1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
OMAR AHMAD ALI ABDEL RAHMAN,
4 a/k/a "Omar Ahmed Ali,"
a/k/a "Omar Abdel Al-Rahman,"
5 a/k/a "Sheik Rahman,",
a/k/a "The Sheik,"
6 a/k/a "Sheik Omar,"
EL SAYYID NOSAIR,
7 a/k/a "Abu Abdallah,"
a/k/a "El Sayyid Abdul Azziz,"
8 a/k/a "Victor Noel Jafry,"
IBRAHIM A. EL-GABROWNY,
9 SIDDIG IBRAHIM SIDDIG ALI,
10 a/k/a "John Medley,"
CLEMENT HAMPTON-EL, S5 93 Cr. 181 (MBM)
11 a/k/a "Abdul Rashid Abdullah,"
a/k/a "Abdel Rashid,"
12 a/k/a "Doctor Rashid,"
13 a/k/a "Abu Zaid,"
a/k/a "Abdou Zaid,"
14 FARES KHALLAFALLA,
a/k/a "Abu Fares,"
15 a/k/a "Abdou Fares,"
16 a/k/a "Abu Aisha,"
17 MOHAMMED SALEH,
a/k/a "Mohammed Ali,"
18 VICTOR ALVAREZ,
a/k/a "Mohammed," and
19 MATARAWY MOHAMMED SAID SALEH,
January 17, 1996
22 9:15 a.m.
HON. MICHAEL B. MUKASEY,
4 MARY JO WHITE
United States Attorney for the
5 Southern District of New York
BY: ANDREW McCARTHY
6 PATRICK FITZGERALD
7 Assistant United States Attorneys
ABDEEN M. JABARA
9 LYNNE STEWART and
Attorneys for Defendant Omar Ahmad Ali Abdel Rahman
11 ROGER STAVIS and
12 Attorneys for Defendant El Sayyid Nosair
14 Attorney for Defendant Ibrahim A. El-Gabrowny
KENNETH D. WASSERMAN
16 Attorney for Defendant Clement Hampton-El
STEVEN M. BERNSTEIN
18 Attorney for Defendant Amir Abdelgani
VALERIE C. AMSTERDAM
20 Attorney for Defendant Fares Khallafalla
JOYCE E. LONDON
22 Attorney for Defendant Tarig Elhassan
GROSSMAN, LAVINE & RINALDO
4 Attorneys for Defendant Fadil Abdelgani
BY: CHARLES D. LAVINE
6 JOHN H. JACOBS
Attorney for Defendant Mohammed Saleh
8 BROWN, BERNE & SERRA
Attorneys for Defendant Victor Alvarez
9 BY: WESLEY M. SERRA
FOUAD KHEIR, Arabic Interpreter
1 (Defendant Victor Alvarez present)
2 THE CLERK: United States of America versus Victor
3 Alvarez. Government ready?
4 MR. McCARTHY: Government ready, your Honor.
5 THE CLERK: Defendant ready?
6 MR. SERRA: Yes, your Honor.
7 THE COURT: Mr. McCarthy, is there anything that you
8 want to tell me beyond what is in the presentence report?
9 MR. McCARTHY: No, your Honor.
10 THE COURT: Mr. Serra, do you want to be heard?
11 MR. SERRA: Yes, your Honor. First of all, your
12 Honor, there was an issue which the court raised last week and
13 the Probation Department raised in the addendum to the report,
14 which had to do with a potential downward departure should the
15 court choose the treason guideline, as the court did
16 yesterday. I refer the court to pages 37 and 38 of the
17 transcript from the conference of January 10, last Wednesday,
18 and to page 41 of the probation report. I am not saying the
19 court took a position. The court obviously was putting out
20 the idea rather than taking a position. Nor did probation
21 take a position. But the idea was that the treason guideline
22 at level 43 with a life sentence across the board, you don't
23 get much more serious, and that in choosing that guideline
24 there was always the possibility that since there was no
25 guideline for seditious conspiracy, if that was chosen as the
1 analogous guideline, that it would overstate the conduct.
2 I would like to address briefly that issue. I know
3 the court has thought about it because the court raised it.
4 But the court's language from last week -- again, your Honor
5 was putting it out as an idea rather than making any findings,
6 but the court suggested that possibly one of the reasons the
7 treason guideline might overstate the seriousness of the
8 conduct was because the treason guideline might contemplate,
9 and I think the court's words were "actually endanger the
10 continued existence of the country." Needless to say, the
11 court struggled over the issue of what guideline to apply, and
12 I don't mean to reargue that issue. That was argued and
13 briefed in great detail.
14 I think from what I observed in terms of the court's
15 inviting submissions and the court's putting out ideas at
16 conferences that it was not an easy decision. Your Honor, I
17 would submit that the reason it wasn't an easy decision is
18 because there is no guideline which exactly fits the conduct.
19 By definition there isn't one in the guidelines, but there is
20 no analogous guideline which exactly fits the conduct. Under
21 those circumstances, probation recognized, and I think
22 implicitly the court recognized, that a downward departure,
23 perhaps on an individual basis, perhaps on a group basis, but
24 a downward departure, to recognize that the treason guideline
25 does overstate the conduct, if a downward departure might be
1 appropriate, we certainly urge it is appropriate on behalf of
2 Mr. Alvarez.
3 Your Honor, some of what I have to say applies to
4 other defendants. They all have extremely competent counsel
5 who can discuss it for themselves. But there is a group of
6 defendants in this case who I would submit neither Congress
7 nor the Sentencing Commission contemplated the application of
8 a level 43 treason guideline to. Were it not for Siddig Ali
9 and Emad Salem, there is a group of people here who even if
10 the court concludes that they were predisposed, they didn't
11 have the knowledge, they didn't have the ability, they didn't
12 have the money, they didn't have the facilities. Far from
13 endangering the continued existence of the country, there was
14 a group of people here who without Siddig Ali and Emad Salem
15 would have talked for the rest of their lives. That is in no
16 way inconsistent with the verdict in the case.
17 Your Honor, specifically addressing -- one thing
18 before specifically addressing Mr. Alvarez. Even putting
19 Siddig Ali back into the mix, someone who according to the
20 government was the emir, the leader of the safe house group of
21 defendants, you are talking about someone who didn't know
22 gunpowder from C-4, you are talking about someone who did not
23 know that fuel oil and ammonium nitrate could be combined to
24 make an explosive device. You are talking about someone who
25 had neither the money nor the ability nor the facilities to
1 commit any of these acts without the help of Emad Salem.
2 As far as Mr. Alvarez specifically is concerned, your
3 Honor, why we would submit that neither Congress nor the
4 Sentencing Commission contemplated a level 43 treason
5 guideline for the conduct which he committed, it is clear that
6 the verdict of the jury was that he joined this conspiracy,
7 these conspiracies, knowing and having the same intent as the
8 rest of the people that the jury found were participants. But
9 to borrow a phrase, Judge, I think in the case of Mr. Alvarez
10 you are talking about someone who was predisposed to be
11 predisposed. You are talking about someone who during the
12 course of his life, as the court heard in detail -- and I
13 won't repeat in detail because the court has shown over the
14 last several conferences that the court knows the trial record
15 as well or better than any of the lawyers. But you are
16 talking about someone who bathed in goat's blood, who joined a
17 sect, a religion called Santeria, to which he gave half his
18 money, which almost let him take his own life, but that he
19 kept doing it because he saw it helping them, as obviously it
20 didn't, it almost destroyed him. By the verdict the jury
21 concluded -- and I am not suggesting by any of my comments
22 that the court conclude anything else because the court is
23 bound by the verdict as to these conclusions. The jury
24 concluded that Mr. Alvarez joined a conspiracy to bomb
25 buildings in the name of the process which Siddig Ali and Emad
1 Salem started. I submit to the court in the name of his
2 conduct not justifying a level 43 treason guideline that he
3 could just as easily have joined a conspiracy to bomb a
4 bowling alley as to bomb the United Nations or the tunnels,
5 indicating to the court that there is no evidence that he knew
6 that the United Nations or the tunnels were actual targets. I
7 won't go through all the list of things that it could have
8 been. The point is that in Mr. Alvarez's case he was someone
9 who was predisposed to be predisposed to join anything,
10 anything that made him feel important. While the jury's
11 verdict that he joined a bombing conspiracy and a seditious
12 conspiracy is surely binding on the court, nothing in that
13 says that a level 43 treason guideline was what was
14 contemplated by Congress or the Sentencing Commission for this
15 conduct, and I ask the court to consider a downward departure.
16 Your Honor, that doesn't conclude my remarks. That
17 is most of them. I have a few more remarks addressed to
18 sentencing after the court rules on departure issues.
19 THE COURT: Are you going to address yourself to
20 upward departure for obstruction?
21 MR. SERRA: The 2-level enhancement?
22 THE COURT: I will tell you that as far as the
23 downward request for departure, the only adjustment that I
24 intend to make for Mr. Alvarez is to drop down three levels
25 under 2X1.1, I think it is, 2X1.1(b)(2), because this was an
1 inchoate offense. The point about this being an application
2 of the guideline level of 43, I think, is something that I
3 touched on yesterday or tried to. That is the guideline that
4 is being used, but it is measured against a statute that sets
5 a limit of 20 years. That is the limit that Congress imposed.
6 So that the guideline is not being fully applied. It is being
7 applied to the extent of the maximum that Congress imposed for
8 that crime.
9 MR. SERRA: Your Honor, with all due respect, we have
10 other issues to decide before we decide if we are at a level
11 43 or not.
12 THE COURT: You wanted me to respond on the issue of
13 a departure, and I guess I can respond to all your points
14 after you are done.
15 MR. SERRA: I will be happy to address the issues in
16 any order the court wishes.
17 THE COURT: Why don't you address all the issues that
18 you have and I will respond to what I have to respond to.
19 MR. SERRA: As far as the 2 levels enhancement for
20 obstruction, the Probation Department of course doesn't take a
21 position. It has to do with his testimony at trial. Needless
22 to say, it is in the guidelines, in an application note, that
23 the mere fact that a defendant testifies and is then convicted
24 does not automatically mean that he is subject to a 2-level
25 enhancement. I have never been exactly sure what that means.
1 I guess it means that if you assume that every defendant who
2 testifies and is convicted but denies an element of the
3 offense should get an enhancement, that should mean that the
4 only person who testifies at trial and doesn't get the
5 enhancement is someone who admits all the conduct and the
6 mental state alleged by the government and the only issue to
7 decide is whether the mental state and the sentence fall
8 within the statutory level of the crime. It seems very
9 narrow. I have never seen such a trial. Perhaps the court
10 has seen a trial where the defendant admits everything alleged
11 by the government and the only issue is the application of the
12 law. I don't think it happens very often and I think that the
13 class, I submit that the class of defendants who should not
14 get a 2-level enhancement for obstruction despite having
15 testified and been convicted is wider than simply people who
16 admit everything and dispute the application of the law.
17 I recognize Dunegan and I recognize of course what
18 the court finds are essentially the elements of perjury. But
19 I submit to the court a recent Second Circuit case, U.S. v.
20 Onumonu, which is found at 999 F.2d 43, about a year and a
21 half old, in which the Second Circuit -- basically the
22 defendant was a Nigerian national who was charged with
23 importing heroin by means of swallowing condoms and the
24 defendant testified at that trial and claimed that he thought
25 he was swallowing diamonds.
1 THE COURT: He thought it was jewelry.
2 MR. SERRA: He thought it was diamonds, that's what
3 he said, instead of heroin. The Court of Appeals made
4 findings -- they don't make findings, but they apparently --
5 THE COURT: They are not supposed to make findings.
6 MR. SERRA: They apparently read more into the record
7 than the district court. The Court of Appeals cites numerous
8 factors outside the testimony, what they call, I believe,
9 compelling circumstantial evidence, a solid foundation of
10 circumstantial evidence outside of the probability or
11 improbability of the testimony and outside of the simple fact
12 that the defendant was convicted, in order to find that the
13 defendant committed perjury, lied about a material fact, etc.
14 Among those factors which the circuit found in Onumonu, and
15 they noted several times that the defendant was an educated
16 person, as of course Mr. Alvarez is not -- that was the
17 subject of considerable testimony at trial -- and knew better
18 than to think that diamonds were smuggled in that way or for
19 that matter -- not that it is safe to swallow heroin but it is
20 ridiculous to swallow diamonds.
21 THE COURT: What do you think about the testimony
22 about the gun, Mr. Serra?
23 MR. SERRA: Mr. Alvarez admitted providing the gun.
24 What specifically are you asking about his testimony?
25 THE COURT: That it was something he never looked at
1 or -- did he not say that?
2 MR. SERRA: Yes, and I think it is completely
3 consistent with what the Court of Appeals cited as external
4 factors in the record. If the court would recall, Mr.
5 Alvarez -- it is on tape -- told Siddig and Emad Salem that
6 the gun was loaded, etc. It turned out to be completely
7 unloaded. He didn't know how to use it. The record is
8 consistent. The most important fact is the loaded factor. He
9 said it was loaded. Not only was it not loaded, there were no
10 bullets in the case.
11 THE COURT: Right.
12 MR. SERRA: It is consistent with what he said, that
13 he got it in the case and never looked at it. In fact he said
14 it on tape in GX383. Siddig Ali says --
15 THE COURT: Mr. Serra, I think at this point you are
16 preaching to the converted on that issue.
17 MR. SERRA: In that case, your Honor, I will happily
18 be quiet.
19 THE COURT: I am not suggesting that you be quiet. I
20 am simply saying that you made your point.
21 MR. SERRA: Your Honor, as far as the obstruction
22 adjustment is concerned, that is the point. The point is that
23 you can't do less than Mr. Alvarez did in terms of -- the jury
24 obviously did not believe him when he said that he didn't know
25 the objects of the conspiracy and didn't join a conspiracy to
1 bomb. Obviously they didn't believe that. On the other hand,
2 the solid circumstantial evidence foundation of his lying,
3 which is what takes someone like Mr. Alvarez out of the class
4 of defendants who testified, deny an element and are
5 convicted, is not here on this record.
6 THE COURT: He was also found, was he not, at the
7 time of arrest to have -- there were some drugs found in his
8 system, correct?
9 MR. SERRA: Your Honor, that was stipulated by the
10 government, that there was cocaine in his system.
11 THE COURT: All right.
12 MR. SERRA: Your Honor, those are the remarks that I
13 have on legal points. The only other remarks I have are
14 probably about five minutes of remarks before the court
15 imposes sentence.
16 THE COURT: Go ahead.
17 MR. SERRA: OK. Your Honor, the court heard in some
18 detail the circumstances of Mr. Alvarez growing up and his
19 life. Basically he was deceived and betrayed in the broad
20 sense of the word by his family and by a lot of other people
21 throughout his life, and he simply did not have enough touch
22 with what was going on to see it. You heard about the
23 deception as to who his parents were. You heard about the
24 beatings which occurred on a daily basis. If the court will
25 recall, not just from Mr. Alvarez and Dr. Aranda, you heard
1 about that from a family member who witnessed it and attempted
2 on various occasions to intervene. The government, your
3 Honor -- I referred to this in a letter. Dr. Aranda testified
4 for the better part of a day, including direct and cross. The
5 government employed a psychiatrist -- who probably the court
6 knows or at least has heard the name of, by the name of Naomi
8 THE COURT: She has testified before me. Go ahead.
9 MR. SERRA: She has testified in virtually every
10 court and courthouse in this city -- who examined Mr. Alvarez
11 on various occasions. I was there. If there was any claim
12 that Mr. Alvarez was not completely forthcoming and
13 cooperative in any of those examinations I am sure your Honor
14 would have heard about it in terms of our reciprocal Rule 16
15 obligations. Obviously your Honor didn't. He was completely
16 forthcoming. You have not heard a word, nor did the jury --
17 which I pointed out to the jury, it didn't matter, which I
18 will point out to the court -- you have not heard a word
19 despite the fact that counsel sought the word of an expert,
20 you have not heard a word contradicting what Dr. Aranda said
21 about Mr. Alvarez. That is essentially what I referred to 10
22 minutes ago about him being predisposed to be predisposed.
23 Mr. Alvarez is the type of person who would join anything
24 where people made him feel important and needed. Showed that
25 with Santeria, with palmayombay and others of the same type of
2 Your Honor, the jury's verdict can be read, I think,
3 that Mr. Alvarez was standing by the roadside with his thumb
4 out when the Siddig Emad rolling bomb show and loony bin went
5 by and stopped and he got on board. That is how we read the
6 jury's verdict. But I submit to the court if that vehicle had
7 been the Siddig-Emad chapter of the Salvation Army, we would
8 now have someone else in a Santa Claus collecting quarters.
9 If it had been the Siddig-Emad branch of Jehovah's Witnesses,
10 we would have someone else going door-to-door with Witness
12 Your Honor, however Mr. Alvarez may not always show
13 it, there is no question that he realizes his limitations, is
14 painfully aware of his limitations, and also there is no
15 question that he probably is one of the loneliest people in
16 the world. That leads to his joining. The only question now
17 remaining in this court is how much of the rest of his life
18 that will cost him.
19 Thank you, Judge.
20 THE COURT: Thank you.
21 Mr. Alvarez, is there anything you wish to say before
23 DEFENDANT ALVAREZ: I do.
24 THE COURT: If you want, you can speak from there.
25 DEFENDANT ALVAREZ: No problem. Good morning,
1 Mr. Mukasey.
2 THE COURT: Good morning.
3 DEFENDANT ALVAREZ: I was brought up in front of you
4 on June 24 or June 25, 1993, and after I heard the charges
5 against me I said to you I was innocent of all of those
7 Number one, I would like to say to you, since my time
8 is limited by the time, so I don't take more time than the
9 time I supposed to take, but I would like to go very briefly
10 to the CM's which I proved that Emad Salem and Siddig Ali had
11 an agreement before I even met Emad Salem for the first time
12 and the people of the Siddig's house, that was at Siddig's
13 house at that moment. Those people had an agreement not to
14 tell me anything. When I got to Siddig's house there was an
15 agreement by Siddig Ali and the informant Emad Salem that they
16 was not going to tell me anything. I was accused over and
17 over that I knew what was coming because of what Siddig Ali
18 said in his house. The conversation is on Government's
19 Exhibit 352, CM 48. The conversation goes something like
21 Siddig Ali: That is right. In your mind right now
22 in America, in America, right, in your mind what do you think
23 a Muslim can do to strike back in America, in your opinion?
24 Amir Abdelgani: As a Muslim -- I mean Siddig Ali:
25 As a Muslim?
1 Alvarez: Is for the sake of God.
2 Siddig: How, for what?
3 I said: Can you say that in a different way because
4 I cannot understand it. I mean, what is it?
5 That's what I said. I did not understand that he was
6 meaning that he was going to attack the United States of
7 America. That doesn't prove that he told me that he was going
8 to put a bomb in United States, he don't told me anything of
9 that sort. Anyway, let me just give you the answer that I
10 gave him, which is in the same Government Exhibit 352, page
12 Alvarez: I will show my opinion, brother, you know,
13 best of my ability, you know, my intentions are good, always
14 good. I mean, I will do anything for God's sake, even my
15 life, you know what I am saying.
16 Siddig Ali: Let us be specific.
17 Alvarez: You know what I am trying to say that so
18 you know what my intentions are, you know the Muslims always
19 have many enemies, enemies that we know and enemies that we
20 don't know.
21 Then I said in that conversation to fight the
22 enemies, because I didn't know what he was referring to, so I
23 thought that he was referring to the people who write this
24 about us. I say to him to fight those who fight us through
25 newspapers, through TV, through radio. I never said anything
1 go put a bomb or nobody told me anything go ahead and put a
2 bomb anywhere. I was not told and the agreement is right
4 I am just going to go to Government Exhibit 352, page
5 24. I believe that -- and this conversation was not brought
6 out to the light by my lawyer. I think it had a great value
7 to me because it shows that Siddig already has his mind set.
8 He went and show a whole lot of different places where they
9 said they was not going to show me anything. Government's
10 Exhibit 352, page 24, Siddig Ali said the following.
11 Siddig Ali: If we fail in this, I want Mohammed to
12 work in this. He is a mechanic. He is the Spanish guy.
13 Salem: What?
14 Siddig Ali: So what Spanish?
15 Salem: The one with the long hair?
16 Siddig Ali: Yes.
17 Amir Abdelgani: Unintelligible.
18 Siddig Ali: Unintelligible. Where we know that they
19 serve the, unintelligible.
20 Salem: He has his own way.
21 Now he got his own way and his own specialty. I
22 don't want -- I am sorry.
23 Siddig says the following: We should ask first he do
24 not know. I don't want to let him know anything in detail.
25 Salem: Um.
1 Siddig Ali: I don't want him to know because I don't
2 know him for long.
3 Here, the same government's exhibit, Siddig Ali also
4 says -- this is on page 26, 352 Government's Exhibit.
5 Amir Abdelgani said the following: He will say
6 something strange.
7 Emad Salem: Hm.
8 Siddig: Actually, his understanding of religion is
9 not correct so he will say this is from the Koran, brother.
10 Emad Salem: He will come now?
11 Siddig Ali: He was supposed to come another day but
12 he call me and said that he is going somewhere and he has work
13 to do and he will come later.
14 Emad Salem speaking now: Let us speak first before
15 we tell him anything, we have agreed whether we tell him or
17 That conversation was before I get to Siddig's house
18 on June 189, 1993. Now in the same Government's Exhibit, page
19 38, this conversation took place once I got off of the phone
20 with Siddig Ali.
21 Siddig Ali says on the phone to me: OK, all right.
22 Now he is speaking to the rest of the people which is in
23 Siddig's house. He say this is the Spanish guy.
24 Emad Salem: Is he coming?
25 Siddig: Yes. We agreed. Uh uh uh uh according to
1 his, unintelligible, I mean.
2 Amir Abdelgani speaking now: Are we going to tell
3 him anything?
4 Siddig Ali: No.
5 Then I would like to go ahead just briefly. Because
6 the time is very limited I would like to say everything I
7 would like to say but I only got half an hour but I will
8 continue on.
