CASE 0:14-cr MJD Document 19 Filed 06/30/16 Page 1 of 8. UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Case No: 14-CR- ---

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CASE 0:14-cr-00369-MJD Document 19 Filed 06/30/16 Page 1 of 8 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Case No: 14-CR- --- UNITED STA TES OF AMERICA, Plaintiff, v.

JOINT MOTION TO CLOSE DEFENDANT'S GUILTY PLEA AND SEAL THE TRANSCRIPT OF THE HEARING FILED UNDER SEAL The United States of America, by and through its attorneys Andrew M.

1 CASE 0:14-cr MJD Document 19 Filed 06/30/16 Page 1 of 8 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Case No: 14-CR- --- UNITED STA TES OF AMERICA, Plaintiff, v. AMINA MOHAMUD ESSE, Defendant. JOINT MOTION TO CLOSE DEFENDANT'S GUILTY PLEA AND SEAL THE TRANSCRIPT OF THE HEARING FILED UNDER SEAL The United States of America, by and through its attorneys Andrew M. Luger, United States Attorney for the District of Minnesota, Charles J. Kovats, Jr., Assistant United States Attorney, and Josh P. Parecki, Trial Attorney, Counterterrorism Section, Department of Justice, and Robert Sicoli, Esq., counsel for Defendant Amina Mohamud Esse, hereby move the Court for the following: ( 1 to close the courtroom for the guilty plea proceeding in the above-captioned case; (2 to seal the transcript of that proceeding; (3 to seal the information, waiver of indictment, and plea agreement; and ( 4 to seal this motion and any order entered by the Court in connection with this motion. The parties further respectfully request that any hearing on this motion be scheduled to take place prior to the change of plea hearing. Finally, the parties respectfully request that the Court enter the enclosed Proposed Order regarding courtroom closure and sealing. 1 8l si i GOVERNMENT EXHIBIT I

2 CASE 0:14-cr MJD Document 19 Filed 06/30/16 Page 2 of 8 I. BASIS FOR CLOSURE A. The Parties Enter Into a Cooperation Plea Agreement The government expects that defendant Amina Mohamud Esse ("the defendant" will waive indictment and agreed to be charged by way of a single-count information alleging a violation of Title 18, United States Code, Section 2339B. The parties have negotiated a plea and cooperation agreement by which they seek to resolve this charge. B. The Defendant's Criminal Conduct Between on or about January 1, 2011, and July 1, 2012, the defendant became aware of a group of women in both the United States and outside the United States (hereinafter, "the co-conspirators" who desired to provide material support to al Shabaab. 1 The defendant met and joined this group of women through an on-line service that provides private chat rooms for users. The defendant participated in private chat sessions on a regular, if not daily, basis while a member of the conspiracy. During this time, the defendant listened to lectures and participated in discussions with members of the conspiracy that were almost uniformly pro-a/ Shabaab. For example, Sheikh Hassan Hussein, a Nairobi, Kenya-based pro-a/ Shabaab cleric targeted for sanctions by both the 1 On February 26, 2008, the United States Department of State designated al Shabaab (aka al-shabab, aka Shabaab, aka the Youth, aka Mujahidin al Shabaab Movement, aka Mujahideen Youth Movement, aka Mujahidin Youth Movement, aka MYM, aka Harakat Shabab al-mujahidin, aka Hizbul Shabaab, aka Hisb'ul Shabaab, aka al-shabaab al-islamiya, aka Youth Wing, aka al Shabaab al-islaam, aka al-shabaab al-jihaad, aka the Unity of Islamic Youth as a Foreign Terrorist Organization (FTO under Section 219 of the Immigration and Nationality Act, as amended, and as a Specially Designated Global Terrorist ("SDGT" under Section l(b of Executive Order 13224, as amended. "Shabaab" is an Arabic word that means "Youth" and is in common use in the Somali language. At present, al Shabaab remains a designated FTO. 2

3 CASE 0:14-cr MJD Document 19 Filed 06/30/16 Page 3 of 8 United States and the United Nations, often lectured to the defendant and her co-conspirators. Beginning in December 2011 and continuing to April 2012, the defendant provided more than $ divided between several transactions over a period of months - to Nairobi-based co-conspirator Fardowsa Jama Mohamed, at the direction of Virgina-based co-conspirator Muna Osman Jama. The defendant delivered this money to co-conspirator Fardowsa Jama Mohamed knowing it would be used to support al Shabaab. Moreover, at the time the defendant provided this money, the defendant knew that al Shabaab had been designated as a foreign terrorist organization by the United States Department of State. C. The Defendant's Potential for Substantial Assistance Based on debriefings of the defendant and other evidence, the government believes the defendant may be able to identify individuals who provide financial support to al-shabaab, both in the United States and overseas; identify several members of al-shabaab located in Kenya and Somalia with whom she has previous associations; and will, if necessary, provide sworn testimony in the case of United States v. Muna Jama, et al., a matter pending in the Eastern District of Virginia. This testimony is not likely to be required until March 2015 at the earliest. As part of the plea and cooperation agreement, the defendant has agreed to cooperate with the government's ongoing investigation. She has agreed to continue to provide all the information in her possession concerning al-shabaab; to testify at any trial where her testimony may be required; and to work proactively with the FBI in order to identify additional co-conspirators and generate evidence for use in the investigation and 3

