The opinion of the court was delivered by: Schroeder, United States Magistrate Judge.
Understandably, the infamous, dastardly and tragic deeds and
events of September 11, 2001 have caused a maelstrom of human
emotions to be not only released but to also create a human
reservoir of strong emotional feelings such as fear, anxiety and
hatred as well as a feeling of paranoia in many of the hearts
and minds of the inhabitants of this great nation. These are
strong emotions of a negative nature which, if not appropriately
checked, cause the ability of one to properly reason to be
impeded or to be blinded in applying our basic principles of
law. In applying our democratic principles of law, the only
blindness that is allowed and acceptable is that in which
justice is blind to such things as a person's national origin or
ethnic background or one's race or color or religious beliefs,
because those characteristics play no role in deciding legal
issues such as those that confront this Court today. If we truly
believe in the principles espoused in this nation's Declaration
of Independence and the United States Constitution, we must give
more than lip service to those principles. We must fairly and
fully apply those principles to each and every person entitled
to their protection no matter how distasteful, frightening or
loathsome it might be to some in doing so. We must always be
vigilant to make certain that the rule of law, and not emotion,
carries the day. There can be no doubt that the Constitution of
the United States and our concepts of democracy provide
sufficient strength and protection to bring citizens to justice
without weakening our security. We must never adopt an "end
justifies the means" philosophy by claiming that our
Constitutional and democratic principles must be temporarily
furloughed or put on hold in cases involving alleged terrorism
in order to preserve our democracy. To do so, would result in
victory for the terrorists.
This is indeed a unique case and one of first impression. The
defendants herein are charged in a criminal complaint with
having violated Title 18 U.S.C. § 2339B and 2. The defendants
Goba, Alwan, Mosed, Taher and Galab had their initial appearance
on the aforesaid complaint on September 14, 2002, and at that
time, the government moved to have the defendants detained on
the basis that they constitute a danger to the community and
were a risk for flight.
The defendant Al-Bakri had his initial appearance on a
separate complaint containing the same charges on September 16,
2002, and the government moved for his detention on the same
All of the defendants requested the Court to appoint counsel
to represent them at taxpayers' expense, and this was
Thereafter, the government renewed its motion to have all of
the defendants herein detained on the basis that each defendant
constituted a danger to the community and was a risk of flight.
Each defendant, by his counsel, objected to detention and has
requested the Court to release him on bail subject to suggested
conditions. The defendants filed a "Joint Memorandum Of Law In
Opposition To Detention Motion" on September 18, 2002 and a
"Joint Supplemental Memorandum Of Law In
Opposition To Detention Motion" was filed on September 19, 2002.
A detention hearing was held, and both the government and the
defense have presented their positions and support of their
positions by proffer. The hearing itself was conducted over a
number of days, to wit, September 18, 19, and 20, 2002 and
October 3, 2002. Counsel for the government filed a "Memorandum
And Proffer In Support Of Pre-Trial Detention" on September 27,
2002 along with an affidavit of Assistant United States Attorney
William J. Hochul, Jr. sworn to September 27, 2002 in further
support of the government's motion. Counsel for the defendants
filed another "Joint Memorandum Of Law In Opposition To The
Government's Motion for Detention" on September 27, 2002, and
individual filings were made on behalf of the defendants Goba,
Alwan, Mosed, Galab, Taher and Al-Bakri on September 27, 2002.
However, because of the government's additional filings
asserting new information on September 27, 2002, counsel for the
defendants requested an opportunity to respond to the content of
those filings as part of the public hearing, which request was
granted, and the matter was scheduled for October 3, 2002. On
October 2, 2002, Assistant United States Attorney Martin J.
Littlefield filed two separate affidavits sworn to on October 2,
2002, one of which modified the September 27, 2002 affidavit of
Assistant United States Attorney Hochul with respect to quoted
recitations from an audio cassette tape entitled "Koranic
Recitations." The other was submitted in further support of the
government's motion for detention and set forth additional
information about the alleged travel arrangements of the
defendants Taher, Galab and Mosed in April 2001.
Upon completion of the defendants' further proffers and the
government's rebuttal to same on October 3, 2002, the matter was
taken under advisement by the Court, and the following
constitutes this Court's decision with respect to the
government's motion to detain the defendants and each
defendant's application to be released on bail.
At the outset, counsel for the defendants objected to the
government's proceeding by proffer and requested that the
government be required to offer testimony along with documentary
evidence in support of this motion. This joint objection and
request by the defendants was overruled and denied, and the
Court allowed all parties to proceed by proffer.
It is well established in this circuit that proffers
are permissible both in the bail determination and
bail revocation contexts.
