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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,"

            20

                                Defendants.

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

                                                        January 17, 1996

            22                                          9:15 a.m.

                 Before:

            23

                          HON. MICHAEL B. MUKASEY,

            24

                                                         District Judge

            25

 

 

 


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             2                            APPEARANCES

 

             3

 

             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

 

             8

                 ABDEEN M. JABARA

             9   LYNNE STEWART and

                      Attorneys for Defendant Omar Ahmad Ali Abdel Rahman

            10

 

            11   ROGER STAVIS and

                 ANDREW PATEL

            12        Attorneys for Defendant El Sayyid Nosair

 

            13

                 ANTHONY RICCO

            14        Attorney for Defendant Ibrahim A. El-Gabrowny

 

            15

                 KENNETH D. WASSERMAN

            16        Attorney for Defendant Clement Hampton-El

 

            17

                 STEVEN M. BERNSTEIN

            18        Attorney for Defendant Amir Abdelgani

 

            19

                 VALERIE C. AMSTERDAM

            20        Attorney for Defendant Fares Khallafalla

 

            21

                 JOYCE E. LONDON

            22        Attorney for Defendant Tarig Elhassan

 

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                                     APPEARANCES CONTINUED

             2

 

             3

                 GROSSMAN, LAVINE & RINALDO

             4        Attorneys for Defendant Fadil Abdelgani

                 BY:  CHARLES D. LAVINE

             5

 

             6   JOHN H. JACOBS

                      Attorney for Defendant Mohammed Saleh

             7

 

             8   BROWN, BERNE & SERRA

                      Attorneys for Defendant Victor Alvarez

             9   BY:  WESLEY M. SERRA

 

            10

                 FOUAD KHEIR, Arabic Interpreter

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             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

 

 

 


                                                                          5

 

 

 

             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

 

 

 


                                                                          6

 

 

 

             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

 

 

 


                                                                          7

 

 

 

             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

 

 

 


                                                                          8

 

 

 

             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

 

 

 


                                                                          9

 

 

 

             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.

 

 

 


                                                                          10

 

 

 

             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.

 

 

 


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             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

 

 

 


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             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

 

 

 


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             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

 

 

 


                                                                          14

 

 

 

             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

 

 

 


                                                                          15

 

 

 

             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,

 

 

 


                                                                          16

 

 

 

             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?

 

 

 


                                                                          17

 

 

 

             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

 

 

 


                                                                          18

 

 

 

             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.

 

 

 


                                                                          19

 

 

 

             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

 

 

 


                                                                          20

 

 

 

             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.

 

 

 


                                                                          21

 

 

 

             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

 

 

 


                                                                          22

 

 

 

             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

 

 

 


                                                                          23

 

 

 

             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.

 

 

 


                                                                          24

 

 

 

             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

 

 

 


                                                                          25

 

 

 

             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

 

 

 


                                                                          26

 

 

 

             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

 

 

 


                                                                          27

 

 

 

             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

 

 

 


                                                                          28

 

 

 

             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

 

 

 


                                                                          29

 

 

 

             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

 

 

 


                                                                          30

 

 

 

             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

 

 

 


                                                                          31

 

 

 

             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.

 

 

 


                                                                          32

 

 

 

             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.

 

 

 


                                                                          33

 

 

 

             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.

 

 

 


                                                                          34

 

 

 

             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

 

 

 


                                                                          35

 

 

 

             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)

 

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            13

 

            14

 

            15

 

            16

 

            17

 

            18

 

            19

 

            20

 

            21

 

            22

 

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                                                                          36

 

 

 

             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

 

 

 


                                                                          37

 

 

 

             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

 

 

 


                                                                          38

 

 

 

             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

 

 

 


                                                                          39

 

 

 

             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)

 

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             9

 

            10

 

            11

 

            12

 

            13

 

            14

 

            15

 

            16

 

            17

 

            18

 

            19

 

            20

 

            21

 

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                                                                          40

 

 

 

             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

 

 

 


                                                                          41

 

 

 

             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

 

 

 


                                                                          42

 

 

 

             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

 

 

 


                                                                          43

 

 

 

             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.

 

 

 


                                                                          44

 

 

 

             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

 

 

 


                                                                          45

 

 

 

             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

 

 

 


                                                                          46

 

 

 

             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

 

 

 


                                                                          47

 

 

 

             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.

 

 

 


                                                                          48

 

 

 

             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

 

 

 


                                                                          49

 

 

 

             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

 

 

 


                                                                          50

 

 

 

             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

 

 

 


                                                                          51

 

 

 

             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.

 

 

 


                                                                          52

 

 

 

             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.

 

 

 


                                                                          53

 

 

 

             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)

 

            12

 

            13

 

            14

 

            15

 

            16

 

            17

 

            18

 

            19

 

            20

 

            21

 

            22

 

            23

 

            24

 

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                                                                          54

 

 

 

             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

 

 

 


                                                                          55

 

 

 

             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.

 

 

 


                                                                          56

 

 

 

             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

 

 

 


                                                                          57

 

 

 

             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

 

 

 


                                                                          58

 

 

 

             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.

 

 

 


                                                                          59

 

 

 

             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

 

 

 


                                                                          60

 

 

 

             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

 

 

 


                                                                          61

 

 

 

             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

 

 

 


                                                                          62

 

 

 

             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.

 

 

 


                                                                          63

 

 

 

             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

 

 

 


                                                                          64

 

 

 

             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.

 

 

 


                                                                          65

 

 

 

             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.

 

 

 


                                                                          66

 

 

 

             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

 

 

 


                                                                          67

 

 

 

             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

 

 

 


                                                                          68

 

 

 

             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

 

 

 


                                                                          69

 

 

 

             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.

 

 

 


                                                                          70

 

 

 

             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

 

 

 


                                                                          71

 

 

 

             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

 

 

 


                                                                          72

 

 

 

             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)

 

            22

 

            23

 

            24

 

            25

 

 

 


                                                                          73

 

 

 

             1            (Defendant Tarig Elhassan present)

 

             2            THE CLERK:  United States of America versus Tarig

 

             3   Elhassan.  Government ready?

 

             4            MR. McCARTHY:  The government is ready, your Honor.

 

             5            THE CLERK:  Defendant ready?

 

             6            MS. LONDON:  The defendant is ready, your Honor.

 

             7   Good morning, your Honor.

 

             8            THE COURT:  Good morning.

 

             9            Mr. McCarthy, is there anything that you want to tell

 

            10   me other than what I already have before me?

 

            11            MR. McCARTHY:  No, your Honor.

 

            12            THE COURT:  Ms. London, you have reviewed the

 

            13   presentence report with your client?

 

            14            MS. LONDON:  Yes, I have, your Honor.

 

            15            THE COURT:  And you have made a submission on that

 

            16   and we have discussed it.

 

            17            MS. LONDON:  Yes, your Honor.

 

            18            THE COURT:  All right.  Go ahead.

 

            19            MS. LONDON:  Your Honor, without belaboring the

 

            20   record, I would like to adopt Mr. Serra's arguments on the

 

            21   downward departure on behalf of Mr. Elhassan.  Although I

 

            22   realize that Mr. Elhassan is somewhat differently situated,

 

            23   and I would not argue to the court for one moment that he has

 

            24   any kind of diminished capacity, I do believe that the

 

            25   circumstances could justify a downward departure in his case

 

 

 


                                                                          74

 

 

 

             1   in light of the of the tremendous inducement and pressure that

 

             2   were put on him and others in the circumstances of his

 

             3   situation here in this country where he was lonely, isolated

 

             4   and alienated, and the government agent Emad Salem took

 

             5   eminent advantage of that, as did Siddig Ali.  So I would make

 

             6   it on the grounds of his vulnerability there and his ability

 

             7   to implicitly trust fellow Muslims.

 

             8            I would also like to address the obstruction of

 

             9   justice issue, your Honor.

 

            10            THE COURT:  Go ahead.

 

            11            MS. LONDON:  Under guideline 3C1.1, Mr. Elhassan's

 

            12   testimony should be evaluated in the light most favorable to

 

            13   the defendant.  In his testimony, Mr. Elhassan admitted all

 

            14   the statements attributed to him in the tapes, admitted to

 

            15   participating in the acts that were described in the evidence.

 

            16   What he put before the jury in his testimony was his state of

 

            17   mind and the events that led him to be in that situation.  He

 

            18   had no other way to put that state of mind defense before the

 

            19   jury other than to tell them what was happening in his mind.

 

            20            The fact that the jury has by their verdict rejected

 

            21   does not compel a finding of obstruction of justice, your

 

            22   Honor.  It is for the court to weigh that evidence, and if the

 

            23   court has no firm conviction, there should be no obstruction

 

            24   of justice.

 

            25            I believe that the extrinsic evidence is consistent

 

 

 


                                                                          75

 

 

 

             1   with Mr. Elhassan's testimony, your Honor.  He is not an

 

             2   educated man, although he did have schooling in the Sudan.

 

             3   But he is not a sophisticated person.  His very situation, as

 

             4   I have already stated to the court, made him vulnerable to

 

             5   inducement.  The testimony was very clear from all the

 

             6   government's witnesses that Mr. Elhassan found himself in

 

             7   Pennsylvania training to go to Bosnia, and over the next few

 

             8   months those intentions would appear to have been subverted.

 

             9            Does the court wish me to address other issues?

 

            10            THE COURT:  You can address whatever issues you wish.

 

            11   You have addressed the obstruction issue, which I think was

 

            12   the only open issue, at least in my mind, with respect to your

 

            13   client.

 

            14            MS. LONDON:  Your Honor, I would also note that I had

 

            15   taken exception to the court's ruling that Mr. Elhassan was to

 

            16   be granted no minor role, and again ask the court to revisit

 

            17   that issue for Mr. Elhassan.  The evidence showed that his

 

            18   first participation occurred on the evening of June 19, just

 

            19   four days before his arrest.  He had participated in none of

 

            20   the events described before that.  He was at the safe house on

 

            21   the nights of June 19, very briefly June 20, June 21, and in

 

            22   the night of his arrest, when he was again seen on the

 

            23   videotape.  His involvement there on those nights was limited

 

            24   to the discussions in the long tape recordings that we heard.

 

            25            Given the scope of the seditious conspiracy, I would

 

 

 


                                                                          76

 

 

 

             1   ask the court to revisit the minor role for Mr. Elhassan.

 

             2            The only other comments I have to make, your Honor,

 

             3   are general ones, which I can make after the court has ruled

 

             4   on these.

 

             5            THE COURT:  I am not going to adjust for minor role,

 

             6   and as far as the obstruction, I have heard your comments and

 

             7   I will rule on them before the sentence.  Is there anything

 

             8   else you want to tell me?

 

             9            MS. LONDON:  Yes, your Honor.  Your Honor heard my

 

            10   client's testimony when he took the stand, and I think it

 

            11   deserves mention to the court that after he came here from an

 

            12   upbringing in a very rural area of the Sudan, as he said,

 

            13   where a ditch ran through the tribal village to supply them

 

            14   with water, no telephones, a very large extended family, he

 

            15   arrived in New York and spent his first few years here doing

 

            16   charity work, doing work that many of us would certainly

 

            17   rather avoid.  He worked at St. Francis Friends of the Poor

 

            18   and, as a witness Bill Antalics described, he also worked for

 

            19   the Catholic Worker.  Of all the witnesses who appeared for

 

            20   Mr. Elhassan, they were all adamant about his good heartness,

 

            21   his kindness and his compassion.  There were also witnesses

 

            22   who talked about how he was willing to teach, teach Arabic at

 

            23   a kind of self-help project, University of the Streets.  This

 

            24   picture of a kind-hearted, compassionate person is borne out

 

            25   by the description given by his wife to the Probation

 

 

 


                                                                          77

 

 

 

             1   Department in his presentence report.  She described him as

 

             2   friendly, jovial, kind, brave, and not afraid to get in the

 

             3   position to benefit of others.  This is a view that his family

 

             4   and friends had of him.  I have had dealings with Mr. Elhassan

 

             5   over the last two and a half years and he has expressed on

 

             6   numerous occasions the compassion and concern, and I have seen

 

             7   it, that he does have for others.  But he now stands before

 

             8   this court to be sentenced on a very serious crime.

 

             9            I would just reiterate, in sentencing him, your

 

            10   Honor, that you take into consideration the efforts of Emad

 

            11   Salem and Siddig Ali to prey upon compatriots, who were the

 

            12   most vulnerable, those who were alienated, isolated, and

 

            13   looked to their mosques and their masjids for some contact

 

            14   with their roots.  Emad Salem and Siddig Ali knew how to take

 

            15   advantage of just this kind of person.

 

            16            THE COURT:  Thank you, Ms. London.

 

            17            Mr. Elhassan, is there anything you want to tell me

 

            18   before I impose sentence?

 

            19            DEFENDANT TARIG ELHASSAN:  Yes.

 

            20            THE COURT:  Go ahead.

 

            21            DEFENDANT TARIG ELHASSAN:  (Through interpreter)  In

 

            22   the name of God the merciful, the compassionate, thanks be to

 

            23   God, the God of two worlds, blessings and peace be upon the

 

            24   most honest of the messengers, Mohammed, the son of Abdul

 

            25   Allah, blessings and peace be upon, on Moses, son of Omran,

 

 

 


                                                                          78

 

 

 

             1   peace and blessings be upon, on Jesus, son of Miriam and

 

             2   Issiah.

 

             3            And then, peace be upon those who accepted guidance,

 

             4   and I am in this position here, I have to tell you that this

 

             5   is for the second time as I have stood while a witness during

 

             6   the trial to tell you that I am innocent, and I insist on

 

             7   that.  And thanks be to God, God of the two worlds, and now

 

             8   while sitting before your Honor, I don't carry against you any

 

             9   bother or anger, and those that represent the government, the

 

            10   attorneys, the prosecutor, not even against them.

 

            11            Thanks be to God, God of the two worlds, and I have

 

            12   lived in this country and I have loved its people with

 

            13   sincerity.  I lived among them and with them, and now I have

 

            14   been put in this circumstances which you know more about than

 

            15   myself.  I still carry the same love and the same appreciation

 

            16   of these people.  I mean the people of America.

 

            17            And the last thing I will say is that thanks be to

 

            18   God, God of the two worlds, and I confess that there is no God

 

            19   but God, and I also say that God is the truth, the only truth,

 

            20   and that he puts life into death, and that eternity will come,

 

            21   and that is for sure, and that God will put life in those who

 

            22   are in the tombs, and blessings be upon those who accepted the

 

            23   guidance.

