Terrorist conviction and sentence upheld

Sami Osmakac was convicted and sentenced to 42 years in prison following a 10-day trial for attempting to carry out a terrorist plot in Tampa, Florida, and for possessing a firearm not registered to him. After the F.B.I. received a tip from a confidential informant a store owner selling trinkets and food items from the Middle East, reported that Osmakac asked about purchasing black flags referring to flags used by a variety of Islamist political movements, the store owner became a confidential source of information after gave Osmakac a job in his store. The F.B.I. began recording numerous conversations in which Osmakac discussed his plans to commit a several violent terrorist attacks in the Tampa area. Osmakac also made attempts to obtain guns from various individuals. Osmakac was charged in a two count indictment with committing one count of knowingly attempting to use weapons of mass destruction, specifically explosives grenades and similar devices in violation of 18 USC 2332 and with possessing a firearm not register to him ,specifically a AK-47 machine gun in violation of 26 USC 5861(d).

Prior to trial, the government informed Osmakac it planned to offer evidence of information obtained from electronic surveillance conducted pursuant to the Foreign Intelligence Surveillance Act (FISA) during the time that Osmakac was being observed. Osmakac filed a motion asking the trial court to order the government to disclose certain FISA materials including the underlying search warrant applications and orders issued by the FISA Court. The district court reviewed the requested materials, in camera and ex parte, and determined that there was no valid or legal reason for disclosing any of the FIA materials. Osmakac challenged the district court’s decision denying him access to the FISA applications and supporting documents and the FISA Court’s order authorizing the surveillance of Osmakac, who was a U.S. citizen. Osmakac argued that he wanted to review the applications and orders to determine whether the surveillance and searches were in fact legal.

In U.S. v. Osmakac, the court of appeals ruled that all of the FISA statutory requirements were satisfied and the FISA-derived evidence in the case was legally acquired. It concluded that the FISA surveillance and searches were made in conformity with the FISA Court’s orders of authorization. The court of appeals reached this decision after independently reviewing the FISA materials which were not disclosed to Osmakac’s counsel.

Another challenge to the federal criminal trial raised by Osmakac that the court of appeals reviewed was the prosecutor’s misstatement the jury should not consider a lace of certain evidence such as the FBI reports and surveillance logs in determining guilt or innocence. Osmakac argued that the comment prejudiced Osmakac and denied his constitutional right to due process. The court found that though the prosecutor incorrectly made this comment to the jury, it was not reversible error because the trial court later gave the jury an instruction in the jury instructions that it could consider this lack of evidence in deciding whether it had a reasonable doubt. Additionally, the court found the misstatement comment was fleeting and inadvertent and that Osmakac’s substantial rights were not affected.

Finally, the court of appeals rejected Osmaka’s claim that the government manipulated the sting operation to increase his sentence. While a sentencing factor manipulation is a recognized claim in federal courts in Florida and other Eleventh Circuit states, there was no basis for it here where the evidence did not support his allegation that the government introduced the subject of weapons of mass destruction to Osmakac. He added this element to the plot on his own.