B. Affiliation with Terrorist Organizations
Were the guidelines applicable in this case, the court would take into account the defendant's affiliation with a criminal organization as a basis for an upward departure to provide the maximum sentence permitted by law. See, e.g., United States v. Rodriguez, 968 F.2d 130, 139-40 (2d Cir. 1992) (head of criminal drug enterprise); United States v. Mosquera, 978 F.2d 706 (2d Cir. 1992) (connection to Medellin Drug Cartel, described in 803 F. Supp. 611, 612 (E.D.N.Y. 1992)); United States v. Chilli, 783 F. Supp. 203, 205-07 (S.D.N.Y. 1992) (connection to organized crime).
The present case is not subject to the Sentencing Guidelines. Consequently, this court has full discretion in imposing a sentence up to the maximum provided by statute. United States v. Giraldo, 822 F.2d 205, 210 (2d Cir.), cert. denied, 484 U.S. 969, 98 L. Ed. 2d 405, 108 S. Ct. 466 (1987). See also United States v. Tucker, 404 U.S. 443, 446, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972). For conduct that occurs prior to the enactment of the Sentencing Guidelines judges have "unbridled discretion [to fashion] a sentence." United States v. Watford, 894 F.2d 665, 667 (4th Cir. 1990).
C. 1979 Arrest in Germany for Terrorist Activities
The government has offered proof that the defendant was arrested using the alias "Sejaan" in Germany in 1979 while in the company of a PLO official who was on his way to Israel to conduct a terrorist mission. The vehicle the men were using contained approximately eighty-eight pounds of high explosives, eight electronic timing-delay devices and eight detonators. Additional incriminating evidence was seized. Sejaan's fingerprints, which were found on one of the blocks of explosive material, matched those of defendant. Sejaan's photograph was a photograph of the defendant.
Defendant urges that this arrest and incriminating evidence not affect the sentence imposed by the court because all charges were dismissed by Germany and the defendant was unconditionally released. Moreover, defendant contends that this fourteen year-old event has little value in light of defendant's "spotless record" since that time. The court in its discretion will not consider this arrest in imposing sentence.
D. Effect on Family
Defendant requests leniency because of the adverse effect a long prison term would have on his family. His wife and children have written to the court and supplied family pictures. The defendant's family consists of intelligent, well-behaved and handsome people who obviously yearn for the return of defendant. Though they have done no harm, the wife and children will suffer because of defendant's incarceration.
In the realm of criminal sanctions it is the child who suffers for the sin of the parent. Moreover, experience indicates that the descendant is apt to end up, like the model progenitor, an incarcerated criminal passing down bitterness and antisocial attitudes from generation to generation. This is an unavoidable byproduct of our system of punishing a criminal for his or her crimes.
The court deeply regrets the adverse effects on the family. Yet, it must do its duty to the many unknown innocent families who will, the law assumes, be less likely to lose a parent or spouse to random terrorist violence of this defendant and others like him if he is incarcerated.
E. Limits Imposed by Italian Authorities
Defendant argues that this court's power to sentence him is limited by the terms of his extradition because the Italian authorities, as part of the order authorizing extradition, implied that the maximum prison sentence that could be imposed on defendant was a total term of ten years. The facts are to the contrary.
Nothing in the extradition rulings of the Italian court places a limitation on the length of sentence that may be imposed by this court. The translated version of the decision of the Italian Appeal Court that reviewed the certification of extradition makes clear that it did not limit this court to imposing a ten year sentence. The Italian court simply noted that under United States law the maximum penalty that could be imposed per count was ten years. It would have been inappropriate under international law for the Italian court to attempt to limit a United States court's exercise of discretion within due process limits. The only limit of the Italian court was that the person extradited not be executed for a capital crime. Cf., Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990) (fairness of court trying crime not to be considered by court considering extradition). Cf., the discussion of the Soering case excluding capital punishment in requesting state in Ahmad v. Wigen, 726 F. Supp. 389, 413-15 (E.D.N.Y. 1989).