9 In the same exhibit, Government Exhibit 352, page 39,
10 also Emad Salem agreed with Siddig not to tell me anything,
11 look at this conversation, how it goes. It is crystal clear
12 to me that this conversation on the government exhibit is very
13 obvious for what the Arabic conversation which was translated
14 into English it says very clear that I didn't know. I know
15 that I was found guilty from your Honor but I know that after
16 I was found guilty because of the mountains and mountains and
17 mountains of evidence which they had in this case, not the
18 evidence that they got on me. I believe my lawyer would have
19 had to take more time of his time, probably I would not be in
20 this case. I mean, probably I wouldn't be here today in front
21 of your Honor.
22 This is the conversation I got, this is 352T CM 48.
23 Saleh. If so, we should depend on God. If we say the word
24 depend on God. You say depend on God, we should start the
25 talking with him.
1 Siddig Ali: Yes, of course, and if not.
2 Saleh: If not, OK sheik, that is OK, sheik. We -- I
3 mean from Amir Abdelgani: We will let him know? I don't
4 know, we will let him and the Sudanese.
5 Siddig: Unintelligible.
6 Amir Abdelgani: Siddig, isn't that impossible to
7 have someone, one of them to be an intruder to begin with, to
8 begin with?
9 Siddig Ali: No. For the one we don't know, he could
10 be dangerous and he could be a spy while we don't know.
11 Siddig Ali: No.
12 Amir Abdelgani: The one may have a doubt, people
13 don't doubt.
14 Siddig: It could be. Do you know Moussad Abisha?
15 It is very clear that he doesn't trust me and that I
16 never was trust, and the agreement goes on. There was
17 agreement right there and they had agreed with each other not
18 to tell me but this going to go on.
19 There was right after CM 51, which the government
20 said that because what Emad Salem said to me on the Abu Bakr
21 Mosque, it was just two persons there. It was Emad Salem and
22 it was me. There was nobody there in that mosque, just me and
23 him. As a matter of fact, me and Emad Salem was since
24 probably 10:30 -- I mean 12:00 in the morning, on to 10:30 at
25 night or perhaps 11:00. So this conversation which the
1 government said is the most critical one, I believe that is
2 not the most critical conversation if the first part of the
3 conversation would have been taped but of course it is not on
4 tape. But later I will get to that conversation. They said
5 that that conversation was the most that Emad Salem let me
6 know what was happening. I know that I was not told anything,
7 period, of what was their intention or what they was going to
8 do. If he told me why he still saying that he agreed not to
9 tell me anything? Look at this conversation. This is
10 Government's Exhibit 352, page 132.
11 Emad Salem: Absolutely. I agreed, I am not going to
12 tell him anything.
13 Amir Abdelgani: We should tell him to drive the car
14 for us.
15 Emad Salem: I don't want him to know our place.
16 He can't let me to know his place. He didn't want to
17 tell me anything. I was brought here and I was found guilty
18 because with the evidence that the government had on everybody
19 else, not the evidence because they found on me.
20 I knew anything at all, since Siddig's house, right,
21 so after CM 51 the government accused me that I knew
22 everything because they say that CM 51 Emad Salem told me
23 everything. Right now I would like to say to your Honor that
24 if I knew anything, why Emad Salem said that he is not going
25 to tell me anything? Why? I know that I was found guilty in
1 front of this court, you know, and I know that I am an
2 innocent man and I never intended to do anything. Now, even
3 so, if I knew of any plans that the government said that I
4 knew everything and why Emad Salem agreed not to turn me it
5 was very obvious because number one I was an American, I was a
6 Spanish guy, they didn't know me for long like Siddig said, I
7 am not going to tell him anything because I didn't know him
8 for long. It was very obvious. OK, fine. Right after
9 that -- I would like to go on briefly because the time is very
10 limited and I would like for your Honor to consider in before
11 you sentence me, to give it a second thought, because I know
12 that I was in that safe house, what they call a safe house, I
13 didn't know what a safe house was, whether Emad Salem said in
14 CM 51 that there was a safe house or mentioned something to
15 that effect, I didn't know what he was talking about.
16 Right after that conversation with Emad he -- it was
17 right after Abu Bakr Mosque, it was before Emad Salem go to
18 the Queens garage, this conversation took place. That was
19 when I got to the Queens garage. They still don't want to
20 tell me anything. This is Government's Exhibit 352, page 26,
21 June 19 at the Queens garage.
22 Salem speaking now: The brothers Tarig and Mohammed
23 were asking what is going on, I don't know what's going on.
24 I say: I don't know what is going on. I get that
25 mission on this corner and I am doing it.
1 Siddig Ali: What do you mean, what is going on?
2 Alvarez: Unintelligible. Talk to me. I don't know
3 nothing. I want to know what is going on. I mean, I want to
4 know, I want to know.
5 Now Siddig Ali said: Mohammed, let me tell you
6 something. Are you in or are you out?
7 I didn't know what he was talking about at that very
8 moment. I never knew what he was talking about before that
9 when I got to Siddig's house because they had an agreement
10 that they was not going to tell me anything. Even so, if this
11 was the most critical conversation that they say they are not
12 going to tell me anything and CM 51 was supposed telling me
13 anything, why right there the government informant is saying
14 that he doesn't want to tell me anything? Siddig already say
15 that he is not going to to tell me anything and I read to you
16 already that he said I I agree I am not going to tell him
18 Even so, there was another conversation which I don't
19 think it was brought out at all because it was not in the
20 script of the government. Maybe they put it in in the very
21 end but I let my lawyer know about that conversation, which
22 was English conversation. That was probably on June 21 or 22
23 in the morning hours of June 22. Just a second, please.
24 If I knew anything, why Siddig, even so on June 21
25 going to the 22nd, why he said that he is not going to tell me
1 anything? He said that to Siddig, to Emad Salem again.
2 Listen to this conversation, please. This is CM 58. Look
3 what they said, I mean the conversation how it goes.
4 Alvarez: I will try to, I will try to.
5 Siddig: Unintelligible.
6 Emad Salem: We need, we need -- they need, the
7 people, that's what they talking about.
8 Siddig Ali: Brother, we are now paying attention, we
9 are not paying attention now; unintelligible.
10 Alvarez: I am sorry.
11 Emad Salem: Maybe he knows something.
12 Siddig Ali: He doesn't know nothing.
13 Emad Salem: OK.
14 This was June 21 and June 22, after all of this time
15 that I have been with them, nobody told me anything, nobody
16 give me no information of what was happening, and I was very
17 shy because I look up to Siddig Ali like he was a scholar and
18 I was too shy to ask questions. When I ask questions they say
19 no, we not going to tell you, so I don't see anything out of
20 place and everything that they talked to me about was about
22 And if you look at CM 51, Emad Salem testified on the
23 record that the boys, voice of Detective Louis Napoli was on
24 that tape. Now I come to Siddig's house on June 19, that same
25 day around 12:00, and still I was with Emad Salem at all
1 moments, at all times, and I still don't know, I don't
2 comprehend how Louis Napoli's voice get into this
3 conversation. He said on the record that he picked that tape,
4 that Nagra tape on June 20. I just don't know what Emad Salem
5 did to that tape, if he did or whoever did anything to that
6 tape. I am not blaming anybody, I am not putting my finger on
7 nobody, I am just saying that someone does something to that
8 tape because the first part of that tape is not there. There
9 was a lot of conversation, explicit conversation about Bosnia
10 and the Philippines, and part of that conversation was taking
11 place at that particular time. If Emad Salem played with that
12 tape and if that tape was recorded on his briefcase and
13 Detective Louis Napoli was not around to be seen, nor he was
14 with me in Siddig's house, he wasn't with me at any given
15 moment at all and Emad Salem was with me every second from
16 12:00 probably until 10:30, how the voice Detective Louis
17 Napoli got into that tape? I know that Emad Salem probably
18 did something to that tape because the conversation wasn't
19 good for him, it was not good for his case. He knew that if
20 that conversation gets in the record, then probably he will
21 have a hard time trying to getting me convicted, which he did.
22 Anyway, I like to go on. I don't want to take the
23 court's, all of this time because the time is very limited,
24 but I would like to say a couple things about this
25 psychologist. I don't know if you understand me. If you
1 don't understand me, Judge Mukasey, let me know, so that I can
2 speak to a translator.
3 THE COURT: I can understand you so far. Go ahead.
4 DEFENDANT ALVAREZ: Thank you. Anyway, I would just
5 like to say, maybe the last comment, that the Dr. Aranda came
6 to the witness stand and he perjured himself. He lied. And I
7 just like to tell you how he lied. Number one, I not disagree
8 that I am -- I mean, I'm going to disagree with my lawyer
9 Wesley Serra, number one. He came through my lawyer. I
10 didn't ask for no psychologist at all. That was my lawyer's
11 idea, number one. He came to the stand and he said that he
12 tested me with kindergarten stuff, like take picture blocks
13 into pieces and put it back together and check my mathematic
14 skills and my social social studies knowledge, if I knew
15 anything about social studies.
16 He came to the stand and he said on the stand that
17 somebody say, some friend of mine in Puerto Rico said that I
18 laugh to myself, that I speak to myself. So when he said
19 that, he said in a without no foundation. He did not make no
20 scientific test on me for him to come and testify that I am a
21 crazy man.
22 I am not a crazy man. I believe that if a person
23 with all of these master degrees to make a determination that
24 somebody is crazy because somebody says I think that person is
25 crazy himself and I don't think that he should be working as a
1 psychologist or as a doctor, whatever you call it.
2 Also, I know that I came on June 1993, on June 19,
3 1993, in front of your Honor. I pled innocent. I know that I
4 am innocent man. All of this evidence that I read to you, I
5 didn't read it all, because if I read it to you all I would
6 never finish. It wouldn't be possible. If my lawyer took two
7 hours, try to say that I am an innocent man when he was trying
8 to read those conversations, even he didn't know know, he did
9 not read this agreement where these people talked that they
10 was not going to tell me anything, how this jury found me
11 guilty? I guess if I would have a suffering from this case
12 from those people, I would not be here before your Honor.
13 I pled innocent and I am an innocent man. I never
14 knew of any plot to blow up anything here in United States.
15 This is my country. I live here and I got family here.
16 That's right. Nobody wanted to tell me anything. So I am an
17 innocent man and I was found guilty because all of the
18 evidence that they brought from the World Trade Center, those
19 twisted metals, the videotapes, hundreds and hundreds of
20 witnesses in that case, who work on that case and people who
21 was in that building came to testify on that case. I know
22 that that affected the jury and they had their minds set when
23 they saw that, and when the building blow up in Oklahoma City
24 bombing, also was a great -- I mean, the explosion in the
25 Oklahoma building had a great impact on the jury, so when they
1 saw all this World Trade Center twisted metals and videotapes,
2 it's obvious, if I would have been the witness stand I would
3 feel probably the same way. I know that the evidence is on
4 the CM's. I know I brought the weapon. I was accused that I
5 was going to take that weapon to overthrow the government of
6 the United States. That's the accusation. I brought the
7 weapon for the purposes of training. That conversation I had
8 with Emad Salem before Detective Louis Napoli get into that
9 conversation, I don't know how his voice got into that
10 conversation. My lawyer failed to question him, also he
11 failed to question Emad Salem on how Detective Louis Napoli
12 got into that Nagra recording conversation.
13 I was brought in this court as a criminal without a
14 criminal knowledge. I brought that weapon because somebody
15 spoke to me about going into Bosnia, training, etc. I never
16 knew of any plots. I'm a innocent man, and the proof are in
17 this place. I mean this CM's, the CM's which they read to the
18 jury, some of those transcripts there prove my innocence. I
19 never knew of such plot and I would like to conclude that I am
20 a innocent man and nobody told me anything.
21 THE COURT: All right. Thank you, Mr. Alvarez.
22 Just to respond briefly to some of the points that
23 Mr. Serra made, as far as the application of the treason
24 guideline, as I said before, that is being applied only to the
25 extent permitted by the seditious conspiracy count, which
1 Congress set at a maximum of 20 years, applying analogous
2 guidelines, which the sentencing guidelines contemplate.
3 As far as the argument that Mr. Alvarez wouldn't be
4 here but for Siddig Ali and but for Salem, that argument is
5 one that can be made and is made on behalf of many defendants.
6 But for the fact that other people draw people into crime,
7 they wouldn't get involved in crime. We can't treat people
8 here as empty vessels. Everybody is presumed to have a moral
9 sense and every defendant comes before the court with that
10 presumption intact.
11 To say that even Siddig Ali didn't know how to mix
12 the bomb, that this whole enterprise was ineffectual, if the
13 person giving technical advice to this group had been the same
14 person who gave technical advice to the World Trade Center
15 bombers, we would be here dealing with a tragedy that is far
16 larger than the one we are dealing with, which is big enough.
17 So far as the argument that Mr. Alvarez is a person
18 of limited capacity or is not a person of as great capacity as
19 others, that, I think, was proved. However, and forgive me if
20 it sounds coldblooded, people who are killed by people of
21 limited capacity are just as dead as people who are killed by
22 geniuses, and the law has to deal equally with them.
23 As regards Mr. Alvarez's own arguments, he argues
24 that he is innocent. A sentencing proceeding goes forward on
25 the assumption that a jury verdict was correct, and that is
1 the assumption on which this proceeding is going to go
2 forward. His argument that his lawyer should have taken more
3 time, it seems to me, is belied by the record. Mr. Alvarez
4 had one of the most competent, if not the most competent
5 lawyer in this courtroom. The fact that the result was what
6 it was was not due to any defect in his lawyer, it was due to
7 the evidence against him, on which he did not touch. That
8 evidence included taped conversations in which he was asked to
9 get a machine gun for the purpose of being used against police
10 in the event that they should encounter people transporting a
11 bomb. He agreed to provide that gun and he did provide it.
12 It was made plain to him in 362T that this was a project that
13 was going to be consummated in this country. In fact, it was
14 specifically discussed that he consider leaving the country.
15 He was given an opportunity to withdraw -- are you in or are
16 you out? -- and he chose to stay in. Finally, he was
17 photographed mixing the bomb. That was ample evidence on
18 which to convict him and it amply justifies the verdict.
19 He was convicted on Counts 1, 5, 6, 15, and 16.
20 Those counts, Counts 1, 5 and 6, are grouped.
21 The base offense level is a level 43. As I said
22 earlier, I am going to reduce that by three levels to a level
23 40, because from Mr. Alvarez's standpoint, at least, this was
24 simply an inchoate crime at the point he came into it. That
25 yields a sentencing range of 292 to 365 months.
1 I am not going to apply an enhancement for
2 obstruction. I will tell you that this is on the borderline
3 of whether an enhancement should be applied or should not.
4 However, as you point out, a great deal of the circumstantial
5 evidence is reasonably consistent with Mr. Alvarez's claim
6 that at various points he was under the influence of cocaine,
7 notwithstanding that the jury found him guilty. Therefore I
8 am not going to apply a 2-level enhancement for obstruction.
9 The sentence on Count 16, as you know, carries a
10 mandatory five years consecutive to the sentences imposed on
11 other counts.
12 Therefore, with respect to Count 1, seditious
13 conspiracy, the sentence is 20 years; with respect to Count 5,
14 bombing conspiracy, five years; with respect to Count 6,
15 attempted bombing, 10 years. The sentences on Counts 1 and 5
16 will run concurrently. The sentence on Count 6 is
17 consecutive, for a total on those counts of 30 years.
18 MR. SERRA: Your Honor, a point of law. Is the court
19 implicitly ruling that under 18 U.S.C. 3584 Counts 5 and 6 can
20 run consecutively?
21 THE COURT: Yes.
22 MR. SERRA: I take it the court doesn't want to hear
23 argument on that, that the court has heard all the argument it
25 THE COURT: That is absolutely right.
1 The sentence on Count 15 is 10 years, concurrent with
2 the other sentences, and the sentence on Count 16 as required
3 is five years, for a total of 35 years.
4 With respect to supervised release, Mr. Alvarez will
5 be placed on supervised release for a period of three years on
6 each count, concurrent.
7 I find that he is without the funds to pay either a
8 fine or the costs of imprisonment, and, accordingly, neither
9 of those will be imposed. He will pay the cost of supervised
10 release as such time, if it comes, as his income exceeds
11 $2,500 per month after taxes, adjusted for inflation as of
12 today, and then to the extent of 30 cents on the dollar.
13 There is a mandatory $250 special assessment that I must
14 impose and do impose.
15 Mr. Alvarez, you have a right to appeal both your
16 conviction and your sentence.
17 Mr. Serra, I will ask you please to file a notice of
18 appeal on behalf of Mr. Alvarez.
19 MR. SERRA: I will surely do that.
20 MR. McCARTHY: Your Honor, sorry, three points.
21 THE COURT: Yes.
22 MR. McCARTHY: Number one, I don't know that the
23 record reflects whether Mr. Serra and Mr. Alvarez reviewed the
24 presentence investigation. I would ask your Honor to put that
25 question to him.
1 THE COURT: All right.
2 MR. SERRA: Your Honor, we have reviewed both the
3 presentence report and the addendum to the presentence report,
4 and discussed it thoroughly.
5 MR. McCARTHY: Thank you, your Honor.
6 Secondly, your Honor has sentenced at level 40 of the
7 guidelines, which provides a range in excess of 24 months. I
8 believe that the law of this circuit requires at least a short
9 statement, even if it is inclusive of what your Honor has
10 already said --
11 THE COURT: I have sentenced at what is, I think
12 apparently, at or toward the high end of that range because of
13 the seriousness of the offense and the potentially disastrous
14 nature of the offense.
15 MR. McCARTHY: Your Honor, finally, the government
16 would ask your Honor to make a finding that, assuming that the
17 treason guideline did not apply and the sentence was under
18 Section 3553 of Title 18, that your Honor would nonetheless
19 impose the same sentence, in other words, that your Honor has
20 sentenced because this was the appropriate sentence under the
21 circumstances, not necessarily the one compelled by --
22 THE COURT: I understand your point and I think I
23 understand the reason for the question, but that would be a
24 misrepresentation. I did not sit down and consider what
25 sentence I would impose were it not for the guidelines. I
1 thought about it, I turned it over in my mind, but I cannot
2 truthfully say that I decided that, and therefore I can't say
3 it on this record.
4 MR. McCARTHY: Then I will not ask your Honor that
5 question again today.
6 THE COURT: Thank you. You are excused.
7 (Defendant Victor Alvarez excused)
8 (Continued on next page)
1 MR. BERNSTEIN: I am constrained to rise at this
2 point because Mr. Serra's sentence, or his client's, just
3 impacted directly on several defendants who have not been
4 heard on the 3584 question whatsoever. It is moot as to
5 Mr. Alvarez because you sentenced him to 360 months, which is
6 the top end of the statutory maximum for Counts 1 and 6.
7 combined, which is what you did. But I believe that the court
8 would be wrong and I would like to argue that. We had no
9 argument on it yesterday, on the 3584, which is the one
10 solitary proscription under the statutes where the court has
11 no power to sentence consecutively, and I believe Counts 5 and
12 6 are in fact what 3584 is designed to do.
13 THE COURT: I ruled on that yesterday specifically.
14 MR. BERNSTEIN: Your Honor, I think not. That is my
15 concern. You specifically said yesterday that the government
16 had convinced you, and we did not dispute, and you did not
17 dispute that, that you have the power statutorily, as you
18 always have prior to the guidelines, to sentence consecutively
19 and that both sentences are for the same conduct, that is what
20 Counts 1 and 5 both concern. You passed no further judgment
21 and there was no further discussion. 3584 has a specific
22 proscription in the middle of 3584, which is addressed in my
23 letter and is briefly addressed by the government and the
24 Probation Department, and it proscribes imposition of
25 consecutive sentences on 5 and 6, not on a theory of the same
1 conduct but on the theory -- it is not a theory, it is a clear
2 statutory proscription that says an attempt and another
3 offense cannot be --
4 THE COURT: It was not an attempted conspiracy.
5 MR. BERNSTEIN: Judge, if I may be heard further, in
6 order to rule the way you have ruled and to effectively adopt
7 the government's argument is to say that Congress proscribed
8 conspiracies from 3584, and as an exception to the
9 proscription. They have not done that. They have said the
10 essence of conspiracy is an unlawful agreement. But that is
11 not what the statute goes to. The statute goes to whether or
12 not the objective of offense A is the sole objective of the
13 attempt, and the objective of the conspiracy is the objective
14 to bomb. It is not an objective to have an agreement, it is
15 an objective to carry out an objective. There is no language
16 in 3584 that says 3584 shall not apply to 371, shall not apply
17 to drug conspiracies, shall not apply to seditious conspiracy
18 or any other conspiracy. If they wanted to write out
19 conspiracies as not subject to 3584, that should have been
21 The plain reading of the statute does not except
22 conspiracies and I think the court has moved past us without
23 us having argued on it. I just feel that the court is
24 misreading the proscribed area of 3584. The first part of
25 3584 of course gives you the normal common law power to give
1 the consecutive sentence where necessary and which the
2 guidelines adopt under 5G.
3 THE COURT: I got extensive submissions which I read.
4 Do you want to respond?
5 MR. FITZGERALD: The plain language says that
6 sentences can run consecutively except for attempts. There is
7 no exception made for conspiracies. Thus Congress has made
8 plain that conspiracies and substantive offenses can run
9 consecutively. More importantly, it says here the only
10 exception is for an attempt and for another offense that was
11 the sole objective of the attempt. The attempted bombings'
12 sole objective was not to have an agreement.
13 THE COURT: I have read the submissions, I have
14 considered the submissions, and I have ruled.
15 MR. BERNSTEIN: I just note that there is no case law
16 on the issue one way or the other. The terms of the language
17 of the statute are clear. Obviously you have ruled and we
18 take exception to the exception. We think it is plainly
20 MR. FITZGERALD: I would also add that the bombing
21 conspiracy went from 1992 to 1993. The bombing attempt was
22 solely limited to the spring 1993 plot -- '89 to '93.