 

            24            Thank you very much.

 

            25            THE COURT:  All right.  Ms. London said that

 

 

 


                                                                          79

 

 

 

             1   Mr. Elhassan ought to have an adjustment for his role in the

 

             2   offense based in part on his having been vulnerable and an

 

             3   immigrant to this country and vulnerable to suasion.  Many

 

             4   immigrants to this country are vulnerable.  They don't express

 

             5   that vulnerability by agreeing to participate in bombings to,

 

             6   in the defendant's own words, bring down the United States.

 

             7   With respect to his testimony, it contradicted directly his

 

             8   own statements recorded on tape.  It is true, as you say, that

 

             9   he put in issue his knowledge, but his knowledge was expressed

 

            10   perhaps as explicitly or more explicitly than the knowledge of

 

            11   virtually any other defendant in this case, and accordingly,

 

            12   based on the tape recorded conversations in which he is heard

 

            13   expressing the view that he wants to bring down the United

 

            14   States, based on the tape recorded conversation in which he

 

            15   offers to obtain engineering information about tunnels so as

 

            16   to maximize the destruction, it is quite clear that his

 

            17   testimony was simply an attempt to lie his way around the

 

            18   evidence.  Accordingly, I am going to impose a 2-point

 

            19   enhancement for obstruction as well.

 

            20            He was convicted on Counts 1, 5 and 6.  Count 1,

 

            21   seditious conspiracy; Count 5 bombing conspiracy; and Count 6,

 

            22   attempted bombing.  He, as other defendants before him, came

 

            23   late to this offense at a time when it was, at least from his

 

            24   standpoint, an inchoate offense.  So I am deducting three

 

            25   points from that to a level 40.  But I am adding 2 points

 

 

 


                                                                          80

 

 

 

             1   under 3C1.1 for obstruction, which brings it to level 42,

 

             2   which is a range of 360 months to life.

 

             3            Mr. Elhassan, the sentence is as follows:  With

 

             4   respect to Count 1, 20 years; with respect to Count 5, five

 

             5   years; with respect to Count 6, 10 years, those sentences to

 

             6   be served consecutively, for a total of 35 years.

 

             7            He will be placed on supervised release for a period

 

             8   of three years, during which he will follow all lawful orders

 

             9   of the INS and not possess any weapons.  I find that he is

 

            10   without the funds to pay either a fine or the costs of

 

            11   imprisonment and accordingly neither of those will be imposed.

 

            12   The costs of supervised release will be paid when, if it ever

 

            13   happens, he earns $2,500 or more after taxes, adjusted for a

 

            14   cost of living from this day forward, and then to the extent

 

            15   of 30 cents on the dollar.

 

            16            I have chosen a range at the upper end of the

 

            17   permissible range because of the enormity of the crimes to

 

            18   which he voluntarily agreed.

 

            19            There is a mandatory $50 per count special assessment

 

            20   for a total of $150 which I must impose and do impose.

 

            21            I advise Mr. Elhassan that he has a right to appeal

 

            22   and I will ask Ms. London to file a notice of appeal on his

 

            23   behalf.

 

            24            Thank you.

 

            25            MS. LONDON:  Your Honor, one other matter.

 

 

 


                                                                          81

 

 

 

             1   Mr. Elhassan has a wife and three children who are in poor

 

             2   economic circumstances.  I would ask if the court would

 

             3   recommend a designation in the northeast area for Mr. Elhassan

 

             4   so that in the next 35 years he will have an opportunity to be

 

             5   visited by his wife and family.

 

             6            THE COURT:  I will recommend that.  I will tell you

 

             7   that while my recommendations in the past have always been

 

             8   treated politely, they have not always been adhered to.  In

 

             9   fact, I would say more often than not they are not.  But I

 

            10   will make that recommendation.

 

            11            MS. LONDON:  Thank you, Judge.

 

            12            (Defendant Tarig Elhassan excused)

 

            13            (Pause)

 

            14            (Continued on next page)

 

            15

 

            16

 

            17

 

            18

 

            19

 

            20

 

            21

 

            22

 

            23

 

            24

 

            25

 

 

 


                                                                          82

 

 

 

             1            (Defendant Fares Khallafalla present)

 

             2            THE CLERK:  United States of America versus

 

             3   Khallafalla.  Government ready?

 

             4            MR. McCARTHY:  The government is ready.

 

             5            THE CLERK:  Defendant ready?

 

             6            MS. AMSTERDAM:  Ready, your Honor.

 

             7            THE COURT:  Mr. McCarthy, is there anything you want

 

             8   to tell me other than what is already before me?

 

             9            MR. McCARTHY:  No, thank you, your Honor.

 

            10            THE COURT:  Miss Amsterdam.

 

            11            MS. AMSTERDAM:  Your Honor, if it is acceptable to

 

            12   the court I would like to first address my general remarks to

 

            13   you and then the particular legal issues.

 

            14            THE COURT:  That is fine.  First, you have had a

 

            15   chance to review the presentence report with Mr. Khallafalla

 

            16   and you have made a submission to me.

 

            17            MS. AMSTERDAM:  I have, your Honor.  Thank you.

 

            18            I would like to speak at this time of sentencing on a

 

            19   personal level about my client because I think this is that is

 

            20   the most relevant factor for the court to consider in terms of

 

            21   sentencing.  As your Honor undoubtedly recalls, my client

 

            22   comes from a small town in the Sudan where he was raised by an

 

            23   intact family, very loving, with a father who was a great if

 

            24   an of the United States.  In fact, the nickname for his father

 

            25   was the cowboy, because he really seemed to love all things

 

 

 


                                                                          83

 

 

 

             1   American.  As a child my client Fares Khallafalla went to

 

             2   Episcopalian schools.  He wore uniforms.  I have photographs

 

             3   of those.  He was active in sports, he was active in the

 

             4   student council.  He was very much impressed with things

 

             5   American.  They attended movies every Thursday night.  They

 

             6   saw John Wayne movies or other westerns.

 

             7            He recalled to me or recited to me a time that the

 

             8   government made a shift to a more religious posture and my

 

             9   client and his parents campaigned for a more democratic

 

            10   government in the Sudan.  My client talked about one time the

 

            11   government having outlawed Pepsi-Cola as being an American

 

            12   product, and that he had gone out and hoarded all the

 

            13   available Pepsi-Cola under his bed because he loved the

 

            14   product.

 

            15            Those are nice little vignettes and they don't really

 

            16   address issues of sentencing but they give you some insight

 

            17   into a person who did not come to this country intent upon in

 

            18   any way waging a war against us or against the people here.

 

            19   He came to this country intending to go to school, and I am

 

            20   sure your Honor recalls my statements at various times that he

 

            21   had come here, he couldn't be placed in an appropriate college

 

            22   in the Sudan, he had gotten admissions to a college in Kansas,

 

            23   and when he came here not speaking any English, extended

 

            24   family members persuaded him that that was probably not the

 

            25   appropriate place for him to go and that he should stay in the

 

 

 


                                                                          84

 

 

 

             1   metropolitan area, work, earn money and perhaps at some future

 

             2   date enroll in a local college.  That he did.  He worked

 

             3   steadily during the time he was here.

 

             4            He was not on overly religious person.  He attended

 

             5   dance clubs, smoked cigarettes, had a girlfriend that he was

 

             6   engaged to, and that relationship did not work out.  At that

 

             7   point he made a decision, as do many young people based on a

 

             8   crisis situation, that he would return to the church, that he

 

             9   would attempt to have some guidance by going back to the

 

            10   church.  Unfortunately, I think, for him, the mosque that was

 

            11   three blocks from his house was a mosque which turned out to

 

            12   be the center of some type of political activity, for want of

 

            13   a better word.  There he met Siddig Ali, a man that he greatly

 

            14   admired.  Siddig Ali chastised him repeatedly for the fact

 

            15   that he had cigarettes.  Fares used to hide his cigarettes

 

            16   underneath the front seat of the car.  He would change the

 

            17   radio to 1010 WINS to prove to Siddig that he was a respected

 

            18   religious Muslim.  Fares organized an Independence Day

 

            19   celebration and Siddig walked out on it because there was

 

            20   dancing.

 

            21            As a result of that, his relationship with Siddig

 

            22   ended for a period of time, and I think that is the reason

 

            23   that there is no reference to Mr. Khallafalla ever going to

 

            24   any of the other training sessions.  He was simply not viewed

 

            25   as being good enough to do that.

 

 

 


                                                                          85

 

 

 

             1            Sometime in the spring of 1993, Siddig returns.  My

 

             2   client makes attempts to prove to him that he is worthy of

 

             3   their friendship, and he begins driving a car and taking

 

             4   Siddig to various locations.  As your Honor is aware, that is

 

             5   also the period of time in which Siddig befriended Emad Salem.

 

             6   I am not going to reiterate the comments that Miss London

 

             7   said, but I do join in the basic premise that there was a lot

 

             8   of pressure on Siddig Ali and, through him, other defendants,

 

             9   in terms of taking part in paramilitary training exercises.

 

            10            I think that the court does remember that Emad Salem

 

            11   said repeatedly to Siddig Ali, I'll get the house, I'll pay

 

            12   the rent, I'll provide the technical expertise, what you must

 

            13   do is bring me your men.  I think that all of us who sat

 

            14   through nine months of the trial do appreciate that Siddig Ali

 

            15   had some sense of delusions of grandeur, and I think that he

 

            16   made attempts to round up people who weren't his men in the

 

            17   sense that they were soldiers in an existing jihad army but

 

            18   men that were compliant, were willing to follow him.  That is

 

            19   not to say that they didn't do wrong, but it is to say that at

 

            20   the beginning there wasn't this predisposition to join a jihad

 

            21   army and wage war against America.  In fact, all of the

 

            22   indications about my client are to the contrary.

 

            23            During the course of this trial I had an opportunity

 

            24   to go out and speak to neighbors where his apartment was

 

            25   located, and lower middle class working people in Jersey City

 

 

 


                                                                          86

 

 

 

             1   who were not Muslims, who were Catholics or Protestants,

 

             2   talked about how kind Fares was.  One elderly man told me that

 

             3   in a snowstorm Fares had shoveled his walk.  Another woman

 

             4   told me that Fares had gone to the grocery store and bought

 

             5   her groceries for her.  This is an indication that he as a

 

             6   person before these circumstances collided did not have any

 

             7   anger or antagonism towards this country or its people.  In

 

             8   fact, at one point when I first met Fares and I was speaking

 

             9   to him about his political convictions, I asked him how he

 

            10   came to pick America as the country to come to, and he looked

 

            11   at me somewhat dumbfounded and said what do you mean, America

 

            12   is the tops, it's the tops in the world, and I think that he

 

            13   held to that belief.

 

            14            Yesterday I made a request for a downward downward

 

            15   based on role adjustment and I understand and we have to

 

            16   agree, I think, to part company on what the circumstances of

 

            17   the meaning of the conversation the last night were.  But I do

 

            18   believe that you see indications throughout the entire course

 

            19   of Mr. Khallafalla's involvement which spread over a several

 

            20   week period of time that he was less than committed to the

 

            21   actions that were to take place.  Even after the first night

 

            22   of the safe house, he doesn't go back the next day.  He

 

            23   doesn't go out to scout targets, he doesn't take part in any

 

            24   other meetings.  Weeks go by, two weeks go by.

 

            25            According to Emad Salem, he next runs into Fares by

 

 

 


                                                                          87

 

 

 

             1   chance at a mosque and they agree to go to Canal Street.  In

 

             2   the recording of the conversation at Canal Street, Emad says

 

             3   you started off hot but you cooled off, a clear indication

 

             4   that Fares was not involved in the several week period of time

 

             5   after first going to the safe house.

 

             6            I am not here to argue against the verdict.  I am

 

             7   here, however, to state to your Honor that this is a person

 

             8   who throughout the course of the charged conspiracy looked to

 

             9   be less than committed to seeing it through.  He was

 

            10   consistently late to meetings.  There are numbers of instances

 

            11   in which he is not recorded in conversations because he comes

 

            12   very late.  Again an indication that he was less than fully

 

            13   committed.  When told to go out and steal cars, he steadfastly

 

            14   at one point refuses to do it and says to Siddig Ali why don't

 

            15   you do it, why don't you do it.  They criticize him, and then

 

            16   there comes the moment in which he leaves.  I won't reargue

 

            17   what I said yesterday and I understand that your Honor

 

            18   believes that Mr. Khallafalla's statements were meant to be

 

            19   mocking of Mr. Alvarez.  But nonetheless, no one disputes the

 

            20   fact that Siddig Ali says to Fares, not to Victor, not to

 

            21   anyone else, take a vacation, take a couple of days, three,

 

            22   four days, take a vacation.  That does not seem to be

 

            23   consistent with what you would have your trained right-hand

 

            24   man doing at the point that you are hours away from

 

            25   instituting your plan.  This is two days before the arrest,

 

 

 


                                                                          88

 

 

 

             1   this is one day before they get the oil, one day before they

 

             2   do the mixing, and Siddig Ali says to Fares take a vacation,

 

             3   Fares, three, four days.

 

             4            THE COURT:  Isn't there a question about whether that

 

             5   was said also about Mr. Alvarez?

 

             6            MS. AMSTERDAM:  No.  Correct me if I am wrong but I

 

             7   don't believe there is any indication but that the "take a

 

             8   vacation, Fares" was aimed at Fares.

 

             9            MR. McCARTHY:  It is the government's position that

 

            10   he was asked to take a vacation so that they could finish the

 

            11   issue of the stolen cars.

 

            12            THE COURT:  Go ahead.

 

            13            MS. AMSTERDAM:  In any event, whatever the motivation

 

            14   is, on the eve of the grand plan it is this person who is

 

            15   asked to take a vacation and it is Fares Khallafalla who does

 

            16   not return and takes no future steps to get cars, to get oil,

 

            17   to get detonators, to take part in the mixing.

 

            18            It is most significant to me, and, you know, I am

 

            19   sorry, this is clearly the last time I will say these words

 

            20   but it is significant to me that the people most in the know,

 

            21   Emad Salem and Siddig Ali, were forced to say in a private

 

            22   conversation Fares is not a Fares.  As we all know, fares

 

            23   means a soldier.  That might mean that he is an inept soldier

 

            24   or less than committed soldier, but by their definition there

 

            25   on a day-to-day basis, they say Fares is not a Fares, and I

 

 

 


                                                                          89

 

 

 

             1   believe we have to give some credence and some weight to that

 

             2   statement.

 

             3            I stand by my statements throughout this trial that I

 

             4   believe that Mr. Khallafalla became involved in the events

 

             5   that led up to these charges because he originally believed

 

             6   that they were training for Bosnia, and I stand by my

 

             7   statement that maybe he could have taken more forceful steps

 

             8   but that in the end he left.  I think that life teaches us,

 

             9   unfortunately, that it is very often a lot easier to get

 

            10   involved in difficult situations than it is to extricate

 

            11   yourself from it.  I nonetheless stand by my statement that he

 

            12   took some efforts to extricate himself from the involvement in

 

            13   this case.