Nor is the court limited to any term by the principle of specialty. The three attempted bombings included in the superseding indictment were related offenses. The Italian court was fully aware that the United States intended to try defendant for all these crimes. The situation is factually almost on all fours with United States v. Paroutian, 299 F.2d 486, 490-91 (2d Cir. 1962) (no violation of principle of specialty where defendant extradited based on Southern District of New York narcotics indictment was later tried on additional narcotics charges in Eastern District of New York). Moreover, the language of the treaty under which defendant was extradited does not contain language prohibiting the requesting government from trying the accused for any crime committed before the time of his surrender other than the crime for which he was extradited, despite the fact that clauses to that effect are readily available. See Fiocconi v. Atty. Gen. of the United States, 462 F.2d 475, 481 (2d Cir.), cert. denied, 409 U.S. 1059, 34 L. Ed. 2d 511, 93 S. Ct. 552 (1972) (analyzing predecessor Extradition Treaty of 1868 with Italy).
IX. SPECIFIC SENTENCE
A. Consecutive Sentences
In a pre-Guidelines sentence such as this one, the trial court may decide whether the sentences imposed on each count should run concurrently or should be consecutive. See generally Charles A. Wright, 3 Federal Practice and Procedure § 527 (2d ed. 1982). See also Callanan v. United States, 364 U.S. 587, 597, 5 L. Ed. 2d 312, 81 S. Ct. 321 (1961) (where defendant commits two separate acts of the same crime, court's authority to sentence consecutively cannot be questioned); Carmack v. United States, 296 F.2d 893, 894 (10th Cir. 1961) ("It is so firmly established in the law that sentences for separate crimes may be consecutive that there is no need in discussing the proposition at any length."); Swepston v. United States, 289 F.2d 166, 168 (8th Cir. 1961), cert. denied, 369 U.S. 812, 7 L. Ed. 2d 612, 82 S. Ct. 689 (1962) ("Consecutive sentences for separate counts of the same indictment . . . have long been sanctioned and cases involving them have been before the Supreme Court many times.").
This case clearly warrants the maximum penalty. The statute authorizes the court to sentence the defendant to ten years per offense charged, consecutively. 18 U.S.C. § 844(i). The maximum sentence permissible -- thirty years -- is required for general deterrence and incapacitation.
C. Time Credited From Arrest in Italy
Defendant urges that he should be given 451 days' credit towards his sentence for time spent in jail between January 16, 1991 when he was arrested in Italy, and April 12, 1992, when he was extradited to the United States. Defendant will receive credit for time served in Italy in accordance with United States federal lenient practice. The computation of time served will be made by the Attorney General. 18 U.S.C. § 3568 (applicable to sentences for crimes committed prior to Nov. 1, 1987). See, e.g., United States v. Wilson, 117 L. Ed. 2d 593, 112 S. Ct. 1351, 1353 (1992); United States v. Edwards, 960 F.2d 278, 281 (2d Cir. 1992).
The maximum fine is also imposed. This is $ 10,000 per count. 18 U.S.C. § 844(i). Consecutive fines total $ 30,000. While defendant claims no substantial assets, he travels widely and he received ample funds from abroad while he was planting bombs in this country. The PLO and Black September organizations with which he is associated are well financed and in a position to pay the fine imposed on their agent.
The defendant's motion for a judgment of acquittal or a new trial is denied. Defendant is sentenced to ten years in prison on each count, the sentences to run consecutively for a total of thirty years in prison, and fines of $ 10,000 on each count, consecutive, for a total of $ 30,000 in fines. The court notes that this is a pre-Guidelines sentence and the defendant, therefore, as a matter of statute, is subject to parole. The time of defendant's release is not subject to court control.
Jack B. Weinstein
Senior United States District Judge
Dated: Brooklyn, New York
April 16, 1993
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