23 MR. BERNSTEIN: That is taking the cart and the horse
24 and converting them in the statute. The conspiracy may have
25 many objects but it is whether or not it is the sole object of
1 the attempt. The attempt here is the bombing. It is subsumed
2 by the object or at least the intent of the conspiracy. I
3 think it is plain. I think the government's argument is wrong
4 and I take exception. You have ruled.
5 MR. FITZGERALD: The object of a conspiracy and the
6 sole objective of the attempt are different.
7 (Continued on next page)
1 (Defendant Mohammed Saleh present)
2 THE COURT: With respect to Mr. Saleh, is there
3 anything that the government wishes to add?
4 MR. McCARTHY: No, your Honor.
5 THE COURT: Mr. Jacobs, you have had a chance to
6 discuss the presentence report with your client and you have
7 made a submission to me on that?
8 MR. JACOBS: Yes.
9 THE COURT: Is there anything else that you wish to
10 tell me either with regard to the report or generally with
11 regard to sentencing?
12 MR. JACOBS: Your Honor, we did make a rather brief
13 objection to the obstruction of justice, if I can address
15 THE COURT: Go ahead.
16 MR. JACOBS: I think I am getting the two points
17 pretty much. We did make the objection. Your Honor heard the
18 facts. It has been our position that obviously that phone
19 call was not obstruction of justice. I am not going to spend
20 any time on it. I don't think it is necessary. My feeling
21 that your Honor is going to rule on that as opposed to the
22 testifying --
23 THE COURT: I am going to rule on both.
24 MR. JACOBS: I certainly think that I am not in a
25 very strong position on the phone call. It would seem on some
1 levels to comply with what the guidelines talk about.
2 However, we have taken a position that it really does
3 constitute double counting because the government used it to
4 prove their conspiracy, and I think that to have that before
5 the jury and enhance his sentence on that would be wrong.
6 Factually, I know I am in a difficult position with
7 it, but our position at trial, and I guess now and forever,
8 will be that these documents helped him and not hurt him.
9 As far as the testimony at the trial is concerned,
10 your Honor --
11 THE COURT: Not at the trial, at the hearing.
12 MR. JACOBS: Sorry -- at the hearing -- the
13 government took a position that that testimony is false. We
14 obviously totally disagree with that. This defendant
15 testified at the hearing that he had conversations with Salem
16 and there in fact were. We would strongly object to the two
17 points for obstruction. I think that is correct, plus two is
18 the maximum. We would object. I don't know if your Honor
19 wants to rule or have me proceed.
20 THE COURT: Why don't you proceed.
21 MR. JACOBS: If I understand where your Honor would
22 appear to be at, where my client is getting two points, I
23 assume I am at a 42, which starts him at 30 years, running up
24 to life, if my calculations are correct, and if I understand
25 your Honor's rulings on 5 and 6, the maximum he can get is 35
1 years. So what I am talking about is a period from 360, 30
2 years up to 35 years.
3 THE COURT: 360 to 420.
4 MR. JACOBS: Yes. That would appear to be the
5 discretion that your Honor has here and I would certainly --
6 before I even make any remarks, and they are going to be very
7 brief -- request that your Honor sentence him to the 360. It
8 would appear that 30 years would be more than adequate to
9 carry out the penalties in this case.
10 I told your Honor my remarks would be two minutes or
11 less and I am going to do that. I am not here make to make
12 apologies for my client's conduct. I am not here to say that
13 he has any remorse. We take a very simple position. We think
14 that he is an innocent man who was wrongfully convicted. I
15 fought hard in this case to get that across. I wasn't able to
16 do it to the jury. We have felt all along, myself and other
17 counsel, particularly the safe house defendants, that the
18 inclusion of the World Trade Center part of this case forever
19 prejudiced this defendant and many others.
20 The government started their case against my client
21 saying he was the money man. They were wrong when they
22 started the case and they were wrong when they finished the
23 case. It is our position that the jury's verdict was wrong.
24 That doesn't, obviously -- because your Honor and I have done
25 enough sentences over the years -- take away from the fact of
1 what his sentence should be or shouldn't be.
2 I don't have a lot to say about my client other than
3 the fact that he obviously has no criminal history, no
4 violence in his background, and obviously was leading a
5 law-abiding life up until June 4, 1993, when he encountered
6 Salem. I have made a lot of comments over the last year
7 concerning the FBI, I am not going to repeat them here. Your
8 Honor has heard them at great length.
9 I have really nothing more to say, your Honor. I
10 would request that your Honor sentence him -- I assume I am
11 getting the two points for obstruction one way or the other
12 and I would request that he be sentenced to the minimum on
13 which your Honor has discretion, which appears to be 30 years.
14 I have nothing further to say.
15 THE COURT: Thank you, Mr. Jacobs. Mr. Saleh, is
16 there anything you want to tell me before I impose sentence?
17 DEFENDANT MOHAMMED SALEH: As-Salamu Alaikum. Your
18 Honor, Judge Mukasey, good morning.
19 THE COURT: Good morning.
20 DEFENDANT MOHAMMED SALEH: I would like to give you a
21 brief idea about innocent man convicted by jury in this court,
22 terrified from the name of the case, terrified from the huge
23 security in the court and around it, terrified from the huge
24 propaganda in the media, terrified from the fire alarm sounds
25 during the first days of the jury selection in this building.
1 Your Honor, I was convicted in the media before the
2 jury selection and after. I read articles about me, about the
3 other defendants. All of it lied and lied and lied, tied me
4 to the World Trade Center directly, and which the government
5 acknowledged that I have no any tie with the World Trade
6 Center. I was sent to trial with other defendants in so many
7 complex cases, Kahane murder, Mubarak assassination, World
8 Trade Center, jihad, so-called Jihad Organizations, jihad
9 army, jihad groups, Hamas groups. All of that that's why I
10 was convicted without with justice and unfairly.
11 Judge, I think you read some things about me from the
12 PSI report, which I reject completely because it was represent
13 to the government opinion only, and also it was not fair and
14 just. That's why I reject it completely.
15 Judge, since I grow up in my life I hate the
16 violence, I love the peace. And my life and my education and
17 my records speaks for itself. In 1977, I came to this
18 country, United States of America, to complete my college
19 education. With five years I completed two B.S. degrees, in
20 engineering and science. I got opportunity after I graduated
21 to work in United Arab Emirates as a civil engineer, for the
22 government sector. I had a lot of promotions over there. I
23 had good friendships. Came a time before the Gulf War I felt
24 from over there concern about my family's safety and my
25 children. That is why I decided to come live with my family
1 over here, live in peace and work hard. I came to live in
2 peace and to work hard to support my family and my children.
3 I bought a gas station with the support from one of
4 my friends over there, United Arab Emirates. I started my
5 business alone, working seven days a week, working more than
6 13 hours a day. I have five kids to support. It's not easy,
7 and thinking about their future make me doesn't like even to
8 take a day off. I started in the station with the business
9 very slow. I worked hard to establish my business. I
10 succeeded in my efforts to have a successful business. All of
11 that came from honesty and the good treatment for the
12 customers. I expand a little bit. I rented another gas
13 station not far away from my uncle's gas station, but in Mount
14 Vernon County.
15 The evidence in this case, your Honor, proved that I
16 have no knowledge of any of the defendants who went to trial
17 with me. My full records prove that. The only the one I
18 know, have little bit kind of knowledge of him, Siddig Ali. I
19 met him in a lecture in upstate about Bosnia in May 1993 for
20 the first time. I talked to him after the lecture. He
21 introduced himself to me as a speaker who give lectures in a
22 different mosque. He gave me his home number, if I must need
23 someone to give him a lecture, to give him a phone call.
24 In May, May 23, '93, I called Siddig Ali first time
25 in his home, which is recorded in his FISA. I ask him to come
1 give a speech in our mosque. He agreed. In June 4, 1993, the
2 famous day for the government, so-called day of planning for
3 conspiracy, Siddig Ali, he came to me to give a lecture in our
4 mosque. He came that day. He was late. He didn't come to
5 give the lecture. When I came back from the mosque after I
6 finished my prayer, I found Siddig Ali with his wife and with
7 another gentleman I haven't met before, which later on I came
8 to know that he was the government informer Emad Salem. As I
9 told Siddig before he gave the lecture, when he finish the
10 lecture we go eat lunch in my home. I told Siddig with his
11 wife and the man that was with him to come have lunch in my
12 home. He introduced the man with him as friend who work
13 jewelry business, his name is Emad Salem. Siddig apologized
14 to me about missing the lecture and he said he had accident,
15 there is an accident in the highway and that's why he couldn't
16 make the lecture.
17 We went home, we sit down with the kids, and the
18 women sit down together aside. We had the lunch. We were
19 chatting during the meal. This chatting later on called a
20 conspiracy to overthrow United States government. More than
21 two hours conversation, talking all kind of nonsense, talking
22 politics about Middle East, talking with the kids, Siddig
23 bragging, Emad bragging, they try to get some money from me
24 for Bosnia. They tried hardly to convince me by telling me
25 how they are sincere Muslims and how they are working hard for
1 that cause of training for Bosnia and sending people to
3 The government squeezed the whole conversations to
4 twist a few words out of that conversations to convict me with
5 this conspiracy, contradicting all of the evidence, the tapes
6 before June 4 and after June 4, which are CM 27, CM 31, CM 36,
7 CM 48, 52, CM 66, CM 60, CM 61, CM 64, all these contradicting
8 what also Siddig FISA too.
9 Your Honor, Emad Salem told this court that in CM 31
10 after he left my house he was trying to repeat what happened
11 in that meeting and in that conversation in my home. In case
12 of Nagra, didn't tape, but your Honor, you have how Emad Salem
13 played the game with Siddig against me to get some money. One
14 comes from here and the other one hope. And then show to you
15 in the same tape that I didn't commit any donations to them
16 even for Bosnia, and shows to you, your Honor, what exactly
17 happened, what kind of people Emad Salem and Siddig are, and
18 what Emad, the actor, the liar, claim about the paper in my
19 house and eating the paper.
20 All this story, if you review it carefully and see
21 his testimony before lunch the day he came to this court and
22 after lunch in the same day, he gave his testimony, compare it
23 with his statement in the tape for the FBI, CM 31 and the
24 other CM 55, you find it clearly, you find the lie is clear
25 with no doubt, which no one can doubt about.
1 Your Honor, I don't want to remind you who is Emad
2 Salem or the lies of Emad Salem under oath or to make the
3 million dollars check. Emad Salem knows very well that I am
4 innocent. I am innocent man. I have no intention or
5 background or knowledge for any terrorist actions against this
6 country. The government knows very well that I am not
7 involved in any conspiracy. They know that all the talk in
8 that tape is nonsense. I explained to the court under oath
9 that I have no relation with Hamas or the Boutros-Ghali
10 statements, which they call it as capability of violence.
11 Just are statements, I don't mean.
12 I like what you told me, your Honor, one day, that
13 you said one time to me in your chambers that I have said
14 things myself I wish I hadn't said it. I agree with your
15 Honor, sometimes you said statements, just pass-by statements
16 and you wish you didn't say.
17 Your Honor, I am not a member in any organization.
18 The government tried hardly for the jury that I am one of the
19 members of Hamas, at least have a tie to Hamas. I am a man
20 working hard to support my family, to make my living, to make
21 future for my children. I have no intention or wish or time
22 for any illegal activity.
23 Your Honor, I am innocent, I am innocent, I am
24 innocent of all of the charges against me, all of what the
25 doubts the government used in the trial to make the jury
1 convict me, all of it proved my innocence, if you want to read
2 it in a fair judgment. What about man working all of his day,
3 coming home tired, slept in his uniform, or a man, the agent
4 terrified him, scare him, handcuff him for few hours, come
5 back and then try to commit me with the World Trade Center and
6 deny he sell the fuel oil. I think anyone in my position
7 would lie to the agent.
8 About my calling my gas attendant to destroy the
9 receipts, if I am involved in this kind of conspiracy I
10 wouldn't make receipts from the beginning. All of the
11 receipts issue that the son of the owner of the gas station,
12 which I rent from, his name Vinnie, he work at the gas shop,
13 at the gas station. After my arrest he took all the money
14 from the gas attendant and he controlled the gas station and
15 he start selling the gas in the ground and taking all of the
16 money. He took the receipts and he wants to use the receipts
17 as a way of extortion to me, which I was upset about. I call
18 my gas attendant, I told him why you done that stupid
19 mistakes, you give the guy the money and you give the guy the
20 receipts. I was very mad about it. I told him you better
21 destroy it. Why he let him interfere in my matters, my
22 business? So I call him, I told him that.
23 Your Honor, the receipts should help me to prove my
24 issue, that these had been sold as a normal transaction. Your
25 Honor, you know, know from Siddig FISA, June 22, '93, and from
1 the CM's 6652 and from Emad Salem's testimony that they have
2 no idea either, what they told me they using for a boiler to
3 heat hot water. All of the evidence proved that.
4 Your Honor, all what happened in my case proved to
5 you that I am innocent man wrongly convicted. I am not a
6 terrorist. I condemn any terrorists anywhere in the world.
7 When I mention in my conversation with Emad Salem about some
8 military attacks on a bus, it was from Arabic newspaper during
9 the time the two countries in war. Nothing strange to read
10 any Arabic newspaper. At that time you read about these kind
11 of military actions.
12 At the end, I reject the PSI report, I reject all the
13 accusations which is changing the reality. I reject all kinds
14 of violence. Your Honor, I emphasize for you again that I am
15 innocent. The evidence proved that. I ask God the almighty
16 that at one day sooner or later the truth going to come up,
17 and God has the power over all things. Your Honor, the law
18 ask you to do justice. Also God ask you same things. God
19 exalted has said lord God join justice and kindness. I ask
20 you again, your Honor, to do the justice and acquit me from
21 all the charges because I am innocent. Thank you.
22 THE COURT: Thank you, Mr. Saleh. Although Mr. Saleh
23 has argued that he is not guilty of the charges on which he
24 was convicted, the fact is first of all that, as I said, a
25 sentencing proceeding goes forward on the assumption that the
1 jury's verdict was correct.
2 Secondly, there is ample evidence in this record that
3 the jury's verdict was correct. There was a tape recording of
4 a conversation on June 4, 1993, a highly specific conversation
5 about bombing tunnels between states in which Mr. Saleh was
6 asked to help and agreed to help. The evidence shows that at
7 a later date he did help by providing diesel fuel. It shows
8 that on the night of his arrest he was well aware of what it
9 was that he was being arrested for, and his conduct and his
10 false statements that night all indicate his guilty knowledge.
11 As I indicated before, his attempt to destroy
12 evidence warrants a 2-point enhancement for obstruction, as
13 did his testimony at the hearing in which he testified to a
14 conversation that plainly on the other evidence in the case
15 never happened, in addition to accounting for his behavior on
16 the night of his arrest in ways that are simply incredible.
17 He was convicted on Counts 1, 5 and 6: Count 1,
18 seditious conspiracy; Count 5, the bombing conspiracy; and
19 Count 6 an attempted bombing. The base offense level is a
20 level 43. Because he, too, came to the offense late, it was
21 an inchoate offense at the time that he joined. I am
22 therefore deducting three points, down to a level 40. But
23 that then is subject to a 2-point increase, as I said, for
24 obstruction. So we are dealing with a level 42, where the
25 prescribed range is 360 months to life.
1 He will be sentenced as follows: With respect to
2 Count 1, 20 years; with respect to Count 5, five years; with
3 respect to Count 10, 10 years, those sentences to run
4 consecutive, for a total of 35 years.
5 He will be placed on supervised release for a period
6 of three years following his release, subject to the usual
7 rules that apply to supervised release, in addition to which
8 he will obey all unlawful orders of the INS.
9 I find that he is without the funds to pay either a
10 fine or the costs of imprisonment and accordingly neither of
11 those will be imposed. He will pay the costs of supervised
12 release at such time if it comes that his income exceeds
13 $3,000 or more per month after taxes and after making
14 allowances for an increase in the cost of living from today
15 forward. There is a mandatory $150 special assessment that I
16 must impose and do impose. The cost of the supervised
17 release, by the way, will be to the extent of 30 cents on the
19 I am notifying Mr. Saleh that he has a right to
20 appeal both his conviction and his sentence, and I will ask
21 you please, Mr. Jacobs, to file a notice of appeal in his
23 MR. McCARTHY: Your Honor, I take it your Honor's
24 remarks address the 24-month range.
25 THE COURT: They do.
1 MR. McCARTHY: Thank you.
2 THE COURT: I find that because the range exceeds 24
3 months I am obligated to explain why it is that I sentenced on
4 the high side. I sentenced on the high side because the
5 conduct involved here was of a high degree of seriousness and
6 threatened a huge disaster. I believe that sentence is amply
8 MR. McCARTHY: Thank you.
9 (Defendant Mohammed Saleh excused)
11 (Continued on next page)
1 (Defendant Fadil Abdelgani present)
2 THE COURT: Mr. McCarthy, with respect to Mr. Fadil
3 Abdelgani, who is now in court, is there anything you want to
5 MR. McCARTHY: No, thank you, your Honor.
6 THE COURT: Have you had a chance to review the
7 presentence report with your client?
8 MR. LAVINE: Yes, your Honor.
9 THE COURT: You have made a submission and we have
10 discussed it.
11 MR. LAVINE: Yes, your Honor.
12 THE COURT: Is there anything you want to tell me
13 with respect to sentence?
14 MR. LAVINE: Thank you, your Honor. Judge, the
15 evidence presented by the government at the trial was adduced
16 in a chronological fashion, beginning in the late 1980's and
17 continuing up until June 24, in the early morning hours, at
18 which point my client Fadil Abdelgani was one of the people at
19 the so-called safe house in Queens and was arrested at that
21 In the many months of trial during which the
22 government proved events which occurred from the late eighties
23 into the early nineties and during the World Trade Center and
24 even after the World Trade Center, there was no reference, no
25 mention whatsoever of my client Fadil Abdelgani. It is
1 literally in the very last hours themselves before the arrests
2 at the safe house that Fadil Abdelgani's name first appears
3 and that Fadil Abdelgani himself first appears in this case.
4 We know without question that for a month before the
5 arrest of my client, Siddig Ali is looking for people to help
6 him in his enterprise. During the course of that month my
7 client, who is here in the United States, is not discussed, he
8 is not asked to be a member. It is only in those very, very
9 final hours that my client appears, your Honor. Were Fadil a
10 dedicated participant, I don't think there is any question but
11 that he would have been contacted sooner and he would have
12 appeared sooner. Obviously, your Honor, he was not, and I do
13 not believe that it was the government's theory at trial that
14 throughout this entire enterprise my client was a participant
15 or even that he was interested in participating. It is only
16 in those final figurative moments, your Honor.
17 We know that Siddig did not like him. We know that
18 Siddig did not trust Fadil. We know this from Abdel Haggag, a
19 witness for the government, and his statements with respect to
20 Siddig's view towards my client were not an issue, they were
21 not contested. We know that. We know that when Fadil
22 Abdelgani does first appear at the safe house, that there are
23 discussions between Siddig and others with respect to him, and
24 these discussions run to the effect that people should not
25 speak in front of him, he is not to know what is going on.
1 As a matter of fact, at one point, your Honor, one of
2 the participants mentions that he has nothing to do, that is,
3 my client has nothing to do with this matter. Of course, your
4 Honor, I know that is before, those are events which occur
5 before my client is mixing the fuel oil and the fertilizer, as
6 is certainly depicted on the videos.
7 I have asked your Honor to consider a role adjustment
8 with respect to Mr. Abdelgani. I have suggested to the court
9 that in the scope of this case he is a minor or a minimal
10 participant. I know that when the court evaluates whether to
11 make that adjustment or not, the court looks towards the scope
12 of the conspiracy itself as well as the participation of a
13 so-called average coconspirator. I merely suggest to your
14 Honor that in looking at the scope of the case certainly he
15 is, for lack of a better term, small potatoes, coming in at
16 the very, very end. We know as well, your Honor, that
17 whatever role was played by any of these participants was
18 greater than the role played by my client, if for no other
19 reason than that he is there only, only at the very, very end,
20 only at those last few hours. So I would urge the court to
21 make the role adjustment with respect to my client.
22 I would ask your Honor as well, with respect to
23 whatever sentence you are going to give him, to exercise --
24 perhaps leniency isn't the right word. I don't know that I
25 stand in the position to ask for leniency in so serious a
1 matter as this. But I do, and I suggest to the court that by
2 giving him the adjustment for role in the offense the court
3 will be giving him a lesser sentence than others, not a
4 tremendously lesser sentence but somewhat of a lesser
5 sentence. I suggest to your Honor that by sentencing him in
6 such a manner the court will be helping to ensure that there
7 is some sense of proportionality in the sentences that are
8 handed out or delivered today with respect to all these men.
9 I know that Mr. Abdelgani has a statement --
10 THE COURT: Did you want to address yourself to the
11 obstruction issue?
12 MR. LAVINE: Yes, your Honor. The case cited by Mr.
13 Serra, Onumonu --
14 THE COURT: Onumonu.
15 MR. LAVINE: You can pronounce it better than I can,
16 your Honor. That case refers us to 3C1.1 of the guidelines,
17 which tells us that the testimony considered the subject of
18 the obstruction is to be evaluated in a light, in a sense most
19 favorable to the defendant. That case as well tells us that
20 where the court is of a mind to award, for lack of a better
21 term, obstruction points, the court's determination should be
22 grounded on a solid foundation of circumstantial evidence
23 exclusive of what is said by the defendant during the course
24 of his testimony.
25 Again, your Honor, when it comes to looking to the
1 circumstantial evidence, the court has more than
2 circumstantial evidence here. You see my client mixing this
3 concoction on video. But circumstantial evidence running to
4 his favor on the subject of whether he testified in an
5 obstructive manner or not is inclusive of the remarks that
6 were made by the coconspirators with respect to him, your
7 Honor, that people should not speak in front of him, that he
8 has nothing to do with this matter, that he is not one of the
9 participants in the matter.