United States v. LaFontaine, 210 F.3d 125, 131 (2d Cir. 2000).
See also United States v. Davis, 845 F.2d 412, 415 (2d Cir.
The government's motion to detain the defendants herein is
based on its claim that each defendant is charged with a crime
of violence, to wit, with having violated 18 U.S.C. § 2339B and
therefore, each defendant constitutes a danger to the community
and a risk for flight.
The Bail Reform Act limits the circumstances under
which a district court may order pretrial detention.
See United States v. Salerno, 481 U.S. 739, 107
S.Ct. 2095, 2102, 95 L.Ed.2d 697 (1987). A motion
seeking such detention is permitted only when the
charge is for certain enumerated crimes,
18 U.S.C. § 3142(f)(1) (crimes of violence, offenses for which
the sentence is life imprisonment or death, serious
drug offenses, or felonies committed by certain
repeat offenders), or when there is a serious risk
that the defendant will flee, or obstruct or attempt
to obstruct justice. Id. § 3142(f)(2).
After a motion for detention has been filed, the
district court must undertake a two-step inquiry.
See United States v. Shakur, 817 F.2d 189, 194
(2d Cir. 1987). It must first determine by a
preponderance of the evidence, see United States v.
Jackson, 823 F.2d 4, 5 (2d Cir. 1987) that the
defendant either has been charged with one of the
crimes enumerated in Section 3142(f)(1) or that the
defendant presents a risk of flight or obstruction of
justice. Once this determination has been made, the
court turns to whether any condition or combination
of conditions of release will protect the safety of
the community and reasonably assure the defendant's
appearance at trial. United States v.
Berrios-Berrios, 791 F.2d 246, 250 (2d Cir.), cert.
dismissed, 479 U.S. 978, 107 S.Ct. 562, 93 L.Ed.2d
United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988).
During the course of the proffer on behalf of the government,
counsel for the government attempted to activate the presumption
"that no condition or combination of conditions will reasonably
assure the appearance of the [defendants] as required and the
safety of the community" pursuant to § 3142(e) of the Bail
Reform Act because each defendant was allegedly involved in an
offense covered under section 924(c) of Title 18 U.S.C. This
argument is based on the government's proffer that each
defendant was engaged in training at a terrorist training camp
in Afghanistan and instructed in the use of a Kalashnikov rifle
and other types of weaponry and that each defendant participated
in the use of such weaponry.
Title 18 U.S.C. § 924(c) provides:
(C)(1)(A) Except to the extent that a greater
minimum sentence is otherwise provided by this
subsection or by any other provision of law, any
person who, during and in relation to any crime of
violence or drug trafficking crime (including a
crime of violence or drug trafficking crime that
provides for an enhanced punishment if committed by
the use of a deadly or dangerous weapon or device)
for which the person may be prosecuted in a court
of the United States, uses or carries a firearm, or
who, in furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime —
The government argues that since the defendants are charged
with a crime of violence, to wit, 18 U.S.C. § 2339B, and since
they were "using or carrying firearms" (Kalashnikov rifle and
long distance rifles) in furtherance of "providing material
support" to a terrorist organization, the aforesaid presumption
under § 3142(e) applies.
I find this argument to be without legal merit and therefore
reject it for the following reasons. As previously stated, each
of the defendants herein is charged in a criminal complaint with
having violated 18 U.S.C. § 2339B and 2. None of them are
charged in any way with having violated 18 U.S.C. § 924(c). The
clear holding in United States v. Chimurenga disposes of the
The plain language of the statute and the legislative
history shows that the presumption was intended to
arise only after a defendant has been charged with
the particular offense by a valid complaint or
indictment. . . . To hold that the rebuttable
presumption comes into play prior to a formal charge
would rip the fabric of the statute's carefully sewn
procedural safeguards. See United States v. Payden,
759 F.2d 202, 205 (2d Cir. 1985).
Therefore, it is incumbent upon the government to support its
claim that each defendant constitutes a danger to the community
by "clear and convincing evidence." United States v.
Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991); United States v.
Martir, 782 F.2d 1141, 1147 (2d Cir. 1986); Chimurenga, 760
F.2d at 403; 18 U.S.C. § 3142(f).
However, before addressing the issue of what constitutes
"clear and convincing evidence" in support of the government's
claim, a determination must first be made as to whether Title
18 U.S.C. § 2339B constitutes a crime of violence so as to provide
a legal basis for the government's motion to detain any of these
defendants. See 18 U.S.C. § 3142(f)(1)(A). The defendants
argue that 18 U.S.C. § 2339B does not per se constitute a
crime of violence since "it does not contain an element of
physical force, its use, attempted or threatened" and that it
does not meet any of the definitions set forth in
18 U.S.C. § 3156(a)(4) subsections A, B and C. Defendants' Joint Memorandum
Of Law In Opposition To The Government's Motion For Detention
("Defendants' Joint Memorandum") at p. 7.
