q. All right. Do you think that there's probably one set

of rules in the United States about these sorts of matters

at airports or do you think there's lots of rules?

A. I don't know. I would assume that there are -- the

procedures vary by airport.

Q. All right. Do you know that my client lives with his

dad?

A. Yes, sir.

Q. You know his dad is a 14-year federal employee?

A. I do.


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Q. You know his dad is a citizen?

A. Yes, sir, I have spoken to his father.

Q. That was my next question. When did you speak with his

dad?

A. In November of 2014.

Q. And that was when Mr. Musse got a target letter from the

United States Attorney; is that right?

A. That is correct.

Q. And what is a target letter, to your understanding?

A. A target letter informs the recipient that they are the

target of a federal investigation.

Q. In other words, that the federal prosecutor intends to

charge them with a crime. Is that -- or do you not agree

with that?

A. I do not agree. I would say that the federal prosecutor

has them under investigation. I don't think it speaks to

intentions to charge them.

Q. Well, it tells the person that they are a target of a

federal investigation which involves alleged violations of

the federal law, right?

A. Yes, sir, but it doesn't say anything in there about

intention to charge.

Q. It tells them that the Grand Jury is investigating their

conduct, right?

A. Yes, sir.


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Q. And that the Grand Jury has the ability to charge them

with an offense, right?

A. That is correct.

Q. And that they are invited to appear if they want to?

A. Yes, sir.

Q. So a rational person reading that would probably think

they were going to get charged with a crime, wouldn't they?


Q. You don't know. Okay. Fair enough.

In any event, Mr. Musse got such a letter back in

November 2014, right?

A. Yes, sir.

Q. Now I want to turn your attention to this affidavit in

support of criminal complaint and arrest warrant. It's not

in evidence but everyone is talking about it. Were you

present or did you participate in the drafting of this?

A. No, sir. I was certainly present in the FBI space while

it was being drafted but I did not participate in its

drafting.

Q. So somebody else compiled this and presented it to the

Court and you saw it later?

A. Special Agent Marshall, yes, sir.

Q. Who is the person who signed the affidavit?

A. Yes, sir.

Q. And you've had a chance to review it, I'm sure?


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A. I have.

Q. Is there anything in it that you think isn't true or

correct?

A. No, sir.

Q. All right. So the first place that my client is even

discussed is in paragraph 35; is that right? I mean, I

don't expect you would memorize the affidavit, but --

A. Thank you, sir.

Q. -- does that sound like a fair characterization?

A. Yes, it looks fair.

Q. And there's some paragraphs that discuss this business

in New York that you and I have talked about a little bit,

right?

A. Yes, sir.

Q. And then nothing happens for a while and then there's a

paragraph number 64 -- actually 63 and 64.

A. Just give me a second to catch up to you, sir.

Q. Sure, sure, take all the time you need.

A. When they copied these for you, they took them apart on

me so I'm just catching up. Okay. 63 and 64, yes, sir.

Q. This concerns this time in late March 2015 and early

April 2015 when there was a discussion with the CHS about

fake passports, right?

A. Yes, sir.

Q. Why do you call him a CHS instead of an informant? Is


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there a reason?

A. That's the FBI term, a confidential human source.

Q. They used to call them confidential reliable informants?

A. Yes, sir. They have changed it a number of times since

I have been an agent, but the current vogue is CHS.

Q. So no special category. Just the current vernacular?

A. Correct, this is it.

Q. Okay. When you have a CHS such as this person, is there

a written contract of employment between this person and the

Government?

A. No, sir.

Q. How is the understanding developed or created about how

payments are going to be made and for what?

A. It varies CHS by CHS.

Q. Do you know about this particular CHS?

A. I do.

Q. Are you running this guy?

A. I am not. I am one of the co-cases and I have helped,

but I'm not the primary.

Q. Okay. So this person receives money and how is it

decided how much this person gets?

A. Typically based on the activities and expenses of the

CHS. The handling agents discuss it with the Supervisory

Special Agent of the squad and an agreement -- and the

Assistant U.S. Attorneys, and then an agreement on the


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amount is reached.

Q. Okay. So in this case this person is being paid

expenses; is that what they are getting?

A. Expenses and services both, sir.

Q. What does that mean, services?

A. Services involves the amount of money a person would

earn as a salary.

Q. Okay. So he's getting a salary. Is that

A. Services is the way we explain it, but --

Q. All right. Well, here's the question that I'm trying to

get at. Is this person's compensation somehow related to

job performance?

A. Yes.

Q. In what way?

A. If the confidential human source makes the meetings that

he is requested to go to by subjects, if he utilizes the

recording equipment correctly, if he reports accurately, if

he reports in a timely fashion, things like that.

Q. Is there any relationship between the number of people

charged with a crime and the person's compensation?

A. Absolutely not.

Q. Okay. So it's sort of a task thing. You do this task,

you get some money?

A. Exactly, yes, sir.

Q. Is there a predetermined amount of money per task?


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A. Absolutely not.

Q. I don't know. So you just figure it out later or do you

figure it out ahead of time?

A. It depends on the situation.

Q. Well, suppose I'm working with this person and I want

him to go record a conversation with Mr. Hopeman's client.

Do we set up how much he's going to get for that before he

goes or after he goes?

A. It depends. Like I say, I mean, we're asking this young

person to involve himself with a group of defendants who are

planning to go join the most violent terrorist group in the

world. He is exposing himself to a certain degree of danger

as a -- and so the amount is decided based on that task, as

you said.

Q. All right. Well, to fairly present this, this person

that you're requesting to take money to get into danger was

involved in some sort of criminal conduct him or herself,

right?

A. Sir, I don't determine whether the conduct is criminal

or not.

Q. Well, if you look at footnote 20 in this affidavit here.

A. Yes, sir, I'm with you.

Q. It says that the CHS went to California in some failed

attempt to go overseas. Is that right?

A. No, sir. It says he attempted to go to California in a


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failed attempt.

Q. All right. So that's criminal conduct, isn't it?

A. Sir, that would certainly rise to the level, travelling

to Syria. But, again, I don't determine whether it's

criminal.

Q. I get it.

A. I report those facts to the prosecutors.

Q. Well, it says here also that he denied to the FBI and on

two occasions to a Federal Grand Jury that he engaged in

criminal activity?

A. Yes, sir.

Q. And that wasn't true, was it?

A. I'm sorry. Are you saying the affidavit is not true?

Q. No, no, no. What the guy told you and told the Federal

Grand Jury were lies.


Q. And he later admitted that?

A. Yes, sir, he did.

Q. Did he get prosecuted for that?

A. Not to date, sir, he has not been prosecuted.

Q. Is he going to be?

A. I don't know the answer to that, sir.

Q. Is there any promises to him about it?

A. Absolutely not.

Q. Is that part of his motivation to work with the


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Government?

A. I don't know what his motivation is, sir.

Q. Well, you know part of it is money. I'm wondering if

part of it is not being prosecuted.

A. I can tell you that no promises with regard to

prosecution have ever been made to him.

Q. Okay. Fair enough.

Now, going back to the paragraphs 63 and 64, what

happened was according -- and this -- just let me start with

this. Paragraphs 63 and 64 contain information that came

from this confidential human source, right?

A. Yes, sir.

Q. And nowhere else?

A. Could you give me a second to review that just to make

sure?

Q. Sure.

A. Yeah. Yes, sir, that's correct.

Q. And it describes -- these two paragraphs discuss

conversations or occurrences that the CHS claims to have had

with three or four people?

A. Yes, sir, at least paragraph 63 does. The March 30th

conversation indicates more than one person was present.

Q. Well, and then 64 says: "On April 8th, 2015, Musse told

the CHS he would no longer travel with the group because his

father confronted him, asking him if he had plans to leave


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the country."

A. Yes, sir. That doesn't indicate that there's more than

one person present with the CHS.

Q. All right. These conversations that are referenced in

63 and 64, were they recorded?

A. I believe so, yes.

Q. Okay. Now, after paragraph 64 where my client tells the

CHS -- well, actually he didn't tell them. Farah told

Musse -- Farah told the CHS -- no. Let's see what happened

here. Farah gave my guy's picture to the CHS, he says?

A. Yes, sir.

Q. And then on April 8th, 2015, my guy told the CHS he

didn't want to go travel?

A. Correct.

Q. He didn't say he was going to go some other way. He

just said he wasn't going to travel with the group because

his father confronted him and asked him if he had plans to

leave the country.

A. Yes, sir.

Q. Did you listen to this?

A. I did not.

Q. Do you have a transcript of it somewhere?

A. Yes, sir, I assume we do.

Q. You don't have it with you?

A. I don't have it with me. You have all my notes that I


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have with me.

Q. Fair enough.

MR. BIRRELL: Thank you, your Honor. I don't have

any other questions.


Any redirect by the Government?

MR. DOCHERTY: A bit, your Honor.

REDIRECT EXAMINATION

BY MR. DOCHERTY:

Q. Agent Samit, just a couple of things and I'll take these

up in the order in which the counsel came up.