10 I would ask you to consider those circumstantial
11 factors and I would as well urge your Honor to consider that
12 in convicting him after he testified, the jury may well have
13 relied upon a conscious avoidance theory, and in that event,
14 your Honor, the jurors, the triers of the fact could have
15 accepted what it was that my client had to say and yet still
16 have found that he did not act pursuant to law. I would urge
17 you to consider those things. I would urge you not to give
18 him the obstruction points. I think, Judge, if you end up
19 giving him the obstruction points, any attempt at
20 proportionality in sentencing these individuals who come
21 before you today is going to be thrown out of kilter.
22 Thank you, your Honor.
23 THE COURT: Thank you. Mr. Abdelgani, is there
24 anything you want to tell me before I impose sentence?
25 DEFENDANT FADIL ABDELGANI: Yes.
1 THE COURT: Go ahead.
2 DEFENDANT FADIL ABDELGANI: In the name of Allah, the
3 merciful, the compassionate, thank you, your Honor, for giving
4 me this opportunity to speak. Today I know I am here and I
5 know I will be sentenced and I will stay in jail for something
6 that I am innocent of. I know the time is limited for me to
7 explain my case but I will do my best to do so.
8 Your Honor, I came to this country in '87. I never
9 had any trouble. I was living by myself. I did not have any
10 connection with groups or organizations. I did not follow
11 anyone. My dream was to become citizenship so I can bring my
12 family to live with me here.
13 At the end of '92 and the beginning of '93, I wanted
14 to go to Bosnia. In that time I went to a training in
15 Pennsylvania. It wasn't only me that wanted to go to Bosnia.
16 There were some Americans, British, French, Christians,
17 Muslims. They wanted to go there to help and they did go
18 there, because this is something human to do.
19 In order for me to go to Bosnia I had to be trained,
20 because I did not know even how to hold a gun. I went there
21 and I saw Siddig for the first time. I mean, I talked to
22 Siddig really for the first time. I knew Siddig was a
23 hypocrite and I knew Siddig was someone whose moharam, and I
24 said on the stand, what's moharam, moharam means to do things
25 to show people that he is a big shot. Siddig did not like and
1 he want to fight me physically. The government witness Haggag
2 said that he got involved between me and him. He said that on
3 the stand and he said that Siddig never trusted me and never
4 liked me.
5 After the argument took place between me and Siddig,
6 I left Pennsylvania and I never returned back there and I even
7 changed my mind about going to Bosnia. I never ever met
8 Siddig back again. That was the end of January '93.
9 A month later, I traveled to Sudan with my
10 mother-in-law to see my family and to see my wife. I stayed
11 in Sudan for about three months. I traveled on February 23
12 and I came back on May 22. When the World Trade Center
13 happened, I wasn't even in United States, and I did not know
14 anything about it. When I came back, your Honor, I came on
15 May 22, I believe on May 27 Siddig called Amir in his house
16 and happened that I was in Amir's house because Amir lived
17 with my brother, and the officer where we worked was inside
18 the apartment. So I used to go there every day. That day
19 Siddig called and I picked up the phone, he was looking for
20 Amir. We know this from Siddig FISA. Your Honor, we know
21 from the evidence in this case that Siddig was looking for
22 people so badly, and him and Salem, from the first day him and
23 Salem went to many places, different places. He went even to
24 Pennsylvania. I lived about five minutes far from where he
25 lived. He never came to tell me anything and he never asked
1 Amir to tell me anything, and he did not even mention my name
2 to Salem. Your Honor, Siddig, he mentions many, many, many
3 names in the CM's, but he never mentioned my name. He
4 mentioned what he named many times but never my name.
5 Siddig was never my friend, I never called him, he
6 never called me, I never had his number. Even that number was
7 in my telephone number, that was not Siddig number, and I told
8 my lawyer to make a stipulation with the government about
10 As I said, your Honor, the last time I saw Siddig was
11 in January '93. I did not see him again till June 22, when
12 Amir wanted to use my car. He called Siddig and he asked him
13 if he can bring me with him because I had to go to the
14 hospital that day. Amir says to Siddig, shall I bring him
15 over with me? Siddig said he talks a lot, brother, don't you
16 think he will be speaking too much? Amir: I don't know what
17 to tell you. We should be careful not to talk in front of
19 This has happened before I even went with Victor
20 Alvarez to the cars. Amir and Siddig is talking on telephone
21 conversation and they said to each other, we should be careful
22 not to talk in front of him.
23 After I returned back from the hospital, I knew for
24 the first time that my wife was pregnant. I know that your
25 Honor will understand how a person will feel to be a father
1 for the first time. I met Amir and Victor and we went to
2 Manhattan, and I knew that they wanted to buy a car. Victor
3 mentioned something about the cars in front of me. On June
4 23, I never planned to be with Amir. It just happened by
5 accident. If that problem between me and my parents-in-law
6 did not take place that day, I wouldn't leave the house and I
7 wouldn't see Amir. Even after I left with Amir, if my car was
8 ready, I won't be here today. Your Honor, I am the one who
9 asked Amir to go with him because I did not know where Amir
10 was going. Amir asked me to make a telephone call. We know
11 from Siddig FISA that he called Siddig in his house while
12 Salem was with him in Siddig's house.
13 Amir said to Siddig on 545 FISA: I am afraid that
14 the matter would eventually become obvious to him.
15 Siddig: What?
16 Amir: If what happening among the insiders will be
17 known to the outsiders.
18 Siddig: What?
19 Amir: I mean, I already told you I am afraid that
20 the matter become obvious to him, that what is happening among
21 the insiders will be known among the outsiders.
22 He did not tell him that I am afraid that he will
23 know about the stolen cars but he is one of us. He did not
24 say that. He said that I am afraid that what is happening
25 among the insiders will be known to the outsiders.
1 Your Honor, this telephone call took place before I
2 went to the gas station and before I get inside the garage and
3 before I met Salem.
4 I entered the garage for the first time, I saw Salem.
5 He came to shake my hand and he ask me my name. He did not
6 say to me nice to see you again and thank you for the $200 you
7 gave me for the stolen cars. No, your Honor, he did not say
8 that. He asked me what is my name. I thought what is going
9 on inside the safe house was simply very normal because I was
10 with my own cousin, I wasn't with someone strange. I never
11 saw a bomb in my life and I didn't know how a bomb could be
12 made. I took about maybe an hour inside the garage, I left
13 the garage, going to Medina Mosque with Siddig. Salem, he
14 said to Amir after I left, he said to Amir, I am going to
15 bring my car. He went outside, he made a telephone call to
16 Detective Napoli. That CM 62, 707. He said to Detective
17 Napoli -- this is about 10:00, your Honor, right after I left
18 the garage the first time. He said to him, there is a new guy
19 came to the house now. His name is Mohammed, that's all, his
20 undercover name is Abu Zabiyah. He is Sudanese also but he is
21 only business acquaint. And they told him about the whole
22 story. I get it on my part, and he said let me pray overnight
23 to make up my mind, if I will participate or not. Then he
24 said to him I don't think I will be able to see him tonight.
25 Your Honor, he said they told him about the whole
1 story, I guess he meant Siddig and Amir because they were the
2 only people inside the garage at that time. But, your Honor,
3 after I left and before this telephone call took place, he
4 said to Amir -- this is on the videotape, your Honor. He said
5 to him -- everything I am saying here is evidence, your Honor.
6 He said to Amir: Tell you what, sheik, do you tell
7 this brother about the things we are intending to do?
8 Amir: No, not exactly.
9 Salem: What does "not exactly" mean?
10 And he said if -- he was angry when he said that
11 question, and the government interpreter Mr. Abdel-Hafiz said
12 that he was angry when he asked Amir. When Amir said not
13 exactly, he did not say to Amir what do you mean not exactly,
14 I just heard you guys five minutes before telling him the
15 whole story. He did not say that, your Honor. He kept
16 talking about istikhara. I never said to Salem that I am
17 going to make istikhara. Salem knew what he was doing. Salem
18 is very, very smart person and knew how he talked.
19 In Salem testimony, page 5675, he said to
20 Mr. McCarthy when he asked him about me, Salem said he was
21 introduced to me as Abu Zabiha and then I told him do you know
22 what is going on over here, and he looked around and he said
23 yes, I said are you willing to participate with us and he said
24 let me do Islam ishtikhara first. Salem is claiming in his
25 testimony that I told him I want to do ishtikhara.
1 Your Honor, we do have the videotape and we do have a
2 translation of the videotape. This is never uttered. When
3 Salem asked about the whole story, he did not tell me no. I
4 asked him when he came inside and he says yes, I know what is
5 going on and I want to participate. He did not say that
6 either, your Honor.
7 Before I return back we start, Siddig was with me for
8 about almost an hour. He return back with Wahid to the
9 garage. After, they start talking about Wahid and about me.
10 He did not say to Salem you know what, I talked to Fadil and
11 he say that he pray istikhara and he come back. We know that
12 Siddig have a big mouth and he always feel very proud to tell
13 Salem everything, he always felt that he has to tell Salem
14 about the entire world. He did not tell him that Fadil is
15 coming back because he pray the istikhara. He say to him,
16 when they start talking about Mohammed, Victor Alvarez start
17 talking about the stolen cars in front of me, Siddig get very
18 upset about that. He said about Mohammed, Victor Alvarez,
19 that's it, drop him.
20 Amir said: Drop him.
21 Siddig says: Enough, enough Mohammed.
22 Amir: Drop him.
23 Siddig: Because yesterday I came to know that he was
24 speaking with this man Amir in the presence of Fadil, his
25 cousin, his cousin has nothing to do with this matter.
1 This is two and a half hours after I left the garage.
2 Salem, your Honor, he did not say to Siddig what are you
3 talking about here? I asked this guy and he knows what is
4 going on and you guys told him about the whole thing. He did
5 not say that. He said to the sheik that what he said to
6 Siddig. And I wonder, your Honor, why Siddig would get very
7 upset that Amir that he want to drop Victor Alvarez.
8 You know, your Honor, Salem is a person who is very
9 smart. He knew that he was quoting tapes. The government
10 show conspiracy. But when it comes to me he never did
11 anything to show that because he knew the answer, because he
12 knew what people told him about me. Salem was recording tapes
13 before I get to garage and after I left the garage, but the
14 time I spent inside the garage, he never had the tape for it.
15 The only tape he claimed he had was in CM 62 when he says
16 Detective Napoli I get to my pants, and we don't know what
17 happened to this tape.
18 When my lawyer asked him about what Siddig and Amir
19 said about me, he said to my lawyer, I disagree with
20 translation, and because that never happened, that never
21 happened. He did not say to him, well, I know what you mean.
22 They were talking about the stolen cars here. He did not say
23 that. He said this never happened before.
24 Your Honor, if Siddig told me about what was going on
25 he would make a big deal about this inside the safe house, and
1 if Amir told him that he told me what was going on, still he
2 would make a big deal and he would tell Salem about it and
3 Salem would make a big deal about it inside the safe house,
4 but nothing like that happened inside the safe house.
5 Your Honor, it is impossible for me to have a fair
6 trial in a case like this, with hundreds of tapes and hundreds
7 of translations, hundreds of witnesses, tons of evidence.
8 Some of the evidence in this case goes back to '89. I don't
9 have anything to do with all that. I never talked about
10 anything and I have never done anything. We stayed nine
11 months in this courtroom. The government, they did not say
12 anything about me till the very, very end of the trial, and
13 what they said, according to what Salem said, not according to
14 what I said. The only thing we know is recorded in those
15 tapes, that I did not know what was going on.
16 Your Honor, after the problems between me and my
17 lawyer, and you know about it, and I told you that I lost
18 trust in him, I wanted to take the stand so the court can hear
19 from me and the jury can hear from me. I said the truth, the
20 complete truth. I did not hide anything. I said things, your
21 Honor, the government did not know about. I talked about
22 being with Victor Alvarez and Siddig the day before. I talked
23 about my immigration file. I did not hide anything.
24 Your Honor, the part that day I did without
25 knowledge. I entered the garage through Amir. I did not
1 enter the garage through Siddig. Amir who said on June 22 we
2 will be careful not to talk in front of him, Amir who said on
3 June 23, I am afraid that the matter will become clear to him,
4 Amir who said when they said let's count the people who have
5 knowledge of this and Siddig said Fadil, Amir cut him off and
6 said he is he is not going to know. Siddig did not tell him
7 he knew already or Salem said anything.
8 Your Honor, I am not a terrorist, I was never a
9 terrorist and I will never be one, and if I was one Siddig
10 would have talked about me. Your Honor, Siddig signed me an
11 affidavit while he was talking to the government and
12 cooperating with the government, saying that he never told me
13 what was going on. Your Honor, I cannot be a terrorist in
14 just an hour because I saw Salem. Many people in this case
15 and in the World Trade Center case I never saw in my life. I
16 never saw Salameh, Ayyad, Ajaj. I never saw Nosair, Gabrowny,
17 Hampton-El, Wahid. I saw Mohammed Saleh and Victor Alvarez
18 the day before. I never saw those people, I never talked to
19 them in my life.
20 Your Honor, I believe very strong in Allah books. I
21 believe in the Torah, the Bible and the Koran, which came
22 through the prophets, Moses, Jesus and Mohammed, peace be upon
23 them. In these books Allah ordered us not to kill innocent
24 people and to live in peace with each other. Allah says in
25 the Koran, verse 190, chapter 2, do not transgress, Allah does
1 not love transgressors, and transgressors will go to the hell
3 Your Honor, Islam is not a religion of terrorism, it
4 is a religion of peace and love. Islam ordered us to live in
5 peace with other people, with the Jews, Christians and the
7 Your Honor, I did not say one word about no bomb, I
8 did not say one word about istikhara, I did not say one word
9 against this country. We have the tapes and we have the
10 evidence, did not show that. Your Honor saw the videotape
11 with us. Do you think, your Honor, that from the videotape
12 the way I looked, I knew what was going on?
13 I ask your Honor to please consider everything they
14 said about me and please treat me fairly. Thank you.
15 THE COURT: Thank you, Mr. Abdelgani. You have
16 stated, as others have, that you believe that you were
17 innocent. However, this proceeding is based on the assumption
18 and will go forward on the assumption that the jury's verdict
19 was correct, and there was ample evidence from which the jury
20 could easily have concluded that you were not innocent but
21 guilty, evidence including the tape recording of you picking
22 up the fuel, evidence including the tape recording of you
23 mixing the fertilizer, looking at the bag, mixing the
24 fertilizer. You are not a person unacquainted with those
1 You took a long ride with your cousin who recruited
2 you, and took that ride at a time when the evidence showed by
3 your own admission that you should have been someplace else.
4 But nonetheless you agreed to participate, and the evidence
5 shows that you agreed to participate and that you committed
6 yourself to participate in a conspiracy to commit a monstrous
7 crime. That is the reason that you are being punished here.
8 You have said that you didn't know all the
9 conspirators. There is no need for somebody to know all the
10 conspirators in order to be convicted, any more than there is
11 a need for an engineer driving the train in Brooklyn to know
12 the signalman up in the Bronx in order to say that they work
13 for the same subway system.
14 You have said that these acts are not in the
15 character of Islam. That is not an issue in this case and it
16 has never been. The issue is not what a religion teaches but
17 rather what was practiced, and that is what was found in the
18 jury verdict.
19 Mr. Abdelgani was convicted on Counts 1, 5 and 6. As
20 I have already indicated, the offense level is a level 43,
21 from which I am going to deduct three points because Mr.
22 Abdelgani came very late to this and it was an inchoate
23 offense at the time that he joined it.
24 Principally because of the comments this morning by
25 Mr. Lavine, I am not going to impose an obstruction
1 enhancement because I believe that the evidence is marginally
2 consistent with a claim of lack of knowledge, although the
3 answer to your rhetorical question about whether I thought you
4 knew, the answer to that is yes, I do. Therefore, the level
5 is a level 40, which yields a range of 292 to 365 months.
6 Mr. Abdelgani will be sentenced as follows: As to
7 Count 1, 20 years; as to Count 5, five years, concurrent; as
8 to Count 6, five years, consecutive, for a total of 30 years.
9 That is at the low end of the range and I have done
10 that principally because, although I do not believe that his
11 participation in this crime warrants an adjustment for role in
12 the offense because he was to be one of the participants,
13 nonetheless there is something to be said for proportionality.
14 That is the reason that I have gone at the low end of the
16 MR. McCARTHY: Your Honor, I think the numbers don't
17 add up. Your Honor said on Count 6 five years consecutive,
18 and after the concurrent on the preceding count, that adds up
19 to 25, not 30.
20 THE COURT: Right. Is that not what I said?
21 MR. McCARTHY: I think you said 30 after that.
22 THE COURT: I am sorry. I meant 25. I meant 25.
23 He will be placed on supervised release for a period
24 of three years following his release, subject to the usual
25 provisions of supervised release in this court, in addition to
1 which he will follow all lawful orders of the INS.
2 I find that he is without the funds to pay a fine or
3 the costs of imprisonment, and accordingly neither of those
4 will be imposed. He will pay the costs of supervised release
5 at such time, if it comes, as his income exceeds $3,000 per
6 month after taxes, and after adjusting for an increase in the
7 cost of living from this day forward, and then to the extent
8 of 30 cents on the dollar. There is a mandatory $50 per count
9 special assessment for a total of $150 that I must impose and
10 do impose.
11 I am notifying Mr. Abdelgani that you have a right to
12 appeal and I will direct Mr. Lavine to file a notice of
13 appeal. You have a right to appeal both the sentence and the
15 Anything else?
16 MR. McCARTHY: No, thank you.
17 MR. LAVINE: No, thank you.
18 THE COURT: Thank you. You are excused.
19 (Defendant Fadil Abdelgani excused)
21 (Continued on next page)
1 (Defendant Tarig Elhassan present)
2 THE CLERK: United States of America versus Tarig
3 Elhassan. Government ready?
4 MR. McCARTHY: The government is ready, your Honor.
5 THE CLERK: Defendant ready?
6 MS. LONDON: The defendant is ready, your Honor.
7 Good morning, your Honor.
8 THE COURT: Good morning.
9 Mr. McCarthy, is there anything that you want to tell
10 me other than what I already have before me?
11 MR. McCARTHY: No, your Honor.
12 THE COURT: Ms. London, you have reviewed the
13 presentence report with your client?
14 MS. LONDON: Yes, I have, your Honor.
15 THE COURT: And you have made a submission on that
16 and we have discussed it.
17 MS. LONDON: Yes, your Honor.
18 THE COURT: All right. Go ahead.
19 MS. LONDON: Your Honor, without belaboring the
20 record, I would like to adopt Mr. Serra's arguments on the
21 downward departure on behalf of Mr. Elhassan. Although I
22 realize that Mr. Elhassan is somewhat differently situated,
23 and I would not argue to the court for one moment that he has
24 any kind of diminished capacity, I do believe that the
25 circumstances could justify a downward departure in his case
1 in light of the of the tremendous inducement and pressure that
2 were put on him and others in the circumstances of his
3 situation here in this country where he was lonely, isolated
4 and alienated, and the government agent Emad Salem took
5 eminent advantage of that, as did Siddig Ali. So I would make
6 it on the grounds of his vulnerability there and his ability
7 to implicitly trust fellow Muslims.
8 I would also like to address the obstruction of
9 justice issue, your Honor.
10 THE COURT: Go ahead.
11 MS. LONDON: Under guideline 3C1.1, Mr. Elhassan's
12 testimony should be evaluated in the light most favorable to
13 the defendant. In his testimony, Mr. Elhassan admitted all
14 the statements attributed to him in the tapes, admitted to
15 participating in the acts that were described in the evidence.
16 What he put before the jury in his testimony was his state of
17 mind and the events that led him to be in that situation. He
18 had no other way to put that state of mind defense before the
19 jury other than to tell them what was happening in his mind.
20 The fact that the jury has by their verdict rejected
21 does not compel a finding of obstruction of justice, your
22 Honor. It is for the court to weigh that evidence, and if the
23 court has no firm conviction, there should be no obstruction
24 of justice.
25 I believe that the extrinsic evidence is consistent
1 with Mr. Elhassan's testimony, your Honor. He is not an
2 educated man, although he did have schooling in the Sudan.
3 But he is not a sophisticated person. His very situation, as
4 I have already stated to the court, made him vulnerable to
5 inducement. The testimony was very clear from all the
6 government's witnesses that Mr. Elhassan found himself in
7 Pennsylvania training to go to Bosnia, and over the next few
8 months those intentions would appear to have been subverted.
9 Does the court wish me to address other issues?
10 THE COURT: You can address whatever issues you wish.
11 You have addressed the obstruction issue, which I think was
12 the only open issue, at least in my mind, with respect to your
14 MS. LONDON: Your Honor, I would also note that I had
15 taken exception to the court's ruling that Mr. Elhassan was to
16 be granted no minor role, and again ask the court to revisit
17 that issue for Mr. Elhassan. The evidence showed that his
18 first participation occurred on the evening of June 19, just
19 four days before his arrest. He had participated in none of
20 the events described before that. He was at the safe house on
21 the nights of June 19, very briefly June 20, June 21, and in
22 the night of his arrest, when he was again seen on the
23 videotape. His involvement there on those nights was limited
24 to the discussions in the long tape recordings that we heard.
25 Given the scope of the seditious conspiracy, I would
1 ask the court to revisit the minor role for Mr. Elhassan.
2 The only other comments I have to make, your Honor,
3 are general ones, which I can make after the court has ruled
4 on these.
5 THE COURT: I am not going to adjust for minor role,
6 and as far as the obstruction, I have heard your comments and
7 I will rule on them before the sentence. Is there anything
8 else you want to tell me?