In the task of interpretation of a statute, a court
must be disinterested so that it may fairly ascertain
Congressional purpose and policy, and must avoid
treating the words used in the statute as "empty
vessels" into which meaning can be poured.
Chimurenga, 760 F.2d at 403.
Title 18 U.S.C. § 3156(a)(4)(B) defines a "crime of violence"
any other offense that is a felony and that by its
nature, involves a substantial risk that physical
force against the person or property of another may
be used in the course of committing the offense
The defendants are charged with having violated
18 U.S.C. § 2339B by "provid[ing] material support or resources to a foreign
terrorist organization, or attemp[ing] or conspir[ing] to do
so. . . ." Section 2339B(g)(6) defines a "terrorist
organization" by reference, to wit, Title
8 U.S.C. § 1182(a)(3)(B)(vi), which defines a "terrorist organization" as
[T]he term "terrorist organization" means an
(III) that is a group of two or more
individuals, whether organized or not, which
engages in the activities described in subclause
(I), (II) or (III) of clause (iv).
8 U.S.C. § 1182(a)(3)(B)(iii) defines "terrorist activity" in
part as follows:
As used in this chapter, the term "terrorist
activity" means any activity which is unlawful under
the laws of the place where it is committed (or
which, if it had been committed in the United States,
would be unlawful under the laws of the United States
or any State) and which involves any of the
(b) explosive, firearm, or other weapon or
dangerous device (other than for mere personal
monetary gain), with intent to endanger, directly
or indirectly, the safety of one or more
individuals or to cause substantial damage to
property (emphasis added).
Title 22 U.S.C. § 2656f(d)(2) and (3) define "terrorism" and
"terrorist group" as follows:
(2) the term "terrorism" means premeditated,
politically motivated violence perpetrated
against noncombatant targets by subnational groups
or clandestine agents; and
(3) the term "terrorist group" means any group
practicing, or which has significant subgroups
which practice, international terrorism (emphasis
In applying the aforesaid definitions and the concepts to
which they related, I conclude that 18 U.S.C. § 2339B
constitutes a crime of violence.
It takes little imagination to conclude that
providing material support and resources to a
terrorist organization creates a substantial risk
that the violent aims of the terrorists will be
realized. Violence, therefore, is intrinsic to the
crimes with which [the defendants are] charged.
United States v. Lindh, 212 F. Supp.2d 541, 580 (E.D.Va. 2002).
As stated earlier, the defendants are charged with conspiring
to violate 18 U.S.C. § 2339B by their alleged actions as a
The existence of a criminal grouping increases the
chances that the planned crime will be committed
beyond that of a mere possibility. Because the
conspiracy itself provides a focal point for
collective criminal action, attainment of the
conspirators' objectives becomes instead a
significant probability. Thus, ascribing an
ordinary meaning to the words, a conspiracy to commit
an act of violence is an act involving a "substantial
risk" of violence.
Chimurenga, 760 F.2d at 404 (internal citation omitted).
Therefore, I find that the requirement of
18 U.S.C. § 3142(f)(1)(A) has been met.
In order to prevail on its motion for detention of the
defendants, the government has the burden of establishing by
"clear and convincing evidence" that each defendant constitutes
a danger to the community and therefore should not be allowed
pretrial release since there are no conditions or combination of
conditions that could be imposed to "reasonably assure the
appearance of [the defendant] as required and the safety of any
other person and the community."
However, the government is not required to present "a record
of violence or dangerous conduct" by each defendant "in order to
justify detaining a defendant on grounds of dangerousness."
Rodriguez, 950 F.2d at 89. Although a prior record of violence
eases the government's burden of showing dangerousness, it is
not essential. The government's burden is "only to prove
dangerousness by clear and convincing evidence." Id. (emphasis
added). See also LaFontaine, 210 F.3d at 134; United States
v. Ferranti, 66 F.3d 540, 543 (2d Cir. 1995).
The Bail Reform Act of 1984 requires the Court, in considering
whether bail should be granted to a defendant, "to consider
properly `the nature and seriousness of the danger to . . . the
community that would be posed by the person's release. . . .'"
Rodriguez, 950 F.2d at 89 (emphasis added).
"Clear and convincing evidence" has been defined in a number
of different settings, i.e., in cases involving civil
litigation as well as in criminal cases. Nevertheless, there
appears to be a generally accepted definition which is as
The clear and convincing standard of proof has been
variously defined . . . as evidence which produces in
the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought
to be established, evidence so clear, direct and
weighty and convincing as to enable [the factfinder]
to come to a clear conviction, without hesitancy, of
the truth of the precise facts in issue.
