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United States v. Dhirane

United States Court of Appeals, Fourth Circuit

July 16, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
HINDA OSMAN DHIRANE, a/k/a Nicmatu Rabbi, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MUNA OSMAN JAMA, a/k/a Asha Ali Amin, a/k/a Umu Luqmaan, a/k/a Taaibah, Defendant-Appellant.

          Argued: May 10, 2018

          Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, District Judge. (1:14-cr-00230-AJT-1; 1:14-cr-00230-AJT-2)

         ARGUED:

          Geremy C. Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellants.

          Jonathan Y. Ellis, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

         ON BRIEF:

          Whitney E.C. Minter, First Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia; Alan H. Yamamoto, LAW OFFICE OF ALAN YAMAMOTO, Alexandria, Virginia, for Appellants.

          Dana J. Boente, United States Attorney, James P. Gillis, Assistant United States Attorney, Danya E. Atiyeh, Assistant United States Attorney, Joseph S. Attias, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

          Before NIEMEYER, KEENAN, and HARRIS, Circuit Judges.

          NIEMEYER, Circuit Judge.

         Following a bench trial, the district court found Muna Osman Jama and Hinda Osman Dhirane guilty of conspiracy to provide and of providing on numerous occasions material support to al-Shabaab, a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B. The defendants, naturalized American citizens who were born in Somalia, collected money from members of online chat rooms and transmitted the funds to coconspirators in Somalia and Kenya to assist al-Shabaab's terrorist activities in the Horn of Africa. The district court sentenced Jama to 144 months' imprisonment and Dhirane to 132 months' imprisonment.

         On appeal, the defendants contend (1) that the district court erred in denying their motion to suppress evidence obtained pursuant to warrants issued under the Foreign Intelligence Surveillance Act ("FISA"), arguing that the evidence was obtained unconstitutionally in light of FISA's ex parte and in camera judicial review process; (2) that the district court applied an incorrect legal standard to conclude that two coconspirators in Somalia and Kenya, to whom the defendants transmitted monies, were "part of" al-Shabaab; and (3) that the district court erred in applying sentencing enhancements under U.S.S.G. § 2M5.3(b)(1)(E) (providing for a two-level enhancement when the support to a foreign terrorist organization was provided with the intent, knowledge, or reason to believe it would be used to assist in the commission of a violent act).

         For the reasons that follow, we affirm.

         I

         In 2008, the U.S. Department of State designated al-Shabaab a foreign terrorist organization under § 219 of the Immigration and Nationality Act, 8 U.S.C. § 1189. At that time and continuing through the events of this case, al-Shabaab was engaged ...


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