9 MS. LONDON: Yes, your Honor. Your Honor heard my
10 client's testimony when he took the stand, and I think it
11 deserves mention to the court that after he came here from an
12 upbringing in a very rural area of the Sudan, as he said,
13 where a ditch ran through the tribal village to supply them
14 with water, no telephones, a very large extended family, he
15 arrived in New York and spent his first few years here doing
16 charity work, doing work that many of us would certainly
17 rather avoid. He worked at St. Francis Friends of the Poor
18 and, as a witness Bill Antalics described, he also worked for
19 the Catholic Worker. Of all the witnesses who appeared for
20 Mr. Elhassan, they were all adamant about his good heartness,
21 his kindness and his compassion. There were also witnesses
22 who talked about how he was willing to teach, teach Arabic at
23 a kind of self-help project, University of the Streets. This
24 picture of a kind-hearted, compassionate person is borne out
25 by the description given by his wife to the Probation
1 Department in his presentence report. She described him as
2 friendly, jovial, kind, brave, and not afraid to get in the
3 position to benefit of others. This is a view that his family
4 and friends had of him. I have had dealings with Mr. Elhassan
5 over the last two and a half years and he has expressed on
6 numerous occasions the compassion and concern, and I have seen
7 it, that he does have for others. But he now stands before
8 this court to be sentenced on a very serious crime.
9 I would just reiterate, in sentencing him, your
10 Honor, that you take into consideration the efforts of Emad
11 Salem and Siddig Ali to prey upon compatriots, who were the
12 most vulnerable, those who were alienated, isolated, and
13 looked to their mosques and their masjids for some contact
14 with their roots. Emad Salem and Siddig Ali knew how to take
15 advantage of just this kind of person.
16 THE COURT: Thank you, Ms. London.
17 Mr. Elhassan, is there anything you want to tell me
18 before I impose sentence?
19 DEFENDANT TARIG ELHASSAN: Yes.
20 THE COURT: Go ahead.
21 DEFENDANT TARIG ELHASSAN: (Through interpreter) In
22 the name of God the merciful, the compassionate, thanks be to
23 God, the God of two worlds, blessings and peace be upon the
24 most honest of the messengers, Mohammed, the son of Abdul
25 Allah, blessings and peace be upon, on Moses, son of Omran,
1 peace and blessings be upon, on Jesus, son of Miriam and
3 And then, peace be upon those who accepted guidance,
4 and I am in this position here, I have to tell you that this
5 is for the second time as I have stood while a witness during
6 the trial to tell you that I am innocent, and I insist on
7 that. And thanks be to God, God of the two worlds, and now
8 while sitting before your Honor, I don't carry against you any
9 bother or anger, and those that represent the government, the
10 attorneys, the prosecutor, not even against them.
11 Thanks be to God, God of the two worlds, and I have
12 lived in this country and I have loved its people with
13 sincerity. I lived among them and with them, and now I have
14 been put in this circumstances which you know more about than
15 myself. I still carry the same love and the same appreciation
16 of these people. I mean the people of America.
17 And the last thing I will say is that thanks be to
18 God, God of the two worlds, and I confess that there is no God
19 but God, and I also say that God is the truth, the only truth,
20 and that he puts life into death, and that eternity will come,
21 and that is for sure, and that God will put life in those who
22 are in the tombs, and blessings be upon those who accepted the
24 Thank you very much.
25 THE COURT: All right. Ms. London said that
1 Mr. Elhassan ought to have an adjustment for his role in the
2 offense based in part on his having been vulnerable and an
3 immigrant to this country and vulnerable to suasion. Many
4 immigrants to this country are vulnerable. They don't express
5 that vulnerability by agreeing to participate in bombings to,
6 in the defendant's own words, bring down the United States.
7 With respect to his testimony, it contradicted directly his
8 own statements recorded on tape. It is true, as you say, that
9 he put in issue his knowledge, but his knowledge was expressed
10 perhaps as explicitly or more explicitly than the knowledge of
11 virtually any other defendant in this case, and accordingly,
12 based on the tape recorded conversations in which he is heard
13 expressing the view that he wants to bring down the United
14 States, based on the tape recorded conversation in which he
15 offers to obtain engineering information about tunnels so as
16 to maximize the destruction, it is quite clear that his
17 testimony was simply an attempt to lie his way around the
18 evidence. Accordingly, I am going to impose a 2-point
19 enhancement for obstruction as well.
20 He was convicted on Counts 1, 5 and 6. Count 1,
21 seditious conspiracy; Count 5 bombing conspiracy; and Count 6,
22 attempted bombing. He, as other defendants before him, came
23 late to this offense at a time when it was, at least from his
24 standpoint, an inchoate offense. So I am deducting three
25 points from that to a level 40. But I am adding 2 points
1 under 3C1.1 for obstruction, which brings it to level 42,
2 which is a range of 360 months to life.
3 Mr. Elhassan, the sentence is as follows: With
4 respect to Count 1, 20 years; with respect to Count 5, five
5 years; with respect to Count 6, 10 years, those sentences to
6 be served consecutively, for a total of 35 years.
7 He will be placed on supervised release for a period
8 of three years, during which he will follow all lawful orders
9 of the INS and not possess any weapons. I find that he is
10 without the funds to pay either a fine or the costs of
11 imprisonment and accordingly neither of those will be imposed.
12 The costs of supervised release will be paid when, if it ever
13 happens, he earns $2,500 or more after taxes, adjusted for a
14 cost of living from this day forward, and then to the extent
15 of 30 cents on the dollar.
16 I have chosen a range at the upper end of the
17 permissible range because of the enormity of the crimes to
18 which he voluntarily agreed.
19 There is a mandatory $50 per count special assessment
20 for a total of $150 which I must impose and do impose.
21 I advise Mr. Elhassan that he has a right to appeal
22 and I will ask Ms. London to file a notice of appeal on his
24 Thank you.
25 MS. LONDON: Your Honor, one other matter.
1 Mr. Elhassan has a wife and three children who are in poor
2 economic circumstances. I would ask if the court would
3 recommend a designation in the northeast area for Mr. Elhassan
4 so that in the next 35 years he will have an opportunity to be
5 visited by his wife and family.
6 THE COURT: I will recommend that. I will tell you
7 that while my recommendations in the past have always been
8 treated politely, they have not always been adhered to. In
9 fact, I would say more often than not they are not. But I
10 will make that recommendation.
11 MS. LONDON: Thank you, Judge.
12 (Defendant Tarig Elhassan excused)
14 (Continued on next page)
1 (Defendant Fares Khallafalla present)
2 THE CLERK: United States of America versus
3 Khallafalla. Government ready?
4 MR. McCARTHY: The government is ready.
5 THE CLERK: Defendant ready?
6 MS. AMSTERDAM: Ready, your Honor.
7 THE COURT: Mr. McCarthy, is there anything you want
8 to tell me other than what is already before me?
9 MR. McCARTHY: No, thank you, your Honor.
10 THE COURT: Miss Amsterdam.
11 MS. AMSTERDAM: Your Honor, if it is acceptable to
12 the court I would like to first address my general remarks to
13 you and then the particular legal issues.
14 THE COURT: That is fine. First, you have had a
15 chance to review the presentence report with Mr. Khallafalla
16 and you have made a submission to me.
17 MS. AMSTERDAM: I have, your Honor. Thank you.
18 I would like to speak at this time of sentencing on a
19 personal level about my client because I think this is that is
20 the most relevant factor for the court to consider in terms of
21 sentencing. As your Honor undoubtedly recalls, my client
22 comes from a small town in the Sudan where he was raised by an
23 intact family, very loving, with a father who was a great if
24 an of the United States. In fact, the nickname for his father
25 was the cowboy, because he really seemed to love all things
1 American. As a child my client Fares Khallafalla went to
2 Episcopalian schools. He wore uniforms. I have photographs
3 of those. He was active in sports, he was active in the
4 student council. He was very much impressed with things
5 American. They attended movies every Thursday night. They
6 saw John Wayne movies or other westerns.
7 He recalled to me or recited to me a time that the
8 government made a shift to a more religious posture and my
9 client and his parents campaigned for a more democratic
10 government in the Sudan. My client talked about one time the
11 government having outlawed Pepsi-Cola as being an American
12 product, and that he had gone out and hoarded all the
13 available Pepsi-Cola under his bed because he loved the
15 Those are nice little vignettes and they don't really
16 address issues of sentencing but they give you some insight
17 into a person who did not come to this country intent upon in
18 any way waging a war against us or against the people here.
19 He came to this country intending to go to school, and I am
20 sure your Honor recalls my statements at various times that he
21 had come here, he couldn't be placed in an appropriate college
22 in the Sudan, he had gotten admissions to a college in Kansas,
23 and when he came here not speaking any English, extended
24 family members persuaded him that that was probably not the
25 appropriate place for him to go and that he should stay in the
1 metropolitan area, work, earn money and perhaps at some future
2 date enroll in a local college. That he did. He worked
3 steadily during the time he was here.
4 He was not on overly religious person. He attended
5 dance clubs, smoked cigarettes, had a girlfriend that he was
6 engaged to, and that relationship did not work out. At that
7 point he made a decision, as do many young people based on a
8 crisis situation, that he would return to the church, that he
9 would attempt to have some guidance by going back to the
10 church. Unfortunately, I think, for him, the mosque that was
11 three blocks from his house was a mosque which turned out to
12 be the center of some type of political activity, for want of
13 a better word. There he met Siddig Ali, a man that he greatly
14 admired. Siddig Ali chastised him repeatedly for the fact
15 that he had cigarettes. Fares used to hide his cigarettes
16 underneath the front seat of the car. He would change the
17 radio to 1010 WINS to prove to Siddig that he was a respected
18 religious Muslim. Fares organized an Independence Day
19 celebration and Siddig walked out on it because there was
21 As a result of that, his relationship with Siddig
22 ended for a period of time, and I think that is the reason
23 that there is no reference to Mr. Khallafalla ever going to
24 any of the other training sessions. He was simply not viewed
25 as being good enough to do that.
1 Sometime in the spring of 1993, Siddig returns. My
2 client makes attempts to prove to him that he is worthy of
3 their friendship, and he begins driving a car and taking
4 Siddig to various locations. As your Honor is aware, that is
5 also the period of time in which Siddig befriended Emad Salem.
6 I am not going to reiterate the comments that Miss London
7 said, but I do join in the basic premise that there was a lot
8 of pressure on Siddig Ali and, through him, other defendants,
9 in terms of taking part in paramilitary training exercises.
10 I think that the court does remember that Emad Salem
11 said repeatedly to Siddig Ali, I'll get the house, I'll pay
12 the rent, I'll provide the technical expertise, what you must
13 do is bring me your men. I think that all of us who sat
14 through nine months of the trial do appreciate that Siddig Ali
15 had some sense of delusions of grandeur, and I think that he
16 made attempts to round up people who weren't his men in the
17 sense that they were soldiers in an existing jihad army but
18 men that were compliant, were willing to follow him. That is
19 not to say that they didn't do wrong, but it is to say that at
20 the beginning there wasn't this predisposition to join a jihad
21 army and wage war against America. In fact, all of the
22 indications about my client are to the contrary.
23 During the course of this trial I had an opportunity
24 to go out and speak to neighbors where his apartment was
25 located, and lower middle class working people in Jersey City
1 who were not Muslims, who were Catholics or Protestants,
2 talked about how kind Fares was. One elderly man told me that
3 in a snowstorm Fares had shoveled his walk. Another woman
4 told me that Fares had gone to the grocery store and bought
5 her groceries for her. This is an indication that he as a
6 person before these circumstances collided did not have any
7 anger or antagonism towards this country or its people. In
8 fact, at one point when I first met Fares and I was speaking
9 to him about his political convictions, I asked him how he
10 came to pick America as the country to come to, and he looked
11 at me somewhat dumbfounded and said what do you mean, America
12 is the tops, it's the tops in the world, and I think that he
13 held to that belief.
14 Yesterday I made a request for a downward downward
15 based on role adjustment and I understand and we have to
16 agree, I think, to part company on what the circumstances of
17 the meaning of the conversation the last night were. But I do
18 believe that you see indications throughout the entire course
19 of Mr. Khallafalla's involvement which spread over a several
20 week period of time that he was less than committed to the
21 actions that were to take place. Even after the first night
22 of the safe house, he doesn't go back the next day. He
23 doesn't go out to scout targets, he doesn't take part in any
24 other meetings. Weeks go by, two weeks go by.
25 According to Emad Salem, he next runs into Fares by
1 chance at a mosque and they agree to go to Canal Street. In
2 the recording of the conversation at Canal Street, Emad says
3 you started off hot but you cooled off, a clear indication
4 that Fares was not involved in the several week period of time
5 after first going to the safe house.
6 I am not here to argue against the verdict. I am
7 here, however, to state to your Honor that this is a person
8 who throughout the course of the charged conspiracy looked to
9 be less than committed to seeing it through. He was
10 consistently late to meetings. There are numbers of instances
11 in which he is not recorded in conversations because he comes
12 very late. Again an indication that he was less than fully
13 committed. When told to go out and steal cars, he steadfastly
14 at one point refuses to do it and says to Siddig Ali why don't
15 you do it, why don't you do it. They criticize him, and then
16 there comes the moment in which he leaves. I won't reargue
17 what I said yesterday and I understand that your Honor
18 believes that Mr. Khallafalla's statements were meant to be
19 mocking of Mr. Alvarez. But nonetheless, no one disputes the
20 fact that Siddig Ali says to Fares, not to Victor, not to
21 anyone else, take a vacation, take a couple of days, three,
22 four days, take a vacation. That does not seem to be
23 consistent with what you would have your trained right-hand
24 man doing at the point that you are hours away from
25 instituting your plan. This is two days before the arrest,
1 this is one day before they get the oil, one day before they
2 do the mixing, and Siddig Ali says to Fares take a vacation,
3 Fares, three, four days.
4 THE COURT: Isn't there a question about whether that
5 was said also about Mr. Alvarez?
6 MS. AMSTERDAM: No. Correct me if I am wrong but I
7 don't believe there is any indication but that the "take a
8 vacation, Fares" was aimed at Fares.
9 MR. McCARTHY: It is the government's position that
10 he was asked to take a vacation so that they could finish the
11 issue of the stolen cars.
12 THE COURT: Go ahead.
13 MS. AMSTERDAM: In any event, whatever the motivation
14 is, on the eve of the grand plan it is this person who is
15 asked to take a vacation and it is Fares Khallafalla who does
16 not return and takes no future steps to get cars, to get oil,
17 to get detonators, to take part in the mixing.
18 It is most significant to me, and, you know, I am
19 sorry, this is clearly the last time I will say these words
20 but it is significant to me that the people most in the know,
21 Emad Salem and Siddig Ali, were forced to say in a private
22 conversation Fares is not a Fares. As we all know, fares
23 means a soldier. That might mean that he is an inept soldier
24 or less than committed soldier, but by their definition there
25 on a day-to-day basis, they say Fares is not a Fares, and I
1 believe we have to give some credence and some weight to that
3 I stand by my statements throughout this trial that I
4 believe that Mr. Khallafalla became involved in the events
5 that led up to these charges because he originally believed
6 that they were training for Bosnia, and I stand by my
7 statement that maybe he could have taken more forceful steps
8 but that in the end he left. I think that life teaches us,
9 unfortunately, that it is very often a lot easier to get
10 involved in difficult situations than it is to extricate
11 yourself from it. I nonetheless stand by my statement that he
12 took some efforts to extricate himself from the involvement in
13 this case.
14 He was arrested at home. There are no explosives,
15 there are no weapons, there is no plan. Significantly, there
16 are no materials at all which suggest any antagonism or any
17 anger towards America or its people. As I have said,
18 neighbors described him as friendly and kind. I believe that
19 this is a hard-working immigrant who came from a good family,
20 who through a set of circumstances, personal circumstances,
21 found himself in probably the most dangerous mosque that he
22 could have found himself to have attended.
23 While I take no position on the involvement of Sheik
24 Omar Abdel Rahman, if the government's version is true and
25 this was the person who was the head of a terrorist army, it
1 is it is ironic but sad that this was the mosque that my
2 client chose to go to, and I think that he showed no
3 indication prior to the end of May of having any interest in
4 politics or religion and that he found himself in a set of
5 circumstances that he should have taken more action to remove
6 himself from but nonetheless did not fully share completely in
7 the intentions of other persons there.
8 Regarding the obstruction, I have reviewed the
9 government's letter and the only factual statement that they
10 make in regard to my client is that his disavowing situation
11 in the crimes against the daunting weight of the evidence,
12 saying that he was only interested in training for Bosnia, was
13 clearly absurd, is basically their position. He did not
14 testify at trial. He came on for a very limited purpose in a
15 post-trial hearing and he came on to testify to other portions
16 of conversations that were not recorded, namely in the car on
17 the way out to Queens and later in the mosque. His portrayal
18 of those conversations, namely that they were about training
19 for Bosnia, is not inconsistent with the trial record.
20 Mr. Salem said repeatedly in questioning to me yes, ma'am, I
21 had many conversations with your client about Bosnia and
22 training for Bosnia, and at one point about driving out to
23 Queens, he did say that there was a time that they had talked
24 about training. Obviously he is not saying that is all that
25 was talked about, but my client's statements taken in the
1 light most favorable to him are not wholly inconsistent with
2 the record as delivered by Mr. Salem.
3 On questioning by Mr. Fitzgerald there were some
4 statements where my client disavowed hearing particular
5 portions of conversations in the CM's, and I again stress to
6 your Honor that I don't think that is inconsistent with the
7 evidence at trial. The videos showed that there were various
8 times that Emad and Siddig spoke to themselves and the videos
9 showed that there were many times in which long portions of
10 conversations would go on without my client necessarily having
11 been party to them. I think that the jury could have
12 returned -- in this case we don't have to address it, he
13 didn't testify at the trial. But I do think that the jury's
14 verdict does not necessarily mean that the facts that he
15 testified to at the hearing have no other possible conclusion
16 than be seen to be perjurious. I think that they are in the
17 light most favorable to him to be regarded as arguably
18 consistent, and I would most sincerely ask your Honor not to
19 give him the obstruction and to place him at the lower
20 guideline range, in part in recognition that I do believe what
21 I said, that they are not necessarily perjurious, but in part
22 to reflect that he had somewhat of a lesser role, in fact to
23 reflect the statements of Emad Salem when he said Fares is not
24 a Fares. He may have been an incompetent Fares, he may have
25 been a less than committed Fares, but that is a fact and
1 circumstance that your Honor should consider in fixing
3 Thank you, sir.
4 THE COURT: Thank you.
5 THE COURT: Mr. Khallafalla, is there anything that
6 you want to say to me before I impose sentence?
7 DEFENDANT FARES KHALLAFALLA: Thank you.
8 THE COURT: No?
9 DEFENDANT FARES KHALLAFALLA: No.
10 THE COURT: With regard to the statements Ms.
11 Amsterdam made, I think it is clear that I am here not to
12 judge the entirety of any defendant's life but simply to
13 impose a sentence. I am not a judge in that sense, I am here
14 to impose a sentence based on acts that were proved at trial,
15 and the acts that were proved at this trial were that
16 Mr. Khallafalla was present for specific conversations about
17 bombing, including a conversation that indicated that as a
18 result of what these defendants wanted to do all of this
19 country would be placed on alert, that he went out to buy
20 timers that he thought would be used for that enterprise, that
21 he went out to get cars that he thought would be used for that
22 enterprise. His testimony at the hearing was wildly
23 inconsistent with that record. It was also inconsistent not
24 only with his own conduct and statements but inconsistent with
25 the conduct and statements of Amir Abdelgani independently,
1 who was alleged to have been present at the same conversation
2 that Mr. Khallafalla said involved Bosnia. That testimony was
3 plainly false.
4 Mr. Khallafalla was convicted on Counts 1, 5 and 6:
5 Count 1, seditious conspiracy; Count 5, bombing conspiracy,
6 and Count 6, attempted bombing. The guideline, the base
7 offense level is level 43. He, too, like others, came late to
8 the conspiracy and therefore I am reducing it by three points
9 to a level 40, but I am enhancing it by two points for
10 obstruction, which is a level 42. That yields a range of 360
11 months to life.
12 Mr. Khallafalla will be sentenced as follows: With
13 respect to Count 1, seditious conspiracy, 20 years; with
14 respect to Count 5, bombing conspiracy, five years,
15 concurrent; with respect to Count 6, attempted bombing, 10
16 years, consecutive, for a total of 30 years.
17 He will be placed on supervised release for a period
18 of three years following his release, subject to the standing
19 orders of this court, in addition to which he will obey all
20 lawful orders of the INS and possess no weapons.
21 I find that he is without the funds to pay a fine or
22 the costs of imprisonment, and accordingly neither of those
23 will be imposed. He will pay the costs of supervised release
24 at such time, if it comes, that his earnings exceed $2,500
25 after taxes, allowing for an increase in the cost of living
1 from this date forward, and then to the extent of $30 cents on
2 the dollar. There is a mandatory $50 per count special
3 assessment for a total of $150 that I must impose and do
5 I advise Mr. Khallafalla that he has a right to
6 appeal and I ask Ms. Amsterdam to please file a notice of
7 appeal in his behalf.
8 MS. AMSTERDAM: I will.
9 THE COURT: Is there anything else?
10 MR. McCARTHY: No.
11 MS. AMSTERDAM: Thank you, your Honor.
12 (Defendant Fares Khallafalla excused)
14 (Continued on next page)
1 (Defendant Amir Abdelgani present)
2 THE CLERK: United States of America versus Amir
3 Abdelgani. Is the government ready?
4 MR. McCARTHY: We are ready, your Honor.
5 THE CLERK: Defendant ready?
6 MR. BERNSTEIN: Yes.
7 THE COURT: Mr. McCarthy, anything else you want to
8 tell me before we proceed?