Cruzan v. Missouri Dep't of Health, 497 U.S. 261, 285 n. 11,
110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (alteration in original)
(internal quotation omitted).
In an earlier civil case involving the states of Colorado and
New Mexico over water rights, the United States Supreme Court
stated that the clear and convincing evidence standard is one
which "place[s] in the ultimate factfinder an abiding conviction
that the truth of [the proponent's] factual contentions are
`highly probable.'" Colorado v. New Mexico, 467 U.S. 310, 316,
104 S.Ct. 2433, 81 L.Ed.2d 247 (1984).
The United States Court of Appeals for the Second Circuit has
clear and convincing evidence with respect to a
defendant's danger to the community required by §
3142(f)(2)(B) [as being] something more than
"preponderance of the evidence," and something less
than "beyond a reasonable doubt." To find danger to
the community under this standard of proof requires
that the evidence support such a conclusion with a
high degree of certainty.
Chimurenga, 760 F.2d at 405.
Finally, Black's Law Dictionary, Seventh Edition defines
"clear and convincing evidence" as follows:
Evidence indicating that the thing to be proved is
highly probable or reasonably certain. This is a
greater burden than preponderance of the evidence,
the standard applied in most civil trials, but less
than evidence beyond a reasonable doubt, the norm for
I point out and emphasize that "[t]he function of a standard
of proof is to `instruct the factfinder concerning the degree of
confidence our society thinks he should have in the correctness
of factual conclusions for a particular type of adjudication.'"
Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 60
L.Ed.2d 323 (1979), quoting In re Winship, 397 U.S. 358, 370,
90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring).
Because of the length of the detention hearing herein, and the
voluminous nature of the proof proffered by counsel for the
government and each of the defendants, I have prepared an
attachment to the Decision and Order, which is incorporated
herein by reference, containing a synopsis of the proof
proffered by the government in support of its motion to detain
the defendants, and the proof proffered on behalf of each
defendant in opposition to the motion and in further support of
each defendant's application to be released on bail. However,
the evidence proffered that I have considered crucial in making
my decision is referenced within the body of this Decision and
I find that the government's exhibits proffered at the
detention hearing, consisting of airline boarding passes for the
defendants Mosed, Taher and Galab, and the passport entries for
the defendant Mosed, along with the United States Customs Report
for those three defendants, establish in a clear and convincing
way that defendants Mosed, Taher and Galab left JFK Airport on
April 28, 2001 on Pakistan International Airline's Flight Number
712Y bound for the ultimate destination of Lahore, Pakistan and
that they arrived at that destination on April 29, 2001; that
they exited Lahore, Pakistan on June 27, 2001 and arrived at JFK
Airport on June 27, 2001. I further find that each of these
defendants paid the sum of $1,309.20 in cash for their airline
tickets for this trip.
As to the defendants Goba, Alwan and Al-Bakri, I find that the
statements given by Alwan and Al-Bakri are credible for purposes
of this Decision and Order when considered in the context of the
total evidence proffered herein. More specifically, the
passports of Alwan and Goba offered by the government at the
hearing establish that entry visas were issued to them by the
Islamic Republic of Pakistan having a duration period of "three
months." Alwan's passport indicates an entry at Karachi,
Pakistan on May 14, 2001 and a
departure from Karachi, Pakistan on June 20, 2001. The entry
date in the Goba passport exhibit is blurred, but it contains an
exit stamp from Karachi, Pakistan on August 2, 2001.
In his statement to the F.B.I., Alwan states that Goba
"obtained the visas for Al-Bakri and [himself]." T. 394.*fn2
Al-Bakri in his statement to the F.B.I. states that Goba was
"the leader of the group during [the group] trip to Pakistan and
Afghanistan" and that Goba was the "emir of the group and
collected money from [him] for the trip before they left
Lackawanna, New York." T. 394.
Alwan further states that he, Goba and Al-Bakri stayed in
Karachi, Pakistan for approximately one week, at which time they
met Conspirator A.T. 67. From Karachi, Pakistan, they flew to
Quetta, Pakistan where they stayed at the guest house for a
period of time. T. 68. From Quetta, they were transported to
another guest house in Kandahar, Afghanistan where all three
stayed for a week. T. 68-69. While at this guest house, all
three received "indoctrination and training by al-Qaida members
and other persons affiliated with the al-Qaida terrorist
network." T. 69. They were shown, among other things, a movie
about the destruction of the USS Cole and how al-Qaida committed
that particular terrorist act. There were also conversations
about Palestine and Kashmir, and they "were provided with
anti-American indoctrination and anti-American sentiments." T.