Beginning with Mr. Engh and some questions he had

about his client Adnan Farah, there was an interchange

between you and Mr. Engh about the interview that you and

another agent had of Mr. Farah's parents, correct?

A. Yes, sir.

Q. You remember that back and forth?

A. I do.

Q. And Mr. Engh was asking you about the relatives, the

distant relatives that the Farah family apparently has in

China, correct?

A. Yes, sir. I believe they were associates, friends,

rather than relatives.

Q. Associates. Okay. Thank you for the clarification.

I just wasn't 100 percent clear. What did you say


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about the closeness or lack of closeness of that

relationship and whether Mr. Engh's client Adnan Farah knew

these people as expressed to you by Adnan Farah's parents?

A. The parents said, when we asked them to think of anyone

that they could recall who might be a point of contact for

Adnan Farah in China, they said at a stretch or as a

stretch, we knew these friends from the Middle East

previously who have since relocated to China. The father

suggested that they might possibly have found each other or

been in touch through locating one another on the Internet,

although he didn't think that was the case as he himself had

lost touch with the parents and was no longer in contact

with them.

Q. Was there enough information provided for, say, a

consular officer from an American diplomatic post to go and

talk to these people?

A. No, sir. No names, no phone numbers, no e-mail

addresses of any kind.

Q. Mr. Engh also asked you about some statements where

Mr. Adnan Farah was planning to get married; is that

correct?

A. Yes, sir.

Q. And did his parents have a view about the likelihood of

him getting married?

A. They, based on the arrival of the passport and their


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concern about youth from the Twin Cities travelling, they

were concerned that that wasn't going to happen.

Q. His parents took his U.S. passport, correct?

A. Yes, sir.

Q. The plan described in the last, say, third of the

criminal complaint involves forged passports, does it not?

A. It does.

Q. And you also testified that there was a backup plan that

Mr. Adnan Farah had, correct?

A. Yes, sir.

Q. Did that involve a U.S. passport or the passport of some

other country?

A. At least the first leg would have involved his U.S.

passport, him travelling to the Horn of Africa. But then

the travel to Syria would have involved him obtaining a

third country passport, a Somali passport.

Q. And who was he going to go to the Horn of Africa with?

A. His father.

Q. And his father is the one who has his passport, correct?

A. Yes, sir.

Q. There was also conversation between you and Mr. Engh

concerning Mr. Adnan Farah's behavior and so forth. At some

point in this interview did Mr. Farah, Adnan Farah, come

home?

A. He did.


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Q. Did he greet his parents?

A. He did.

Q. How did he do so?

A. He greeted them by shaking hands with them.

Q. Did he shake hands with you at first?

A. He did not. He turned his back on us.

Q. Did his parents speak to him about this?

A. They did.

Q. And then what did he do?

A. Then he came over somewhat reluctantly and shook hands

with the interviewing agents.

Q. Last question on Mr. Engh's client Adnan Farah. Whose

idea was it originally to go to Mexico, get forged

passports, and then travel from Mexico to Syria?

A. Mr. Abdurahman.

Q. It did not originate then with the CHS?

A. It did not.

Q. Turning to Guled Ali Omar, Mr. Bruder I think more than

once talked to you about people who had "never left Hennepin

County." Correct?

A. Yes, sir.

Q. Why did they never leave Hennepin County?

A. I believe in the case that he was referring to it was

because Mr. Omar's family stopped them.

Q. And you know about this because the confidential


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informant told you, correct?

A. Yes, sir.

Q. Not because the family told you?

A. No, there was no report to law enforcement by the

family.

Q. There was then some discussion between you and

Mr. Bruder concerning the November 6th, 2014 attempted trip

to San Diego, correct?

A. Yes, sir.

Q. And the tens of thousands of Minnesotans who go there

every winter, correct?

A. Yes, sir.

Q. But later on was there a conversation between Guled Ali

Omar and the CHS in which the true nature of that attempt to

travel was revealed?

A. There was.

Q. And is that on tape?

A. It is.

Q. Is buying a round-trip ticket commonplace when people

are leaving the country and not intending to come back?

A. In my experience in this investigation it's 100 percent

consistent.

Q. Why is that?

A. For operational security, so that the traveler can

disguise his true intention, which is not to return. A one-


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way ticket would be very alerting to law enforcement.

Q. Mr. Bruder also asked you isn't it true that he had

hotel reservations in San Diego and you said yes; and that

he was meeting friends in San Diego and you said yes. Were

those things, though, part of the conversation with the CHS

later?

A. Mr. Omar indicated that that was part of his deception

so that because he had experience with being stopped

before, he implemented -- he learned from that previous

experience and implemented countermeasures to law

enforcement by having reservations and people to lie for

him.

Q. And, in fact, is there a direct quote in the paragraph

53 of the affidavit where he says something along the lines

he had three friends lying for him so he could get into

Cali?

A. Yes, sir.

Q. "Cali" meaning California, we assume?

A. Correct.

Q. And then at several points throughout the

cross-examinations there was talk about the CHS. Can you

was there also surveillance used in this investigation?

A. Yes, sir.

Q. Did the surveillance pick up the CHS from time to time?

A. Many occasions.


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Q. Did the CHS always know that surveillance was there?

A. No.

Q. When the CHS comes back to the handling agent, does the

CHS make a report of what's been going on?

A. Yes, sir, every time.

Q. How is that compared, then, to the notes or the

reports of the surveillance agents?

A. Yes, it is.

Q. And why is that done? Why is that comparison made?

A. As one means, only one means, but one important means of

verifying that the CHS is telling us the truth.

Q. So if he says that I was at this corner at this time and

surveillance sees him there at this time on that occasion,

there's some verification, correct?

A. And most importantly with the individuals he stated were

present, that was a very key way that we would verify it.

Q. All right. And were there other measures over and above

that that were taken? I mean, the implication in some of

the questions has been you have just relied on this person's

word.

A. Yes, sir, there were several other ways of verifying it.

Q. The CHS has in the past been untruthful, correct?

A. Yes, sir.

Q. And he's been untruthful about the degree of his

involvement in this trip to California in May of 2014 with



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Yusuf Jama and Guled Ali Omar, correct?

A. Yes, sir.

Q. He didn't reveal how fully involved he was, correct?

A. He did not.

Q. And lied about that?

A. Yes, sir.

Q. And has since then, however, been either under

surveillance or have been using other means to verify the

veracity of what he is saying.

A. Yes, sir.

Q. And, in fact, tell us a little bit -- at the very

beginning there were some equipment issues; is that correct?

A. Yes, sir.

Q. And those were ironed out, correct?

A. They were.

Q. And in particular, the paragraphs of the affidavit that

Mr. Birrell on behalf of Hanad Musse was asking you,

paragraphs 63 and 64?

A. Yes, sir.

Q. Take your time.

A. Yes, sir, I'm there.

Q. Were those taped?

A. They were.

MR. DOCHERTY: Could I have one moment,

Honor, to consult with co-counsel?


your

CASE 0:15-cr-00049-MJD-FLN Document 33 Filed 05/01/15 Page 101 of 155 1 o 1

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THE COURT: Yes.


BY MR. DOCHERTY:

Q. Agent Samit, AUSA Kovats has reminded me of one thing I

meant to ask.

At a certain period in his cross-examination

Mr. Bruder was referring to the attempted trip to California

and kept referring to the CHS in 2014. Was the CHS a CHS in

2014?

A. No, sir.

MR. DOCHERTY: Nothing further at this time, your

Honor.


Mr. Engh.

RECROSS-EXAMINATION

BY MR. ENGH:

Q. Agent Samit, you were asked questions about the entry of

Adnan Farah at the end of that interview at his parents'

house?

A. Yes, sir.

Q. And what happened is that at 6:30 p.m. he came in the

back door of the house, right?

A. Correct.

Q. Greeted his parents and his family but didn't want to

greet you particularly. Fair enough?



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A. Yes, sir, that's how it appeared.

Q. But his dad prevailed on him to shake your hands and he

eventually did, right?

A. Yes, sir.

Q. Okay. Before this interview took place --

A. Sir, I would add his mother and father both prevailed

upon him.

Q. And he did so, right?

A. Yes, sir. After his parents yelled at him he did so.

Q. And he did shake your hand?

A. Yes, sir.

Q. All right. Before this interview took place on May

21st, 2014, had you had Adnan Farah under surveillance?

A. No, sir.

Q. Had you had any FBI agent or other Government official

trailing him in a car?

A. Not that I am aware of, no, sir.

Q. On the issue of his marriage, the father did indicate

that the son, my client, had told him his plan was to get

married and have a family, fair enough?

A.

Q.

A.

Q.

A.

Yes, sir.

But the parents wanted him to finish college first?

Correct.

Common advice?

Yes, sir.



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Q. The advice you would give to your kids if they would

listen to it?

A. Yes, sir.

Q. And finally, this China piece, Agent Samit, the father

was unaware of whether or not his son had been in

with

A.

anyone else from China, fair enough?

He was.

MR. ENGH: Thank you.


