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Stephen R. SadyChief Deputy Federal Public Defendersteve_sady@fd.orgSteven T. WaxFederal Public Defendersteve_wax@fd.orgLisa HayAssistant Federal Public Defenderlisa_hay@fd.org101 S.W. Main Street, Suite 1700Portland, Oregon 97204503-326-2123 Telephone503-326-5524 FacsimileAttorneys for DefendantIN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF OREGONPORTLAND DIVISIONUNITED STATES OF AMERICA,Plaintiff,v.MOHAMED OSMAN MOHAMUD,Defendant.Case No. 3:10-cr-00475-KI-1MOTION FOR A NEW TRIAL
The defendant, Mohamed Osman Mohamud, through his attorneys, respectfully moves thisCourt for a new trial on the following grounds that, separately and cumulatively, deprived Mr.Mohamud of a fair trial.
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Case 3:10-cr-00475-KI Document 432 Filed 02/14/13 Page 1 of 20 Page ID#: 5295
 
A.The Jury Instructions And The Court’s Response To The Jury’s Note Diluted TheGovernment’s Burden Of Proof And Denied Adequate Instruction On The Theory Of Defense.
The defense in this case depended on a narrow and demanding burden of proof for  predisposition to commit the crime charged in the indictment: attempted use of a weapon of massdestruction against persons or property in the United States. CR 2; 18 U.S.C. § 2332a(a)(2). Thedefense requested jury instructions focused on the crime charged (CR 238 at 5, 29), specificallydistinguishing domestic terrorism from overseas travel in the trial memorandum. CR 234 at 2(“Although Mr. Mohamud had expressed unpopular political ideas and fundamentalist religious beliefs, he was not ready and willing had not even contemplated using a weapon of massdestruction in the United States against his fellow citizens.”); CR 234 at 16 (“To establish predisposition at trial the government must do more than produce evidence that Mr. Mohamudwanted to travel abroad and associate with Islamic extremists. It must prove that he was disposedto commit the charged act of domestic terrorism.”). The government, in contrast, asserted that predisposition could be to acts similar to the one charged. CR 227 at 35.The parties briefed the issue, with the defense asserting that the government’s standard wasderived from Rule 404(b) litigation, not the definition of predisposition required by
 Jacobson v.United States
, 503 U.S. 540 (1992). Although the Court rejected the defense language in the juryinstruction that referred to the crime charged, the Court resolved the legal dispute in favor of thedefense:MR. SADY:And Im hoping that what I understood the Court was rulingwas that in adopting the Ninth Circuit instruction, the crimerefers to the crime charged, not similar crimes, which was thenature of our objection.
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THE COURT:It is the crime charged.CR 373 at 125.The government sought clarification that it could argue for predisposition based on similar conduct or willingness to engage in similar conduct.
 Id 
. at 126. The Court stated that the Court’sstatement regarding similar conduct was made “before we knew that there were no FRE 404(b) prior  bad acts that were going to be involved here.”
 Id 
. at 127. The Court then stated that similar conductis admissible as evidence of predisposition, but reaffirmed that “[w]ith regard to the instruction, theinstruction is going to be in the language of the 6.2, and ‘commit the crime’ refers to the crime setforth in the indictment.”
 Id 
. at 127. The Court declined to instruct on similar conduct as it declinedto instruct on lack of wherewithal and vulnerability.
 Id 
. at 123.Based on that ruling, the defense opening and closing presented the predisposition issueexpressly in terms of the charge in the indictment: the attempted use of a weapon of mass destructionin the United States. The phrase was used four times in the opening statement, five times in theclosing argument. The government’s closing argument, in contrast, never used the charge in theindictment as the standard for predisposition, while referring to similar conduct five times. Tr. at2541, 2544, 2559, 2567, 2588.After jury deliberations began, the jury submitted the following note:We are looking for clarification of Instruction #18 if possible.Where it states “the crime”, does that refer strictly to the crime as stated in theindictment, or could it include “a similar” crime as stated by the prosecution inclosing statements.CR 430 at 6. The defense contends the note indicated that a juror or jurors understood the defensetheory of the case that, looking strictly to the crime charged, the government could not prove
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