 

            14            He was arrested at home.  There are no explosives,

 

            15   there are no weapons, there is no plan.  Significantly, there

 

            16   are no materials at all which suggest any antagonism or any

 

            17   anger towards America or its people.  As I have said,

 

            18   neighbors described him as friendly and kind.  I believe that

 

            19   this is a hard-working immigrant who came from a good family,

 

            20   who through a set of circumstances, personal circumstances,

 

            21   found himself in probably the most dangerous mosque that he

 

            22   could have found himself to have attended.

 

            23            While I take no position on the involvement of Sheik

 

            24   Omar Abdel Rahman, if the government's version is true and

 

            25   this was the person who was the head of a terrorist army, it

 

 

 


                                                                          90

 

 

 

             1   is it is ironic but sad that this was the mosque that my

 

             2   client chose to go to, and I think that he showed no

 

             3   indication prior to the end of May of having any interest in

 

             4   politics or religion and that he found himself in a set of

 

             5   circumstances that he should have taken more action to remove

 

             6   himself from but nonetheless did not fully share completely in

 

             7   the intentions of other persons there.

 

             8            Regarding the obstruction, I have reviewed the

 

             9   government's letter and the only factual statement that they

 

            10   make in regard to my client is that his disavowing situation

 

            11   in the crimes against the daunting weight of the evidence,

 

            12   saying that he was only interested in training for Bosnia, was

 

            13   clearly absurd, is basically their position.  He did not

 

            14   testify at trial.  He came on for a very limited purpose in a

 

            15   post-trial hearing and he came on to testify to other portions

 

            16   of conversations that were not recorded, namely in the car on

 

            17   the way out to Queens and later in the mosque.  His portrayal

 

            18   of those conversations, namely that they were about training

 

            19   for Bosnia, is not inconsistent with the trial record.

 

            20   Mr. Salem said repeatedly in questioning to me yes, ma'am, I

 

            21   had many conversations with your client about Bosnia and

 

            22   training for Bosnia, and at one point about driving out to

 

            23   Queens, he did say that there was a time that they had talked

 

            24   about training.  Obviously he is not saying that is all that

 

            25   was talked about, but my client's statements taken in the

 

 

 


                                                                          91

 

 

 

             1   light most favorable to him are not wholly inconsistent with

 

             2   the record as delivered by Mr. Salem.

 

             3            On questioning by Mr. Fitzgerald there were some

 

             4   statements where my client disavowed hearing particular

 

             5   portions of conversations in the CM's, and I again stress to

 

             6   your Honor that I don't think that is inconsistent with the

 

             7   evidence at trial.  The videos showed that there were various

 

             8   times that Emad and Siddig spoke to themselves and the videos

 

             9   showed that there were many times in which long portions of

 

            10   conversations would go on without my client necessarily having

 

            11   been party to them.  I think that the jury could have

 

            12   returned -- in this case we don't have to address it, he

 

            13   didn't testify at the trial.  But I do think that the jury's

 

            14   verdict does not necessarily mean that the facts that he

 

            15   testified to at the hearing have no other possible conclusion

 

            16   than be seen to be perjurious.  I think that they are in the

 

            17   light most favorable to him to be regarded as arguably

 

            18   consistent, and I would most sincerely ask your Honor not to

 

            19   give him the obstruction and to place him at the lower

 

            20   guideline range, in part in recognition that I do believe what

 

            21   I said, that they are not necessarily perjurious, but in part

 

            22   to reflect that he had somewhat of a lesser role, in fact to

 

            23   reflect the statements of Emad Salem when he said Fares is not

 

            24   a Fares.  He may have been an incompetent Fares, he may have

 

            25   been a less than committed Fares, but that is a fact and

 

 

 


                                                                          92

 

 

 

             1   circumstance that your Honor should consider in fixing

 

             2   sentence.

 

             3            Thank you, sir.

 

             4            THE COURT:  Thank you.

 

             5            THE COURT:  Mr. Khallafalla, is there anything that

 

             6   you want to say to me before I impose sentence?

 

             7            DEFENDANT FARES KHALLAFALLA:  Thank you.

 

             8            THE COURT:  No?

 

             9            DEFENDANT FARES KHALLAFALLA:  No.

 

            10            THE COURT:  With regard to the statements Ms.

 

            11   Amsterdam made, I think it is clear that I am here not to

 

            12   judge the entirety of any defendant's life but simply to

 

            13   impose a sentence.  I am not a judge in that sense, I am here

 

            14   to impose a sentence based on acts that were proved at trial,

 

            15   and the acts that were proved at this trial were that

 

            16   Mr. Khallafalla was present for specific conversations about

 

            17   bombing, including a conversation that indicated that as a

 

            18   result of what these defendants wanted to do all of this

 

            19   country would be placed on alert, that he went out to buy

 

            20   timers that he thought would be used for that enterprise, that

 

            21   he went out to get cars that he thought would be used for that

 

            22   enterprise.  His testimony at the hearing was wildly

 

            23   inconsistent with that record.  It was also inconsistent not

 

            24   only with his own conduct and statements but inconsistent with

 

            25   the conduct and statements of Amir Abdelgani independently,

 

 

 


                                                                          93

 

 

 

             1   who was alleged to have been present at the same conversation

 

             2   that Mr. Khallafalla said involved Bosnia.  That testimony was

 

             3   plainly false.

 

             4            Mr. Khallafalla was convicted on Counts 1, 5 and 6:

 

             5   Count 1, seditious conspiracy; Count 5, bombing conspiracy,

 

             6   and Count 6, attempted bombing.  The guideline, the base

 

             7   offense level is level 43.  He, too, like others, came late to

 

             8   the conspiracy and therefore I am reducing it by three points

 

             9   to a level 40, but I am enhancing it by two points for

 

            10   obstruction, which is a level 42.  That yields a range of 360

 

            11   months to life.

 

            12            Mr. Khallafalla will be sentenced as follows:  With

 

            13   respect to Count 1, seditious conspiracy, 20 years; with

 

            14   respect to Count 5, bombing conspiracy, five years,

 

            15   concurrent; with respect to Count 6, attempted bombing, 10

 

            16   years, consecutive, for a total of 30 years.

 

            17            He will be placed on supervised release for a period

 

            18   of three years following his release, subject to the standing

 

            19   orders of this court, in addition to which he will obey all

 

            20   lawful orders of the INS and possess no weapons.

 

            21            I find that he is without the funds to pay a fine or

 

            22   the costs of imprisonment, and accordingly neither of those

 

            23   will be imposed.  He will pay the costs of supervised release

 

            24   at such time, if it comes, that his earnings exceed $2,500

 

            25   after taxes, allowing for an increase in the cost of living

 

 

 


                                                                          94

 

 

 

             1   from this date forward, and then to the extent of $30 cents on

 

             2   the dollar.  There is a mandatory $50 per count special

 

             3   assessment for a total of $150 that I must impose and do

 

             4   impose.

 

             5            I advise Mr. Khallafalla that he has a right to

 

             6   appeal and I ask Ms. Amsterdam to please file a notice of

 

             7   appeal in his behalf.

 

             8            MS. AMSTERDAM:  I will.

 

             9            THE COURT:  Is there anything else?

 

            10            MR. McCARTHY:  No.

 

            11            MS. AMSTERDAM:  Thank you, your Honor.

 

            12            (Defendant Fares Khallafalla excused)

 

            13            (Pause)

 

            14            (Continued on next page)

 

            15

 

            16

 

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            19

 

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             1            (Defendant Amir Abdelgani present)

 

             2            THE CLERK:  United States of America versus Amir

 

             3   Abdelgani.  Is the government ready?

 

             4            MR. McCARTHY:  We are ready, your Honor.

 

             5            THE CLERK:  Defendant ready?

 

             6            MR. BERNSTEIN:  Yes.

 

             7            THE COURT:  Mr. McCarthy, anything else you want to

 

             8   tell me before we proceed?

 

             9            MR. McCARTHY:  Yes, your Honor.  With respect to

 

            10   Mr. Amir Abdelgani, he unlike his codefendants presses for a

 

            11   downward adjustment for acceptance of responsibility.  He

 

            12   predicates that on the basis of plea discussions during the

 

            13   course of the case.  The government's position is that, number

 

            14   one, it would be inappropriate to reward uncompleted plea

 

            15   discussions in a case with a downward adjustment in any event,

 

            16   but certainly on the facts of this case, under the standards

 

            17   that apply under Section 3E1.1, the adjustment is not

 

            18   available.

 

            19            With respect to the 3-point adjustment, that is only

 

            20   available to a defendant who either timely provides the

 

            21   information to the government concerning his own involvement

 

            22   in the offense or timely notifies the authorities of his

 

            23   intention to enter a plea of guilty.  Neither of those applies

 

            24   in this case and the government could not make that

 

            25   representation.

 

 

 


                                                                          96

 

 

 

             1            With respect to whether he could ever merit the

 

             2   2-point reduction, I direct your Honor's attention to the

 

             3   application notes and specifically application note 2 of

 

             4   3E1.1, which indicates that the adjustment is generally not

 

             5   intended to apply to a defendant who puts the government to

 

             6   the burden of trial unless he is going to trial, generally

 

             7   speaking, to assert and preserve issues that do not relate to

 

             8   factual guilt.  The Amir Abdelgani defense in this case

 

             9   robustly challenged factual guilt and enthusiastically joined

 

            10   in the defenses presented by his codefendant.

 

            11            THE COURT:  Mr. Bernstein, you have reviewed the

 

            12   presentence report with your client and you have made a

 

            13   submission to me on that?

 

            14            MR. BERNSTEIN:  Yes, I have, your Honor.  We made a

 

            15   submission and certain corrections were made by the Probation

 

            16   Department pursuant to certain factual data.

 

            17            THE COURT:  Go ahead.

 

            18            MR. BERNSTEIN:  Your Honor, at the outset let me just

 

            19   say that my interruption of the proceedings in regard to my

 

            20   argument on 3584 was not meant to disrupt.  I just felt we

 

            21   didn't have a clear ruling.

 

            22            THE COURT:  It was not regarded as a disruption.

 

            23   This is a day in court when people argue, and to have argued

 

            24   is to have fulfilled your responsibility and reason for being

 

            25   here.  The only apology to be made would have been if you

 

 

 


                                                                          97

 

 

 

             1   thought you should have raised it and didn't.

 

             2            MR. BERNSTEIN:  Thank you, Judge.

 

             3            THE COURT:  Go ahead.

 

             4            MR. BERNSTEIN:  On behalf of Mr. Abdelgani, what I

 

             5   would like to do, at least, is proceed from what I believe is

 

             6   the guideline scenario and move downward.  It is my belief

 

             7   obviously that notwithstanding our view the court has

 

             8   determined level 43 to be the appropriate level, and that

 

             9   based upon the prior sentences imposed I am operating on the

 

            10   belief that my client will get the 3-point downward adjustment

 

            11   under 2X1.1.

 

            12            THE COURT:  That is correct.

 

            13            MR. BERNSTEIN:  I would then move on to reiterate the

 

            14   arguments of my cocounsel regarding my client warranting a

 

            15   minor role.  Obviously that has been set forth both in

 

            16   argument and in our submissions, but I would note in

 

            17   particular that my client was in the United States, in the New

 

            18   York area, and despite the allegations of this jihad army

 

            19   being in existence as far back as 1989 to the events in

 

            20   Calverton, Long Island, certainly my client was not a

 

            21   participant in those years.  He was new, based upon the facts,

 

            22   he was merely a soldier, and I think under the circumstances

 

            23   the minor role would be warranted.

 

            24            I move next to the downward departure arguments made

 

            25   by counsel which I know the court has previously denied, but I

 

 

 


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             1   would add as a specific reference in this case the fact that

 

             2   the court may recall the testimony of Mr. Haggag that as late

 

             3   as the spring of 1993, Mr. Abdelgani, when given a book, a

 

             4   bombing manual by Mr. Haggag, Mr. Abdelgani's position was

 

             5   burn it.  It is clear from the facts of this case that in the

 

             6   spring of 1993 Mr. Abdelgani did not know how to make a bomb.

 

             7            I think that addresses some of the questions as to

 

             8   whether or not prior to Siddig's pushing certain people,

 

             9   including my client, forward, he would have any intention to

 

            10   blow up anything in the United States as late as the spring of

 

            11   '93, and I would ask for a downward departure on that.

 

            12            But I think what is probably more at issue is whether

 

            13   or not my client stands in a unique position in this case, and

 

            14   even in most cases as to whether he is entitled to a downward

 

            15   adjustment -- it is not a downward departure as much as an

 

            16   adjustment under 3E1.1 for acceptance of responsibility.  I

 

            17   would start from the court recollecting that there is a June

 

            18   23 letter which I believe the court is now in possession of,

 

            19   June 23, 1995 letter.

 

            20            THE COURT:  Right.  That was the letter that we

 

            21   sealed.

 

            22            MR. BERNSTEIN:  Originally sealed and now is not

 

            23   sealed.

 

            24            THE COURT:  Correct.

 

            25            MR. BERNSTEIN:  Which sets forth the history of my

 

 

 


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             1   client's attempt to enter a guilty plea in this case.  This

 

             2   was not a case in which my client sought to plead guilty but

 

             3   couldn't agree on years of incarceration and therefore

 

             4   rejected the government's offer.  It is a very different

 

             5   tenor.  When I entered this case, my client, recognizing the

 

             6   evidence and recognizing the circumstances, recognizing he was

 

             7   30 some odd years old with a newborn son, said to me I want to

 

             8   plead guilty, I want a life when this is over, I want to go

 

             9   home at some point and see my son in my life.  I engaged the

 

            10   government in discussions.  Their position was we are not

 

            11   interested in your client taking a plea unless he is bringing,

 

            12   so to speak, a number of defendants, and particularly the safe

 

            13   house grouping, as a package.  I am not saying the government

 

            14   didn't have the right to engage in that plea bargaining

 

            15   position, but from what took place, my client did do that.  He

 

            16   took energy and efforts to engage other people in that

 

            17   process.  That process ended when it was clear that the

 

            18   government's position vis-a-vis the group was very, very far

 

            19   apart and it broke down.  The government and I did not

 

            20   continue plea negotiations because they simply weren't

 

            21   interested in Amir Abdelgani taking an individual plea.  At

 

            22   least that was my understanding.  But it goes back to the 3E

 

            23   constraints, which is that Mr. Abdelgani was willing to enter

 

            24   a guilty plea and it was early enough on to save millions of

 

            25   dollars in this courtroom.  He didn't want to go to trial.  He

 

 

 


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             1   was not interested in proceeding for the next year and a half

 

             2   or two that we have been here.  But we then went forward to

 

             3   trial with no choice in the circumstances.  When I offered a

 

             4   plea for him there was basically no position offered by the

 

             5   government until June of 1995, when the government did make my

 

             6   client an offer to plead guilty to 20 years.  I would note at

 

             7   that time he prospectively faced 65 years, as Count 17 was

 

             8   still part of this case.  The government was honest and

 

             9   forthright and told me at that time that they would be

 

            10   knocking out that 30-year count.  So that when I went to Mr.

