The failure of an undercover federal agent to record a conversation with a suspect in a terrorism case could hamper his prosecution and bolster a defense claim that the FBI tried to steer him into a crime, a legal expert said Friday.
The problem with a recording device was spelled out in a government response to a March 7 discovery motion filed by defense lawyers for Mohamed O. Mohamud, a 20-year-old Somali-American who is accused of trying to detonate a bomb at a Portland Christmas tree-lighting ceremony in November.
The device ran out of battery power just as the July 30 meeting began, prosecutors said.
"Put simply, it was human error. The device was accidently turned on hours before the meeting time and therefore ran out of battery power as the meeting began," prosecutors wrote in the response filed Thursday.
The government has never spelled out exactly what Mohamud said during that conversation, which marked the first contact between him and undercover FBI agents.
An agent did write notes on the discussion after it was over, and that material has been turned over to defense lawyers but not made public.
The failure to record the encounter could pose problems for the prosecution when it tries to show Mohamud was predisposed to detonating the bomb before he was contacted by the FBI, said Paul Marcus, a William & Mary college law professor and the author of a book on entrapment.
"If he can raise legitimate concerns about what was said, it could affect what the jury believes," Marcus said.
Mohamud is charged with attempting to detonate a weapon of mass destruction. He has pleaded not guilty.
During several months of meetings, two undercover FBI agents whom Mohamud thought were members of a radical Islamic group purported to initiate him into jihadist circles and gave him options for carrying out deeds for the good of Islam.
The most severe was martyrdom, which authorities say Mohamud declined. Instead, he wanted to kill people and chose the tree-lighting ceremony as a target, authorities said.
The undercover agents told Mohamud they would plant a bomb that would go off when he pressed a button on a cell phone. But no bomb was deployed, and Mohamud was arrested.
Though the initial meeting with FBI agents wasn't recorded, they did record subsequent meetings in which they warned Mohamud several times about the seriousness of his plan, told him women and children could die, and said he could back out, according to the indictment in the case.
"Since I was 15, I thought about all this," Mohamud was quoted as saying in one conversation cited in the indictment. "It's gonna be a fireworks show ... a spectacular show."
Mohamud's lawyers have raised the possibility of an entrapment defense, which would require them to show that Mohamud wasn't predisposed to committing a crime before he was enticed to it by the government.
But Marcus, the author of a book on entrapment, said such a defense is usually most successful in white-collar or drug cases.
"They generally don't work with violent crime," Marcus said. "People are pretty skeptical."
Marcus said some cases involving separatist militias in the 1990s attempted to use entrapment defenses, without success. While a jury may be more likely to consider an entrapment defense if the suspect didn't actually have a weapon, Marcus said, the prospect of many people dying might sway them otherwise.
"This one falls somewhere in between," Marcus said. "It was what he thought was a really nasty thing, we're talking about lots of people dying. On the other hand, there wasn't an explosive device, he's young, and he doesn't have prior (convictions) for anything like this."
Mohamud's federal public defender Steven Wax did not immediately return a call from The Associated Press seeking comment.
The U.S. attorney's office for the District of Oregon declined to comment.
If U.S. District Judge John V. Acosta finds there was enough evidence to support an entrapment defense, he will instruct the jury on the details of entrapment. If he does so, the prosecution must either prove that Mohamud was predisposed to committing a crime, or that the government didn't induce him to commit one.
The defense requested a plethora of information in its motion for discovery, including pre-written testimony from expert witnesses, the personnel files of each law enforcement agent who will testify in the case, and the notes any prospective witness used in grand jury testimony, as well as their arrest and conviction records.
They also sought an unidentified polygraph of Mohamud from an unrelated matter in November 2009, to which the prosecution argues they are not entitled. The U.S. attorney's office declined to specify the nature of the polygraph test or what led to it.
Marcus said in other entrapment cases, the defense has initially pleaded not guilty and made requests for all the information it can get its hands on. If it finds no exculpatory evidence, the defendant often changes his or her plea.
"In my experience in cases like this," Marcus said, "the defendants generally plead out."