Any other further cross from the

MR. BRUDER: Briefly, your Honor.


RECROSS-EXAMINATION

BY MR. BRUDER:

Defense

contact

side?

Q. Agent Samit -- first of all, I'm shorter than everybody

else. I'd like you to focus on your testimony regarding

surveillance as a means of testing your informant's

credibility. Obviously if you're relying on an unrecorded

conversation, there's nothing about your surveillance that's

going to tell you what was said. It may tell you who was

there; it's not going to tell you what was said, correct?

A. No, sir, not exactly. There have been occasions when

our surveillance teams have actually picked up portions of

conversations just because they are standing close by to the

subjects when they speak.



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Q. In this particular case?

A. In this investigation, yes, sir.

Q. Okay.

A. Now, it's by no means a reliable way of doing that. You

can't ensure that your physical surveillance team will

overhear most or even any of the conversation. But to your

question, no, that's not correct. Sometimes they overhear

what's being said.

Q. Do you know whether your surveillance team overheard any

of the unrecorded conversations from, say, March of this

year?

A. I don't believe so.

Q. Now, drawing your attention back to the May 2014 trip to

California, first of all, I guess it was more like -- well,

they never went anywhere, but the May 2014 I don't know

what we'll call it. Just in May 2014, the meeting at

Mr. Omar's house between your informant and Mr. Omar and his

family, that wasn't under surveillance, was it?

A. No, sir.

Q. Because you didn't know anything about this incident,

correct?

A. We did not.

Q. Okay. And when you say that Mr. Omar decided not to go

simply because he was confronted by his family, you're

relying exclusively on what your informant told you?



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A. Yes, sir.

Q. Could be he decided not to go because he decided it was

a foolish idea?

A. It could be, yes, sir. I don't know what his motivation

was. I do know from a review of the CHS's report that

Mr. Omar's family intervened fairly dramatically.

Q. Okay. And is it possible that when your informant

testified in front of the grand jury that he didn't commit

any crime as a result of the May 2014 incident, he was

testifying truthfully because he really didn't think

anything happened?

A. I don't know what the CHS's motivation during testimony

was, sir.

questions.

you.

excused.

MR. BRUDER: Thank you. I have no further


Mr. Hopeman?

MR. HOPEMAN: I have no more questions. Thank

MR. BIRRELL: No more questions. Thank you.

THE COURT: Anything further?

MR. DOCHERTY: No, your Honor. The witness may be

THE COURT: All right. Thank you, Special Agent.

MR. DOCHERTY: Your Honor, the Government rests at



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this time.

THE COURT: All right. Any other evidence from

the Defense side?

MR. ENGH: No, your Honor.


Now moving to argument.

MR. HOPEMAN: I have a proffer. That's permitted

under the statute. I consider that evidence. You have a

proffer, too, right?

MR. ENGH: Well, I have a proffer on the detention

issue but not the probable cause issue.

MR. DOCHERTY: My understanding of the law, your

Honor, is that proffers are permissible on the detention

issue but not on the probable cause issue.

MR. HOPEMAN: Okay. I have no proffer on the

probable cause.

THE COURT: We're doing the probable cause right

now and we'll move onto the detention issue after this issue

is decided.

Any argument by counsel?

MR. DOCHERTY: Well, your Honor, it's a long

complaint and it's been a fairly long morning. I'm not

going to try and summarize it. I would be standing here for

quite some time. But all four Defendants are charged with

various terrorism-related offenses as listed in the



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complaint. All of them are charged in Count 1, Conspiring

to Provide Material Support to a Designated Foreign

Terrorist Organization; and then subsets are broken out with

Attempted Provision of Material Support to a Designated

Terrorist Organization.

The complaint lays this out in considerable

detail. It's a quite long, quite detailed complaint. And

Special Agent Samit's testimony this morning has confirmed

that complaint. The probable cause finding that the Court

made when it chose to sign the complaint is not one that

needs to be revisited and probable cause is there. The

Court, we respectfully submit, should so find.

Thank you.


MR. ENGH: Your Honor, this is a slim case. I

draw the distinction between thinking about something and

actually doing the conduct. I mean, this is a thought-type

complaint. It may be true that there are conversations

about going to Syria. It may be true that there are

discussions about perhaps getting passports. But my client

never really did anything. I mean, you can -- in our

country, for better or for worse, you can think all of these

bad things. You can think about killing somebody; but if

you never do it, then you haven't committed a crime.

This is a thought-based prosecution where he may



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be thinking of going to Syria but he never does anything to

get there. And the only person who is really suggesting and

actively promoting the trip, as far as I can tell, is the

CHS who is asking for money and who is proposing to give him

a false passport. But that's the Government's idea. That's

the Government's conduct and not his own. He never went

anywhere. There's no way he could get anywhere. He had no

money to be anybody. He is unemployed.

And in terms of his Facebook; you know, several

terrorism cases have gone by now that I've worked on and

I've seen this al-Awlaki picture in every case. It's over

the Internet, it's on the YouTubes, and his face is

ubiquitous. It doesn't mean you're going to follow him

anymore than, you know, if you have a picture of Hitler on

your website, heaven forbid that you're a fan of Hitler, or

anything like that. We have a First Amendment right to post

things on Facebook, for better or for worse; and listen to

things that may be offensive, for better or for worse. But

that's all that shows.

And I know that the complaint is long and I know

that you were the judge who signed it and reviewed it

carefully, but nonetheless, it's really skinny. You should

consider dismissing this.


MR. BRUDER: Your Honor, to the best of my



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knowledge, what one thinks in this country isn't a crime.

Whether one acts on it is what makes it a crime. And let's

focus on that as we look at the complaint specifically with

relation to my client, Guled Ali Omar.

The complaint mentions an incident that occurred

in May 2014. I think it's obvious that the Government is

relying solely on the narrative provided by its paid

informant in characterizing my client's participation in

that activity. But at most, at most, most favorably to the

Government it suggests that Mr. Omar had an affinity and a

sympathy for a terrorist organization. That he thought

about going to San Diego, perhaps to explore the possibility

of doing something to help that organization. And he got no

further than his driveway when he turned around, took his

bag, and walked back into his parents' house.

There's no overt act. There's no conspiracy.

There's no effort to provide assistance to a terrorist

organization. There's a vague idea from a person barely out

of his teens that he might have sympathy for a political

cause, and then he does nothing to further that. It's not a

crime.

Then we go to November 2014. My client wants to

travel to San Diego in the winter. That's not a crime.

Actually it suggests that he was rational. He provides the

Government with an explanation of his activities.



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The Government apparently doesn't even bother to

explore or investigate that explanation. He's got hotel

reservations, he's got a round-trip airplane ticket. The

Government's only notion of suspicious activity is that my

client is carrying his passport with him. Again, something

that makes sense if one is going to be visiting Tijuana,

which is literally directly adjacent to the San Diego border

and is in a different country. There is no evidence that my

client explored, pursued, or tried to purchase an airplane

ticket anywhere outside the United States in that incident.

Then we go to the activities in the spring of 2015

where my client doesn't bite at the informant's bait.

Doesn't offer him any money for this forged passport.

Doesn't offer him up a photograph to have a forged passport

made. And in fact, according to the complaint itself, tells

the Government I'm not interested in going along with these

guys.

So we have three incidents, one of which my client

never gets out of his driveway; one of which he refuses to

participate; and the third incident where he actually does

purchase a ticket to California, the Government doesn't

bother to investigate because they simply take their snitch

at his word.

Again, your Honor, that's not sufficient evidence

to move forward at this point. It's, as Mr. Engh put it,



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too thin.


MR. HOPEMAN: Your Honor, I adopt the arguments

that Mr. Engh and Mr. Bruder made because I think they are

applicable to my client. I would just add that I'm looking

at the charges and they have alleged and they have to show

probable cause to believe that these men attempted or

conspired to provide material support to the Islamic State

in Iraq and the Levant knowing that it was a designated

foreign terrorist organization and that the organization had

engaged in terrorist activity.

And there's almost no connection here between

Mr. Abdurahman and ISIS or ISIL or terrorist activity.

Almost none. They have no contact between him and Abdi Nur,

the young man who did succeed in going to Syria and whom

they, without corroboration, say is fighting for ISIS or

ISIL. There's no contact between him and my client.

It's not against the law to go to Syria. It may

be a stupid idea but it's not against the law. And they

have to make that connection between the Islamic State and

the state of mind of my client and they haven't done it.


MR. BIRRELL: Well, your Honor, having had three

good lawyers argue in front of me, I think most of what they

say applies to everyone.



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Also, your Honor, I understand that the Court is

the issuing magistrate here, but of course there's much more

information available to the Court now because we've had the

testimony of Agent Samit. And I think in evaluating my

client in particular, his testimony is very important.

Because in order to find probable cause, you should

assessing probable cause, I think you should assess who

you're looking at.

or in

And what you're looking at here is a 19-year-old

kid who is a good student. I provided the Court with the

records. He's never been arrested or charged with any other

crime. He lives with his dad. And when confronted by the

police with the target letter, he didn't go anywhere. He

didn't try to flee. He didn't try to get out of town, the

country, anywhere. He stayed here to deal with this.