 

            11   Abdelgani, he knew it wasn't, gee, I'll take 20 and beat 65.

 

            12   He knew when he agreed to take the 20-year count with an

 

            13   understanding that 20 years would be the sentence, that he was

 

            14   facing the 35 that is before the court now or 30, obviously in

 

            15   my own view, under Section 3584.  But he agreed to take that

 

            16   plea.  He wanted it, he was willing to do so, and the

 

            17   government wouldn't allow him to do that unless he was willing

 

            18   to name names of his codefendants as being the coconspirators

 

            19   he engaged with.  That is not what 3E1.1 prescribes.

 

            20            This is a very different case than the cases where

 

            21   defendants go to trial and seek acceptance later on after they

 

            22   have lost, when they were not satisfied with what was offered

 

            23   to them pretrial.  Mr. Abdelgani was willing to do it.  He

 

            24   offered himself up, he was willing to take that plea, and the

 

            25   government rejected it on grounds that 3E1.1 does not factor

 

 

 


                                                                          101

 

 

 

             1   in, which is his willingness to talk about other people.  In

 

             2   fact I think it is the safety valve provision that may require

 

             3   that to get under a minimum sentence different than what we

 

             4   have in 3E1.1.  But he made that offer, it was rejected by the

 

             5   government, and we went forward.

 

             6            To go further, when the government talks about what I

 

             7   called the robust defense, this is the first defendant to come

 

             8   before you this morning who did not testify, and we did not

 

             9   put on witnesses in this case.  He allowed me to represent him

 

            10   in a manner consistent with the plea negotiations but

 

            11   recognizing my obligations as a lawyer, with a trial

 

            12   situation.  I had to represent a position of not guilty or

 

            13   else we couldn't have been on trial.  I was forced to do so,

 

            14   Judge.  I think I did it in a manner on behalf of my client

 

            15   consistent with his acceptance of responsibilities as we stand

 

            16   here today.  He knew the evidence was going to convict him.

 

            17   That was his belief.

 

            18            We put in, I won't call it a meager defense but a

 

            19   defense really grounded in the government's evidence and not

 

            20   grounded in his testimony or his calling witnesses, truthfully

 

            21   or falsely adding to the mix.  He couldn't save the government

 

            22   the millions of dollars.  He attempted to.  I believe he did

 

            23   it early enough to warrant a 3-level departure but certainly

 

            24   he is entitled, in my view, to the 2-level departure because

 

            25   he has done that which the guidelines require of him under

 

 

 


                                                                          102

 

 

 

             1   3E1.1.

 

             2            THE COURT:  You don't dispute, do you, that it was

 

             3   open to him at all times whether the government liked it or

 

             4   not simply to plead guilty to those counts in which he was

 

             5   named?

 

             6            MR. BERNSTEIN:  At the time that he would have had to

 

             7   do that he would have basically been subjecting himself to 65

 

             8   years of incarceration.

 

             9            THE COURT:  And after that it was still open to him,

 

            10   was it not?

 

            11            MR. BERNSTEIN:  I am sorry.

 

            12            THE COURT:  After it became apparent that the 30-year

 

            13   count was out?

 

            14            MR. BERNSTEIN:  The government didn't dismiss the

 

            15   30-year count, I believe, until it went to the jury.

 

            16            THE COURT:  I think you said you were aware

 

            17   beforehand that that count was going out.  I think everybody

 

            18   was aware that that count was going out.

 

            19            MR. BERNSTEIN:  Yes.  Informally we were aware of

 

            20   that.  It never did happen factually until the very end of the

 

            21   case.  Suppositionally, yes, I think my client could have

 

            22   turned to me and said yes, it's no use, why don't I just plead

 

            23   guilty to, I guess what would have been -- if the government

 

            24   had allowed it.  The count was still extant.  The count was in

 

            25   before this jury.  I couldn't plead to the indictment without

 

 

 


                                                                          103

 

 

 

             1   pleading to the 30-year count which Siddig Ali pled guilty to

 

             2   before trial.  It was there, it was before him, and it wasn't

 

             3   the government's view that he shouldn't take the 20 years, it

 

             4   was their view that they did not want him possibly being

 

             5   available to falsely testify, and I gave the government five

 

             6   or six scenarios that would have prevented Mr. Abdelgani from

 

             7   testifying.

 

             8            And frankly, Judge, if he had wanted to, given the

 

             9   prior testimony in the case, he certainly had a close relative

 

            10   that he could have testified on behalf of in a certain way.

 

            11   He obviously let some evidence roll in against him without

 

            12   attempting to protect himself from his loved ones, who were

 

            13   obviously taking a position adverse to his, which the court

 

            14   will remember was the subject of a severance motion.

 

            15            THE COURT:  I understand.

 

            16            MR. BERNSTEIN:  I believe on the limited cases, there

 

            17   are no cases on point.  Save for a Ninth Circuit case, a bank

 

            18   robbery which did give the defendant a 3-point reduction,

 

            19   there are no cases in this circuit on this point directly, and

 

            20   it seems to me that he is entitled to some benefit for all

 

            21   that he offered in the way of a plea save for that which 3E1.1

 

            22   does not require of him.

 

            23            That obviously is where we stand on this issue,

 

            24   Judge.  If the court wants something further on this issue, I

 

            25   don't know what else to offer other than that which we put in

 

 

 


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             1   in a letter as far back as June, and that is where we are.

 

             2   Obviously I would ask the court for a ruling prior to

 

             3   proceeding, but the court has taken a different position as to

 

             4   how we should proceed.

 

             5            THE COURT:  Are you saying that your later remarks

 

             6   are dependent entirely upon whether you get a ruling or not?

 

             7            MR. BERNSTEIN:  It would certainly set the guidelines

 

             8   that I am facing.  At the present moment I believe I am at

 

             9   level 40.

 

            10            THE COURT:  I think that 3E1.1 contemplates an

 

            11   extraordinary step.  Pleading guilty is generally considered

 

            12   an extraordinary step.  Making an unsuccessful offer to plead

 

            13   guilty is not, in my view, the kind of step that is

 

            14   contemplated in 3E1.1, and accordingly I am not going to grant

 

            15   a downward departure for acceptance of responsibility.

 

            16            MR. BERNSTEIN:  My problem with that is that you

 

            17   place the blame for plea on my client, when in every case

 

            18   where the plea negotiations fail it is a matter of numbers.

 

            19   Here what they have sought to extract from him was a statement

 

            20   from other people that 3E1.1 does not require.  Otherwise,

 

            21   everyone becomes in effect either a cooperator or someone --

 

            22            THE COURT:  No, there is an alternative, which is

 

            23   that you plead guilty to the counts against you and in essence

 

            24   tell the court that you rely on nothing but its mercy.  People

 

            25   do that every day of the week.

 

 

 


                                                                          105

 

 

 

             1            MR. BERNSTEIN:  I certainly in my practice have not

 

             2   done that very often since the guideline inception, when there

 

             3   is no longer the court's ability to grant mercy as a general

 

             4   proposition because it is outside the factors of the

 

             5   guidelines.  But let me move forward, Judge.  I understand

 

             6   that level 40 is where I am at this point in time.

 

             7            THE COURT:  It is.

 

             8            MR. BERNSTEIN:  Amir Abdelgani, as you know, entered

 

             9   this conspiracy late.  You also know that over the course of

 

            10   the last two years he has filed no complaints about his

 

            11   lawyer, no complaints about the court, no complaints about

 

            12   most instances, and he gave no testimony in this case to aid

 

            13   falsely the situation.  I have spent enough time with my

 

            14   client to come to recognize that he is in effect a follower.

 

            15   I don't think there is a question that he followed Siddig Ali,

 

            16   and, as Mr. Haggag had said to the court, followed blindly.

 

            17   This is a man who I think until he met Siddig Ali had nothing

 

            18   against America.  I have spoken with my client and his view of

 

            19   things obviously is that until Siddig convinced him that

 

            20   America was the enemy because of the American control of the

 

            21   Bosnian situation, my client had no desire to do anything that

 

            22   would have led him to this kind of conduct that the jury has

 

            23   found him guilty of.  His range is 292 to 360, I believe.  I

 

            24   ask the court, given all the factors that --

 

            25            THE COURT:  Actually, 292 to 365.  Go ahead.

 

 

 


                                                                          106

 

 

 

             1            MR. BERNSTEIN:  My apologies, Judge, 292 to 365 --

 

             2   that he has done what you asked him to, he has indicated his

 

             3   remorse, he has indicated his willingness not to proceed, not

 

             4   to cost the court money, not to put the government to its

 

             5   burden of proof, and under the circumstances I ask the court

 

             6   to give him as lenient a sentence possible under the

 

             7   circumstances.  At 292 months he will be almost 50 years old

 

             8   when he returns to his country.  His son will be 18 years old.

 

             9   I don't minimize the offense but I think that that is a

 

            10   significant stage in life where he is no threat to the United

 

            11   States in the future or to any other country, and certainly it

 

            12   is of an age in which anyone looking to committing the same

 

            13   conduct in the future would think twice based upon the

 

            14   determinative effect of a 24 or 25 year sentence that the

 

            15   court could impose in the lower end of the range, and that is

 

            16   what I would ask on behalf of my client, your Honor.

 

            17            THE COURT:  Thank you, Mr. Bernstein.

 

            18            Mr. Abdelgani, is there anything you wish to tell me

 

            19   before I impose sentence?

 

            20            DEFENDANT AMIR ABDELGANI:  No, your Honor.

 

            21            THE COURT:  Mr. Bernstein indicated that but for

 

            22   Siddig Ali, Mr. Abdelgani would not have become involved in

 

            23   this, and that may very well be true.  However, as I pointed

 

            24   out earlier with respect to another defendant or other

 

            25   defendants, the "but for" argument is one that can be made and

 

 

 


                                                                          107

 

 

 

             1   often is made by many people that come before this court.  The

 

             2   question is not what you would have done but for having met up

 

             3   with somebody, the question is what you did after having met

 

             4   up with them, and what Mr. Abdelgani did was to become, from

 

             5   the evidence on the tape, not a grudging but a very willing

 

             6   and eager recruit to the enterprise that was involved here,

 

             7   which was an enterprise to commit murder and mayhem on a vast

 

             8   scale.  He knew that it involved bombing tunnels.  He had a

 

             9   specific conversation with Siddig Ali to that effect.  He

 

            10   recruited his cousin.  He went out and got fuel.  He eagerly

 

            11   scouted targets.

 

            12            He was convicted on Count 1, seditious conspiracy,

 

            13   Count 5, bombing conspiracy, and Count 6, attempted bombing.

 

            14   The base offense level is a level 43.  He, too, came to this

 

            15   at a point when it was an inchoate crime, which is to say, one

 

            16   that had not yet been completed, from his standpoint at least,

 

            17   and therefore I am going to deduct 3 points to take it to

 

            18   level 40.  The range is 292 to 365 months.

 

            19            Mr. Abdelgani will be committed as follows:  With

 

            20   respect to Count 1, seditious conspiracy, 20 years; with

 

            21   respect to Count 5, bombing conspiracy, five years, concurrent

 

            22   with Count 1; with respect to Count 6, attempted bombing, 10

 

            23   years consecutive, for a total of 360 months, or 30 years.  I

 

            24   have imposed a sentence not at the top but at the upper end of

 

            25   the range because of the nature of his participation and the

 

 

 


                                                                          108

 

 

 

             1   degree of his commitment to what he was doing, which was

 

             2   substantial.

 

             3            In addition, he will be placed on supervised release

 

             4   for a period of three years following his release, during

 

             5   which he is to obey all lawful orders of the INS and he is not

 

             6   to possess a weapon.

 

             7            I find that he is without the funds to pay a fine or

 

             8   the costs of imprisonment and accordingly, neither of those

 

             9   will be imposed.  He will pay the costs of supervised release

 

            10   at such time, if it comes, as his income exceeds $3,000 per

 

            11   month after taxes, allowing for adjustments for the cost of

 

            12   living from this day forward, and then to the extent of 30

 

            13   cents on the dollar.  There is a mandatory $50 per count

 

            14   special assessment for a total of $150 that I must impose and

 

            15   do impose.

 

            16            I advise Mr. Abdelgani that he has a right to appeal

 

            17   and I will ask you please, Mr. Bernstein, to file a notice in

 

            18   his behalf.

 

            19            MR. BERNSTEIN:  I will do so.

 

            20            THE COURT:  Is there anything else?

 

            21            MR. McCARTHY:  No, thank you.

 

            22            THE COURT:  Thank you.

 

            23            (Defendant Amir Abdelgani excused)

 

            24            THE COURT:  We are going to adjourn now until 2:00.

 

            25   We will resume at that time.

 

 

 


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             1            (Luncheon recess)

 

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             9

 

            10

 

            11

 

            12

 

            13

 

            14

 

            15

 

            16

 

            17

 

            18

 

            19

 

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            21

 

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             1                         AFTERNOON SESSION

 

             2                          2:15 p.m.

 

             3            THE CLERK:  United States of America versus

 

             4   Hampton-El.  Government ready?

 

             5            MR. McCARTHY:  The government is ready, your Honor.

 

             6            THE CLERK:  Defendant ready?

 

             7            MR. WASSERMAN:  Yes, your Honor.

 

             8            THE COURT:  Mr. Wasserman.

 

             9            Mr. McCarthy, is there anything you want to tell me

 

            10   other than what I already have?

 

            11            MR. McCARTHY:  No, thank you, your Honor.

 

            12            THE COURT:  Mr. Wasserman, you have reviewed the

 

            13   presentence report with your client?

 

            14            MR. WASSERMAN:  Yes, your Honor.

 

            15            THE COURT:  And you have made a submission which we

 

            16   have discussed, right?

 

            17            MR. WASSERMAN:  Yes, your Honor.

 

            18            THE COURT:  Is there anything you want to tell me?

 

            19            MR. WASSERMAN:  Yes.

 

            20            THE COURT:  Go ahead.

 

            21            MR. WASSERMAN:  Your Honor, just to begin with some

 

            22   bookkeeping, in terms of the presentence report the government

 

            23   has written a letter to your Honor dated January 16, with

 

            24   regard to the amendments of paragraphs 78 and 62.  Those

 

            25   changes that the government would make are acceptable.