The defendant Al-Bakri corroborates the substance of the
statement given by Alwan to the F.B.I. Al-Bakri, in his
statement, has stated that "the leader of the whole trip from
Buffalo into the al-Farooq training camp was defendant Goba." T.
104. He admitted having traveled to Karachi, Pakistan along with
defendants Goba and Alwan and traveling to Quetta, Pakistan from
there. He states that the trip to Quetta was by air and that
this trip "was paid for by the people who ran the guest house in
Quetta." T. 98. He further "acknowledged driving to Kandahar,
going to a guest house there and viewing the movie about the USS
Cole." T. 98.
Both Alwan and Al-Bakri have admitted to traveling to a
"training camp" some distance from Kandahar, Afghanistan. Alwan
called the camp Taseesy, but Al-Bakri states that it was the
al-Farooq training camp of al-Qaida. In any event, both of these
defendants have stated that while at the training camp, they saw
and interacted with the defendants Goba, Mosed, Taher and Galab
who were there all at the same time. Al-Bakri further stated
that "while in the Kandahar guest house he was given a uniform"
which he "wore at the al-Farooq camp on every day but Friday."
T. 98. While at this camp, Al-Bakri states that he had contact
with the defendants Galab, Taher and Mosed whom he knows as
"Shafal." T. 103. Al-Bakri also "indicated that while he was at
the al-Farooq training camp, he considered himself to be a
member of al-Qaida." T. 103. Both defendants Alwan and Al-Bakri
also stated that while all six defendants were at the alFarooq
training camp, Usama bin Laden spoke to the attendees at the
Alwan states that Usama bin Laden gave his speech "on
approximately the eighth day of the Taseesy camp" and that bin
Laden spoke about an "alliance of the Islamic Jihad and
al-Qaida" and that he "mentioned how important it is to train
and fight for the cause of Islam." Alwan stated that bin Laden
antiAmerican and anti-Israeli statements." T. 91.
Al-Bakri has stated that in the speech given by bin Laden at
the al-Farooq camp which he attended along with the other five
defendants, bin Laden spoke "about the need to prepare and
train" because "there was going to be a fight against
Americans." T. 103-104.
Based on the statements of Alwan and Al-Bakri, as well as the
aforesaid travel documents, I find that the "training period" at
the al-Farooq camp was to be for five weeks and that with the
exception of Alwan, all the defendants remained at that camp for
the five week period. Al-Bakri has admitted to staying an
additional week at the camp. T. 104. He further states that
after he did leave the camp, he met up with the defendant Goba
in Kandahar. T. 104. He also corroborates Alwan's claim that he,
Alwan, left the camp early. Alwan states that he left the
training camp "on the tenth day" of his stay there and that he
returned to Kandahar and then to Quetta. T. 201.
While at the al-Farooq training camp, all of the defendants
were given code names and were given training in the use of
explosives. The al-Farooq training camp was "dedicated to
producing and training terrorist fighters for the al-Qaida
cause." T. 72-74.
The defendant Alwan has also "admitted being lectured by
several people at the Kandahar guest house on topics such as
jihad and the justification for using suicide as a weapon." T.
One of the documents (Defendant Taher's Exhibit 4) seized from
a residence of the defendant Taher pursuant to a search warrant
issued by this Court, consists of a lengthy dissertation on the
justification of suicide as a form of "martyrdom" under Islam.
Counsel for the defendant Taher argues that the document was
obtained and retained as an educational reference and consists
of nothing more than a comparison of differing theological or
philosophical views on the validity of suicide as a means of
supporting a cause. Although that may very well be the case, the
document contains some disturbing statements. There is an
interchange between the words "suicide" and "martyrdom" and
self-destruction is valid if done as an act of "martyrdom" and
may not be such if it is defined as "suicide." I find the
following statements within Defendant Taher's Exhibit 4 to cause
serious concern in the context of the issue before this Court:
Definition of Martyrdom Operations, and their Effect
on the Enemy
Martyrdom or self-sacrifice operations are those
performed by one or more people, against enemies far
outstripping them in numbers and equipment, with
prior knowledge that the operations will almost
inevitably lead to death. The form this usually takes
nowadays is to wire up one's body, or a vehicle or
suitcase with explosives, and then to enter amongst a
conglomeration of the enemy, or in their vital
facilities, and to demonstrate in an appropriate
place there in order to cause the maximum losses in
the enemy ranks, taking advantage of the element of
surprise and penetration. Naturally, the enacter of
the operation will usually be the first to die.