When he was arrested over this past weekend, he

gave his correct name. He didn't try to run. He didn't

resist the police officers in any way. And perhaps most

importantly what the Court should evaluate in evaluating

Mr. Musse are the paragraphs 63 and 64 in the complaint,

because Mr. Musse told the confidential human source that he

wasn't going to travel with the group because he talked to

his dad who had asked him if he had any plans to leave the

country.

So apparently the CHS is acting in a clandestine



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undercover way. So as far as Mr. Musse could have known,

he's just a person. He's not a Government agent. And he

told him I'm not doing this. I'm not going. And that's not

a person who is involved in a criminal conspiracy, your

Honor. Thank you.


Anything further from the Government?

MR. DOCHERTY: Yes. And knowing now what Defense

Counsels' arguments are, I think I can provide more focus in

what I'm about to say.

Mr. Engh's argument was basically that Adnan Farah

didn't do anything and that's demonstratively untrue. He

gave money to the CHS for forged passports. He not only

gave his own passport photograph to the CHS, he gave

Mr. Musse's photograph to the CHS.

He tried to -- he had conversations with Witness 1

where he revealed -- the Abdi Nur relative where he

revealed knowledge of how people travel to Syria in order to

join a terrorist organization. That the money and the

tickets just show up.

And in answer -- anticipating a little bit

Mr. Hopeman's point, no, it's not against the law to go to

Syria. It's awfully dumb to go to Syria, but it's not

against the law. But Mr. Adnan Farah went a little bit

further when he said that if he told Witness 1 what was



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going on, it would be dangerous for both of them. So

Mr. Farah, Adnan Farah, certainly did do something.

And I will also -- it doesn't apply in this case

but also point out that in the 2339B conspiracy, the

agreement itself is the crime. It is not a statute that

requires an overt act.

I also disagree with Mr. Engh's suggestion to this

Court that the passports were all the Government's idea.

The passports were in fact the Defendants' ideas. And when

it was Mr. Nur who could not come through with a connection

in southern California or Mexico, the CHS substituted

himself. But the CHS adopted the Defendants' pre-existing

passport plan.

As to Guled Ali Omar, on November 6th of 2014, I

may have missed it but at no point in Mr. Bruder's argument

to this Court did I hear any mention that the conversation

later between the CHS and Mr. Omar was tape recorded. And

that in that conversation Mr. Omar admitted on tape that the

things that Mr. Bruder emphasizes, the hotel reservations,

the friends, etcetera, were described by Mr. Omar as ways to

throw the Government off his trail and not to get caught up

as he had been caught up in the past.

When we talk about -- maybe a minor point -- but

when we talk about taking the CHS at his word for the May of

2014 matter, it needs to be borne in mind that at that point



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he was not that CHS in May of 2014. He was still a member

of this conspiracy. He had not had his change of heart yet.

To the extent that Mr. Hopeman and Mr. Birrell

have adopted the arguments of Mr. Engh and Mr. Bruder, I

believe that I have addressed them. Mr. Hopeman's one

additional point was about knowledge either of the Islamic

State's designation or that it engages or has engaged in

terrorism or terrorist activity. I do not believe that it

would be possible for someone not to know, in today's world,

the sort of organization, the sort of brutal organization

that ISIS/ISIL is at this time.

The standard here is probable cause. The

complaint met that standard. Nothing this morning has

changed the fact that the complaint meets that standard. I

respectfully ask that the Court find that there is probable

cause to bind all Defendants over on the charges in the

complaint to District Court for further proceedings.

Thank you.


Anything further from the Defense?

MR. HOPEMAN: Your Honor, may we take a break?

THE COURT: Well, it might be best for us to

continue -- do you need to take a break to confer or

prepare?

MR. HOPEMAN: My client needs to take a break.



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argument

THE COURT: Pardon?

MR. HOPEMAN: My client needs to take a break.

THE COURT: All right. Will you have further

coming back?

MR. HOPEMAN: On probable cause?

THE COURT: Yes.

MR. HOPEMAN: No, I will not.

THE COURT: Any other Defendant?

MR. BIRRELL: No, your Honor.

MR. BRUDER: No, your Honor.

THE COURT: Well, then, I will make my ruling.

I find that there is probable cause to believe

that a crime was committed and that the persons before the

Court committed a crime, and that relates to each one of the

Defendants.

Looking at Defendant Mohamed Abdihamid Farah

[sic], Defendant Zacharia Yusuf Abdurahman, Hanad Mustafe

Musse, and Guled Ali Omar, I find probable cause to go

forward with each of those cases.

We'll take a break for lunch, return and handle

the detention hearings. We'll come back at 1 o'clock.

(Recess taken from 12:00 to 1:05 p.m.)

THE COURT: We are back on the record in the

matter number 15-mj-312 (BRT). And we are here to handle

the detention hearings with the four Defendants. Would the



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Government please state its position with regard to

detention and recommendation on how to move forward with

each of the four detention hearings for the Defendants.

MR. DOCHERTY: Yes, your Honor. Your Honor, the

Government is persisting in its motion for detention as to

all four Defendants consistent with the recommendation of

Pretrial Services in each of the four cases.

Your Honor, the Court has now found probable cause

to believe that each of these Defendants has violated 18 USC

2339B. That particular statute has a maximum term of

imprisonment, and that particular statute is also listed at

18 U.S.C. Section 2332B(g) (5) (B), which is a statute that

gives a listing of various Federal terrorism statutes.

Because the crime with which the Defendants are

charged is on that list and because it has a maximum term of

imprisonment of ten years or more, a rebuttable presumption

in favor of detention arises under 18 U.S.C. Section

3142E (3) .

Similarly, with probable cause, the Government

would ask to have the opportunity to respond to the

particular arguments that Defense Counsel make. At this

point, however, the Government's view is that the rebuttable

presumption has arisen and that it is now -- a limited

burden of production has been placed upon the Defendants to

come forward with evidence seeking to rebut that



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presumption.

However, even if the Defendants do so, the

presumption would remain as a factor, as the Sixth Circuit

has said in a case called United States versus Stone, 608 F.

3d 939, at page 945, a 2010 case, the presumption remains as

a factor because it is not simply an evidentiary tool

designed for the courts. Instead the presumption reflects

Congress's substantive judgment that particular classes of

offenders should ordinarily be detained before trial.

The Government premises its detention motion both

on risk of flight. All of these young men have attempted to

or have conspired -- have either attempted or conspired or

both, to leave the United States and go and join a foreign

terrorist organization in Syria.

The danger to the community is not just a danger

to be felt by people in Syria. It is also, as we have seen

this morning and in the pages of the complaint, a danger to

be felt here in Minnesota as people who go to Syria such as

Abdi Nur reach back into Minnesota and further ISIL's goals

by communicating with people here in Minnesota such as these

Defendants.

It's also -- our motion is also premised on risk

of flight. We have heard a good deal of evidence about

people attempting to leave the United States, some of them

multiple times; or conspiring to leave the United States



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surreptitiously with forged passports across the Mexican

border, by taking busses to JFK, by slipping out to San

Diego, one thing after another.

So on both of those grounds, your Honor, the

Government moves for detention of all four Defendants in

this case pending trial, and asks for the opportunity to

address the Court in a more focused manner as to each

Defendant's particular arguments, whatever they may be.

THE COURT: All right. Thank you, Counsel.

MR. DOCHERTY: Thank you.

MR. ENGH: Paul Engh on behalf of Mr. Farah.

We have a proffer of evidence, your Honor. And

then I would, after doing that, reach the arguments on the

matter.


MR. ENGH: If called to testify, the Defendant's

father, Abdihamid Yusuf -- would you stand up, please?

THE COURT: Hello, Mr. Yusuf.

MR. ENGH: He would answer the following

questions. He would outline the children of the family,

their ages. How the Defendant is 19. Where they live in

Minneapolis. And he would most importantly say that he is

willing to assume the custodial status and the supervisory

role and making sure that his son is at home under

Electronic Home Monitoring, preferred. That he would assure



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the Court that the son would be supervised at all times, if

not by him but then by his wife.

He would also indicate that there are at least 15

members of the extended family of the Defendant in the

courtroom so that the Defendant can show the Court that he

has enormous community support, which is very unusual in a

federal case. But that would be the sum and substance of

his testimony and I would proffer that testimony on that

basis.


MR. ENGH: Now, to get to the with respect to

the Government's arguments, it seems to the Defense that the

bond report, in all due respect, is rather vacuous. It

doesn't list any kind of factors that the Court should

consider. All it says essentially is that because the

Defendant, Mr. Farah, is charged with a terrorism-based

offense, he should be detained.

The report and the Government's position here is

an example of what I would term the "ipsis dixit fallacy in

law." That the argument for detention is basically

assertion of a fact; and because of that fact, something

else must follow from that fact, even though it doesn't

necessarily.

