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United States v. Omar

United States Court of Appeals, Eighth Circuit

May 27, 2015

United States of America, Plaintiff - Appellee
v.
Mahamud Said Omar, also known as Mohamud Said Omar, also known as Sharif Omar, Defendant - Appellant

Submitted: January 14, 2015.

Appeal from United States District Court for the District of Minnesota - St. Paul.

For United States of America, Plaintiff - Appellee: LeeAnn K. Bell, Assistant U.S. Attorney, John Francis Docherty, Assistant U.S. Attorney, Charles John Kovats Jr., Assistant U.S. Attorney, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN; William M. Narus, Assistant U.S. Attorney, U.S. Department of Justice, Counterterrorism Section, Washington, DC.

For Mahamud Said Omar, also known as: Mohamud Said Omar, also known as: Sharif Omar, Defendant - Appellant: Frederick J. Goetz, Goetz & Eckland, Minneapolis, MN.

Mahamud Said Omar, also known as: Mohamud Said Omar, also known as: Sharif Omar, Defendant - Appellant, Pro se, El Reno, OK.

Before MURPHY, SMITH, and GRUENDER, Circuit Judges.

OPINION

Page 1105

GRUENDER, Circuit Judge.

After a jury trial, Mahamud Said Omar was convicted of several terrorism-related offenses. The district court[1] sentenced him to a total term of 240 months in prison. Omar appeals, and we affirm.

I. Background

On August 20, 2009, a federal grand jury indicted Omar for (1) conspiracy to provide material support to terrorists, 18 U.S.C. § 2339A(a); (2) providing material support to terrorists, id. ; (3) conspiracy to provide material support to a designated foreign terrorist organization, 18 U.S.C. § 2339B(a)(1); (4) providing material support to a designated foreign terrorist organization, id. ; and (5) conspiracy to murder, kidnap, and maim persons outside of the United States, 18 U.S.C. § 956(a)(1).

Before trial, Omar moved to suppress any identification evidence, claiming that the pre-trial identification procedure by

Page 1106

which witnesses identified him was constitutionally flawed. A magistrate judge held a hearing on this motion and heard the following evidence about three witnesses' pre-trial identifications of Omar.

Before trial, Kamal Hassan identified Omar three times. On April 9, 2009, an FBI agent showed Hassan eighty-five photographs one at a time. After displaying each photograph, the agent asked Hassan whether he knew the person in the picture. If Hassan said yes, the agent asked Hassan to describe what he knew about the person. Omar's picture was the eighty-third photograph shown to Hassan. Hassan identified Omar as " Sharif." According to the agent, Hassan made this identification without hesitation. Hassan stated that he recognized Omar from a mosque and that Omar later spent time at an al Shabaab safe house in Somalia. Omar's photograph remained on the table for a couple of minutes while the agent and Hassan discussed Omar. Hassan identified Omar again on June 7, 2010. This time, an FBI agent showed Hassan twenty-nine photographs, following the same procedure as before. When the agent displayed Omar's picture and asked whether Hassan knew the person in the picture, Hassan identified Omar as " Sharif." The agent testified that Hassan made this identification without hesitation. Omar's picture remained on the table for two or three minutes while Hassan discussed Omar. During a third interview with an FBI agent on November 15, 2011, Hassan mentioned someone named " Sharif." The agent then displayed Omar's photograph, and Hassan identified Omar as " Sharif" without hesitation.

Abdifatah Isse also identified Omar three times before trial. On February 25, 2009, an FBI agent showed Isse three photographs one at a time. After displaying each picture, the agent asked Isse whether he knew the person in the picture. When Omar's photograph was shown, Isse identified Omar as " Sharif" without hesitation. The agent then asked Isse to describe what he knew about this person. Omar's picture remained in front of Isse for roughly ten minutes while he and the agent discussed Omar. During a second interview on March 11, 2009, Isse mentioned someone named " Sharif" as a person Isse knew from a local mosque who came to a house where he was staying. At this point, an FBI agent showed Isse a photograph of Omar; Isse again identified Omar as " Sharif" without hesitation. Omar's photograph remained in front of Isse for ten or fifteen minutes. An FBI agent interviewed Isse again at a later date. This time, the agent showed Isse twenty photographs one at a time and asked Isse whether he recognized the person in each picture. When Omar's photograph was shown, Isse identified Omar as " Sharif" without hesitation.

Salah Ahmed made one pre-trial identification of Omar. During an interview on July 19, 2009, an FBI agent showed Ahmed 152 photographs one at a time and asked whether he knew the person in each photograph. Omar's picture was approximately the fifteenth one shown. When the agent asked Ahmed whether he recognized the person in the photograph, Ahmed identified Omar as " Sharif" without any doubt.

After hearing this evidence, the magistrate judge recommended that Omar's motion to suppress be granted. The magistrate judge found that the pre-trial identification technique used with Hassan, Isse, and Ahmed was impermissibly suggestive because it amounted to a single-photograph identification. The magistrate judge also concluded that the repeated displays of Omar's picture " served ...


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