 

 

 


                                                                          111

 

 

 

             1            THE COURT:  Then I will direct that those be made.

 

             2            MR. WASSERMAN:  In addition, your Honor, it is also

 

             3   acceptable to the government that, as we had discussed on the

 

             4   record yesterday, paragraph 71 of the presentence report

 

             5   reflect the date of June 28 and the presence during the

 

             6   discussions of Ali Shinawy as well as El-Gabrowny.

 

             7            Moving on, there is just one other issue that I

 

             8   understand from talking to Mr. Khuzami earlier the government

 

             9   wants to resolve as far as the presentence report, and that is

 

            10   the mention in paragraph 157 of an offense during my

 

            11   client's -- when he was in the army.  The issue is whether

 

            12   there was a knife involved in an assault.  The government, I

 

            13   understand, has a rap sheet but there are no underlying

 

            14   records.  I think, according to my understanding, the records

 

            15   have been destroyed by fire.

 

            16            THE COURT:  That will be resolved in your client's

 

            17   favor.  The knife reference will be taken out.

 

            18            MR. WASSERMAN:  Thank you, Judge.

 

            19            MR. WASSERMAN:  Your Honor, there are a couple of

 

            20   issues that are open.  The 2X1.1 reduction, the government has

 

            21   opposed that three-level reduction for my client.

 

            22            THE COURT:  Correct.

 

            23            MR. WASSERMAN:  Their argument is an interesting one.

 

            24   They say that he had joined the conspiracy before the spring

 

            25   bombing plot, and the basis for that is Salem's report and

 

 

 


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             1   testimony that there was a meeting, I believe June 18 of 1992,

 

             2   at which my client offered him ready-made bombs, and that

 

             3   subsequently Emad got a gun from Ali Shinawy and that that gun

 

             4   is traceable to my client.

 

             5            The problem with the government's position is that

 

             6   they are relying upon Emad Salem's believability, and I don't

 

             7   think that we can rely upon the jury's verdict for that, for

 

             8   the simple reason that Emad perjured himself when he said on

 

             9   the record, when he testified that he expected on the morning

 

            10   of June 24 to pick up detonators for my client.  We know he

 

            11   perjured himself because it is also on the record, to the

 

            12   extent that it is in Court Exhibit 1 but not presented to the

 

            13   jury, and also contained in a transcript to my motion of

 

            14   August 18, 1995, that Emad had a conversation with Detective

 

            15   Napoli on June 23 in the evening, and he was asked by

 

            16   Detective Napoli what the intention was of Mr. Hampton-El to

 

            17   join with us, in Napoli's words, and Emad's reply was no, no,

 

            18   no, it has nothing to do with us.  Then he went on to describe

 

            19   a conversation that he had just had with Mr. Hampton-El, in

 

            20   which he reports that he was told sorry, brother, I cannot

 

            21   come up with anything for you at this time, etc., etc.  It is

 

            22   very clear from that conversation that there was nothing in

 

            23   the offing, nothing to be picked up, that in fact he had been

 

            24   told there was nothing available.

 

            25            So for the government now to come in and say we are

 

 

 


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             1   relying on the credibility of our informant Emad about a

 

             2   meeting in June of '92, I think, is unsupported by his

 

             3   credibility, uncorrected on the record, uncorrected before the

 

             4   jury that Emad perjured himself about expecting to pick up

 

             5   detonators for my client, at the end of this case, in other

 

             6   words, subsequent to the arrests.  That is the only basis that

 

             7   the government argues against that 3-level reduction, and I

 

             8   think that aside from everything else that is sufficient for

 

             9   that three levels to be granted to Mr. Hampton-El.

 

            10            The other aspect of the government's argument is

 

            11   somewhat tortured, simply, as I understand it, that he joined

 

            12   before the spring of '93, and at best crediting Salem's

 

            13   testimony that there was discussion about killing Jewish

 

            14   leaders, and that testimony was corroborated by my client's

 

            15   testimony, that is scarcely waging war against the United

 

            16   States and has nothing to do with the United States government

 

            17   whatsoever.  In fact, the only recorded statements we have of

 

            18   Mr. Hampton-El concerning the United States are positive ones,

 

            19   both with the government informant Garrett Wilson recorded on

 

            20   May 31, as well as with Asim Mohammed.  These are exhibits

 

            21   that went before the jury in which my client spoke very

 

            22   favorably about this still being the best country there is.

 

            23   There is no statement anywhere in any recording where he talks

 

            24   about tearing this country down or doing anything against this

 

            25   country.  Therefore, just for the moment stopping on this

 

 

 


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             1   2X1.1 issue, the three levels that have been opposed by the

 

             2   government as a reduction should be granted to Mr. Hampton-El.

 

             3            There is one other legal issue that the government

 

             4   has brought up in terms of their requesting an obstruction of

 

             5   justice upward increase of two levels.  The essence of their

 

             6   argument is that since the jury didn't believe that

 

             7   Mr. Hampton-El lacked the intent, that they didn't believe he

 

             8   was, in the government's words, kidding --

 

             9            THE COURT:  Mr. Wasserman, please, that is not even a

 

            10   recognizable caricature of their argument.  It is not their

 

            11   argument.  They say it is not simply a question of jury

 

            12   disbelief, they say it was transparently false because of

 

            13   other evidence in the case.

 

            14            MR. WASSERMAN:  Your Honor, I was just looking at

 

            15   January 7, at the bottom, where it says in this case each of

 

            16   the testifying defendants offered preposterous testimony which

 

            17   explicitly disclaimed complicity in the offense of conviction.

 

            18   Hampton-El, who admitted lying on the stand --

 

            19            THE COURT:  Mr. Wasserman, don't read to me something

 

            20   that I have already read, please.

 

            21            MR. WASSERMAN:  No problem.  I understood that

 

            22   paragraph to be bottomed on the intent question.

 

            23            THE COURT:  It is bottomed on the intent question.

 

            24   It doesn't tell me to add on two points simply because the

 

            25   jury didn't believe it.  That is not what it says and that is

 

 

 


                                                                          115

 

 

 

             1   what you just said.  But please proceed with your argument.

 

             2            MR. WASSERMAN:  I think that the intent issue is

 

             3   central to the government's position and I think that there

 

             4   again, if you go to the conversation contained in Court

 

             5   Exhibit 1 between Detective Napoli and Emad Salem where Napoli

 

             6   asks him is he going to join with us, what are the

 

             7   indications, and Emad says no, no, no, I think that that is

 

             8   very clear that as far as the informant was concerned the

 

             9   indication he perceived was that there was no intent to join

 

            10   the spring bombing plot, and I think that that should be

 

            11   dispositive of the government's request to have an upward two

 

            12   levels.

 

            13            I don't know whether your Honor wants to deal --

 

            14            THE COURT:  Why don't you just go all the way

 

            15   through.

 

            16            MR. WASSERMAN:  I think that it was very key, when

 

            17   Emad took the stand and perjured himself, it was very key that

 

            18   we were not able to impeach him with his contradictory

 

            19   statements to Detective Napoli, and therefore the jury's

 

            20   verdict has to be seen in that light.

 

            21            I would like to just briefly revisit the issue of

 

            22   role in the offense and cover the following points.  One,

 

            23   Mr. Hampton-El never provided anything to the spring bombing

 

            24   plot, though in a position to do so.  He had funds, he was

 

            25   made aware by Siddig that Siddig and Emad were looking for

 

 

 


                                                                          116

 

 

 

             1   money.  He told them that he had money but it was for Bosnia,

 

             2   he offered them nothing.  He had a facility on Rogers Avenue,

 

             3   he offered them no access to it.  He had a trainer with the

 

             4   people to go to Bosnia, Abu Ubaidah.  There was no involvement

 

             5   of him or any offer to involve him.  There were martial arts

 

             6   weapons that were seized at Rogers Avenue.  There was no offer

 

             7   of that.  There was no offer of anything, no production of

 

             8   anything.

 

             9            I mentioned before that he never said anything

 

            10   against the United States, quite the opposite.  In fact, when

 

            11   Siddig mentioned to him the tunnels as a target, he is clearly

 

            12   heard on tape saying because for that you don't need me.  He

 

            13   then goes on to say talking about knocking out the federal

 

            14   system, talking about drowning innocent people, ordinary

 

            15   citizens will be killed.  I say, I think those are not the

 

            16   comments of someone who is joining in on that project.

 

            17            I think it is very relevant that he is kept totally

 

            18   out of the loop of what is going on in the spring bombing

 

            19   plot.  Every defendant who has been sentenced previously today

 

            20   who was involved in it was not made known to Mr. Hampton-El.

 

            21   The very existence of the Queens safe house, the building of

 

            22   the bomb, the acquisition of the materials, the Uzi, the test

 

            23   explosion on June 22, the video of the tunnels, all the

 

            24   actions of Siddig were kept carefully from Mr. Hampton-El.  I

 

            25   think that that lack of knowledge is something that, coupled

 

 

 


                                                                          117

 

 

 

             1   with his lack of producing anything for the conspiracy, should

 

             2   be taken into account by the court in terms of the request by

 

             3   the defense for reduction for a minimal role in the offense.

 

             4            The government keeps speaking of the fact that he

 

             5   occupied a unique position in terms of being the source for

 

             6   detonators.  It is just a fiction, to the extent that it is

 

             7   Emad's idea to go to him.  He never produces any detonators.

 

             8   The only other evidence on the record is Siddig talking about

 

             9   my client as someone who is not experienced in explosives.

 

            10   There are no explosives seized at Rogers Avenue.  So he

 

            11   doesn't produce anything, he doesn't possess anything, and, as

 

            12   it turns out, he has access to nothing.  I know I am repeating

 

            13   an analogy from yesterday, your Honor, but if he were in a

 

            14   drug case, it would be clear that he is a minimal participant.

 

            15   He is just not a supplier.  He has no ready access, he has no

 

            16   possession.

 

            17            The last thing I would ask your Honor to consider in

 

            18   terms of the sentence is that everything in my client's

 

            19   life -- he is 57 now -- was consistent with not taking lives.

 

            20   His medical career, starting with bed pans and working his way

 

            21   up to handling dialysis machines, his going to Afghanistan as

 

            22   a medic.  Other than this matter that we discussed as we

 

            23   started of an army court martial when he was 18 years old 40

 

            24   years ago, he has been a good, up standing man, and I think

 

            25   that his role in this case was one that was created by the

 

 

 


                                                                          118

 

 

 

             1   government informant, that he got trapped and that critical

 

             2   evidence that he had no intention to participate in the spring

 

             3   bombing plot just never reached the jury in terms of that

 

             4   conversation between Detective Napoli and Emad Salem.

 

             5            I would ask your Honor to take those things into

 

             6   consideration, beginning with the three-level reduction for

 

             7   the 2X1.1 and the 4-level request for minimal and any 2 level

 

             8   enhancement on the basis of obstruction.  Thank you.

 

             9            THE COURT:  Thank you.  Mr. Hampton-El, is there

 

            10   anything you wish to tell me before I impose sentence?

 

            11            DEFENDANT HAMPTON-EL:  Yes, your Honor.

 

            12            MR. WASSERMAN:  Your Honor, may I add one thing?

 

            13            THE COURT:  Yes.

 

            14            MR. WASSERMAN:  I would like to request the court, as

 

            15   it considered doing and indicated it would because of Tarig

 

            16   Elhassan because of family matters --

 

            17            THE COURT:  The recommendation?

 

            18            MR. WASSERMAN:  Yes, as to the northeast.

 

            19            THE COURT:  Absolutely.

 

            20            MR. WASSERMAN:  Thank you, Judge.

 

            21            DEFENDANT HAMPTON-EL:  Good afternoon.

 

            22            THE COURT:  Good afternoon.

 

            23            DEFENDANT HAMPTON-EL:  Your Honor, members of the

 

            24   court and press.  I bear witness to worthy worship of Allah

 

            25   alone and our partners and that Mohammed is his last messenger

 

 

 


                                                                          119

 

 

 

             1   and apostle, following all the other prophets.

 

             2            I go on to say that this became a nightmare for me

 

             3   the 24th of June, 4:00 in the morning.  I was on my way to

 

             4   worship when I was seized by the FBI.  Not known to me at that

 

             5   time, I had been a target from the time I came home from

 

             6   Afghanistan in 1988, and I think the reason for this was my

 

             7   going to Afghanistan, then coming home, then going to the

 

             8   different universities and publicly speaking to people, that

 

             9   they should try to participate and help the people who were

 

            10   being killed, because it was a form of genocide and the

 

            11   Russians had been killing them for years.  I was told at that

 

            12   time that the FBI had asked questions about me, but I ignored

 

            13   it because I didn't think I was doing anything wrong.  And

 

            14   time went on, and from time to time I saw them still observing

 

            15   me.  Then I was approached after Emad Salem was sent to me in

 

            16   June of '92, and he failed in his mission then, and I didn't

 

            17   see him for a while.

 

            18            I proceeded on after being asked to help the people

 

            19   in Bosnia, who also genocide was going on and there was no aid

 

            20   going to them.  So I tried to go ahead and get a group, which

 

            21   I did achieve, and tried to train them, to train people inside

 

            22   of Bosnia.  I took it upon myself to go to Yugoslavia, Zagreb.

 

            23   I think that these things annoyed the government.  For what

 

            24   reason it is beyond me.  I have always lived my life as a good

 

            25   citizen.  I have never broken the law and I have always said

 

 

 


                                                                          120

 

 

 

             1   that America was a place for opportunity for all people.  This

 

             2   has always been my philosophy as a human being, and as a

 

             3   Muslim, Islam does not permit acts of violence and terrorism.

 

             4   It is forbidden by Allah.  I am innocent of the charges

 

             5   against me by the FBI, and they know this to be true.  I have

 

             6   always lived my life to help people, never harm them.  I have

 

             7   always lived my life by the law of the land.  This case

 

             8   against me is wrong.  My participation is none.

 

             9            Emad Salem and and Siddig continuously came back

 

            10   after me because they weren't achieving anything.  After their

 

            11   plans was made known to me, what they said they wanted to do

 

            12   about the tunnels, I told them at this time you don't need me,

 

            13   because the conversation at that time was nothing but rhetoric

 

            14   as far as I was concerned, but it reached a point, which I

 

            15   said on the stand, that it was wrong.

 

            16            And just to reiterate on what my attorney said, that

 

            17   was some of the same things that was told to Louis Napoli when

 

            18   he asked what about the World Trade Center people?  Emad told

 

            19   him, you know he has his own project, which he was referring

 

            20   to Bosnia.  He said I know, but does he have anything to do

 

            21   with this?  He said he has nothing to do with this.