The fallacy in this case is because the Defendant

is charged with a terrorism offense, therefore he should be



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detained, you could switch the argument around and say the

Defendant should be detained because he is charged with a

terrorism offense. There is no argument behind the

assertion. All it is is a fact that he has been charged by

the Government and therefore, because of that fact, he

should be detained. There's a circularity, in other words,

between what he has been charged with and their detention

argument.

The fact remains, though, that in our district in

front of different magistrates individuals like Mr. Farah

have not been detained on terrorism-related offenses. And

so what has happened to others, and what you should consider

today, is that they have been subject to lesser restrictive

alternatives with a great deal of success. Some have been

placed in halfway houses. Some have been placed at their

own homes. Some have been placed at a family member's

apartment. Some have been placed on Electronic Home

Monitoring. And all of them have done very well. And all

of them were charged with terrorism-related offenses.

So the weight of the allegation itself does not

mandate, in our view, a sense that this Defendant or any of

the other Defendants are inherently dangerous or that they

are going to flee or that they are going to go to Syria or

that they are going to send mail to somebody. The fact

remains he never went anywhere. He didn't do anything.



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So there are other alternatives available to you.

You should consider them, especially given the fact on any

other case a 19 year old with a clean record and family

support in the community, which is extraordinary, would be

granted bail. There is no question about it.

And so those factors in our view overweigh the

Government's point of view that this fellow is inherently

dangerous. If he were inherently dangerous, quite frankly,

you would see indicia of violence all through his life. If

he were a nihilistic guy willing to wage jihad, you would

see manifestations of that already. Because in criminal law

we see dysfunction between 15, 14, 13 years of age which

reaches fruition when you're 19. He has none of that. So

he should be released either to his father or to a halfway

house.

The alternative, frankly, is rather abysmal.

Because what's going to happen if you place him back in

Sherburne County is that they will put him in solitary

confinement and leave him be for months at a time. That's

what they do if no bail is granted.

And I would cite to the Court, and I would be

happy to supply you the literature on this, that the

isolation of a young man who is 19 can lead to

extraordinarily bad results in terms of depression,

posttraumatic stress. And the nature of sitting in a cell



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23 hours a day is more harmful than placing him in a house

or a halfway house or even in the general population. And

despite the literature that we have for young men like this

fellow, 19 years old, as to the harms of solitary

confinement, we still do it and the marshals still do it and

Sherburne County still do it because they've got this fat

federal contract.

And if you don't release him, that's what he's

going to do. He is going to be in a little room all day

long by himself and he's going to be harmed. And there's no

question he's going to be harmed. And then to what end? To

what end? You should consider the lesser restrictive

alternatives.


MR. BRUDER: Good afternoon, your Honor.

During the recess I had an opportunity to speak to

approximately 12 members of my client's family who are here

today. In selecting an offer of proof, I had a lot to

choose from but I would put forth this:

His adult sister Hodan, H-0-D-A-N, Omar, O-M-A-R,

is here today and she would testify that she lived with my

client together with her mother and her extended family

until the time of his arrest and that he is welcome to

return to the home. And she individually, and the family

collectively, would assume responsibility for assuring that



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he meets whatever restrictions this Court were to establish

on his behavior, whether it's electronic monitoring or

regular and frequent contact with his probation officer; and

she would accept responsibility for transporting him for any

visits that the Court requires.

That said, your Honor, the majority of what I'm

going to focus on today is in the report that you've

received, which admittedly recommends detention, and I will

address the elephant in the room. If Mr. Omar was charged

with any crime other than the one that he is charged with

this report would almost certainly recommend that he be

released on an unsecured bond with minimal conditions.

Why would it do that? Well, first of all, because

he has lengthy ties to the community, one of the

considerations that by statute the Court is required to

consider. He has a stable housing situation, yet another

consideration the Court is required to consider. He has

stable employment for the past four years. He has

significant family support. And yet another statutory

consideration, he has no criminal record. None at all.

He's 20 years old. He was charged with one offense which

was dismissed, and it was a minor offense at that.

If he were anywhere else, or I should say if he

were charged with any other crime, there is no question that

he would be released. He has nothing other than the simple



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fact that the Government has chosen to charge him with this

particular crime which weighs in favor of detention. And in

fact the report is relatively honest about that. It

essentially says, Well, because of the crime, I'm

recommending detention.

The other items that are recommended -- that are

referenced in the report are, to say the least, innocuous.

He has a possible eating disorder. Well, if he does, your

Honor, I'm not aware of any basis for believing that that

warrants detention, yet that's the other item cited in the

report is his possible untreated eating disorder. And

frankly, your Honor, if we want Mr. Omar to be eating in a

healthy fashion, I would suggest that a jail is the worst

place we would put him. So it seems nonsensical to me.

I would echo Mr. Engh's comments. My client told

me that he has spent the last several days in the Ramsey

County Jail where he's been denied basically any access to

other people or, more importantly, to basic hygiene. He has

not yet been able to take a shower or given basic

toiletries. He's not been able to have any contact with his

family members or contact with the outside world. He's

essentially being held incommunicado. I, frankly, wasn't

even able to track him down until this morning at the

federal courthouse.

So given the fact that not only doesn't he have



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any criminal history, but in the reams of reports that the

Government has sifted through in preparing its affidavit in

support of the complaint, one thing was shockingly absent:

Any evidence, any allegation, that Mr. Omar made a specific

threat to a particular individual; that Mr. Omar has access

to weapons or was seen in possession of weapons; that he has

a history of weapons use or offenses; that he has threatened

anyone in this community. It's just not there.

There simply isn't the basis by which this Court

could conclude that there is no combination of restrictions

that would guarantee the safety of the community. The Court

can require Electronic Home Monitoring. The Court can

require -- can place him in a halfway house. The Court can

do a lot of things that would assure the safety of the

community and still allow the release of Mr. Omar.

And I would point out that I know that at least

one of the individuals that was mentioned in court today as

sort of a precursor of this investigation, Mr. Yusuf, as I

understand it, even though he has pled guilty, is in a

halfway house while he awaits sentencing, without a problem.

There's no reason to believe that Mr. Omar would pose any

greater problem. For that reason, your Honor, we'd ask the

Court release him with reasonable conditions.


MR. HOPEMAN: Your Honor, Jon Hopeman speaking for



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Zacharia Abdurahman.

I visited him Tuesday morning at Sherburne County

and he was brought from solitary confinement, where he

remains. When they brought him in to meet with me, his

hands were shackled to a belt at his waist and his feet

were, in turn, shackled to that belt; and he shuffled along

like someone who had been convicted of three homicides,

which is the only other time in my many years of visiting

jails that I have seen someone shackled like that.

I want to tell the Court a little more about him

and his family because I think those are highly important

facts here that the Pretrial Services people weren't able to

cover. And I make this proffer. This is the testimony that

his father Yusuf Abdurahman, who is here today, and his

oldest sister, Ikraan, I-K-R-A-A-N, Abdurahman, would give.

The father and mother are separated. The father

lives at 1827 LaSalle South, just south of downtown. And

the mother has lived in the same home since 2009 or 2010,

and she lives with all of the children including

Mr. Abdurahman. He's never lived anywhere else than with

his mother.

The other children in the household are Ikraan, a

17-year-old female; an then an 18-year-old male, a

13-year-old female, a 15-year-old male, 11-year-old female,

and 7-year-old male.



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The mother also works. I believe she's a school

bus driver, if I have that right. And the father works at

Head Start, and he is fluent in Af-Maay and Af-Maha, two

Somali languages, as well as French. And he interprets at

Head Start for whomever needs it. And then he also

volunteers at homeless shelters to render interpreting

services as well.

The father is willing and able to take him into

the home. The father is able to monitor him. I asked the

father, Well, what about the time you're at work. He said,

Well, they could use an electronic bracelet. That would

work fine. Mr. Docherty is going to stand up here and say

that the electronic bracelet isn't foolproof, and that's

true. But the standard, your Honor, is that the Court has

to be reasonably assured of his return to court and

reasonably assured that the community safety will be

protected. The Court doesn't have to feel that that's

guaranteed.

It's felt by the family that the mom had too many

responsibilities and too many people to account for and it

will work better to monitor Zacharia Abdurahman at home. He

has high respect for his father. They see each other once a

week, in any event.

They would also testify that as Somalis, when they

move about Minneapolis-St. Paul, even though large numbers



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of them have been here since about 1991, they frequently

suffer verbal attacks upon them because they look different

and they speak different and they are culturally different.

People will cast insults at them from cars and people

passing by; and not just intoxicated people. And this has

happened to Mr. Abdurahman many, many, many times.

And my point is that in all those times he has

never responded or retaliated in any way, even though he's a

large, athletic, basketball-playing 19-year-old guy who

could certainly protect himself, he has never cast even a

violent look in anyone's direction.

He graduated from Heritage High School in 2013 and

he has been for the past two years at the community college

where he's currently, according to his sister, taking a

course in composition, one in world politics and one in

intercultural communication.