Verdicts of Scholars Concerning one who Attacks the
Having established the permissibility of plunging
into the enemy and attacking alone even when death is
certain, we proceed and say that the martyrdom
operations are derived from this principle, realizing
that the prohibition of suicide relates to deficiency
or absence of faith. However, the former generations
did not have knowledge of martyrdom operations in
their current-day form, for
these evolved with the changes in techniques of
warfare, and hence they did not specifically address
them. However, they did address similar issues, such
as that of attacking the enemy single-handed and
frightening them with one's own death being certain.
They also deduced general principles under which the
martyrdom operations fall, and in doing so they
relied on evidence such as those we have mentioned in
the previous section. There is one difference between
the martyrdom operations and their classical
precedent, namely that in our case the person is
killed by his own hand, whereas in the other he was
killed by the enemy. We also explain that this
difference does not affect the verdict.
In fact, we see that this sort of operation was
carried out in the presence of the Prophet, and after
him by the Sahabah, not once but many times.
Furthermore, protection of the religion is the
greatest service a Mujahid performs, and the
evidences do not leave us with any doubt that a
Mujahid may sacrifice his life for the religion.
Talhah shielded the Prophet with his hand, and this
supports the permissibility of a person sacrificing
himself for others in the interests of the religion.
It has transpired that scholars gave, to the issue of
plunging single-handed into the enemy with reasonable
certainty of being killed, the same verdict as in
cases of death being certain, such that whoever
permits the latter permits the former. Further, the
majority of scholars gave conditions for the
2. Infliction of losses on the enemy
4. Strengthening the hearts of the Muslims.
These statements, if read by impressionable youth, could
certainly be said to be inflammatory so as to fire one's
passions with intensity of a dithyrambic nature.
The finding that all of the defendants traveled to Pakistan
and thereafter attended a training camp known as alFarooq in
Afghanistan at which Usama bin Laden spoke espousing
anti-American sentiment and received training in the use of
weapons and lectures on suicide as a means of causing harm to
the enemy, causes the following questions to be asked:
(1) How did it come to be that six young men, all
in their twenties and all being from Lackawanna,
New York traveled in two groups between April 28,
2001 and May 12, 2001 to Pakistan?
(2) Were they recruited by someone to make this
trip, and if so, by whom, and on what basis were
they selected, and for what purpose?
(3) How is it that six young men from Lackawanna,
New York were allowed entry into Afghanistan since
their passports did not indicate that appropriate
visas for such entry were issued?
(4) How is it that six young men from Lackawanna,
New York were allowed to enter a secret training
camp known as al-Farooq in Afghanistan and attend
a speech given by Usama bin Laden?
(5) What was the objective in attending said
training camp and to what use or purpose was such
training to be put?
(6) Why did the defendants Goba, Mosed, Taher,
Galab and Al-Bakri remain at the camp for the full
I find that the defendants in each of their proffers, as well
as in the collective proffer made on their behalf, have not come
forward with sufficient evidence to offset the government's
claims of dangerousness and risk of flight, nor have they
presented anything that would constitute reasonable answers to
the questions listed above.
As previously stated and reiterated, we cannot abandon the
principles established in the United States Constitution when
deciding the government's motion to detain. This has not been
done, and the defendants, by way of four days of hearing, have
received the due process to which they are entitled under the
Fifth Amendment as it relates to the issue of bail or detention.
However, the United States Constitution does not require that
the Court abandon or disregard common sense and the drawing of
reasonable inferences based on circumstantial evidence in making
I have considered each and every one of the factors set forth
in 18 U.S.C. § 3142(g), to wit:
(1) the nature and circumstances of the offense
charged . . . ;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person,
(A) the person's character, physical and mental
condition, family ties, employment, financial
resources, length of residence in the community,
community ties, past conduct, history relating to
drug or alcohol abuse, criminal history, and record
concerning appearance at court proceedings; and
(B) whether, at the time of the current offense
or arrest, the person was on probation, on parole,
or on other release pending trial, sentencing,
appeal or completion of sentence for an offense
under Federal, state or local law; and
(4) the nature and seriousness of the danger to any
person or the community that would be posed by the
The defendants have attacked the validity of the charge placed
against each of them on the ground that 18 U.S.C. § 2339B is
unconstitutional because of vagueness and in support of their
argument, rely on the decision of the United States Court of
Appeals for the Ninth Circuit in Humanitarian Law Project v.
Reno, 205 F.3d 1130 (9th Cir. 2000), cert. denied
532 U.S. 904, 121 S.Ct. 1226, 149 L.Ed.2d 136 (2001). In response, the
government cites the case of United States v. Lindh,
212 F. Supp.2d 541 (E.D.Va. 2002).
Humanitarian is a civil case wherein the plaintiffs sought
injunctive relief in the enforcement of § 2339B for fear that
their legitimate humanitarian activities would be criminalized
by application of the statute. Although the Court of Appeals
rejected most of the arguments put forth by the plaintiffs, it
did accept the plaintiffs' challenge to the statute on the basis
of vagueness, stating:
It is easy to see how someone could be unsure about
what AEDPA prohibits with the use of the term
"personnel," as it blurs the line between protected
expression and unprotected conduct.