9 MR. McCARTHY: Yes, your Honor. With respect to
10 Mr. Amir Abdelgani, he unlike his codefendants presses for a
11 downward adjustment for acceptance of responsibility. He
12 predicates that on the basis of plea discussions during the
13 course of the case. The government's position is that, number
14 one, it would be inappropriate to reward uncompleted plea
15 discussions in a case with a downward adjustment in any event,
16 but certainly on the facts of this case, under the standards
17 that apply under Section 3E1.1, the adjustment is not
19 With respect to the 3-point adjustment, that is only
20 available to a defendant who either timely provides the
21 information to the government concerning his own involvement
22 in the offense or timely notifies the authorities of his
23 intention to enter a plea of guilty. Neither of those applies
24 in this case and the government could not make that
1 With respect to whether he could ever merit the
2 2-point reduction, I direct your Honor's attention to the
3 application notes and specifically application note 2 of
4 3E1.1, which indicates that the adjustment is generally not
5 intended to apply to a defendant who puts the government to
6 the burden of trial unless he is going to trial, generally
7 speaking, to assert and preserve issues that do not relate to
8 factual guilt. The Amir Abdelgani defense in this case
9 robustly challenged factual guilt and enthusiastically joined
10 in the defenses presented by his codefendant.
11 THE COURT: Mr. Bernstein, you have reviewed the
12 presentence report with your client and you have made a
13 submission to me on that?
14 MR. BERNSTEIN: Yes, I have, your Honor. We made a
15 submission and certain corrections were made by the Probation
16 Department pursuant to certain factual data.
17 THE COURT: Go ahead.
18 MR. BERNSTEIN: Your Honor, at the outset let me just
19 say that my interruption of the proceedings in regard to my
20 argument on 3584 was not meant to disrupt. I just felt we
21 didn't have a clear ruling.
22 THE COURT: It was not regarded as a disruption.
23 This is a day in court when people argue, and to have argued
24 is to have fulfilled your responsibility and reason for being
25 here. The only apology to be made would have been if you
1 thought you should have raised it and didn't.
2 MR. BERNSTEIN: Thank you, Judge.
3 THE COURT: Go ahead.
4 MR. BERNSTEIN: On behalf of Mr. Abdelgani, what I
5 would like to do, at least, is proceed from what I believe is
6 the guideline scenario and move downward. It is my belief
7 obviously that notwithstanding our view the court has
8 determined level 43 to be the appropriate level, and that
9 based upon the prior sentences imposed I am operating on the
10 belief that my client will get the 3-point downward adjustment
11 under 2X1.1.
12 THE COURT: That is correct.
13 MR. BERNSTEIN: I would then move on to reiterate the
14 arguments of my cocounsel regarding my client warranting a
15 minor role. Obviously that has been set forth both in
16 argument and in our submissions, but I would note in
17 particular that my client was in the United States, in the New
18 York area, and despite the allegations of this jihad army
19 being in existence as far back as 1989 to the events in
20 Calverton, Long Island, certainly my client was not a
21 participant in those years. He was new, based upon the facts,
22 he was merely a soldier, and I think under the circumstances
23 the minor role would be warranted.
24 I move next to the downward departure arguments made
25 by counsel which I know the court has previously denied, but I
1 would add as a specific reference in this case the fact that
2 the court may recall the testimony of Mr. Haggag that as late
3 as the spring of 1993, Mr. Abdelgani, when given a book, a
4 bombing manual by Mr. Haggag, Mr. Abdelgani's position was
5 burn it. It is clear from the facts of this case that in the
6 spring of 1993 Mr. Abdelgani did not know how to make a bomb.
7 I think that addresses some of the questions as to
8 whether or not prior to Siddig's pushing certain people,
9 including my client, forward, he would have any intention to
10 blow up anything in the United States as late as the spring of
11 '93, and I would ask for a downward departure on that.
12 But I think what is probably more at issue is whether
13 or not my client stands in a unique position in this case, and
14 even in most cases as to whether he is entitled to a downward
15 adjustment -- it is not a downward departure as much as an
16 adjustment under 3E1.1 for acceptance of responsibility. I
17 would start from the court recollecting that there is a June
18 23 letter which I believe the court is now in possession of,
19 June 23, 1995 letter.
20 THE COURT: Right. That was the letter that we
22 MR. BERNSTEIN: Originally sealed and now is not
24 THE COURT: Correct.
25 MR. BERNSTEIN: Which sets forth the history of my
1 client's attempt to enter a guilty plea in this case. This
2 was not a case in which my client sought to plead guilty but
3 couldn't agree on years of incarceration and therefore
4 rejected the government's offer. It is a very different
5 tenor. When I entered this case, my client, recognizing the
6 evidence and recognizing the circumstances, recognizing he was
7 30 some odd years old with a newborn son, said to me I want to
8 plead guilty, I want a life when this is over, I want to go
9 home at some point and see my son in my life. I engaged the
10 government in discussions. Their position was we are not
11 interested in your client taking a plea unless he is bringing,
12 so to speak, a number of defendants, and particularly the safe
13 house grouping, as a package. I am not saying the government
14 didn't have the right to engage in that plea bargaining
15 position, but from what took place, my client did do that. He
16 took energy and efforts to engage other people in that
17 process. That process ended when it was clear that the
18 government's position vis-a-vis the group was very, very far
19 apart and it broke down. The government and I did not
20 continue plea negotiations because they simply weren't
21 interested in Amir Abdelgani taking an individual plea. At
22 least that was my understanding. But it goes back to the 3E
23 constraints, which is that Mr. Abdelgani was willing to enter
24 a guilty plea and it was early enough on to save millions of
25 dollars in this courtroom. He didn't want to go to trial. He
1 was not interested in proceeding for the next year and a half
2 or two that we have been here. But we then went forward to
3 trial with no choice in the circumstances. When I offered a
4 plea for him there was basically no position offered by the
5 government until June of 1995, when the government did make my
6 client an offer to plead guilty to 20 years. I would note at
7 that time he prospectively faced 65 years, as Count 17 was
8 still part of this case. The government was honest and
9 forthright and told me at that time that they would be
10 knocking out that 30-year count. So that when I went to Mr.
11 Abdelgani, he knew it wasn't, gee, I'll take 20 and beat 65.
12 He knew when he agreed to take the 20-year count with an
13 understanding that 20 years would be the sentence, that he was
14 facing the 35 that is before the court now or 30, obviously in
15 my own view, under Section 3584. But he agreed to take that
16 plea. He wanted it, he was willing to do so, and the
17 government wouldn't allow him to do that unless he was willing
18 to name names of his codefendants as being the coconspirators
19 he engaged with. That is not what 3E1.1 prescribes.
20 This is a very different case than the cases where
21 defendants go to trial and seek acceptance later on after they
22 have lost, when they were not satisfied with what was offered
23 to them pretrial. Mr. Abdelgani was willing to do it. He
24 offered himself up, he was willing to take that plea, and the
25 government rejected it on grounds that 3E1.1 does not factor
1 in, which is his willingness to talk about other people. In
2 fact I think it is the safety valve provision that may require
3 that to get under a minimum sentence different than what we
4 have in 3E1.1. But he made that offer, it was rejected by the
5 government, and we went forward.
6 To go further, when the government talks about what I
7 called the robust defense, this is the first defendant to come
8 before you this morning who did not testify, and we did not
9 put on witnesses in this case. He allowed me to represent him
10 in a manner consistent with the plea negotiations but
11 recognizing my obligations as a lawyer, with a trial
12 situation. I had to represent a position of not guilty or
13 else we couldn't have been on trial. I was forced to do so,
14 Judge. I think I did it in a manner on behalf of my client
15 consistent with his acceptance of responsibilities as we stand
16 here today. He knew the evidence was going to convict him.
17 That was his belief.
18 We put in, I won't call it a meager defense but a
19 defense really grounded in the government's evidence and not
20 grounded in his testimony or his calling witnesses, truthfully
21 or falsely adding to the mix. He couldn't save the government
22 the millions of dollars. He attempted to. I believe he did
23 it early enough to warrant a 3-level departure but certainly
24 he is entitled, in my view, to the 2-level departure because
25 he has done that which the guidelines require of him under
2 THE COURT: You don't dispute, do you, that it was
3 open to him at all times whether the government liked it or
4 not simply to plead guilty to those counts in which he was
6 MR. BERNSTEIN: At the time that he would have had to
7 do that he would have basically been subjecting himself to 65
8 years of incarceration.
9 THE COURT: And after that it was still open to him,
10 was it not?
11 MR. BERNSTEIN: I am sorry.
12 THE COURT: After it became apparent that the 30-year
13 count was out?
14 MR. BERNSTEIN: The government didn't dismiss the
15 30-year count, I believe, until it went to the jury.
16 THE COURT: I think you said you were aware
17 beforehand that that count was going out. I think everybody
18 was aware that that count was going out.
19 MR. BERNSTEIN: Yes. Informally we were aware of
20 that. It never did happen factually until the very end of the
21 case. Suppositionally, yes, I think my client could have
22 turned to me and said yes, it's no use, why don't I just plead
23 guilty to, I guess what would have been -- if the government
24 had allowed it. The count was still extant. The count was in
25 before this jury. I couldn't plead to the indictment without
1 pleading to the 30-year count which Siddig Ali pled guilty to
2 before trial. It was there, it was before him, and it wasn't
3 the government's view that he shouldn't take the 20 years, it
4 was their view that they did not want him possibly being
5 available to falsely testify, and I gave the government five
6 or six scenarios that would have prevented Mr. Abdelgani from
8 And frankly, Judge, if he had wanted to, given the
9 prior testimony in the case, he certainly had a close relative
10 that he could have testified on behalf of in a certain way.
11 He obviously let some evidence roll in against him without
12 attempting to protect himself from his loved ones, who were
13 obviously taking a position adverse to his, which the court
14 will remember was the subject of a severance motion.
15 THE COURT: I understand.
16 MR. BERNSTEIN: I believe on the limited cases, there
17 are no cases on point. Save for a Ninth Circuit case, a bank
18 robbery which did give the defendant a 3-point reduction,
19 there are no cases in this circuit on this point directly, and
20 it seems to me that he is entitled to some benefit for all
21 that he offered in the way of a plea save for that which 3E1.1
22 does not require of him.
23 That obviously is where we stand on this issue,
24 Judge. If the court wants something further on this issue, I
25 don't know what else to offer other than that which we put in
1 in a letter as far back as June, and that is where we are.
2 Obviously I would ask the court for a ruling prior to
3 proceeding, but the court has taken a different position as to
4 how we should proceed.
5 THE COURT: Are you saying that your later remarks
6 are dependent entirely upon whether you get a ruling or not?
7 MR. BERNSTEIN: It would certainly set the guidelines
8 that I am facing. At the present moment I believe I am at
9 level 40.
10 THE COURT: I think that 3E1.1 contemplates an
11 extraordinary step. Pleading guilty is generally considered
12 an extraordinary step. Making an unsuccessful offer to plead
13 guilty is not, in my view, the kind of step that is
14 contemplated in 3E1.1, and accordingly I am not going to grant
15 a downward departure for acceptance of responsibility.
16 MR. BERNSTEIN: My problem with that is that you
17 place the blame for plea on my client, when in every case
18 where the plea negotiations fail it is a matter of numbers.
19 Here what they have sought to extract from him was a statement
20 from other people that 3E1.1 does not require. Otherwise,
21 everyone becomes in effect either a cooperator or someone --
22 THE COURT: No, there is an alternative, which is
23 that you plead guilty to the counts against you and in essence
24 tell the court that you rely on nothing but its mercy. People
25 do that every day of the week.
1 MR. BERNSTEIN: I certainly in my practice have not
2 done that very often since the guideline inception, when there
3 is no longer the court's ability to grant mercy as a general
4 proposition because it is outside the factors of the
5 guidelines. But let me move forward, Judge. I understand
6 that level 40 is where I am at this point in time.
7 THE COURT: It is.
8 MR. BERNSTEIN: Amir Abdelgani, as you know, entered
9 this conspiracy late. You also know that over the course of
10 the last two years he has filed no complaints about his
11 lawyer, no complaints about the court, no complaints about
12 most instances, and he gave no testimony in this case to aid
13 falsely the situation. I have spent enough time with my
14 client to come to recognize that he is in effect a follower.
15 I don't think there is a question that he followed Siddig Ali,
16 and, as Mr. Haggag had said to the court, followed blindly.
17 This is a man who I think until he met Siddig Ali had nothing
18 against America. I have spoken with my client and his view of
19 things obviously is that until Siddig convinced him that
20 America was the enemy because of the American control of the
21 Bosnian situation, my client had no desire to do anything that
22 would have led him to this kind of conduct that the jury has
23 found him guilty of. His range is 292 to 360, I believe. I
24 ask the court, given all the factors that --
25 THE COURT: Actually, 292 to 365. Go ahead.
1 MR. BERNSTEIN: My apologies, Judge, 292 to 365 --
2 that he has done what you asked him to, he has indicated his
3 remorse, he has indicated his willingness not to proceed, not
4 to cost the court money, not to put the government to its
5 burden of proof, and under the circumstances I ask the court
6 to give him as lenient a sentence possible under the
7 circumstances. At 292 months he will be almost 50 years old
8 when he returns to his country. His son will be 18 years old.
9 I don't minimize the offense but I think that that is a
10 significant stage in life where he is no threat to the United
11 States in the future or to any other country, and certainly it
12 is of an age in which anyone looking to committing the same
13 conduct in the future would think twice based upon the
14 determinative effect of a 24 or 25 year sentence that the
15 court could impose in the lower end of the range, and that is
16 what I would ask on behalf of my client, your Honor.
17 THE COURT: Thank you, Mr. Bernstein.
18 Mr. Abdelgani, is there anything you wish to tell me
19 before I impose sentence?
20 DEFENDANT AMIR ABDELGANI: No, your Honor.
21 THE COURT: Mr. Bernstein indicated that but for
22 Siddig Ali, Mr. Abdelgani would not have become involved in
23 this, and that may very well be true. However, as I pointed
24 out earlier with respect to another defendant or other
25 defendants, the "but for" argument is one that can be made and
1 often is made by many people that come before this court. The
2 question is not what you would have done but for having met up
3 with somebody, the question is what you did after having met
4 up with them, and what Mr. Abdelgani did was to become, from
5 the evidence on the tape, not a grudging but a very willing
6 and eager recruit to the enterprise that was involved here,
7 which was an enterprise to commit murder and mayhem on a vast
8 scale. He knew that it involved bombing tunnels. He had a
9 specific conversation with Siddig Ali to that effect. He
10 recruited his cousin. He went out and got fuel. He eagerly
11 scouted targets.
12 He was convicted on Count 1, seditious conspiracy,
13 Count 5, bombing conspiracy, and Count 6, attempted bombing.
14 The base offense level is a level 43. He, too, came to this
15 at a point when it was an inchoate crime, which is to say, one
16 that had not yet been completed, from his standpoint at least,
17 and therefore I am going to deduct 3 points to take it to
18 level 40. The range is 292 to 365 months.
19 Mr. Abdelgani will be committed as follows: With
20 respect to Count 1, seditious conspiracy, 20 years; with
21 respect to Count 5, bombing conspiracy, five years, concurrent
22 with Count 1; with respect to Count 6, attempted bombing, 10
23 years consecutive, for a total of 360 months, or 30 years. I
24 have imposed a sentence not at the top but at the upper end of
25 the range because of the nature of his participation and the
1 degree of his commitment to what he was doing, which was
3 In addition, he will be placed on supervised release
4 for a period of three years following his release, during
5 which he is to obey all lawful orders of the INS and he is not
6 to possess a weapon.
7 I find that he is without the funds to pay a fine or
8 the costs of imprisonment and accordingly, neither of those
9 will be imposed. He will pay the costs of supervised release
10 at such time, if it comes, as his income exceeds $3,000 per
11 month after taxes, allowing for adjustments for the cost of
12 living from this day forward, and then to the extent of 30
13 cents on the dollar. There is a mandatory $50 per count
14 special assessment for a total of $150 that I must impose and
15 do impose.
16 I advise Mr. Abdelgani that he has a right to appeal
17 and I will ask you please, Mr. Bernstein, to file a notice in
18 his behalf.
19 MR. BERNSTEIN: I will do so.
20 THE COURT: Is there anything else?
21 MR. McCARTHY: No, thank you.
22 THE COURT: Thank you.
23 (Defendant Amir Abdelgani excused)
24 THE COURT: We are going to adjourn now until 2:00.
25 We will resume at that time.
1 (Luncheon recess)
1 AFTERNOON SESSION
2 2:15 p.m.
3 THE CLERK: United States of America versus
4 Hampton-El. Government ready?
5 MR. McCARTHY: The government is ready, your Honor.
6 THE CLERK: Defendant ready?
7 MR. WASSERMAN: Yes, your Honor.
8 THE COURT: Mr. Wasserman.
9 Mr. McCarthy, is there anything you want to tell me
10 other than what I already have?
11 MR. McCARTHY: No, thank you, your Honor.
12 THE COURT: Mr. Wasserman, you have reviewed the
13 presentence report with your client?
14 MR. WASSERMAN: Yes, your Honor.
15 THE COURT: And you have made a submission which we
16 have discussed, right?
17 MR. WASSERMAN: Yes, your Honor.
18 THE COURT: Is there anything you want to tell me?
19 MR. WASSERMAN: Yes.
20 THE COURT: Go ahead.
21 MR. WASSERMAN: Your Honor, just to begin with some
22 bookkeeping, in terms of the presentence report the government
23 has written a letter to your Honor dated January 16, with
24 regard to the amendments of paragraphs 78 and 62. Those
25 changes that the government would make are acceptable.
1 THE COURT: Then I will direct that those be made.
2 MR. WASSERMAN: In addition, your Honor, it is also
3 acceptable to the government that, as we had discussed on the
4 record yesterday, paragraph 71 of the presentence report
5 reflect the date of June 28 and the presence during the
6 discussions of Ali Shinawy as well as El-Gabrowny.
7 Moving on, there is just one other issue that I
8 understand from talking to Mr. Khuzami earlier the government
9 wants to resolve as far as the presentence report, and that is
10 the mention in paragraph 157 of an offense during my
11 client's -- when he was in the army. The issue is whether
12 there was a knife involved in an assault. The government, I
13 understand, has a rap sheet but there are no underlying
14 records. I think, according to my understanding, the records
15 have been destroyed by fire.
16 THE COURT: That will be resolved in your client's
17 favor. The knife reference will be taken out.
18 MR. WASSERMAN: Thank you, Judge.
19 MR. WASSERMAN: Your Honor, there are a couple of
20 issues that are open. The 2X1.1 reduction, the government has
21 opposed that three-level reduction for my client.
22 THE COURT: Correct.
23 MR. WASSERMAN: Their argument is an interesting one.
24 They say that he had joined the conspiracy before the spring
25 bombing plot, and the basis for that is Salem's report and
1 testimony that there was a meeting, I believe June 18 of 1992,
2 at which my client offered him ready-made bombs, and that
3 subsequently Emad got a gun from Ali Shinawy and that that gun
4 is traceable to my client.
5 The problem with the government's position is that
6 they are relying upon Emad Salem's believability, and I don't
7 think that we can rely upon the jury's verdict for that, for
8 the simple reason that Emad perjured himself when he said on
9 the record, when he testified that he expected on the morning
10 of June 24 to pick up detonators for my client. We know he
11 perjured himself because it is also on the record, to the
12 extent that it is in Court Exhibit 1 but not presented to the
13 jury, and also contained in a transcript to my motion of
14 August 18, 1995, that Emad had a conversation with Detective
15 Napoli on June 23 in the evening, and he was asked by
16 Detective Napoli what the intention was of Mr. Hampton-El to
17 join with us, in Napoli's words, and Emad's reply was no, no,
18 no, it has nothing to do with us. Then he went on to describe
19 a conversation that he had just had with Mr. Hampton-El, in
20 which he reports that he was told sorry, brother, I cannot
21 come up with anything for you at this time, etc., etc. It is
22 very clear from that conversation that there was nothing in
23 the offing, nothing to be picked up, that in fact he had been
24 told there was nothing available.
25 So for the government now to come in and say we are
1 relying on the credibility of our informant Emad about a
2 meeting in June of '92, I think, is unsupported by his
3 credibility, uncorrected on the record, uncorrected before the
4 jury that Emad perjured himself about expecting to pick up
5 detonators for my client, at the end of this case, in other
6 words, subsequent to the arrests. That is the only basis that
7 the government argues against that 3-level reduction, and I
8 think that aside from everything else that is sufficient for
9 that three levels to be granted to Mr. Hampton-El.
10 The other aspect of the government's argument is
11 somewhat tortured, simply, as I understand it, that he joined
12 before the spring of '93, and at best crediting Salem's
13 testimony that there was discussion about killing Jewish
14 leaders, and that testimony was corroborated by my client's
15 testimony, that is scarcely waging war against the United
16 States and has nothing to do with the United States government
17 whatsoever. In fact, the only recorded statements we have of
18 Mr. Hampton-El concerning the United States are positive ones,
19 both with the government informant Garrett Wilson recorded on
20 May 31, as well as with Asim Mohammed. These are exhibits
21 that went before the jury in which my client spoke very
22 favorably about this still being the best country there is.
23 There is no statement anywhere in any recording where he talks
24 about tearing this country down or doing anything against this
25 country. Therefore, just for the moment stopping on this
1 2X1.1 issue, the three levels that have been opposed by the
2 government as a reduction should be granted to Mr. Hampton-El.
3 There is one other legal issue that the government
4 has brought up in terms of their requesting an obstruction of
5 justice upward increase of two levels. The essence of their
6 argument is that since the jury didn't believe that
7 Mr. Hampton-El lacked the intent, that they didn't believe he
8 was, in the government's words, kidding --
9 THE COURT: Mr. Wasserman, please, that is not even a
10 recognizable caricature of their argument. It is not their
11 argument. They say it is not simply a question of jury
12 disbelief, they say it was transparently false because of
13 other evidence in the case.
14 MR. WASSERMAN: Your Honor, I was just looking at
15 January 7, at the bottom, where it says in this case each of
16 the testifying defendants offered preposterous testimony which
17 explicitly disclaimed complicity in the offense of conviction.
18 Hampton-El, who admitted lying on the stand --
19 THE COURT: Mr. Wasserman, don't read to me something
20 that I have already read, please.
21 MR. WASSERMAN: No problem. I understood that
22 paragraph to be bottomed on the intent question.