He completed an intense one-year internship at

Hennepin County Medical Center through a program called

Genesis Work where he learned the ins and outs of the

computer system as applied to health care applications in

the hospital, and he did very well there. He's done many,

many different jobs. The Court heard this morning that he

does work at Harriet Tubman and his support financially is

critical to the family. And not only does he support his

mother, but he helps tide his father over in hard times.



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His father has to pay a significant amount of child support

and doesn't always have the money to do what he needs to do

for himself and Zacharia is the person who has been able to

supplement the family's income.

He has a passport. He has had a passport since he

was little. The family always had passports for the kids

and for the mother and father. And the reason was that they

had relatives in Somalia and wanted to be able to visit them

in the need of an emergency, in the event of a funeral, in

the event that somebody got sick. He has a passport. I

have it with me today. We can turn it in. It was issued in

2013.

There's no evidence that he applied for an

expedited passport. He's had it in his possession for

nearly two years now. It has no travel stamps on it

whatsoever.

I need to talk about his character. I've said

that he's peaceful. He doesn't like arguments and he's very

sympathetic with his mother and he spends a lot of time with

the younger siblings in the household taking them skating,

taking them to restaurants when he has the money, and

generally shepherding them through life. All of these

people are here today, his brothers, his sisters, his

mother, his father, his cousins, aunts and uncles, in this

room and in the room next door. And they love him and they



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can reasonably assure that he will appear in court.

He helps his mother cook. She works, comes home a

little late. He gets the dinner set up for the kids. Then

when -- after he serves dinner, he goes off to work at

Harriet Tubman at about 9 o'clock. He uses his mother's

van. He doesn't have his own car. He gets financial aid to

go to school. He does help keep the car in repair. He's

never used drugs. No mental problems, psychiatric problems,

physical problems, none.

He has donated, according to his father,

significant amounts of money to poor relations of his that

live in places like Kenya who have not been able to get into

this country.

He is engaged to a young woman who is 18 years old

named Muuna Ali (phonetically spelled). I think her last

name is in the bond report. And the two families have

spoken, and he has spoken to her father, and there's an

engagement. And it has been decided that when each of them

completes a community college degree there will be a

marriage. She lives here with her grandmother. The father

is in Africa but the father in Africa has blessed the

relationship and so there will be a wedding in his future.

The father has written five children's books for

Somali children. They have no such developed written

curriculum for Somali children. He's trying to develop one.



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And the father has advised that he would have testified that

Zacharia and he were trying to convert this into a

successful business enterprise and to sell these texts all

over the country. The dad created a commercial website and

they had the intention of trying to get this going. They

fell short of capital.

Has there been changes in his behavior or dress or

habits or worship? None. None at all. He wears a hoodie

and sweatpants and a baseball cap to school. The only time

he wears traditional dress is Friday when he goes to the

mosque.

He is fluent in English. That's his first

language. He understands Af-Maha, but he is not an

efficient, fluent user of it. He can read a little Arabic

but very little. It's Quranic Arabic for purposes of

studying the Quran.

Now, that's who he is. And I know I've taken

maybe a little too much time, but I had to convey to the

Court that's who he is. And he's as connected to this

community as anyone in this courthouse is. This is his

community. He's not going anywhere. He's not going

anywhere, your Honor. And so I respectfully request that

the Court consider placing him with his father on a

bracelet; or, if the Court feels a little more stringent

conditions are necessary, place him in a halfway house. I



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think you can place him in a halfway house on a bracelet,

too.

But this Sherburne County experience is brutal.

It's hard to describe it unless you see it firsthand. It's

brutal. And he should be given some freedom to be out and

about in the community and to help me get ready for his

trial. It's very difficult to do that when your client is

locked up and it's a SO-minute drive one way.

Thank you.


MR. BIRRELL: Your Honor, I'd like to begin as

Mr. Docherty did by talking about the law a little bit.

There is a presumption in a case described in 3142(f) that

detention is appropriate, which is what Mr. Docherty said.

But the presumption has been interpreted as shifting only

the burden of production and not the burden of persuasion to

the Defendant. The burden of persuasion remains with the

Government. And this burden of production requires only the

Defendant to produce some credible evidence. The Defendant

does not need to show that he is not guilty to rebut the

presumption. And once the Defendant rebuts the presumption

with production of any evidence, the burden of proof remains

on the Government to prove the risk of flight or danger to

the community by clear and convincing evidence. And that

the Court instruct us to -- instruct this Court to make the



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decision about that by looking at the 3142(g) factors. And

when you look at those factors as applied to Mr. Musse, this

presumption of detention is overcome, badly overcome.

One of the factors is criminal history. What is

the Defendant's criminal history? Mr. Musse has no criminal

history. The Special Agent Samit testified here this

morning, and I believe the bond report also says, he's never

been arrested before this. Certainly never been convicted

of any crime. So that factor weighs in favor of Mr. Musse.

The next factor is record of appearance at court

proceedings. Well, he hasn't had any other court

proceedings. What they are looking for, of course, is a

history of failure to appear, and there is no such history

of failure to appear and so that factor weighs in

Mr. Musse's favor as well.

The next thing the statute tells us to look at is

history relating to drug or alcohol abuse. And there is no

evidence before the Court, and in fact the bond report says

that there's no known history or current concerns relating

to mental health, counseling, treatment, or psychiatric

care. Additionally, the Defendant reported no past or

present use of illegal substances, alcohol, or treatment for

the same. So the evidence before the Court is that there is

no history relating to drug or alcohol abuse as to Mr. Musse

and that factor weighs in his favor, too.



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The statute tells us to look at -- tells the Court

to look at the Defendant's physical and mental condition.

And as you can see from the bond report on page 2, the

physical health says he is in excellent physical health with

no medical problems reported. And as I read to you a minute

ago, there's no evidence of any mental issues, no counseling

treatment. There's no conduct that anybody alleges that

would be attributable to mental condition. And so that

factor weighs in Mr. Musse's favor as well.

The next thing that the statute requires to be

considered is length of residence in the community. And as

we learned, Mr. Musse was born in St. Louis Park at

Methodist Hospital. He is 19 years old. His father lives

here. He lives with his father. Although I will tell the

Court that his mother lives in Kenya, and he has travelled

back and forth to Kenya. In fact I have his passport,

another factor, but I looked at it and he's been there and

back a couple of times. His passport was issued in 2011 so

it's hard to see why he would need to have another passport.

But in any event, I have his passport over here and we can

surrender that to the Court.

The family ties that he has here, he has a very

substantial tie. His father lives here. As we learned in

the testimony this morning from Agent Samit, he lives with

his dad. His dad and he have an obvious relationship -- I



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should say obviously close relationship because, as is

recounted in paragraph 64 of the affidavit in support of the

complaint, the confidential human source reports -- and

apparently it was recorded so they probably reviewed that,

too -- that based on his father's -- a conversation with his

father, Mr. Musse said he wasn't going anywhere.

And this is an important thing because, first of

all, it evidences a strong family tie with his dad. His dad

is willing to have his son come and live with him again.

That's where he lives. He's willing to supervise him. But

it shows that he and his father have a good relationship and

that they talk about things. You know, the issues are out

there, and that the son is -- Mr. Musse is very respectful

of his father and honors both what his father apparently

expressed to him were his wishes, and he's not shy about

saying it.

The next thing that the -- so I think this family

tie factor weighs heavily, very heavily, in Mr. Musse's

favor.

The employment is the next thing we have to look

at. And the bond report reports that Mr. Musse was employed

last at Doherty Staffing but has not been since November

2014. But as we learned today from Agent Samit, Mr. Musse

is a student at the Minneapolis Community Technical College,

I believe it's called. So it's not surprising that he is



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not employed. And I think that the intent of this

particular factor in the statute is I think that what was

fairly intended by Congress is employment or school. What

are you doing besides laying around the house all day would

be how I interpret that. So I would believe that that

weighs in Mr. Musse's favor, too.

One of the things that the statute -- the next

thing the statute tells us to look at is past conduct. And

I guess I don't know what that means because they also talk

about a record. But I don't see anything in the record in

terms of past conduct that would indicate to anyone that

Mr. Musse would be a danger of flight or a danger to anyone.

There's no record -- there's nothing in the record before

the Court that suggests he ever made a threat to anyone, was

ever armed, attempted to have a weapon, used a weapon,

carried a weapon, was near a weapon. So I'm not seeing that

there was any past conduct that weighs against him. I don't

know what it means so I'm reluctant to say it weighs in

favor of him, but generally I think he's acknowledged to be

a person of good conduct.

The next thing the statute tells us to look at are

financial resources. And I guess I don't really know what

that means but his family, his dad, is in a position to

support him so that he wouldn't be cast adrift in the world

pending the outcome of the case. And I think that's what



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the statute is talking about. Does the person have

somewhere to live and a way to take care of themselves. So

I would suggest to the Court respectfully that that weighs

in Mr. Musse's favor, too.

The next thing the statute tells us to look at is

whether at the time of the current offense or arrest the

Defendant was on probation or parole or other release

pending trial, sentencing, appeal, or completion of a

sentence. Well, he wasn't on any of those things because

none of those things have ever happened to him.