 

            22            Personally I think that this attack is not only on me

 

            23   but it is against Islam, because it is projecting Islam as

 

            24   something that is hideous and wicked.  When the World Trade

 

            25   happened, I condemned it immediately and emphatically.  When

 

 

 


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             1   Oklahoma happened and it was suspicious that it was people

 

             2   from the Middle East or Muslims, the front pages of the news,

 

             3   the media, blew it up.  When it was found out that it was not

 

             4   people from the Middle East, it was put on the back burner,

 

             5   the back page, and completely out of the papers.  This case

 

             6   stayed in the papers from the time that it began up until this

 

             7   time here.  Things were said about me that was not true, and

 

             8   there was never a retraction for the statements that was made

 

             9   that was false.

 

            10            As far as the different things they tried to connect

 

            11   me with in this here, I don't see why people should have fear

 

            12   of me, because there is nobody in this courtroom or outside

 

            13   this courtroom that I have any desire to hurt.  I built my

 

            14   life in my community on helping people, ridding the community

 

            15   of drugs and making sure it was safe for the residents to live

 

            16   there.  My employment, I have worked years and I have treated

 

            17   people of every persuasion, black, white, Italian, Jewish,

 

            18   whatever, and I never let the criteria for how we treat a

 

            19   person be his nationality or his faith, and I never would.

 

            20   And whatever the results are from this case on my being in

 

            21   prison is not going to turn me into whatever else they have in

 

            22   prison, because I have to strive to live a righteous life, to

 

            23   please my lord.

 

            24            There is a statement that says by the token of time,

 

            25   truly matters in a state of loss, except such that have faith

 

 

 


                                                                          122

 

 

 

             1   and do righteous deeds and join together in mutual enjoyment

 

             2   of truth and of patience and consistency.

 

             3            The key parts of this case, as my attorney said, some

 

             4   things I think that may have, would have affected the jury,

 

             5   was the statements of Emad Salem and Louis Napoli and the fact

 

             6   that he did perjure himself, and I think this was after he

 

             7   heard the statement that the office is pissed, we have to get

 

             8   the World Trade Center people involved, buying guns and

 

             9   ammunition and S -- curse words, so I won't even say it.  I

 

            10   find it strange that if I was part of this here, Emad Salem,

 

            11   he never made an effort to tell me about the safe house, or

 

            12   tried to get me to go to the safe house or any of these

 

            13   things, because in fact he knew if he had said something like

 

            14   that there, it would have been nothing, because that's when I

 

            15   would have known to take a move towards informing the law of

 

            16   what was going on.  The fact that I wasn't aware of any of

 

            17   these things, I think, is very important.

 

            18            I think that the possibility of me spending years in

 

            19   jail or the rest of my life for something I wasn't part of is

 

            20   wrong, but that is a judgment call that is not in my hands at

 

            21   this time.  I will just say again, this is my country and I

 

            22   have strived to help people always, and that is what I will

 

            23   continue to do.

 

            24            Finally, there will be a judge and a judgment for

 

            25   everybody that has come into the world, all existence, and

 

 

 


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             1   that is the lord of mankind.  When all of you stand before him

 

             2   just like I sit here, you will be asked, you will be asked for

 

             3   the wrong that you did to frame me and bring me in this here,

 

             4   and you know it yourself, that I have nothing to do with it.

 

             5   I am not referring to Judge Mukasey because he got the case,

 

             6   but I am referring to the players that was in it.  They know

 

             7   that I wasn't in it.  They told me themselves, we know you're

 

             8   not in it.  And the fact that I couldn't tell them anything is

 

             9   why I am sitting here.  But that's all right, because like I

 

            10   said, there is a day of account.  You can smile, you can grin,

 

            11   you can skin, but this is real.  We all have to answer for our

 

            12   actions in this life and the life to come, and I am firm in

 

            13   what I say and my lord knows I am innocent.  That's the most

 

            14   important thing.

 

            15            I would hope that the judge would look at this with

 

            16   an open mind and see beyond what has been said.  I thank the

 

            17   court for this.  As-Salamu Alaikum.

 

            18            THE COURT:  Mr. Hampton-El, as some other defendants

 

            19   did earlier today, you have told us that you believe you are

 

            20   innocent of the charges of which you have been convicted, but

 

            21   a sentencing proceeding goes forward on the assumption that

 

            22   the jury's verdict on those charges -- as you mentioned a

 

            23   moment ago a judgment call -- they made the judgment call and

 

            24   that is the only judgment call that is relevant today, and

 

            25   their judgment call was that you were guilty of those charges.

 

 

 


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             1            In addition the evidence showed, and I find, that

 

             2   Mr. Hampton-El was a member of the conspiracy before June of

 

             3   1993, that the conversation that Salem testified to occurred,

 

             4   and therefore there is going to be no reduction under 2X1.1.

 

             5            Mr. Hampton-El was convicted on Counts 1, 5 and 6.

 

             6   The offense level is a level 43.  As a result, the sentence is

 

             7   as follows:  With respect to Count 1, he will be imprisoned

 

             8   for 20 years; with respect to Count 5, for five years; with

 

             9   respect to Count 6, for 10 years, those sentences to be served

 

            10   consecutively.

 

            11            He will be placed on supervised release for a period

 

            12   of three years following his release, concurrent on all

 

            13   counts.

 

            14            I find that he is without the funds to pay either a

 

            15   fine or the costs of supervised release, and as a result none

 

            16   of those will be imposed.  He will pay the costs of supervised

 

            17   release at such time, if it comes, that his income exceeds

 

            18   $2,500 per month after taxes, allowing for the increase in the

 

            19   cost of living from this date forward.  There is a mandatory

 

            20   special assessment of $150 per count that I must impose and do

 

            21   impose.

 

            22            Mr. McCarthy, in view of the sentence do you think I

 

            23   have to make a finding with respect to obstruction?

 

            24            MR. McCARTHY:  I do think that would be appropriate,

 

            25   your Honor.  I also think, your Honor, I think, said June 1993

 

 

 


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             1   when your Honor meant June 1992.

 

             2            THE COURT:  I am sorry, I misspoke.  I meant June

 

             3   1992.

 

             4            With respect to the obstruction, Mr. Hampton-El

 

             5   testified in a fashion that was entirely inconsistent not only

 

             6   with the jury's findings but, more importantly, with his own

 

             7   statements as recorded on tape.  As a result, there is a

 

             8   2-level enhancement under 3C1.1, for obstruction.  That is

 

             9   moot in view of the sentence imposed, but if it should ever

 

            10   become relevant, I make that finding.

 

            11            Mr. Hampton-El is advised that he has a right to

 

            12   appeal and I would ask you, Mr. Wasserman, to file a notice of

 

            13   appeal on his behalf.

 

            14            MR. WASSERMAN:  I will go do so, Judge.  May I have a

 

            15   moment.

 

            16            Thank you.

 

            17            (Defendant Clement Hampton-El excused)

 

            18            (Pause)

 

            19            (Continued on next page)

 

            20

 

            21

 

            22

 

            23

 

            24

 

            25

 

 

 


                                                                          126

 

 

 

             1            (Defendant Ibrahim El-Gabrowny present)

 

             2            THE CLERK:  United States of America versus

 

             3   El-Gabrowny.  Government ready?

 

             4            MR. FITZGERALD:  Yes, your Honor.

 

             5            THE CLERK:  Defendant ready?

 

             6            MR. RICCO:  Yes, your Honor.

 

             7            THE COURT:  Mr. Fitzgerald, other than what you have

 

             8   placed before me up until now, which is correspondence that

 

             9   runs up until today, is there anything else that you want to

 

            10   tell me?

 

            11            MR. FITZGERALD:  No, your Honor, only to correct in

 

            12   the footnote of the letter of about an hour ago --

 

            13            THE COURT:  One second -- yes.

 

            14            MR. FITZGERALD:  Footnote 3, the arithmetic is a

 

            15   little off but the point is right.  I don't think it is

 

            16   important, but I pointed out to Mr. Ricco that if there are

 

            17   two large groups there would be a slight increase in the total

 

            18   offense level but the point is still the same.  It would be

 

            19   accounted for in the grouping.

 

            20            THE COURT:  The principal point of your letter, as I

 

            21   understand it, is, assuming that I find that he is not

 

            22   entitled to a reduction of three points under 2X1.1 and he

 

            23   stays at a level 43, that I am required to sentence

 

            24   consecutively on all of the counts after Count 1, even if they

 

            25   overlap and even if they constitute the identical conduct?

 

 

 


                                                                          127

 

 

 

             1            MR. FITZGERALD:  Yes, your Honor, by the guidelines.

 

             2            THE COURT:  That certainly tees it up.

 

             3            Mr. Ricco.

 

             4            MR. RICCO:  Your Honor, during yesterday's proceeding

 

             5   I had asked the court to consider a a role adjustment for Mr.

 

             6   El-Gabrowny on relevant conduct.  I know at that point the

 

             7   court had indicated that it probably was not inclined to do

 

             8   so, but I would ask the court to consider such an adjustment,

 

             9   if the court were not to grant a reduction for Mr. El-Gabrowny

 

            10   under 2X1.1, if the court were not to consider a role

 

            11   adjustment for Mr. El-Gabrowny.  It certainly does tee up the

 

            12   situation.  Of course, that is not a reason for granting

 

            13   either one of those forms of relief.

 

            14            I think that on review of this record, when the court

 

            15   looks at the various conduct of the different defendants in

 

            16   this case and it views Mr. El-Gabrowny's conduct in view of

 

            17   that, I think that there is room for some adjustment for his

 

            18   role.  I would add that Mr. El-Gabrowny as the subject of this

 

            19   investigation, probably the only other defendant that would

 

            20   exceed that would be the defendant El Sayyid Nosair.  In the

 

            21   over 18 months that Mr. El-Gabrowny was in close contact with

 

            22   Mr. Emad Salem, he reported to the agents and testified in

 

            23   court about the conduct of Mr. El-Gabrowny, the type of

 

            24   activities that Mr. El-Gabrowny was involved in, attempted to

 

            25   get other members of the Muslim community to become involved.

 

 

 


                                                                          128

 

 

 

             1            Mr. El-Gabrowny was convicted of possession of the

 

             2   forged travel documents.  He was convicted of possession of

 

             3   the passports.  But when the court reviews the possession of

 

             4   the documents, when the documents were obtained, according to

 

             5   the trial evidence, it certainly appears, Judge, if there were

 

             6   ever a defendant in this case that would be entitled to any

 

             7   serious consideration on the role adjustment for a a minor

 

             8   role in view of the conduct of the others, it would certainly

 

             9   be Mr. El-Gabrowny.

 

            10            One of the things I hate to do during a trial is to

 

            11   start talking about how bad the other defendants were with

 

            12   regard to my client.

 

            13            THE COURT:  Let me just ask you with regard to the

 

            14   dates on the passports.  What you are saying is that they were

 

            15   obtained after the conviction or before the conviction?

 

            16            MR. RICCO:  They were before the conviction.  They

 

            17   were obtained, according to the testimony of the Secret

 

            18   Service agent -- the State Department agents -- in July of

 

            19   1991, which was even before the trial itself commenced.

 

            20            Judge, I almost know that you are aware of the

 

            21   arguments that I am going to make.  Mr. El-Gabrowny was not

 

            22   involved with the training.  He wasn't involved with the

 

            23   firearms training.  He wasn't involved with the Pennsylvania

 

            24   training.  He was not involved with the bombing of the World

 

            25   Trade Center.  To the extent that the proof at trial

 

 

 


                                                                          129

 

 

 

             1   established that there were telephone calls made between Nidal

 

             2   Ayyad, Sayyid Nosair and Mr. El-Gabrowny, that appears to be

 

             3   the extent of his involvement in that episode.

 

             4            Certainly when the court looks at the conduct of the

 

             5   defendants who were in the videotape, when the court looks at

 

             6   the conduct of the other defendants in the case who were with

 

             7   participating in training, certainly Mr. El-Gabrowny's

 

             8   conduct, at least, appears less culpable.  The jury saw fit to

 

             9   acquit Mr. El-Gabrowny of the bombing conspiracy.  The weight

 

            10   that the court gives to that for purposes of sentencing is not

 

            11   significant and I understand that.

 

            12            THE COURT:  But it also resulted, I think, in

 

            13   substantial part from, as I said yesterday, a mistake that I

 

            14   made, or at least in part a mistake that I made in the charge,

 

            15   where I focused Count 5 solely on events beginning in June of

 

            16   1993 when, if I had looked more carefully at the

 

            17   incorporations by reference and at the dates in the count, I

 

            18   would have seen that in fact it charged conduct going back to

 

            19   1989.  When I in essence charged that Count 5 involved the

 

            20   June 1993 bombing conspiracy, I virtually charged the

 

            21   government out of court as to your client on that count, as

 

            22   well as Mr. Nosair.

 

            23            MR. RICCO:  Judge, even if that were not the case I

 

            24   would not make much of that argument.  I certainly would point

 

            25   out that the court has certainly heard all the evidence in

 

 

 


                                                                          130

 

 

 

             1   this case and it has been extensive.  Mr. El-Gabrowny, on

 

             2   March 4, 1993, when he was arrested was not even the subject

 

             3   of the arrest warrant.  They were interested in documents and

 

             4   devices that may have been in his apartment.  When you review

 

             5   his conduct up until that date, and of course subsequent to

 

             6   that date when he is incarcerated, his conduct has to almost

 

             7   be viewed as less culpable of other participants who were

 

             8   involved in this conspiracy.  Certainly his conduct cannot be

 

             9   considered minimal.  But perhaps his conduct can be considered

 

            10   minor in view of the other codefendants in the case, and I

 

            11   would ask the court to consider granting an adjustment for his

 

            12   role in the offense of which he was convicted.

 

            13            With respect to the individual counts, other than, of

 

            14   course, the sedition count, I wanted to take a few minutes, a

 

            15   brief few minutes, and talk about Mr. El-Gabrowny's conduct

 

            16   during those offenses.  For example, the resistance during the

 

            17   execution of the search warrant.  A review of the record shows

 

            18   that Mr. El-Gabrowny was stopped outside of his building while

 

            19   he was going back towards the building when the agents were

 

            20   executing the search warrant.  For security purposes, the

 

            21   agents brought him inside the vestibule area.  It is inside

 

            22   the vestibule area that the assault of which Mr. El-Gabrowny

 

            23   was convicted took place.

 

            24            The government says that the court should sentence

 

            25   Mr. El-Gabrowny to three years under that count as opposed to

 

 

 


                                                                          131

 

 

 

             1   the one year.  I believe, your Honor, that Mr. El-Gabrowny's

 

             2   conduct made out a simple assault.  Agent Corrigan and Agent

 

             3   Burke both testified as to the contact that took place between

 

             4   the two of them.  Both agents testified that one elbow struck

 

             5   one way, the other elbow struck the other way, and all

 

             6   involved in the melee fell to the ground.