4 CASE 0:14-cr MJD Document 19 Filed 06/30/16 Page 4 of 8 other potential prosecutions. With counsel's permission, the defendant has already begun working with the FBI further the government's investigation into members of al-shabaab and those who support them. The parties both believe that if the defendant's criminal charges, guilty plea, and cooperation are made public, both the operational and security interests will be compromised. Al-Shabaab members and associates would obviously not accept or trust the defendant if they knew he had been charged and was cooperating with the FBI. In addition, al-shabaab may wish to target the defendant or her family members if the defendant's cooperation becomes a matter of general knowledge prior to the conclusion of the investigation. II. ARGUMENT This motion to close the defendant's change of plea hearing appropriately balances the First Amendment interest in public access to trials and the compelling governmental interests and compelling interests of the defendant in closing this change of plea hearing. 2 In order to seek closure of a public trial, in accordance with the Sixth Amendment rights of the accused and the First Amendment rights of the press and public, 2 In accordance with Title 28, Code of Federal Regulations, Section 50.9; and United States Attorney's Manual Section , the United States Attorney's Office for the District of Minnesota received permission to seek closure of the courtroom for the defendant's change of plea hearing from Deputy Attorney General James M. Cole on November X;

5 CASE 0:14-cr MJD Document 19 Filed 06/30/16 Page 5 of 8 the moving parties "must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequatetosupporttheclosure." UnitedStatesv. Farmer,32F.3d 369,371 (8th Cir (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984. "A compelling governmental interest permits a court to take evidence under seal as long as the court makes specific findings regarding the necessity of such a step." Goffv. Graves, 362 FJd 543, 550 (8th Cir.2004 (citing In re Search Warrant/or Secretarial Area Outside Office ofthomas Gunn, 855 F.2d 569, 574 (8th Cir When considering the facts of this case and the applicable law, the parties submit that closure of the courtroom for tlie defendant's guilty plea is appropriate. A. The Overriding Interests Likely to be Prejudiced First, as is evident from the information set forth above, a public guilty plea proceeding would result in the substantial probability of prejudice to the compelling interests of both the government and the defendant. In particular, because the defendant is providing information about (and by extension cooperating against a designated foreign terrorist organization, its members, and its clandestine international network of supporters, a public guilty plea proceeding would prejudice the government's compelling interest in the integrity of its ongoing investigation. Moreover, thedefendant likewise has a strong interest in ensuring the cooperation she provides is confidential and effective, especially given her desire to mitigate any sentence she may receive from the Court. 5

6 CASE 0:14-cr MJD Document 19 Filed 06/30/16 Page 6 of 8 Second, given the violent nature of a/-shabaab, the parties have a compelling interesting in keeping sealed - at least for the duration of the defendant's proactive cooperation - her criminal charges and guilty plea. In Graves, the Eighth Circuit affirmed the district court's conclusion that "protection of confidential informants from acts of retaliation for giving evidence [ was a] compelling interest(] necessitating the decision to issue a protective order and seal portions of the records." Graves, 362 F.3d at 551. Because this investigation relates to matters of national security, the compelling nature of the government's and defendant's interests is even greater here. The parties therefore submit that the prejudice to compelling interests embodied in the danger to the integrity of the government's investigation; the threat to the safety of the defendant and her family; and the preservation of the effectiveness of her cooperation, far outweigh the qualified First Amendment right of the public and the media to access the guilty plea proceedings. B. The Requested Closure Is No Broader than Necessary By ordering the government to disclose the transcript of the change of plea hearing and related documents, insofar as required in this or other cases by Brady v. Maryland, 373 U.S. 83 (1963, Giglio v. United States, 405 U.S. 150 (1972, 18 U.S.C. 3500, and Rules 16 and 26.2 of the Federal Rules of Criminal Procedure, and by requiring the parties to move to unseal the transcript once the likely prejudice to their compelling interests no longer outweighs the qualified right to access, the Court can narrowly tailor the closure to ensure that it is no broader than necessary to protect the parties' interests in closure. This 6

7 CASE 0:14-cr MJD Document 19 Filed 06/30/16 Page 7 of 8 will ensure that at an appropriate time the transcripts of the defendant's plea hearing will become public record. If appropriate, the Court can also require the parties to return to the Court and periodic intervals to update the Court as to whether continued sealing of the transcripts and hearing remains appropriate. C. There Are No Reasonable Alternatives to Closing the Change of Plea Hearing Based on the information set forth above, it is apparent that no reasonable alternatives to closure of the courtroom exist that would adequately protect the compelling interests of the government and the defendant. The defendant must plead guilty to the information in a courtroom, and the information, waiver of indictment, and plea agreement would otherwise be public documents. 7

8 CASE 0:14-cr MJD Document 19 Filed 06/30/16 Page 8 of 8 III. CONCLUSION Accordingly, the parties respectfully requests that the Court enter the Proposed Order, whichcontains findings reflecting: (a there is a substantial probability that a public guilty plea proceeding would prejudice the compelling interests identified above; (b the lack of reasonable alternatives to courtroom closure; and ( c that the prejudice to the compelling interests described herein overrides the qualified right of the public and the media to access the guilty plea proceedings. Respectfully submitted, ANDREW M. LUGER United States tt y ES J. KOVATS, JR.. S. Attorney 11-'{;~~,/J ~,L_ ROBERT SICOLI, Esq. Counsel for Amina Mohamud Esse AMINA MOHAMUD ESSE Defendant 8

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Criminal No (MJD/FLN) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE 0:15-cr-00049-MJD-FLN Document 384 Filed 03/29/16 Page 1 of 7 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Criminal No. 15-49 (MJD/FLN UNITED STATES OF AMERICA, v. Plaintiff, HAMZA AHMED (01,