And obviously what the Congress is saying is that

people who are under a criminal justice situation,

disability, circumstance, and are charged with a new offense

are people that, you know, you should be more reluctant to

let out than not. And so here, this is a factor that I

believe can only weigh in Mr. Musse's favor because he's not

under one of those disabilities at this time.

The next factor the statute tells us to look at is

the nature and seriousness of the danger to any person or

the community that would be posed by the Defendant's

release. And other than the charged offense, there's

nothing in the record that would support any conclusion that

Mr. Musse's a danger to any person. There's not one

person -- this is not a circumstance where there's been an

assault or something or, you know, there's a person out



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there that's going to be in danger. Rather, this is a

person where the community is here today, along with these

other young men, to support. So I would say to the Court

that this factors weighs in favor of Mr. Musse as well.

The other things that the statute commands the

Court to look at are weight of the evidence, and we've

already talked about that earlier and I'm not going to

repeat my comments, and the nature and the circumstances of

the offense charged. And there's not any question that this

is a serious charged offense. But that's not -- that's one

of, it looks like, about 14 factors in the statute. And

from my reading of the statute and my discussion with you

today, it looks to me like all the other factors weigh in

favor of releasing Mr. Musse.

And I would tell the Court that -- I would remind

the Court that it was on November 9th, 2014 last year that

he got this target letter from the Government. And, you

know, I'm sure the Court is aware, would have seen the

target letter but there's not any ambiguity in what that

letter is telling people. It's designed to tell people

that, you know, you are in serious jeopardy of being charged

with a federal crime and you need to do something about it.

That's why they send the letter out. Kind of a fair

warning. You know, either call us or get a lawyer and call

us, but you need to do something.



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And there was no flight. There was no attempted

flight. He got a lawyer. He got me. I will tell you,

Judge, that when I call him, he calls me right back every

time. He's done everything I've asked him to do. When I

ask him to come and see me he comes, usually with his dad.

Sometimes his dad comes just to see me, too. I mean, these

are people that are taking their circumstances that they

find themselves in with this Court very seriously.

Your Honor, I recognize and, you know, it is

true, Judge, that he is locked up in Sherburne County 23

hours a day in solitary confinement, which is just plain

wrong. And, you know, this is a presumptively innocent

19-year-old American citizen that we're taking and sticking

in solitary confinement. And I'm telling you, Judge, that's

not the best way to handle things.

There's a compromise here that will fairly address

the legitimate concern that the Government has in balancing

the rights of the Defendant, my guy, Mr. Musse, and, you

know, the humanity of the United States and that is to put

him in a halfway house. They can supervise them in a

halfway house, they can restrict Internet, they can restrict

hours, they can put them on a bracelet so everybody knows

where he is. And this is what I believe the statute

requires, which is the least restrictive -- I mean, that's

my word -- set of circumstances that will fairly meet all



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the legitimate and sometimes competing aims that the Court

is presented with at this stage of the proceedings.

So I'm not asking you to send him home. I'm

asking you to put him in a halfway house, because I'm

realistic and I think it's the right thing to do and the

fair thing to do. And thank you for your time, your Honor.


Mr. Docherty.

MR. DOCHERTY: Your Honor, several of the counsel

for the Defendants have said that their clients should be

released to the care and custody of their families. And the

problem with that, your Honor, is that that has been tried

in this case and it has failed. The families were not able

to stop these young men from going to New York in November

of 2014.

With respect to Guled Ali Omar's family in

particular, in May of 2014 when he tried to go to San Diego

with Yusuf Jama and the CHS, I asked Agent Samit is there

any indication that that family got in touch with law

enforcement. There was not. And a few days later Yusuf

Jama was on an airplane headed for Syria. That was a

spectacular failure, your Honor.

Mr. Hanad Musse decided not to try and get to

Syria by travelling with these others who drove down there

on Friday the 17th of this month. That was because his



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father confronted him. But his father didn't tell law

enforcement anything, and the other Defendants travelled to

San Diego and fortunately they were stopped there.

There's also a theme running through many of the

presentations that just because -- I think Mr. Engh called

it "the ipse dixit fallacy" that the Government gets to

choose to charge these people and then from that gets to

choose that they be detained. That omits, however, the very

important and indeed the critical role played by an

independent judiciary. We don't get to detention after I go

to my office and type up a complaint and we're off to the

races. The complaint is reviewed by a judge and signed by a

judge if that judge finds probable cause; and even then,

after the judge has found probable cause, we have a

preliminary hearing, like the one we had for several hours

this morning, in which the allegations in that complaint are

tested.

So it's not a question of the Government choosing

crimes that from which detention follows. It's a question

of their being probable cause to believe that these

Defendants have committed extraordinarily serious federal

crimes of terrorism. And in fact in the statute that

Mr. Birrell cited to the Court many times, 3142(g), one of

the very first subdivisions of that 3142(g) (1) said that one

of the things that the Court should consider is the nature



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of the offense charged. For example, is it a Federal crime

of terrorism, as it is in this case.

We're supposed to consider the weight of the

evidence. And in this case we're talking about tape

recorded conversations about trips to Kennedy airport, about

attempts to fly out to San Diego.

We're asked to consider the nature and seriousness

of the danger. The danger of release is extraordinary in

this case and I'm not just talking about terrorism itself.

I'm also talking about what I began this hearing with some

hours ago. The vitreal, the threats, the charged atmosphere

in which this case is going forward.

MR. HOPEMAN: I'm going to object to that argument

because he said earlier it has nothing to do with our

clients. Shouldn't be pertinent.

MR. DOCHERTY: It is pertinent, however, because

although I'm not accusing those clients of doing anything,

it is nevertheless something the Court must consider is the

atmosphere in which this litigation is going forward.

Mr. Hapeman said that Mr. Zacharia Abdurahman

should be released to his home and, if necessary, put on a

bracelet. And then said that the Court doesn't -- cited

correctly the standard, which is that the Court doesn't need

to guarantee that Mr. Abdurahman will return because, and he

is right, I am here to say that bracelets are not foolproof.



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They can be cut off. They can be disabled. In this case we

do need to guarantee the Defendants will return because of

the seriousness of the allegations and the depth and

seriousness of the danger and the risk of flight.

Lastly, Mr. Bruder said that Mr. Guled Ali Omar

has a family that he can go to and that they will guarantee

his appearance in Court. Well, Mr. Guled Ali Omar's older

brother is a man named Ahmed Ali Omar and he is an indicted

fugitive from this Court. Mr. Guled Ali Omar's younger

brother is Mohamed Ali Omar, and he was convicted by a jury

of this Court on March -- the end of the week of March 9th

of threatening federal officers when they came to talk with

him or came to talk with members of his family about Guled's

attempted travel to San Diego out of MSP that day.

That is not a family in which the Court can place

any significant, indeed any confidences whatsoever, that

they will see to it that Guled Ali Omar returns to court or

that Guled Ali Omar does not leave the country, as he has

tried to do multiple times as laid out in this complaint.

In short, your Honor, the case for detention in

this case is strong and I respectfully ask that the Court

order all four Defendants detained pending trial in this

case.

Thank you.




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Any response from any counsel for any Defendant?

Mr. Hopeman.

MR. HOPEMAN: Your Honor, my client and his family

are from a tradition called the Sufi tradition. It's a

pacifist tradition. They are pacifists. They are like

Quakers. They don't believe in conflict. They don't

believe in war. I was absolutely dumbfounded when

Mr. Docherty stood up a minute ago and suggested that

because of the atmosphere that other people in the community

might be responsible for, that that's an added reason to

detain these men. And then he went a little further and

said that's a reason that the Court, as I understood him,

should change the standard from reasonably assure to

guarantee. And that's just not the law and I had to respond

to that.

Thank you.


MR. ENGH: One point deserves mentioning, your

Honor. This idea that because a complaint has been signed,

therefore the evidence is necessarily overwhelming. The

fact remains that I don't recall a single instance where a

complaint wasn't signed in Federal Court. And the

Government controls the complete content of the complaint

itself, and need not express any Brady or exculpatory facts

therein. And so the fact that a complaint has been signed



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is essentially not a terrific argument or persuasive

argument because, again, it's just the Government's view of

the facts without any counter-prevailing facts presented to

the Court for its own independent review.

In any event, I do reassert my position that you

should consider lesser alternatives.


MR. BRUDER: One brief comment, your Honor, on

behalf of Mr. Guled Ali Omar.

Mr. Docherty's comments about my client's family

would be compelling if the individuals he mentioned actually

were living in the household. However, they are not. And

those who are living in the household are upstanding

citizens. And, in fact, even if you accept the Government's

narrative, took immediate action to assure that Mr. Omar did

not take any steps in May of 2014 to leave the State of

Minnesota.


MR. BIRRELL: Nothing further. Thank you.

THE COURT: All right. We'll take a brief recess

and I will come back and give my ruling. It's a little bit

before 2 o'clock now. Why don't we come back at 2:15.

We're in recess.