 

             7            The statute talks about a simple assault, and I don't

 

             8   know how more simple an assault can be, other than that type

 

             9   of circumstance.  Certainly during cross-examination of the

 

            10   agents I asked them whether Mr. El-Gabrowny ever got into a

 

            11   fight, whether he ever threw any punches, and they said no.

 

            12   Did he ever say any threatening or abusive words?  They say

 

            13   no.  Did he attempt to struggle or run?  They said no.  Mr.

 

            14   El-Gabrowny was in the rain, he had his hands up.  There was

 

            15   discussion as to what was going on.  The event took place, he

 

            16   was convicted of it.

 

            17            However, I believe that his conduct constitutes a

 

            18   simple assault under the statute and nothing more.  Indeed, in

 

            19   the PSR he was not even given an obstruction enhancement for

 

            20   the conduct relating to the assault and interference in the

 

            21   execution of the search warrant.

 

            22            I think the circumstances of his conduct at that time

 

            23   grew out of the anxiety of both himself and the agents, who at

 

            24   that time were performing a very important duty about a very

 

            25   serious criminal act that took place here in the city.  The

 

 

 


                                                                          132

 

 

 

             1   agents all testified that they felt a sense of danger.  They

 

             2   were concerned that Mr. El-Gabrowny might possess a weapon or

 

             3   he might possess explosives, and Mr. El-Gabrowny's

 

             4   sensitivities and the officers' sensitivities --

 

             5   understandable sensitivities, certainly, I believe -- played

 

             6   some part in the incident that happened between the two of

 

             7   them.  This is not to try to take away from the seriousness of

 

             8   the jury's finding, but to sort of set a backdrop for what I

 

             9   think the conduct came out of.

 

            10            I raise these types of arguments because the statute,

 

            11   the guidelines does talk about sentencing defendants so that

 

            12   remaining sentences are applied consecutively to reach total

 

            13   punishment, and I think what the statute does on that type of

 

            14   reading, it really takes away from the district court the

 

            15   ability to determine the appropriate ranges for the conduct

 

            16   that the defendant was charged with.  So that the court

 

            17   doesn't even look to the circumstances of the assault.  The

 

            18   court doesn't even look to the circumstances that amounted to

 

            19   resistance during the execution of the search warrant.  The

 

            20   statute gives a zero to 3-year range, and if the court is to

 

            21   run consecutive sentences solely for the purpose of reaching

 

            22   the total offense level, the court doesn't consider those

 

            23   factors and I think that is improper.  I think the district

 

            24   court should always consider what the circumstances of the

 

            25   offense is.

 

 

 


                                                                          133

 

 

 

             1            The same circumstances apply with the passports.  The

 

             2   government's theory, accepted by the jury, is that Mr.

 

             3   El-Gabrowny's passports, the possession of the passports were

 

             4   part of a great plan to somehow, some day, break Mr. Nosair

 

             5   out of prison.  Mr. Emad Salem testified that at one point in

 

             6   the spring of 1992, almost a year before Mr. El-Gabrowny was

 

             7   arrested with the passports, almost a year -- almost seven

 

             8   months after the passports were obtained he approaches Mr.

 

             9   El-Gabrowny and suggests to him an escape plan for Mr.

 

            10   El-Gabrowny, suggested to him by yet another person.  Mr.

 

            11   El-Gabrowny, according to Emad Salem, said no, why don't we

 

            12   wait and let the appellate process work and we will discuss it

 

            13   later.  Emad Salem gave us an elaborate plan, about how a

 

            14   truck would be rented, it would sneak into Attica, a bakery

 

            15   truck, garbage truck, it would sneak out -- escape.

 

            16            The statute talks about zero to five years for the

 

            17   passports.  Mr. El-Gabrowny's possession of the passports by

 

            18   themselves does not amount to a 5-year sentence.  In fact, the

 

            19   guideline range for possession of those passports is far less.

 

            20   When the court can no longer look at the defendant's conduct

 

            21   in reference to those particular offenses, the court should

 

            22   consider whether it agrees or disagrees, whether or not there

 

            23   was ever an actual escape.  Did Mr. El-Gabrowny do anything

 

            24   further in the escape attempt?  Did he go to Buffalo?  Did he

 

            25   get together to talk with men about the escape?  Were there

 

 

 


                                                                          134

 

 

 

             1   plans made?  Was there a meeting?  If the court finds that

 

             2   there was possession of the passports and nothing more, that

 

             3   should be a factor for the court to consider and nothing more,

 

             4   certainly with respect to his sentencing on this particular

 

             5   offense.

 

             6            I think when the court looks at Mr. El-Gabrowny's

 

             7   conduct, as to which he was was convicted, the court finds him

 

             8   in a different place from many of his codefendants.  I can't

 

             9   overlook and I would hope the court would not overlook many of

 

            10   the telephone calls introduced into evidence that took place

 

            11   between Emad Salem and Mr. El-Gabrowny, where Mr. El-Gabrowny

 

            12   pleaded with Emad Salem, talked with Emad Salem, rejecting his

 

            13   advances toward violence, talking about how Muslims should get

 

            14   involved in the democratic process here, by registering to

 

            15   vote, exercising their rights to vote.  Certainly he has been

 

            16   convicted of sedition, so those types of comments may fall by

 

            17   the wayside.  However, they were made and they were made at a

 

            18   time when Mr. El-Gabrowny was not aware that he was being

 

            19   recorded, according to the testimony.  He did raise money for

 

            20   his cousin, he did attempt to get his counsel, he did

 

            21   participate.  The trial evidence showed that he wrote to the

 

            22   trial judge, asking the trial judge not to be impacted by

 

            23   pressure from either group, from the Muslim community or other

 

            24   communities, that the judge should make a determination that

 

            25   he thought was right.

 

 

 


                                                                          135

 

 

 

             1            In some way, no matter how the guidelines are

 

             2   applied, the court should never be in a situation where it

 

             3   does not consider that aspect of the proof at trial.  It

 

             4   amounts to something.  It amounts to a consideration as to

 

             5   where in the range of the statutory sentences a defendant

 

             6   should be placed.  3553 talks about looking at his background,

 

             7   his history, his family, his circumstances, and when the court

 

             8   looks at that, as the court has read in his report, the court

 

             9   finds that Mr. El-Gabrowny is the father of five children, all

 

            10   small children, and no matter what sentence the court imposes,

 

            11   those children will be adults before Mr. El-Gabrowny ever

 

            12   walks out of a federal prison.  Mr. El-Gabrowny was an

 

            13   engineer by education and by training.  He came here, he

 

            14   married here, he raised a family here.  He had never been

 

            15   arrested before.  He had never participated in any criminal

 

            16   acts.  He had never been involved in any type of assaultive

 

            17   behavior prior to the involvement in which he was convicted.

 

            18            I would ask the court to consider all of those

 

            19   aspects about Mr. El-Gabrowny when it imposes sentence here.

 

            20            THE COURT:  Thank you, Mr. Ricco.

 

            21            Mr. El-Gabrowny, is there anything you want to tell

 

            22   me before I impose sentence?

 

            23            DEFENDANT EL-GABROWNY:  As-Salamu Aleikum, by the

 

            24   name of Allah, most magnificent, most merciful.  I would like

 

            25   to start my speech by objecting about the PSI information.  It

 

 

 


                                                                          136

 

 

 

             1   just took the government side and disregarded the defense.  My

 

             2   case is nothing but endless chain of oppression and injustice

 

             3   were put on me by Salem and others.  I had received both of

 

             4   them and I still do till this present moment.  Patiently I was

 

             5   and patiently I am now hoping that justice will take place

 

             6   some day, and oppression must vanish, and the truth has to be

 

             7   shown up.

 

             8            This oppression started when Salem started to use my

 

             9   flesh and bones to build his castle, his all-American dream of

 

            10   fortune, since he came to United States and he was not

 

            11   successful to make it, after he ended working in a hotel,

 

            12   receiving few dollars every week, with lots and lots of

 

            13   humiliation and disrespect from his manager, as was clear from

 

            14   the bootleg tapes.  He found his missing target when he was

 

            15   hired by the FBI to infiltrate the Muslim community.

 

            16            If you look at bootleg tape 9-11, when he was telling

 

            17   his family in Egypt, I left my hotel job to a better job with

 

            18   better pay, this was FBI job.  Even though he stayed in many

 

            19   debts, if you look at 1 June, which was '93, it was in this.

 

            20   He had to keep his job to create scenario.  I was the only one

 

            21   in front of him.  I was high figure in the FBI mind because I

 

            22   was managing the defense committee of my cousin Nosair.  I

 

            23   will give you example of whatever Emad Salem did to me.  In

 

            24   tape 7-11, I told him -- he told me that did you think to go

 

            25   to Arab countries to collect some money?  I told him clearly

 

 

 


                                                                          137

 

 

 

             1   they will not receive you.  He said it again, I told him don't

 

             2   try it.  When you look at 10-12, he was telling John Anticev,

 

             3   Ibrahim told me to go, and this how he used to make scenario

 

             4   about me.

 

             5            In tape 43-1 at page 4, you will find Salem telling

 

             6   John, what I told you guys that they preparing to break Nosair

 

             7   out of jail and that he will be out of the country, let me

 

             8   stay in, to know where he is going.  All what he was

 

             9   concerning about is to stay in.

 

            10            Thus, this was his target, let me stay in, and for

 

            11   that he had to make up incriminated scenario and lies.

 

            12            In the same tape, 43-1, at page 13, talking about Ali

 

            13   Shinawy and he told John and Louie I told you, John and Louie

 

            14   telling him no, he told us nothing, we told him you lie.  He

 

            15   start mention the targets.  They told him no, maybe you

 

            16   imagine that he told us.  Here they discover that he was

 

            17   lying.  In the same scene while he was sitting with them, he

 

            18   lied with me, too.  He told them that they went to the World

 

            19   Trade Center for demonstration to prepare for the bombing.

 

            20            If we go back little bit to D-3, I was tolding him

 

            21   that we are going to make peaceful demonstration in front of

 

            22   the World Trade Center government office because of the Nosair

 

            23   treatment in Attica.  The FBI had a report dated 2/27/92,

 

            24   saying exactly at governor's World Trade Center office over

 

            25   treatment of Nosair in jail.  I explained it to him clearly,

 

 

 


                                                                          138

 

 

 

             1   but even though he told them, they went over there for the

 

             2   World Trade Center bombing.  He tried to incriminate a

 

             3   peaceful thing I did.

 

             4            What happened that they told him no, it was not for

 

             5   that, they went because of Mario, the governor.  He was

 

             6   supposed to meet them and they didn't.  It wasn't because of

 

             7   that, I kept telling you that.  They discovered that he was

 

             8   lying on me.

 

             9            Then in the same time, he told them about the

 

            10   detonator being brought from Afghanistan.  He lied one time

 

            11   and he had another lie.  They discovered his lies before.  Why

 

            12   anybody should believe him about the rest?  I never touched

 

            13   explosives ever in my life, and the FBI went to my house, they

 

            14   found nothing.  They took test from my hand, they found no

 

            15   traces.  I never touched the explosives, had no experience

 

            16   about anything like that.  When I tried to buy my licensed

 

            17   pistol, I asked him to help me because I didn't know anything.

 

            18   I had no idea.  I had to ask him to help me.  Even after I

 

            19   bought it, I never used the pistol, even though it was

 

            20   licensed.  It was even with the tag when the FBI took it.

 

            21   This is my attitude.

 

            22            Look at my peaceful attitude with him.  Salem told me

 

            23   that Barbara, his exwife, was planning to blow up his brain.

 

            24   He mentioned the F word, F word brain, with .38 caliber.  My

 

            25   answer with him, how can educated person say that?  This is my

 

 

 


                                                                          139

 

 

 

             1   attitude.  When he added more, he said that she is

 

             2   self-destructive person, I told him, just be patient, we will

 

             3   support you.

 

             4            When we were talking about D'Amato, I told him

 

             5   voting, I didn't tell him any violent scenario.  Even when he

 

             6   tried to instigate me, what we going to do, I said to him

 

             7   vote.

 

             8            Kahane's group went to the judge's house for

 

             9   demonstration.  I was told that for us to go over there, who

 

            10   are not allowed to have speakers or signs supported by wood

 

            11   sticks unless we have permission from that.  I had no time to

 

            12   have permission.  I told him if you would like to make a sign,

 

            13   don't use wood stick.  And this was quoted by him.  I was

 

            14   curious not to violate the law even for a wooden stick

 

            15   connected with a sign.  I asked him to help me to send letters

 

            16   to the judge.  I asked the FBI, John Anticev, to help me to

 

            17   have permit for my pistol license.  Is this the behavior of a

 

            18   terrorist?

 

            19            Emad, he is the one who was making all this

 

            20   incriminating scenario.  He never verified anything about my

 

            21   behavior.  All whatever he did, tapes proving my peaceful

 

            22   attitude and my peaceful behavior.  He was telling them in

 

            23   19-1 that if they will trace me and make surveillance with me,

 

            24   you will discover that I am going to visit Nosair with Salem.

 

            25   John told him no, he never was over there with Salem.  And he

 

 

 


                                                                          140

 

 

 

             1   repeating the same story three times to John.  Even he is

 

             2   telling Nancy Floyd the same story.

 

             3            The record of Attica visit proved to anybody that I

 

             4   never visit Nosair with Salem, before or any time.  He just

 

             5   tried to give this incriminating scenario about me to stay in

 

             6   his job, and he never verified.

 

             7            I would like to remind everybody about the polygraph

 

             8   test which was deceptive for Emad Salem.

 

             9            I never discussed with Salem or anybody else any plan

 

            10   to escape Nosair from jail.  If you look at the passport,

 

            11   Judge, the passports were not even signed.  I had no plan to

 

            12   escape Nosair.  The passports I received hoping that Nosair

 

            13   was going to be acquitted in the state trial and be far from

 

            14   something like that.  This is a picture of Kahane's son

 

            15   carrying the gun.  This is what I photographed.  Not to escape

 

            16   him thought of, not to escape him from jail.

 

            17            It happened that a friend sent me a letter asking for

 

            18   stun guns to Yemen, and he did me a favor before so I tried to

 

            19   pay him back.  He put some specifications for the stun guns,

 

            20   numbers and volts.  When I went to bought I didn't find what

 

            21   he was looking for, so I bought only two, with different

 

            22   volts.  When I came, I tried to contact him, I didn't find

 

            23   him.  I tried to contact the guy in Yemen, I didn't find him.

 

            24   I traced all of them, I didn't find nobody.  My phone records

 

            25   which show up here the call for Yemen.  It was dated 5/27/92.

 

 

 


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             1   After Salem claims that I was going to use the stun gun for

 

             2   escape plot.  I didn't know that he was doing that and I am

 

             3   telling you I was tracing the people which is supposed to

 

             4   receive the stun guns.  My phone record was not shown to the

 

             5   jury and they went to deliberation without that.