Humanitarian, 205 F.3d at 1137.
Lindh involved a criminal indictment alleging a violation of
18 U.S.C. § 2339B, and in rejecting the defendant's claim that
the statute was unconstitutional, the District Court stated:
Lindh contends his conduct does not, as a matter of
law, amount to providing "material support and
resources," including "training" and "personnel,"
because he provided no training and that merely
enlisting in an armed force — rather than recruiting
for such a force — does not constitute providing
personnel. Lindh is incorrect on both arguments.
Thus, to provide personnel is to provide people who
become affiliated with the organization and work
under its direction: the individual or individuals
provided could be the provider himself, or others, or
Lindh, 212 F. Supp.2d at 577.
At this stage of the proceeding, and with due respect to the
Court of Appeals for the Ninth Circuit, I accept the reasoning
of the District Judge in Lindh and conclude that one can be
found to have "provided material support or resources to a
foreign terrorist organization" by offering one's services to
said organization and allowing one's self to be indoctrinated
and trained as a "resource" in that organization's beliefs and
activities. Therefore, for purposes of deciding the government's
motion to detain the defendants herein, I reject the contention
of unconstitutionality of the statute put forth by the
As to the defendants Goba, Mosed, Taher, Galab and Al-Bakri, I
find that there are no conditions or combination of conditions
that I could impose that would reasonably assure the safety of
the community and the appearances of the defendants when
required. If the defendants are or have become disciples of
al-Qaida and believers in self destruction as a legitimate means
of causing harm to others, there are no conditions that could be
imposed that would deter such act of self destruction other than
detention. For purposes of deciding the issue of detention or
bail, and only for that limited purpose, I find that there is
sufficient evidence of a clear and convincing nature as to the
defendants Goba, Mosed, Taher, Galab and Al-Bakri to consider
them a danger to the community and a risk of flight and
therefore, as to these defendants, the government's motion to
detain is GRANTED.
As to defendant Alwan, I find that he has come forward with
sufficient evidence to offset the government's claim of
dangerousness and risk of flight so as to prevent me, from a
legal point of view, from concluding that there are no
conditions or combination of conditions that I could impose that
would reasonably assure the safety of the community and his
appearance when required. To do otherwise would be
I find that the evidence proffered by the government and the
defendant Alwan establishes that this defendant apparently
disavowed or disclaimed any continued participation in the
activities of al-Qaida when he managed to extricate himself from
the al-Farooq training camp and return home to Lackawanna, New
York on June 20, 2001. He also appears to have voluntarily
cooperated with agents of the F.B.I., made disclosures about his
own activities as well as those of the other defendants, and
made express statements of disagreement with the beliefs of
al-Qaida and the use of terrorism against inhabitants of this
country. Therefore, the defendant Alwan is hereby released on
bail subject to the following terms and conditions:
1. The defendant shall post a bond in the sum of $600,000 or,
in the alternative, property free and clear of any liens or
encumbrances having a value equal to or greater than $600,000
with the agreement and understanding that such bond or property
will be forfeited in the event that any one of the conditions
herein is substantially violated as determined by the Court.
2 The defendant shall report to the U.S. Probation Office as
directed by the U.S. Probation Officer.
3. Travel is restricted to Erie County unless defendant
continues in his employment with his present employer. In that
event, the defendant shall be allowed to travel to and from such
place of employment by a route pre-approved by the U.S.
4. The defendant shall surrender any passport to the Clerk of
the Court or the Federal Bureau of Investigation.
5 The defendant shall obtain no new passport.
6 The defendant shall avoid all contact, direct or indirect,
with any potential witness in the subject investigation or
codefendants in this case or related cases unless in the
presence of his attorney. Any inadvertent contact must be
reported to the U.S. Probation Department within 24 hours.
7 The defendant shall refrain from possessing a firearm,
destructive device or other dangerous weapons either directly or
8. The defendant shall participate in the following home
confinement program and abide by all the requirements of the
program which will include electronic monitoring and Global
Positioning System. He shall pay all of the costs of the
Home Incarceration: Defendant is restricted to his
residence twenty-four hours per day at all times
except for medical needs or treatment, court and
meetings with his attorney unless he is employed. If
employed, he shall be allowed to leave his residence
for the sole purpose of reporting to work. The hours
allowed for this purpose shall be determined by the
U.S. Probation Office.
