Sentencing Statements; U.S. v. Omar Abdel Rahman et al; S5 93 Cr. 181 (MBM)

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1 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

2 ------------------------------x

UNITED STATES OF AMERICA,

3 v.

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,

a/k/a "Khalid,"

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,"

AMIR ABDELGANI,

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,"

TARIG ELHASSAN,

16 a/k/a "Abu Aisha,"

FADIL ABDELGANI,

17 MOHAMMED SALEH,

a/k/a "Mohammed Ali,"

18 VICTOR ALVAREZ,

a/k/a "Mohammed," and

19 MATARAWY MOHAMMED SAID SALEH,

a/k/a "Wahid,"

Defendants.

21 ------------------------------x

January 17, 1996

22 9:15 a.m.

Before:

HON. MICHAEL B. MUKASEY,

District Judge

2 APPEARANCES

4 MARY JO WHITE

United States Attorney for the

5 Southern District of New York

BY: ANDREW McCARTHY

6 PATRICK FITZGERALD

ROBERT KHUZAMI

7 Assistant United States Attorneys

ABDEEN M. JABARA

9 LYNNE STEWART and

Attorneys for Defendant Omar Ahmad Ali Abdel Rahman

11 ROGER STAVIS and

ANDREW PATEL

12 Attorneys for Defendant El Sayyid Nosair

ANTHONY RICCO

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

APPEARANCES CONTINUED

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

7 Goldstein.

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

1 religion.

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

11 tracts.

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

22 sentence?

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

6 charges.

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

20 this.

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

11 86.

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

3 here.

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

16 not.

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

17 anything.

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

21 training.

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

24 wishes.

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

20 done.

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

19 wrong.

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

14 that.

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

2 Bosnia.

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

18 dollar.

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

22 behalf.

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

7 justified.

8 MR. McCARTHY: Thank you.

9 (Defendant Mohammed Saleh excused)

10 (Pause)

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

4 add?

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

20 point.

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

9 that.

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

18 him.

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

2 fire.

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

6 others.

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

25 substances.

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

15 range.

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

14 conviction.

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)

20 (Pause)

21 (Continued on next page)