23 THE COURT: It is bottomed on the intent question.
24 It doesn't tell me to add on two points simply because the
25 jury didn't believe it. That is not what it says and that is
1 what you just said. But please proceed with your argument.
2 MR. WASSERMAN: I think that the intent issue is
3 central to the government's position and I think that there
4 again, if you go to the conversation contained in Court
5 Exhibit 1 between Detective Napoli and Emad Salem where Napoli
6 asks him is he going to join with us, what are the
7 indications, and Emad says no, no, no, I think that that is
8 very clear that as far as the informant was concerned the
9 indication he perceived was that there was no intent to join
10 the spring bombing plot, and I think that that should be
11 dispositive of the government's request to have an upward two
13 I don't know whether your Honor wants to deal --
14 THE COURT: Why don't you just go all the way
16 MR. WASSERMAN: I think that it was very key, when
17 Emad took the stand and perjured himself, it was very key that
18 we were not able to impeach him with his contradictory
19 statements to Detective Napoli, and therefore the jury's
20 verdict has to be seen in that light.
21 I would like to just briefly revisit the issue of
22 role in the offense and cover the following points. One,
23 Mr. Hampton-El never provided anything to the spring bombing
24 plot, though in a position to do so. He had funds, he was
25 made aware by Siddig that Siddig and Emad were looking for
1 money. He told them that he had money but it was for Bosnia,
2 he offered them nothing. He had a facility on Rogers Avenue,
3 he offered them no access to it. He had a trainer with the
4 people to go to Bosnia, Abu Ubaidah. There was no involvement
5 of him or any offer to involve him. There were martial arts
6 weapons that were seized at Rogers Avenue. There was no offer
7 of that. There was no offer of anything, no production of
9 I mentioned before that he never said anything
10 against the United States, quite the opposite. In fact, when
11 Siddig mentioned to him the tunnels as a target, he is clearly
12 heard on tape saying because for that you don't need me. He
13 then goes on to say talking about knocking out the federal
14 system, talking about drowning innocent people, ordinary
15 citizens will be killed. I say, I think those are not the
16 comments of someone who is joining in on that project.
17 I think it is very relevant that he is kept totally
18 out of the loop of what is going on in the spring bombing
19 plot. Every defendant who has been sentenced previously today
20 who was involved in it was not made known to Mr. Hampton-El.
21 The very existence of the Queens safe house, the building of
22 the bomb, the acquisition of the materials, the Uzi, the test
23 explosion on June 22, the video of the tunnels, all the
24 actions of Siddig were kept carefully from Mr. Hampton-El. I
25 think that that lack of knowledge is something that, coupled
1 with his lack of producing anything for the conspiracy, should
2 be taken into account by the court in terms of the request by
3 the defense for reduction for a minimal role in the offense.
4 The government keeps speaking of the fact that he
5 occupied a unique position in terms of being the source for
6 detonators. It is just a fiction, to the extent that it is
7 Emad's idea to go to him. He never produces any detonators.
8 The only other evidence on the record is Siddig talking about
9 my client as someone who is not experienced in explosives.
10 There are no explosives seized at Rogers Avenue. So he
11 doesn't produce anything, he doesn't possess anything, and, as
12 it turns out, he has access to nothing. I know I am repeating
13 an analogy from yesterday, your Honor, but if he were in a
14 drug case, it would be clear that he is a minimal participant.
15 He is just not a supplier. He has no ready access, he has no
17 The last thing I would ask your Honor to consider in
18 terms of the sentence is that everything in my client's
19 life -- he is 57 now -- was consistent with not taking lives.
20 His medical career, starting with bed pans and working his way
21 up to handling dialysis machines, his going to Afghanistan as
22 a medic. Other than this matter that we discussed as we
23 started of an army court martial when he was 18 years old 40
24 years ago, he has been a good, up standing man, and I think
25 that his role in this case was one that was created by the
1 government informant, that he got trapped and that critical
2 evidence that he had no intention to participate in the spring
3 bombing plot just never reached the jury in terms of that
4 conversation between Detective Napoli and Emad Salem.
5 I would ask your Honor to take those things into
6 consideration, beginning with the three-level reduction for
7 the 2X1.1 and the 4-level request for minimal and any 2 level
8 enhancement on the basis of obstruction. Thank you.
9 THE COURT: Thank you. Mr. Hampton-El, is there
10 anything you wish to tell me before I impose sentence?
11 DEFENDANT HAMPTON-EL: Yes, your Honor.
12 MR. WASSERMAN: Your Honor, may I add one thing?
13 THE COURT: Yes.
14 MR. WASSERMAN: I would like to request the court, as
15 it considered doing and indicated it would because of Tarig
16 Elhassan because of family matters --
17 THE COURT: The recommendation?
18 MR. WASSERMAN: Yes, as to the northeast.
19 THE COURT: Absolutely.
20 MR. WASSERMAN: Thank you, Judge.
21 DEFENDANT HAMPTON-EL: Good afternoon.
22 THE COURT: Good afternoon.
23 DEFENDANT HAMPTON-EL: Your Honor, members of the
24 court and press. I bear witness to worthy worship of Allah
25 alone and our partners and that Mohammed is his last messenger
1 and apostle, following all the other prophets.
2 I go on to say that this became a nightmare for me
3 the 24th of June, 4:00 in the morning. I was on my way to
4 worship when I was seized by the FBI. Not known to me at that
5 time, I had been a target from the time I came home from
6 Afghanistan in 1988, and I think the reason for this was my
7 going to Afghanistan, then coming home, then going to the
8 different universities and publicly speaking to people, that
9 they should try to participate and help the people who were
10 being killed, because it was a form of genocide and the
11 Russians had been killing them for years. I was told at that
12 time that the FBI had asked questions about me, but I ignored
13 it because I didn't think I was doing anything wrong. And
14 time went on, and from time to time I saw them still observing
15 me. Then I was approached after Emad Salem was sent to me in
16 June of '92, and he failed in his mission then, and I didn't
17 see him for a while.
18 I proceeded on after being asked to help the people
19 in Bosnia, who also genocide was going on and there was no aid
20 going to them. So I tried to go ahead and get a group, which
21 I did achieve, and tried to train them, to train people inside
22 of Bosnia. I took it upon myself to go to Yugoslavia, Zagreb.
23 I think that these things annoyed the government. For what
24 reason it is beyond me. I have always lived my life as a good
25 citizen. I have never broken the law and I have always said
1 that America was a place for opportunity for all people. This
2 has always been my philosophy as a human being, and as a
3 Muslim, Islam does not permit acts of violence and terrorism.
4 It is forbidden by Allah. I am innocent of the charges
5 against me by the FBI, and they know this to be true. I have
6 always lived my life to help people, never harm them. I have
7 always lived my life by the law of the land. This case
8 against me is wrong. My participation is none.
9 Emad Salem and and Siddig continuously came back
10 after me because they weren't achieving anything. After their
11 plans was made known to me, what they said they wanted to do
12 about the tunnels, I told them at this time you don't need me,
13 because the conversation at that time was nothing but rhetoric
14 as far as I was concerned, but it reached a point, which I
15 said on the stand, that it was wrong.
16 And just to reiterate on what my attorney said, that
17 was some of the same things that was told to Louis Napoli when
18 he asked what about the World Trade Center people? Emad told
19 him, you know he has his own project, which he was referring
20 to Bosnia. He said I know, but does he have anything to do
21 with this? He said he has nothing to do with this.
22 Personally I think that this attack is not only on me
23 but it is against Islam, because it is projecting Islam as
24 something that is hideous and wicked. When the World Trade
25 happened, I condemned it immediately and emphatically. When
1 Oklahoma happened and it was suspicious that it was people
2 from the Middle East or Muslims, the front pages of the news,
3 the media, blew it up. When it was found out that it was not
4 people from the Middle East, it was put on the back burner,
5 the back page, and completely out of the papers. This case
6 stayed in the papers from the time that it began up until this
7 time here. Things were said about me that was not true, and
8 there was never a retraction for the statements that was made
9 that was false.
10 As far as the different things they tried to connect
11 me with in this here, I don't see why people should have fear
12 of me, because there is nobody in this courtroom or outside
13 this courtroom that I have any desire to hurt. I built my
14 life in my community on helping people, ridding the community
15 of drugs and making sure it was safe for the residents to live
16 there. My employment, I have worked years and I have treated
17 people of every persuasion, black, white, Italian, Jewish,
18 whatever, and I never let the criteria for how we treat a
19 person be his nationality or his faith, and I never would.
20 And whatever the results are from this case on my being in
21 prison is not going to turn me into whatever else they have in
22 prison, because I have to strive to live a righteous life, to
23 please my lord.
24 There is a statement that says by the token of time,
25 truly matters in a state of loss, except such that have faith
1 and do righteous deeds and join together in mutual enjoyment
2 of truth and of patience and consistency.
3 The key parts of this case, as my attorney said, some
4 things I think that may have, would have affected the jury,
5 was the statements of Emad Salem and Louis Napoli and the fact
6 that he did perjure himself, and I think this was after he
7 heard the statement that the office is pissed, we have to get
8 the World Trade Center people involved, buying guns and
9 ammunition and S -- curse words, so I won't even say it. I
10 find it strange that if I was part of this here, Emad Salem,
11 he never made an effort to tell me about the safe house, or
12 tried to get me to go to the safe house or any of these
13 things, because in fact he knew if he had said something like
14 that there, it would have been nothing, because that's when I
15 would have known to take a move towards informing the law of
16 what was going on. The fact that I wasn't aware of any of
17 these things, I think, is very important.
18 I think that the possibility of me spending years in
19 jail or the rest of my life for something I wasn't part of is
20 wrong, but that is a judgment call that is not in my hands at
21 this time. I will just say again, this is my country and I
22 have strived to help people always, and that is what I will
23 continue to do.
24 Finally, there will be a judge and a judgment for
25 everybody that has come into the world, all existence, and
1 that is the lord of mankind. When all of you stand before him
2 just like I sit here, you will be asked, you will be asked for
3 the wrong that you did to frame me and bring me in this here,
4 and you know it yourself, that I have nothing to do with it.
5 I am not referring to Judge Mukasey because he got the case,
6 but I am referring to the players that was in it. They know
7 that I wasn't in it. They told me themselves, we know you're
8 not in it. And the fact that I couldn't tell them anything is
9 why I am sitting here. But that's all right, because like I
10 said, there is a day of account. You can smile, you can grin,
11 you can skin, but this is real. We all have to answer for our
12 actions in this life and the life to come, and I am firm in
13 what I say and my lord knows I am innocent. That's the most
14 important thing.
15 I would hope that the judge would look at this with
16 an open mind and see beyond what has been said. I thank the
17 court for this. As-Salamu Alaikum.
18 THE COURT: Mr. Hampton-El, as some other defendants
19 did earlier today, you have told us that you believe you are
20 innocent of the charges of which you have been convicted, but
21 a sentencing proceeding goes forward on the assumption that
22 the jury's verdict on those charges -- as you mentioned a
23 moment ago a judgment call -- they made the judgment call and
24 that is the only judgment call that is relevant today, and
25 their judgment call was that you were guilty of those charges.
1 In addition the evidence showed, and I find, that
2 Mr. Hampton-El was a member of the conspiracy before June of
3 1993, that the conversation that Salem testified to occurred,
4 and therefore there is going to be no reduction under 2X1.1.
5 Mr. Hampton-El was convicted on Counts 1, 5 and 6.
6 The offense level is a level 43. As a result, the sentence is
7 as follows: With respect to Count 1, he will be imprisoned
8 for 20 years; with respect to Count 5, for five years; with
9 respect to Count 6, for 10 years, those sentences to be served
11 He will be placed on supervised release for a period
12 of three years following his release, concurrent on all
14 I find that he is without the funds to pay either a
15 fine or the costs of supervised release, and as a result none
16 of those will be imposed. He will pay the costs of supervised
17 release at such time, if it comes, that his income exceeds
18 $2,500 per month after taxes, allowing for the increase in the
19 cost of living from this date forward. There is a mandatory
20 special assessment of $150 per count that I must impose and do
22 Mr. McCarthy, in view of the sentence do you think I
23 have to make a finding with respect to obstruction?
24 MR. McCARTHY: I do think that would be appropriate,
25 your Honor. I also think, your Honor, I think, said June 1993
1 when your Honor meant June 1992.
2 THE COURT: I am sorry, I misspoke. I meant June
4 With respect to the obstruction, Mr. Hampton-El
5 testified in a fashion that was entirely inconsistent not only
6 with the jury's findings but, more importantly, with his own
7 statements as recorded on tape. As a result, there is a
8 2-level enhancement under 3C1.1, for obstruction. That is
9 moot in view of the sentence imposed, but if it should ever
10 become relevant, I make that finding.
11 Mr. Hampton-El is advised that he has a right to
12 appeal and I would ask you, Mr. Wasserman, to file a notice of
13 appeal on his behalf.
14 MR. WASSERMAN: I will go do so, Judge. May I have a
16 Thank you.
17 (Defendant Clement Hampton-El excused)
19 (Continued on next page)
1 (Defendant Ibrahim El-Gabrowny present)
2 THE CLERK: United States of America versus
3 El-Gabrowny. Government ready?
4 MR. FITZGERALD: Yes, your Honor.
5 THE CLERK: Defendant ready?
6 MR. RICCO: Yes, your Honor.
7 THE COURT: Mr. Fitzgerald, other than what you have
8 placed before me up until now, which is correspondence that
9 runs up until today, is there anything else that you want to
10 tell me?
11 MR. FITZGERALD: No, your Honor, only to correct in
12 the footnote of the letter of about an hour ago --
13 THE COURT: One second -- yes.
14 MR. FITZGERALD: Footnote 3, the arithmetic is a
15 little off but the point is right. I don't think it is
16 important, but I pointed out to Mr. Ricco that if there are
17 two large groups there would be a slight increase in the total
18 offense level but the point is still the same. It would be
19 accounted for in the grouping.
20 THE COURT: The principal point of your letter, as I
21 understand it, is, assuming that I find that he is not
22 entitled to a reduction of three points under 2X1.1 and he
23 stays at a level 43, that I am required to sentence
24 consecutively on all of the counts after Count 1, even if they
25 overlap and even if they constitute the identical conduct?
1 MR. FITZGERALD: Yes, your Honor, by the guidelines.
2 THE COURT: That certainly tees it up.
3 Mr. Ricco.
4 MR. RICCO: Your Honor, during yesterday's proceeding
5 I had asked the court to consider a a role adjustment for Mr.
6 El-Gabrowny on relevant conduct. I know at that point the
7 court had indicated that it probably was not inclined to do
8 so, but I would ask the court to consider such an adjustment,
9 if the court were not to grant a reduction for Mr. El-Gabrowny
10 under 2X1.1, if the court were not to consider a role
11 adjustment for Mr. El-Gabrowny. It certainly does tee up the
12 situation. Of course, that is not a reason for granting
13 either one of those forms of relief.
14 I think that on review of this record, when the court
15 looks at the various conduct of the different defendants in
16 this case and it views Mr. El-Gabrowny's conduct in view of
17 that, I think that there is room for some adjustment for his
18 role. I would add that Mr. El-Gabrowny as the subject of this
19 investigation, probably the only other defendant that would
20 exceed that would be the defendant El Sayyid Nosair. In the
21 over 18 months that Mr. El-Gabrowny was in close contact with
22 Mr. Emad Salem, he reported to the agents and testified in
23 court about the conduct of Mr. El-Gabrowny, the type of
24 activities that Mr. El-Gabrowny was involved in, attempted to
25 get other members of the Muslim community to become involved.
1 Mr. El-Gabrowny was convicted of possession of the
2 forged travel documents. He was convicted of possession of
3 the passports. But when the court reviews the possession of
4 the documents, when the documents were obtained, according to
5 the trial evidence, it certainly appears, Judge, if there were
6 ever a defendant in this case that would be entitled to any
7 serious consideration on the role adjustment for a a minor
8 role in view of the conduct of the others, it would certainly
9 be Mr. El-Gabrowny.
10 One of the things I hate to do during a trial is to
11 start talking about how bad the other defendants were with
12 regard to my client.
13 THE COURT: Let me just ask you with regard to the
14 dates on the passports. What you are saying is that they were
15 obtained after the conviction or before the conviction?
16 MR. RICCO: They were before the conviction. They
17 were obtained, according to the testimony of the Secret
18 Service agent -- the State Department agents -- in July of
19 1991, which was even before the trial itself commenced.
20 Judge, I almost know that you are aware of the
21 arguments that I am going to make. Mr. El-Gabrowny was not
22 involved with the training. He wasn't involved with the
23 firearms training. He wasn't involved with the Pennsylvania
24 training. He was not involved with the bombing of the World
25 Trade Center. To the extent that the proof at trial
1 established that there were telephone calls made between Nidal
2 Ayyad, Sayyid Nosair and Mr. El-Gabrowny, that appears to be
3 the extent of his involvement in that episode.
4 Certainly when the court looks at the conduct of the
5 defendants who were in the videotape, when the court looks at
6 the conduct of the other defendants in the case who were with
7 participating in training, certainly Mr. El-Gabrowny's
8 conduct, at least, appears less culpable. The jury saw fit to
9 acquit Mr. El-Gabrowny of the bombing conspiracy. The weight
10 that the court gives to that for purposes of sentencing is not
11 significant and I understand that.
12 THE COURT: But it also resulted, I think, in
13 substantial part from, as I said yesterday, a mistake that I
14 made, or at least in part a mistake that I made in the charge,
15 where I focused Count 5 solely on events beginning in June of
16 1993 when, if I had looked more carefully at the
17 incorporations by reference and at the dates in the count, I
18 would have seen that in fact it charged conduct going back to
19 1989. When I in essence charged that Count 5 involved the
20 June 1993 bombing conspiracy, I virtually charged the
21 government out of court as to your client on that count, as
22 well as Mr. Nosair.
23 MR. RICCO: Judge, even if that were not the case I
24 would not make much of that argument. I certainly would point
25 out that the court has certainly heard all the evidence in
1 this case and it has been extensive. Mr. El-Gabrowny, on
2 March 4, 1993, when he was arrested was not even the subject
3 of the arrest warrant. They were interested in documents and
4 devices that may have been in his apartment. When you review
5 his conduct up until that date, and of course subsequent to
6 that date when he is incarcerated, his conduct has to almost
7 be viewed as less culpable of other participants who were
8 involved in this conspiracy. Certainly his conduct cannot be
9 considered minimal. But perhaps his conduct can be considered
10 minor in view of the other codefendants in the case, and I
11 would ask the court to consider granting an adjustment for his
12 role in the offense of which he was convicted.
13 With respect to the individual counts, other than, of
14 course, the sedition count, I wanted to take a few minutes, a
15 brief few minutes, and talk about Mr. El-Gabrowny's conduct
16 during those offenses. For example, the resistance during the
17 execution of the search warrant. A review of the record shows
18 that Mr. El-Gabrowny was stopped outside of his building while
19 he was going back towards the building when the agents were
20 executing the search warrant. For security purposes, the
21 agents brought him inside the vestibule area. It is inside
22 the vestibule area that the assault of which Mr. El-Gabrowny
23 was convicted took place.
24 The government says that the court should sentence
25 Mr. El-Gabrowny to three years under that count as opposed to
1 the one year. I believe, your Honor, that Mr. El-Gabrowny's
2 conduct made out a simple assault. Agent Corrigan and Agent
3 Burke both testified as to the contact that took place between
4 the two of them. Both agents testified that one elbow struck
5 one way, the other elbow struck the other way, and all
6 involved in the melee fell to the ground.
7 The statute talks about a simple assault, and I don't
8 know how more simple an assault can be, other than that type
9 of circumstance. Certainly during cross-examination of the
10 agents I asked them whether Mr. El-Gabrowny ever got into a
11 fight, whether he ever threw any punches, and they said no.
12 Did he ever say any threatening or abusive words? They say
13 no. Did he attempt to struggle or run? They said no. Mr.
14 El-Gabrowny was in the rain, he had his hands up. There was
15 discussion as to what was going on. The event took place, he
16 was convicted of it.
17 However, I believe that his conduct constitutes a
18 simple assault under the statute and nothing more. Indeed, in
19 the PSR he was not even given an obstruction enhancement for
20 the conduct relating to the assault and interference in the
21 execution of the search warrant.
22 I think the circumstances of his conduct at that time
23 grew out of the anxiety of both himself and the agents, who at
24 that time were performing a very important duty about a very
25 serious criminal act that took place here in the city. The
1 agents all testified that they felt a sense of danger. They
2 were concerned that Mr. El-Gabrowny might possess a weapon or
3 he might possess explosives, and Mr. El-Gabrowny's
4 sensitivities and the officers' sensitivities --
5 understandable sensitivities, certainly, I believe -- played
6 some part in the incident that happened between the two of
7 them. This is not to try to take away from the seriousness of
8 the jury's finding, but to sort of set a backdrop for what I
9 think the conduct came out of.
10 I raise these types of arguments because the statute,
11 the guidelines does talk about sentencing defendants so that
12 remaining sentences are applied consecutively to reach total
13 punishment, and I think what the statute does on that type of
14 reading, it really takes away from the district court the
15 ability to determine the appropriate ranges for the conduct
16 that the defendant was charged with. So that the court
17 doesn't even look to the circumstances of the assault. The
18 court doesn't even look to the circumstances that amounted to
19 resistance during the execution of the search warrant. The
20 statute gives a zero to 3-year range, and if the court is to
21 run consecutive sentences solely for the purpose of reaching
22 the total offense level, the court doesn't consider those
23 factors and I think that is improper. I think the district
24 court should always consider what the circumstances of the
25 offense is.
1 The same circumstances apply with the passports. The
2 government's theory, accepted by the jury, is that Mr.
3 El-Gabrowny's passports, the possession of the passports were
4 part of a great plan to somehow, some day, break Mr. Nosair
5 out of prison. Mr. Emad Salem testified that at one point in
6 the spring of 1992, almost a year before Mr. El-Gabrowny was
7 arrested with the passports, almost a year -- almost seven
8 months after the passports were obtained he approaches Mr.