9. Global Positioning Satellite Monitoring (GPS): The
defendant will be monitored by an electric monitoring system
which utilizes a Global Positioning Satellite System (GPS) which
will monitor the defendant with the use of twenty-four hour
satellite. The defendant will pay all costs of the GPS
10. The defendant shall report as soon as possible to the U.S.
Probation Office or supervising officer any contact with any law
enforcement personnel, including, but not limited to, any
arrest, questioning, or traffic stop within 24-hours.
11. The defendant will also be prohibited from possessing or
using any cellular phones, public telephones or any other
phones, modems, on-line services (including electronic mail),
fax machines or pagers.
12. The defendant shall submit to a search of his person,
property, vehicle, and place of residence, or any other property
under his control, and permit confiscation of any evidence or
contraband discovered in accordance with the district-approved
13. The defendant shall provide the U.S. Probation Office with
access to any requested personal and/or business financial
information including, but not limited to, authorization to
conduct a credit report, or to provide a credit report at the
instruction of the U.S. Probation Officer.
15. Wire Tap (Telephone Line 1) and Pen Register (Telephone
Line 2): The defendant shall have two telephone lines in his
residence. One of the telephone lines (line 1) will be subject
to recording and monitoring by a company to be approved by the
U.S. Attorney's Office and paid for by the defendant. The
defendant shall not be permitted to have any access to line one.
The second telephone line (line 2) shall be used by the
defendant only for attorney calls or to call his pretrial
services officer. The conversations on line 2 will not be
monitored, however, the U.S. Attorney's Office or a designated
law enforcement agency will be permitted to install a Pen
Register Device in order to monitor the location of all incoming
and outgoing calls occurring on line 2. Any expense incurred
will be paid for by the defendant.
No persons other than the defendant, the U.S. Probation
Officer and his attorney are permitted to be on line two, nor
will the attorneys relay information from third parties unless
first approved by the U.S. Attorney's Office.
16. A violation of any condition(s) of your release on bond
may result in forfeiture of bail by the United States District
Court and cause a bench warrant to be issued.
Based on the foregoing, it is hereby ORDERED that the
defendants Goba, Mosed, Taher, Galab and Al-Bakri are detained
and are remanded to the custody of the U.S. Marshal Service. It
ORDERED that the following DIRECTIONS REGARDING DETENTION be
1. The defendants are committed to the custody of the Attorney
General or his designated representative for confinement in a
corrections facility, separate, to the extent practicable, from
persons awaiting or serving sentence or being held in custody
pending appeal, pending trial of the charges herein against
2. The defendants shall be afforded a reasonable opportunity
for private consultation with defense counsel; and
3. On order of a court of the United States or on request of
an attorney for the government, the person in charge of the
corrections facility shall deliver the defendant to the United
States Marshal for the purpose of an appearance in connection
with a court proceeding.
As to defendant Alwan, it is hereby ORDERED that he be
released on bail in accordance with the aforesaid conditions of
release but such release shall not occur until the United States
Probation Office has completed arrangements for the
implementation of the Global Positioning Satellite Monitoring
and the electronic monitoring system.
PROFFER OF PROOF SYNOPSES ATTACHED TO DECISION AND ORDER
GOVERNMENT'S PROFFER OF EVIDENCE AS TO ALL OF THE
The following is a synopsis of the government's general
proffer of evidence as to all the defendants:
Executive Order of President Clinton dated 1998, being
Executive Order 13099, wherein transactions with terrorists who
threatened to disrupt the Middle East peace process was
prohibited and naming al-Qaida and Osama bin Laden. T.
In 1999, the F.B.I. places bin Laden on its 10 most wanted
list and the United States State Department designated alQaida
as a terrorist organization and bin Laden as a terrorist. T. 50.
"[Y]ou will see that the government's evidence against the
defendants doesn't stop with the training camp activities of the
summer of 2001, but in fact continues even beyond the attacks in
the World Trade Center, the Pentagon, and the high-lacking of
the flight which landed and crashed in Pennsylvania." T. 50.
"[O]ur first statutory basis for detention is that the
complaint in this case" charges a crime of violence. T. 55.
The government also references 18 U.S.C. § 3156(a)(4) which
also defines the term "crime of violence." T. 56.
The government also relies on the presumption created in
18 U.S.C. § 3142(e) "if this Court is to find probable cause that
the defendant committed a violation of 18 U.S.C. § 924(c)" which
"prohibits using or carrying a firearm during or in relation to
any crime of violence, or possessing a firearm in furtherance of
any crime of violence." T. 58.
"[T]hese defendants, in fact, used firearms, rifles and
handguns while they were at the ...