(Recess taken from 1:57 to 2:20 p.m.)

THE COURT: Please be seated. We are back on the



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record in the matter 15-mj-312 (BRT) with the four

Defendants who are here for detention hearing. I am

prepared to make my ruling.

Before I do, and I will go through each Defendant,

I do want to make sure I say to all the Defendants who are

here today, that I recognize that you are each entitled to a

presumption of innocence at trial, and that what we're doing

here today is having a detention hearing where a lot of

factors are considered. And there's been argument and

testimony today about the charges that you face and about

the complaint, but nothing that take place at this detention

hearing or anything that I set forth in my findings after

the hearing is intended to change the presumption of your

innocence at trial.

In this case the Government is arguing that each

of the Defendants appearing today should be detained because

the Defendant presents a risk of flight. And in that

situation the Government must show by a preponderance of the

evidence that no conditions or combination of conditions

will reasonably assure the Defendant's presence as required.

The Government is also arguing that the Defendant would be a

danger or danger to another in the community. And in that

case the Government has a higher burden and the Government

must show by clear and convincing evidence that no

conditions or combination of conditions will reasonably



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assure the safety of the community.

You've heard today that this case involves a

rebuttable presumption and with that situation, then when

there's a rebuttable presumption, then the Defendant has to

come forward with some credible evidence to respond to that.

I find that in each of the cases here with each of

the Defendants, you have come forward with some credible

evidence to respond to that rebuttable presumption. But as

you also heard, it's still a factor, the rebuttable

presumption is still a factor regarding the detention

decision.

So now I will also talk about the factors that are

applied, and in the statute that we've been looking at and

hearing about there are four factors in those -- in the

statute. First is the nature and circumstances of the

alleged offense. Second, the weight of the evidence against

the Defendant.

Third, the history and characteristics of the

person, including: The person's character, physical and

mental condition, family ties, employment, financial

resources, length of residence in the community, community

ties, past conduct, history relating to drug or alcohol

abuse, criminal history, and record concerning appearance at

court proceedings; whether the person, at the time of the

current offense or arrest, was on probation, on parole, or



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on other release pending trial, sentencing, appeal, or

completion of sentence for an offense under Federal, State

or local law. So that's all underneath the third factor,

the history and characteristics of the person.

And then finally, the fourth factor is the nature

and seriousness of the danger to others in the community.

So I'd like to go through each -- each one of the -- I'd

like to cover the detention decision with each of the

Defendants and beginning with Mr. Farah.

Based on the evidence that I've heard at the

hearing, I've also considered the factors relating to

Mr. Farah, and I have looked at the Pretrial Services report

and recommendation that in this case is a recommendation to

detain.

I find that the Government has met its showing by

a preponderance of evidence that detention is required based

upon a risk of flight. And in particular I look at the

factors, and the factors that are of most significance to me

as I look at everything is the nature of the offense. The

nature of the offense, as has been discussed, is very

serious and it's one of those listed out in ( g) ( 1) . And of

course there's a recognition that for purposes of the trial

there's a presumption of innocence; but this is one of the

factors that I must consider in the detention proceeding

process.



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And the second factor that I find significant is

the weight of the evidence against the person; and then

finally the ties to foreign countries.

I also find that the Government has met its burden

of showing by clear and convincing evidence that detention

is required based on danger to others in the community. In

particular, again, I am looking of the four factors, the

nature of the offense, and the weight of the evidence

against the Defendant is significant. And in this case a

danger to others, including the danger to others if the

Defendant should leave.

I really appreciate that family and friends and

community connections to this Defendant and others are here.

I appreciate that and I've heard the lawyers talk about

those connections. But still when I weigh that in and look

at that as one of the factors and the -- some of the

backdrop to this case, I still find that there's no

condition or combination of conditions that would reasonably

assure that the Defendant would appear for court or that the

public safety would be assured.

So I find that Mr. Farah should be detained and is

remanded to the custody of the U.S. Marshal. I'll ask the

Government to prepare a draft order.

I also want to respond to what I heard about the

conditions of confinement right now. And while that's not a



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factor in the analysis, I want to tell the Defendants that

I've heard that and I will follow up with the United States

Marshal to make sure that the conditions of detention,

confinement, are appropriate. And so I just wanted to

mention that as we moved along here.

Next we will cover the detention of Mr. Omar. So

regarding Mr. Omar, I have looked at the four factors,

including the presumption, and have considered all of the

evidence that we've looked at today. And I've also

considered the recommendation of Pretrial Services, which in

that case is also to detain.

I find the Government has met its burden of

showing by a preponderance of evidence that detention is

required based upon the risk of flight, and in particular

I'm looking at the nature of the offense and here the nature

of the offense is very serious and it is one of the offenses

listed out in ( g) ( 1) . I'm also looking at the weight of the

evidence against the person and the ties to foreign

countries.

I find that the Government has met its burden by

showing by clear and convincing evidence that detention is

required based on danger to others in the community. In

particular I'm looking at the factor relating to the nature

of the offense and the weight of the evidence against the

Defendant. I'm looking at the danger to others including



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the danger to others if the Defendant should leave.

Again, I appreciate the family and community

support and what was said about the family's support, but I

still am weighing that with the other factors. I find that

there's no condition or combination of conditions that would

reasonably assure that the Defendant would appear for court,

for the public safety or safety of the community.

And so I will order the Defendant to remain

detained pending these proceedings and will be remanded to

the custody of the U.S. Marshal, and I will ask the

Government to prepare a draft order. I will follow up, as I

just mentioned, regarding conditions. Even though that's

not part of the detention decision, I do want to do some

follow up myself.

The next Defendant that we will discuss is

Mr. Abdurahman. I have considered all of the factors

relating to the Defendant. I've considered the four factors

along with the rebuttable presumption. I've considered the

report of Pretrial, which in this case is a recommendation

to detain.

With all of that in mind, and in looking at

everything, I find that the Government has met its burden to

establish a risk of flight based on a preponderance of the

evidence. And in particular I'm looking at the nature of

the offense. Again, the nature of the offense is very



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serious and one of those listed out in ( g) ( 1) . I'm looking

at the weight of the evidence against the person and the

ties to foreign countries.

I find that the Government has met its burden by

showing through clear and convincing evidence that detention

is required based on danger to others in the community. In

particular, I'm looking at the nature of the offense, the

weight of the evidence against the Defendant, and the danger

to others including the danger if Defendant should leave.

Once again, I do want to mention that I appreciate

the community and family support; but in looking at that

along with the other factors, I find that there are no

conditions or combination of conditions that would

reasonably assure that the Defendant would appear for court

or the public safety or safety of the community could be

reasonably assured. So I will order that the Defendant

remain in custody, detained pending these proceedings, and

will be remanded to the custody of the United States

Marshal. I'll ask the Government to prepare an order.

And then separate from that, I will follow up with

the U.S. Marshal of the conditions of detention right now.

And then finally as to Mr. Musse, I have taken a

look at the four factors. The rebuttable presumption. I've

also taken a look at the Pretrial Services report and

recommendation which in this case is to detain. Based on



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the evidence today at the hearing and the arguments, I find

that the Government has met its burden to show by a

preponderance of the evidence that detention is required

based on risk of flight. And in particular, I'm looking at

the factors relating to the nature of the offense, and the

nature of this offense is serious and one of those listed

out in (g) (1); the weight of evidence against the Defendant

and the ties to foreign countries.

I also find that the Government has met its burden

by showing through clear and convincing evidence that

detention is required based on danger to others in the

community; and in particular, I find that the nature of the

offense, the weight of the evidence against the Defendant,

the danger to others, including the danger if the Defendant

should leave.

Again, I appreciate the information about the

family and the community support; but, again, in weighing

that along -- and the other evidence and arguments provided

by the Defendants, I find that there are no conditions or

combination of conditions that would reasonably assure that

the Defendant would appear for Court or that the public

safety or safety of the community could be assured.

I will order that the Defendant remain detained

pending these proceedings. And

(Verbal outburst in the courtroom.)



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THE COURT: We will continue. I will ask the

Government to prepare a draft order and I will also follow

up on the conditions of confinement separate and apart from

the detention decision.

Is there anything else we need to cover this

afternoon from the Government's perspective?

MR. DOCHERTY: No, your Honor.

THE COURT: For the Defendants?

MR. ENGH: Not at this time.

MR. HOPEMAN: No, your Honor.

MR. BRUDER: No, your Honor.

MR. BIRRELL: No thank you.

THE COURT: And then to the Defendants, I wish you

the best going forward and we are in recess.

Thank you.

(Court adjourned at 2:36 p.m.)

* * *

I, Carla R. Bebault, certify that the foregoing is

a correct transcript from the record of proceedings in the

above-entitled matter.

Certified by: s/Carla R. Bebault Carla Bebault, RMR, CRR, FCRR


1 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA...GASKINS BENNETT BIRRELL SCHUPP ANDREWS. BIRRELL, ESQ. 333 South Seventh Street Suite 3000 ... GLENN P. BRUDER, ESQ. 7505 Metro

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