9 El-Gabrowny and suggests to him an escape plan for Mr.
10 El-Gabrowny, suggested to him by yet another person. Mr.
11 El-Gabrowny, according to Emad Salem, said no, why don't we
12 wait and let the appellate process work and we will discuss it
13 later. Emad Salem gave us an elaborate plan, about how a
14 truck would be rented, it would sneak into Attica, a bakery
15 truck, garbage truck, it would sneak out -- escape.
16 The statute talks about zero to five years for the
17 passports. Mr. El-Gabrowny's possession of the passports by
18 themselves does not amount to a 5-year sentence. In fact, the
19 guideline range for possession of those passports is far less.
20 When the court can no longer look at the defendant's conduct
21 in reference to those particular offenses, the court should
22 consider whether it agrees or disagrees, whether or not there
23 was ever an actual escape. Did Mr. El-Gabrowny do anything
24 further in the escape attempt? Did he go to Buffalo? Did he
25 get together to talk with men about the escape? Were there
1 plans made? Was there a meeting? If the court finds that
2 there was possession of the passports and nothing more, that
3 should be a factor for the court to consider and nothing more,
4 certainly with respect to his sentencing on this particular
6 I think when the court looks at Mr. El-Gabrowny's
7 conduct, as to which he was was convicted, the court finds him
8 in a different place from many of his codefendants. I can't
9 overlook and I would hope the court would not overlook many of
10 the telephone calls introduced into evidence that took place
11 between Emad Salem and Mr. El-Gabrowny, where Mr. El-Gabrowny
12 pleaded with Emad Salem, talked with Emad Salem, rejecting his
13 advances toward violence, talking about how Muslims should get
14 involved in the democratic process here, by registering to
15 vote, exercising their rights to vote. Certainly he has been
16 convicted of sedition, so those types of comments may fall by
17 the wayside. However, they were made and they were made at a
18 time when Mr. El-Gabrowny was not aware that he was being
19 recorded, according to the testimony. He did raise money for
20 his cousin, he did attempt to get his counsel, he did
21 participate. The trial evidence showed that he wrote to the
22 trial judge, asking the trial judge not to be impacted by
23 pressure from either group, from the Muslim community or other
24 communities, that the judge should make a determination that
25 he thought was right.
1 In some way, no matter how the guidelines are
2 applied, the court should never be in a situation where it
3 does not consider that aspect of the proof at trial. It
4 amounts to something. It amounts to a consideration as to
5 where in the range of the statutory sentences a defendant
6 should be placed. 3553 talks about looking at his background,
7 his history, his family, his circumstances, and when the court
8 looks at that, as the court has read in his report, the court
9 finds that Mr. El-Gabrowny is the father of five children, all
10 small children, and no matter what sentence the court imposes,
11 those children will be adults before Mr. El-Gabrowny ever
12 walks out of a federal prison. Mr. El-Gabrowny was an
13 engineer by education and by training. He came here, he
14 married here, he raised a family here. He had never been
15 arrested before. He had never participated in any criminal
16 acts. He had never been involved in any type of assaultive
17 behavior prior to the involvement in which he was convicted.
18 I would ask the court to consider all of those
19 aspects about Mr. El-Gabrowny when it imposes sentence here.
20 THE COURT: Thank you, Mr. Ricco.
21 Mr. El-Gabrowny, is there anything you want to tell
22 me before I impose sentence?
23 DEFENDANT EL-GABROWNY: As-Salamu Aleikum, by the
24 name of Allah, most magnificent, most merciful. I would like
25 to start my speech by objecting about the PSI information. It
1 just took the government side and disregarded the defense. My
2 case is nothing but endless chain of oppression and injustice
3 were put on me by Salem and others. I had received both of
4 them and I still do till this present moment. Patiently I was
5 and patiently I am now hoping that justice will take place
6 some day, and oppression must vanish, and the truth has to be
7 shown up.
8 This oppression started when Salem started to use my
9 flesh and bones to build his castle, his all-American dream of
10 fortune, since he came to United States and he was not
11 successful to make it, after he ended working in a hotel,
12 receiving few dollars every week, with lots and lots of
13 humiliation and disrespect from his manager, as was clear from
14 the bootleg tapes. He found his missing target when he was
15 hired by the FBI to infiltrate the Muslim community.
16 If you look at bootleg tape 9-11, when he was telling
17 his family in Egypt, I left my hotel job to a better job with
18 better pay, this was FBI job. Even though he stayed in many
19 debts, if you look at 1 June, which was '93, it was in this.
20 He had to keep his job to create scenario. I was the only one
21 in front of him. I was high figure in the FBI mind because I
22 was managing the defense committee of my cousin Nosair. I
23 will give you example of whatever Emad Salem did to me. In
24 tape 7-11, I told him -- he told me that did you think to go
25 to Arab countries to collect some money? I told him clearly
1 they will not receive you. He said it again, I told him don't
2 try it. When you look at 10-12, he was telling John Anticev,
3 Ibrahim told me to go, and this how he used to make scenario
4 about me.
5 In tape 43-1 at page 4, you will find Salem telling
6 John, what I told you guys that they preparing to break Nosair
7 out of jail and that he will be out of the country, let me
8 stay in, to know where he is going. All what he was
9 concerning about is to stay in.
10 Thus, this was his target, let me stay in, and for
11 that he had to make up incriminated scenario and lies.
12 In the same tape, 43-1, at page 13, talking about Ali
13 Shinawy and he told John and Louie I told you, John and Louie
14 telling him no, he told us nothing, we told him you lie. He
15 start mention the targets. They told him no, maybe you
16 imagine that he told us. Here they discover that he was
17 lying. In the same scene while he was sitting with them, he
18 lied with me, too. He told them that they went to the World
19 Trade Center for demonstration to prepare for the bombing.
20 If we go back little bit to D-3, I was tolding him
21 that we are going to make peaceful demonstration in front of
22 the World Trade Center government office because of the Nosair
23 treatment in Attica. The FBI had a report dated 2/27/92,
24 saying exactly at governor's World Trade Center office over
25 treatment of Nosair in jail. I explained it to him clearly,
1 but even though he told them, they went over there for the
2 World Trade Center bombing. He tried to incriminate a
3 peaceful thing I did.
4 What happened that they told him no, it was not for
5 that, they went because of Mario, the governor. He was
6 supposed to meet them and they didn't. It wasn't because of
7 that, I kept telling you that. They discovered that he was
8 lying on me.
9 Then in the same time, he told them about the
10 detonator being brought from Afghanistan. He lied one time
11 and he had another lie. They discovered his lies before. Why
12 anybody should believe him about the rest? I never touched
13 explosives ever in my life, and the FBI went to my house, they
14 found nothing. They took test from my hand, they found no
15 traces. I never touched the explosives, had no experience
16 about anything like that. When I tried to buy my licensed
17 pistol, I asked him to help me because I didn't know anything.
18 I had no idea. I had to ask him to help me. Even after I
19 bought it, I never used the pistol, even though it was
20 licensed. It was even with the tag when the FBI took it.
21 This is my attitude.
22 Look at my peaceful attitude with him. Salem told me
23 that Barbara, his exwife, was planning to blow up his brain.
24 He mentioned the F word, F word brain, with .38 caliber. My
25 answer with him, how can educated person say that? This is my
1 attitude. When he added more, he said that she is
2 self-destructive person, I told him, just be patient, we will
3 support you.
4 When we were talking about D'Amato, I told him
5 voting, I didn't tell him any violent scenario. Even when he
6 tried to instigate me, what we going to do, I said to him
8 Kahane's group went to the judge's house for
9 demonstration. I was told that for us to go over there, who
10 are not allowed to have speakers or signs supported by wood
11 sticks unless we have permission from that. I had no time to
12 have permission. I told him if you would like to make a sign,
13 don't use wood stick. And this was quoted by him. I was
14 curious not to violate the law even for a wooden stick
15 connected with a sign. I asked him to help me to send letters
16 to the judge. I asked the FBI, John Anticev, to help me to
17 have permit for my pistol license. Is this the behavior of a
19 Emad, he is the one who was making all this
20 incriminating scenario. He never verified anything about my
21 behavior. All whatever he did, tapes proving my peaceful
22 attitude and my peaceful behavior. He was telling them in
23 19-1 that if they will trace me and make surveillance with me,
24 you will discover that I am going to visit Nosair with Salem.
25 John told him no, he never was over there with Salem. And he
1 repeating the same story three times to John. Even he is
2 telling Nancy Floyd the same story.
3 The record of Attica visit proved to anybody that I
4 never visit Nosair with Salem, before or any time. He just
5 tried to give this incriminating scenario about me to stay in
6 his job, and he never verified.
7 I would like to remind everybody about the polygraph
8 test which was deceptive for Emad Salem.
9 I never discussed with Salem or anybody else any plan
10 to escape Nosair from jail. If you look at the passport,
11 Judge, the passports were not even signed. I had no plan to
12 escape Nosair. The passports I received hoping that Nosair
13 was going to be acquitted in the state trial and be far from
14 something like that. This is a picture of Kahane's son
15 carrying the gun. This is what I photographed. Not to escape
16 him thought of, not to escape him from jail.
17 It happened that a friend sent me a letter asking for
18 stun guns to Yemen, and he did me a favor before so I tried to
19 pay him back. He put some specifications for the stun guns,
20 numbers and volts. When I went to bought I didn't find what
21 he was looking for, so I bought only two, with different
22 volts. When I came, I tried to contact him, I didn't find
23 him. I tried to contact the guy in Yemen, I didn't find him.
24 I traced all of them, I didn't find nobody. My phone records
25 which show up here the call for Yemen. It was dated 5/27/92.
1 After Salem claims that I was going to use the stun gun for
2 escape plot. I didn't know that he was doing that and I am
3 telling you I was tracing the people which is supposed to
4 receive the stun guns. My phone record was not shown to the
5 jury and they went to deliberation without that.
6 You wonder, Judge, why I didn't buy the batteries.
7 When I bought the stun guns, I was curious about the weight of
8 the shipment. If you look at the stun gun and the batteries,
9 the battery is good about three or four times heavier than the
10 stun gun itself. So when I bought the stun gun, I bought
11 without battery for it to be shipped light, and they can buy
12 the battery over there. It was in my mind to ship it, Judge,
13 not use it here. That's why I didn't buy the batteries.
14 John asking him do you have any tapes talking about
15 explosives? He said no, he told me don't, but in fact he was
16 not, he was taping me, but he didn't have any tapes of me
17 talking about explosives because it never happened, Judge.
18 About the assault, Judge, as soon as I passed
19 Corrigan and Burke, they pushed me to the wall, and after they
20 searched me they took the passports from my pocket, and right
21 after that, right away Corrigan brought the handcuff from the
22 back on me. But he put it very tight. It was pain, causing
23 so much pain on my hand. And he pushed me till front of the
24 building. And I was screaming. He pushed me to lay down in
25 the mud like a duck. Then he took me inside the lobby, and
1 after American detective came and loosened it a little bit,
2 and this is the story which I know. For you to believe my
3 story, Judge, if you go back to my property, you find all my
4 clothes having dirt, blue jeans and my raincoat and my jacket
5 all having dirt except my sleeve, because my sleeve was in the
6 back. If I ever pushed anybody without recognizing it, I was
7 not aware about it, Judge, at all. I did not push anybody and
8 that I was aware about it.
9 About Ayyad's call, Judge, Ayyad called me because he
10 had money, he had to give it to me. I went to him, I met him,
11 I took the money, I deposit it in the bank and I give Salem
12 the two receipts, the first check from Salameh and the money
13 from Ayyad.
14 My lawyer found the receipt, deposit receipt in
15 property, but then the receipt vanished and I was sitting here
16 in court under the impression that you personally know about
17 this and the office will contact Ayyad's lawyer to find the
18 receipt so the jury can see it, and the jury went for
19 deliberation without seeing the receipt. His mother was aware
20 about this, and nobody came to testify about it. The contact
21 was for money. I took it, I deposit it, I gave him the
22 deposit receipt. I have nothing to do with the World Trade
23 Center at all.
24 I never recruited Emad Salem for anything. I met him
25 or anybody ever in my house except Dr. Mann and this was for
1 deal. I never recruited Emad Salem for anything at all.
2 When you sentence me, Judge, remember that you are
3 sentencing innocent man. I have six kids. One of them has
4 mental defection and the other has physical defection. I
5 claim my innocence. I did nothing wrong. I was not ever
6 having my intention to harm America or make war against
7 America. The government has no case against me. Only the
8 word of Emad Salem, which I showed to you, he was making
9 scenario about me to make me, and his tapes proves that he was
11 Judge, without any enmity I will take the case to the
12 appeal court, and without no enmity, if I can try, I will go
13 to the Supreme Court. But for sure I will take the case to
14 the divine court. Besides Emad Salem's word, Judge, what
15 anybody in this hall having against me? It is no single call
16 can tell anybody that I ever did anything wrong.
17 Sometimes I wonder, Judge, why I am standing here,
18 why I am in this case. I was taught through my religion, for
19 those who receive oppression, if you make supplication to
20 Allah, Allah will answer them by saying, on my glory, on my
21 oath, I will give you victory and justice, even after a while,
22 and this what I am hoping for.
23 Thank you.
24 THE COURT: Thank you, Mr. El-Gabrowny. Most of Mr.
25 El-Gabrowny's comments were directed in essence at claiming
1 and seeking to establish that he was not guilty of the charges
2 on which the jury found him guilty. However, I must tell him,
3 as I have told others, that the assumption underlying this
4 proceeding is that the jury's verdict is correct, and that is
5 the assumption on which I am going to proceed.
6 Also I would suggest to you it is an assumption that
7 is justified by the evidence. Mr. Ricco has argued that any
8 guideline result that doesn't permit me to consider the facts
9 underlying the offenses and their seriousness in relation to
10 other offenses committed by others and to the role of Mr.
11 El-Gabrowny in relation to others, that any reading of the
12 guidelines that doesn't permit me to do that is unfair, and as
13 a result he is asking me to find that Mr. El-Gabrowny was a
14 minor participant, in essence in order to back out of the
15 conundrum that the guidelines place me in. The facts don't
16 justify a finding that Mr. El-Gabrowny was a minor
17 participant. His possession of the passports, his contact
18 with Ayyad, Salameh, with others, indicate that he was
19 integral to Nosair's contact with the outside world and Nosair
20 was integral to the World Trade Center bombing. In particular
21 his possession of those passports on his person on the day
22 that and shortly after Salameh was arrested is itself very
23 telling evidence that he was aware that those passports were
24 something that the agents would show up and seek to find. As
25 a result, it is clear that he took them out of his apartment.
1 If I were free to impose any sentence that I wanted
2 in this case, the sentence would be less than the one that I
3 believe the guidelines require me to impose, and I am going to
4 do something that I haven't done with respect to any other
5 defendant and I will simply tell you what the sentence would
6 be if I were free to impose a sentence without regard to the
7 guidelines. It would be the same sentence that other
8 defendants got on Count 1. It would be three years for the
9 assault and interference with search warrant counts, it would
10 be three years concurrent on those, and it would be a total of
11 10 years on the passport counts, five for the Nosair passport
12 and five for the remainder. However, I do not believe that
13 the guidelines leave me free to impose that sentence.
14 As a result, with an offense level of 43, the
15 sentences will be as follows: With respect to Count 1, 20
16 years; with respect to Counts 20, 21 and 22, three years each;
17 with respect to Counts 24 through 28, five years each, all of
18 those counts to run consecutively, for a total of 57 years.
19 Mr. El-Gabrowny will be placed on supervised release
20 for a period of three years. Following his release, should it
21 come, he will pay the costs of supervised release at such
22 time, if it comes, that his income exceeds $3,000 per month
23 after taxes, and then to the extent of 30 cents on the dollar
24 with adjustments for increases in the cost of living as of
25 today. I find that he is without the funds to pay either a
1 fine or the costs of imprisonment and accordingly neither of
2 those will be imposed. There is a mandatory $50 per count
3 special assessment for a total of $500 that I must impose and
4 do impose.
5 I advise Mr. El-Gabrowny, as I have others, that he
6 has a right to appeal both the sentence and the conviction,
7 and I will ask Mr. Ricco to file a notice of appeal in his
8 behalf. Is there anything else?
9 MR. FITZGERALD: Yes, your Honor. I think we need to
10 make clear for the record that Mr. Ricco and Mr. El-Gabrowny
11 had an adequate opportunity to review the PSI.
12 THE COURT: Mr. Ricco, you did review the presentence
13 report with your client, is that correct?
14 MR. RICCO: Yes, your Honor.
15 THE COURT: And you have made submissions to me in
16 that connection.
17 MR. RICCO: That is correct.
18 MR. FITZGERALD: Lastly, your Honor, I think you
19 didn't mention Count 23, but it is implicit in the 57 years,
20 that three years would be imposed in that count consecutively.
21 I think you skipped one count in reciting sentence.
22 THE COURT: Three years each on Counts 20, 21, 22 --
23 I am sorry -- and 23.
24 MR. FITZGERALD: Thank you.
25 THE COURT: Thank you.
1 (Defendant Ibrahim El-Gabrowny excused)
3 (Continued on next page)
1 (Defendant El Sayyid Nosair present)
2 THE CLERK: United States of America against Nosair.
3 Is the government ready?
4 MR. KHUZAMI: Ready, your Honor.
5 THE CLERK: Is the defendant ready?
6 MR. STAVIS: Ready, your Honor.
7 THE COURT: Mr. Khuzami, anything to tell me other
8 than what I have already got?
9 MR. KHUZAMI: Nothing, your Honor.
10 THE COURT: Mr. Stavis, you have reviewed the
11 presentence report with your client?
12 MR. STAVIS: Yes, your Honor, I have reviewed the
13 presentence report and we submitted a letter making certain
14 objections and recommendations. A revised presentence report
15 was drafted and I have also discussed the revised presentence
16 report with Mr. Nosair.
17 Your Honor, it was about four years ago just down the
18 street in state court that Mr. Nosair was acquitted by a state
19 jury of the murder of Rabbi Meir Kahane. He now appears
20 before your Honor for a sentence on a charge of murdering Meir
21 Kahane. Unlike the other defendants in the case we don't have
22 guidelines issues, and your Honor's obligation with regard to
23 sentence is clear. I have raised the double jeopardy issue
24 with the court. The court has denied my application. The
25 Second Circuit has affirmed your Honor's order and the Supreme
1 Court of the United States has denied certiorari on that
3 A lot has been said and written about Mr. Nosair,
4 your Honor. I was reminded just a few minutes ago that in the
5 World Trade Center case, I believe it was Austin Campriello
6 made a Rule 403 motion concerning the use of Mr. Nosair's
7 name, deeming it so prejudicial that Mr. Nosair's name should
8 not be uttered at the World Trade Center trial in connection
9 with Mr. Campriello's client at that trial.
10 Mr. Nosair has been so reviled, in the media and from
11 certain witnesses who appeared here at this trial, I would
12 note that the presentence report, your Honor, at page 50,
13 Miss La Covara stated, and I quote, "In his dealings with
14 other individuals inclusive of the undersigned" -- Miss La
15 Covara -- "Mr. Nosair has strived to depict himself as an
16 affable, conciliatory individual. While those may indeed be
17 surface attributes, a realistic impression of the defendant is
18 that of a ruthless, calculating and duplicitous person who is
19 not hesitant to kill others for the purpose of perpetuating
20 his Islamic beliefs."
21 It is my request of the court that that rancor be put
22 aside and that the court sentence Mr. Nosair not for who he is
23 but for what the jury has found he did. Because when it comes
24 to who he is, your Honor, I submit that the presentence report
25 and all those who have reviled him in the media and in this
1 courtroom have it wrong.
2 Who is he, your Honor? He is the man that your Honor
3 thanked from that very bench on November 22, 1994, for his
4 role in, as the court saiddeplored, "diffusing the situation"
5 and urging his codefendant and colleague Sheik Omar Abdel Ali
6 Rahman to seek the medical treatment that he needed at that
8 He is the man who in a letter to the New York Times
9 that was published on March 4 of 1994, deplored the, quote,
10 "cycle of violence." That was his response to the massacre at
11 the Cave of the Patriarchs in Hebron, in Israel.
12 He is the man, your Honor, who just about two months
13 ago received a letter: "Thank you for your heartfelt letter
14 of sympathy for the late Prime Minister and Minister of
15 Defense Yitszak Rabin. Your kind words show all of us the
16 strong bond of friendship between us. I would like to express
17 my sincere appreciation and gratitude. Thank you. Sincerely
18 Shlomo Gur, Minister, Deputy Chief of Mission, Embassy of
19 Israel, Washington, D.C."
20 Mr. Nosair is ready to proceed to sentence, and all I
21 ask your Honor is that you sentence him for what the jury
22 found he has done, and not for who he is.
23 I believe Mr. Patel has additional remarks, your
25 THE COURT: Mr. Patel.
1 MR. PATEL: Your Honor, we are aware and Mr. Nosair
2 is aware that there are no guidelines issues, that your Honor
3 has to impose the sentence of life without parole, and that
4 Mr. Nosair will be spending the rest of his life primarily in
5 a room approximately a third of the size of this jury box. My
6 request, your Honor, and it is only a request, that you
7 recommend, and I understand that it is not within the court's
8 power to order but that you recommend that he be in a facility
9 in the northeast so that he can maintain the relationship that
10 he has somehow managed to maintain with his 10 and 12-year-old
11 sons and his 16-year-old stepdaughter. That is our only
12 request, your Honor.
13 Mr. Nosair is a complex man. Your Honor has to
14 impose the maximum sentence of life imprisonment and we just
15 ask for this courtesy on behalf of himself and his children.
16 Thank you.
17 THE COURT: Mr. Nosair, is there anything you want to
18 tell me before I impose sentence?
19 DEFENDANT EL SAYYID NOSAIR: Yes, your Honor. In the
20 name of Allah, the gracious, the merciful, the honorable Judge
21 Michael Mukasey.