 

             6            You wonder, Judge, why I didn't buy the batteries.

 

             7   When I bought the stun guns, I was curious about the weight of

 

             8   the shipment.  If you look at the stun gun and the batteries,

 

             9   the battery is good about three or four times heavier than the

 

            10   stun gun itself.  So when I bought the stun gun, I bought

 

            11   without battery for it to be shipped light, and they can buy

 

            12   the battery over there.  It was in my mind to ship it, Judge,

 

            13   not use it here.  That's why I didn't buy the batteries.

 

            14            John asking him do you have any tapes talking about

 

            15   explosives?  He said no, he told me don't, but in fact he was

 

            16   not, he was taping me, but he didn't have any tapes of me

 

            17   talking about explosives because it never happened, Judge.

 

            18            About the assault, Judge, as soon as I passed

 

            19   Corrigan and Burke, they pushed me to the wall, and after they

 

            20   searched me they took the passports from my pocket, and right

 

            21   after that, right away Corrigan brought the handcuff from the

 

            22   back on me.  But he put it very tight.  It was pain, causing

 

            23   so much pain on my hand.  And he pushed me till front of the

 

            24   building.  And I was screaming.  He pushed me to lay down in

 

            25   the mud like a duck.  Then he took me inside the lobby, and

 

 

 


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             1   after American detective came and loosened it a little bit,

 

             2   and this is the story which I know.  For you to believe my

 

             3   story, Judge, if you go back to my property, you find all my

 

             4   clothes having dirt, blue jeans and my raincoat and my jacket

 

             5   all having dirt except my sleeve, because my sleeve was in the

 

             6   back.  If I ever pushed anybody without recognizing it, I was

 

             7   not aware about it, Judge, at all.  I did not push anybody and

 

             8   that I was aware about it.

 

             9            About Ayyad's call, Judge, Ayyad called me because he

 

            10   had money, he had to give it to me.  I went to him, I met him,

 

            11   I took the money, I deposit it in the bank and I give Salem

 

            12   the two receipts, the first check from Salameh and the money

 

            13   from Ayyad.

 

            14            My lawyer found the receipt, deposit receipt in

 

            15   property, but then the receipt vanished and I was sitting here

 

            16   in court under the impression that you personally know about

 

            17   this and the office will contact Ayyad's lawyer to find the

 

            18   receipt so the jury can see it, and the jury went for

 

            19   deliberation without seeing the receipt.  His mother was aware

 

            20   about this, and nobody came to testify about it.  The contact

 

            21   was for money.  I took it, I deposit it, I gave him the

 

            22   deposit receipt.  I have nothing to do with the World Trade

 

            23   Center at all.

 

            24            I never recruited Emad Salem for anything.  I met him

 

            25   or anybody ever in my house except Dr. Mann and this was for

 

 

 


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             1   deal.  I never recruited Emad Salem for anything at all.

 

             2            When you sentence me, Judge, remember that you are

 

             3   sentencing innocent man.  I have six kids.  One of them has

 

             4   mental defection and the other has physical defection.  I

 

             5   claim my innocence.  I did nothing wrong.  I was not ever

 

             6   having my intention to harm America or make war against

 

             7   America.  The government has no case against me.  Only the

 

             8   word of Emad Salem, which I showed to you, he was making

 

             9   scenario about me to make me, and his tapes proves that he was

 

            10   lying.

 

            11            Judge, without any enmity I will take the case to the

 

            12   appeal court, and without no enmity, if I can try, I will go

 

            13   to the Supreme Court.  But for sure I will take the case to

 

            14   the divine court.  Besides Emad Salem's word, Judge, what

 

            15   anybody in this hall having against me?  It is no single call

 

            16   can tell anybody that I ever did anything wrong.

 

            17            Sometimes I wonder, Judge, why I am standing here,

 

            18   why I am in this case.  I was taught through my religion, for

 

            19   those who receive oppression, if you make supplication to

 

            20   Allah, Allah will answer them by saying, on my glory, on my

 

            21   oath, I will give you victory and justice, even after a while,

 

            22   and this what I am hoping for.

 

            23            Thank you.

 

            24            THE COURT:  Thank you, Mr. El-Gabrowny.  Most of Mr.

 

            25   El-Gabrowny's comments were directed in essence at claiming

 

 

 


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             1   and seeking to establish that he was not guilty of the charges

 

             2   on which the jury found him guilty.  However, I must tell him,

 

             3   as I have told others, that the assumption underlying this

 

             4   proceeding is that the jury's verdict is correct, and that is

 

             5   the assumption on which I am going to proceed.

 

             6            Also I would suggest to you it is an assumption that

 

             7   is justified by the evidence.  Mr. Ricco has argued that any

 

             8   guideline result that doesn't permit me to consider the facts

 

             9   underlying the offenses and their seriousness in relation to

 

            10   other offenses committed by others and to the role of Mr.

 

            11   El-Gabrowny in relation to others, that any reading of the

 

            12   guidelines that doesn't permit me to do that is unfair, and as

 

            13   a result he is asking me to find that Mr. El-Gabrowny was a

 

            14   minor participant, in essence in order to back out of the

 

            15   conundrum that the guidelines place me in.  The facts don't

 

            16   justify a finding that Mr. El-Gabrowny was a minor

 

            17   participant.  His possession of the passports, his contact

 

            18   with Ayyad, Salameh, with others, indicate that he was

 

            19   integral to Nosair's contact with the outside world and Nosair

 

            20   was integral to the World Trade Center bombing.  In particular

 

            21   his possession of those passports on his person on the day

 

            22   that and shortly after Salameh was arrested is itself very

 

            23   telling evidence that he was aware that those passports were

 

            24   something that the agents would show up and seek to find.  As

 

            25   a result, it is clear that he took them out of his apartment.

 

 

 


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             1            If I were free to impose any sentence that I wanted

 

             2   in this case, the sentence would be less than the one that I

 

             3   believe the guidelines require me to impose, and I am going to

 

             4   do something that I haven't done with respect to any other

 

             5   defendant and I will simply tell you what the sentence would

 

             6   be if I were free to impose a sentence without regard to the

 

             7   guidelines.  It would be the same sentence that other

 

             8   defendants got on Count 1.  It would be three years for the

 

             9   assault and interference with search warrant counts, it would

 

            10   be three years concurrent on those, and it would be a total of

 

            11   10 years on the passport counts, five for the Nosair passport

 

            12   and five for the remainder.  However, I do not believe that

 

            13   the guidelines leave me free to impose that sentence.

 

            14            As a result, with an offense level of 43, the

 

            15   sentences will be as follows:  With respect to Count 1, 20

 

            16   years; with respect to Counts 20, 21 and 22, three years each;

 

            17   with respect to Counts 24 through 28, five years each, all of

 

            18   those counts to run consecutively, for a total of 57 years.

 

            19            Mr. El-Gabrowny will be placed on supervised release

 

            20   for a period of three years.  Following his release, should it

 

            21   come, he will pay the costs of supervised release at such

 

            22   time, if it comes, that his income exceeds $3,000 per month

 

            23   after taxes, and then to the extent of 30 cents on the dollar

 

            24   with adjustments for increases in the cost of living as of

 

            25   today.  I find that he is without the funds to pay either a

 

 

 


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             1   fine or the costs of imprisonment and accordingly neither of

 

             2   those will be imposed.  There is a mandatory $50 per count

 

             3   special assessment for a total of $500 that I must impose and

 

             4   do impose.

 

             5            I advise Mr. El-Gabrowny, as I have others, that he

 

             6   has a right to appeal both the sentence and the conviction,

 

             7   and I will ask Mr. Ricco to file a notice of appeal in his

 

             8   behalf.  Is there anything else?

 

             9            MR. FITZGERALD:  Yes, your Honor.  I think we need to

 

            10   make clear for the record that Mr. Ricco and Mr. El-Gabrowny

 

            11   had an adequate opportunity to review the PSI.

 

            12            THE COURT:  Mr. Ricco, you did review the presentence

 

            13   report with your client, is that correct?

 

            14            MR. RICCO:  Yes, your Honor.

 

            15            THE COURT:  And you have made submissions to me in

 

            16   that connection.

 

            17            MR. RICCO:  That is correct.

 

            18            MR. FITZGERALD:  Lastly, your Honor, I think you

 

            19   didn't mention Count 23, but it is implicit in the 57 years,

 

            20   that three years would be imposed in that count consecutively.

 

            21   I think you skipped one count in reciting sentence.

 

            22            THE COURT:  Three years each on Counts 20, 21, 22 --

 

            23   I am sorry -- and 23.

 

            24            MR. FITZGERALD:  Thank you.

 

            25            THE COURT:  Thank you.

 

 

 


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             1            (Defendant Ibrahim El-Gabrowny excused)

 

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             1            (Defendant El Sayyid Nosair present)

 

             2            THE CLERK:  United States of America against Nosair.

 

             3   Is the government ready?

 

             4            MR. KHUZAMI:  Ready, your Honor.

 

             5            THE CLERK:  Is the defendant ready?

 

             6            MR. STAVIS:  Ready, your Honor.

 

             7            THE COURT:  Mr. Khuzami, anything to tell me other

 

             8   than what I have already got?

 

             9            MR. KHUZAMI:  Nothing, your Honor.

 

            10            THE COURT:  Mr. Stavis, you have reviewed the

 

            11   presentence report with your client?

 

            12            MR. STAVIS:  Yes, your Honor, I have reviewed the

 

            13   presentence report and we submitted a letter making certain

 

            14   objections and recommendations.  A revised presentence report

 

            15   was drafted and I have also discussed the revised presentence

 

            16   report with Mr. Nosair.

 

            17            Your Honor, it was about four years ago just down the

 

            18   street in state court that Mr. Nosair was acquitted by a state

 

            19   jury of the murder of Rabbi Meir Kahane.  He now appears

 

            20   before your Honor for a sentence on a charge of murdering Meir

 

            21   Kahane.  Unlike the other defendants in the case we don't have

 

            22   guidelines issues, and your Honor's obligation with regard to

 

            23   sentence is clear.  I have raised the double jeopardy issue

 

            24   with the court.  The court has denied my application.  The

 

            25   Second Circuit has affirmed your Honor's order and the Supreme

 

 

 


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             1   Court of the United States has denied certiorari on that

 

             2   issue.

 

             3            A lot has been said and written about Mr. Nosair,

 

             4   your Honor.  I was reminded just a few minutes ago that in the

 

             5   World Trade Center case, I believe it was Austin Campriello

 

             6   made a Rule 403 motion concerning the use of Mr. Nosair's

 

             7   name, deeming it so prejudicial that Mr. Nosair's name should

 

             8   not be uttered at the World Trade Center trial in connection

 

             9   with Mr. Campriello's client at that trial.

 

            10            Mr. Nosair has been so reviled, in the media and from

 

            11   certain witnesses who appeared here at this trial, I would

 

            12   note that the presentence report, your Honor, at page 50,

 

            13   Miss La Covara stated, and I quote, "In his dealings with

 

            14   other individuals inclusive of the undersigned" -- Miss La

 

            15   Covara -- "Mr. Nosair has strived to depict himself as an

 

            16   affable, conciliatory individual.  While those may indeed be

 

            17   surface attributes, a realistic impression of the defendant is

 

            18   that of a ruthless, calculating and duplicitous person who is

 

            19   not hesitant to kill others for the purpose of perpetuating

 

            20   his Islamic beliefs."

 

            21            It is my request of the court that that rancor be put

 

            22   aside and that the court sentence Mr. Nosair not for who he is

 

            23   but for what the jury has found he did.  Because when it comes

 

            24   to who he is, your Honor, I submit that the presentence report

 

            25   and all those who have reviled him in the media and in this

 

 

 


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             1   courtroom have it wrong.

 

             2            Who is he, your Honor?  He is the man that your Honor

 

             3   thanked from that very bench on November 22, 1994, for his

 

             4   role in, as the court saiddeplored, "diffusing the situation"

 

             5   and urging his codefendant and colleague Sheik Omar Abdel Ali

 

             6   Rahman to seek the medical treatment that he needed at that

 

             7   time.

 

             8            He is the man who in a letter to the New York Times

 

             9   that was published on March 4 of 1994, deplored the, quote,

 

            10   "cycle of violence."  That was his response to the massacre at

 

            11   the Cave of the Patriarchs in Hebron, in Israel.

 

            12            He is the man, your Honor, who just about two months

 

            13   ago received a letter:  "Thank you for your heartfelt letter

 

            14   of sympathy for the late Prime Minister and Minister of

 

            15   Defense Yitszak Rabin.  Your kind words show all of us the

 

            16   strong bond of friendship between us.  I would like to express

 

            17   my sincere appreciation and gratitude.  Thank you.  Sincerely

 

            18   Shlomo Gur, Minister, Deputy Chief of Mission, Embassy of

 

            19   Israel, Washington, D.C."

 

            20            Mr. Nosair is ready to proceed to sentence, and all I

 

            21   ask your Honor is that you sentence him for what the jury

 

            22   found he has done, and not for who he is.

 

            23            I believe Mr. Patel has additional remarks, your

 

            24   Honor.

 

            25            THE COURT:  Mr. Patel.

 

 

 


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             1            MR. PATEL:  Your Honor, we are aware and Mr. Nosair

 

             2   is aware that there are no guidelines issues, that your Honor

 

             3   has to impose the sentence of life without parole, and that

 

             4   Mr. Nosair will be spending the rest of his life primarily in

 

             5   a room approximately a third of the size of this jury box.  My

 

             6   request, your Honor, and it is only a request, that you

 

             7   recommend, and I understand that it is not within the court's

 

             8   power to order but that you recommend that he be in a facility

 

             9   in the northeast so that he can maintain the relationship that

 

            10   he has somehow managed to maintain with his 10 and 12-year-old

 

            11   sons and his 16-year-old stepdaughter.  That is our only

 

            12   request, your Honor.

 

            13            Mr. Nosair is a complex man.  Your Honor has to

 

            14   impose the maximum sentence of life imprisonment and we just

 

            15   ask for this courtesy on behalf of himself and his children.

 

            16   Thank you.

 

            17            THE COURT:  Mr. Nosair, is there anything you want to

 

            18   tell me before I impose sentence?

 

            19            DEFENDANT EL SAYYID NOSAIR:  Yes, your Honor.  In the

 

            20   name of Allah, the gracious, the merciful, the honorable Judge

 

            21   Michael Mukasey.  We sat nine months in this courtroom.  The

 

            22   effect of the government presentation was to demonize those of

 

            23   us in this case and the religion we believe in.  Because of

 

            24   the bombing of the World Trade Center, the government made up

 

            25   this case using a fraudulent informant to aid them while they