The opinion of the court was delivered by: William M. Skretny, United States District Judge
Defendants Yahya Goba, Shafal Mosed, Yasein Taher and Mukhtar Al-Bakri
are presently detained pending trial pursuant to an order issued by
United States Magistrate Judge H. Kenneth Schroeder, Jr. on October 8,
2002. Currently before me are motions filed on behalf of Defendants
Goba, Mosed, Taher and Al-Bakri for revocation of the detention order.*fn1
As discussed more fully below, I will deny Defendants' motions. In
doing so, I find that the charged offense,
18 U.S.C. § 2339B, is a
"crime of violence," and that the Government has demonstrated by clear
and convincing evidence that Defendants pose a danger to the community.
Significantly, the Government has produced credible evidence that each
defendant associated himself with al-Qaeda, a designated terrorist
organization with the avowed aim of inflicting death and destruction on
American citizens and interests. In reaching my decision, I note that the
express purpose of a terrorist training camp such as al-Farooq is to make
its participants more dangerous (and thus more useful to the terrorist
group) than they were before they received the training. Given the
well-known modus operandi of terrorist organizations such as al-Qaeda,
the stated goals of Usama bin Ladin, and the evidence regarding the type
of training that each Defendant received while at the camp, I find that
no release condition or combination of release conditions will adequately
safeguard the community.
In addition, I find that the Government has proven by a preponderance
of the evidence that each defendant poses a risk of flight if released.
The Government proffered evidence indicating that each defendant has the
ability to sustain himself abroad, either with his own resources or
through the use of an international support network. This ability,
combined with Western New York's proximity to the Canadian border and the
potential period of incarceration faced by each defendant, is sufficient
to establish that no release condition or combination of conditions will
assure the continued appearance of these Defendants.
Therefore, Defendants Goba, Mosed, Taher and Al-Bakri shall remain
detained pending trial.
With respect to the other two defendants in this case, Faysal Galab and
Sahim Alwan, it should be noted that Defendant Galab's detention will
continue following a plea agreement executed on January 10, 2003.
Further, although Defendant Alwan is subject to pretrial release on
conditions, he has not yet applied for release and I have issued a stay
of his release pending resolution of a motion for reconsideration filed
by the Government on January 13, 2003.
On October 21, 2002, a federal Grand Jury in the Western District of
New York indicted each of the above-captioned defendants on two counts of
violating 18 U.S.C. § 2339B and 2. Count One charges each defendant
with conspiring to knowingly provide material support and resources to
al-Qaeda, a foreign terrorist organization, in violation of
18 U.S.C. § 2339B. Count Two charges each defendant with the
substantive offense of knowingly and unlawfully providing material
support and resources to al-Qaeda, in violation of 18 U.S.C. § 2339B
Briefly, the Government alleges that during the spring and summer of
2001, Defendants traveled in two separate groups from the United States
to Pakistan, and from Pakistan to Afghanistan, where they attended an
al-Qaeda terrorist training camp. Defendants allegedly received firearms
and other tactical training, underwent anti-American and anti-Israeli
indoctrination, were lectured on martyrdom and the justification for
using suicide as a weapon, and attended a speech personally given by
Usama bin Ladin that, in part, emphasized the need to prepare and train
for a "fight against the Americans." After
several weeks, Defendants left
the camp and returned to Lackawanna, New York. All resumed their regular
lives until their arrests on or about September 13, 2002.
At their initial appearances after their arrests, the Government moved
for the pretrial detention of each defendant.*fn3 Defendants opposed the
Government's motion, prompting Judge Schroeder to conduct a single,
comprehensive detention hearing that ultimately spanned the course of
four days — September 18, 19 and 20, 2002, and October 3, 2002.
Defendants were present and represented by assigned counsel during the
hearing, at which the Government and Defendants proceeded by way of
proffer with exhibits.
On October 8, 2002, Judge Schroeder issued a widely publicized Decision
and Order granting the Government's Motion to Detain in part and denying
it in part. United States v. Goba, 220 F. Supp.2d 182 (W.D.N.Y. 2002).
Attached to Judge Schroeder's Decision and Order is a twenty-six page
synopsis of the proof offered by the Government and Defendants during the
hearing. See id. at 196-223. Neither the Government nor Defendants have
submitted any new information or evidence to supplement that which was
presented during the detention hearing. Thus, the record developed before
Judge Schroeder constitutes the complete record of Defendants' detention
proceedings. Familiarity with Judge Schroeder's Decision and Order and the
accompanying attachment is presumed.
Shortly after Judge Schroeder issued his Decision and Order, Defendants
filed motions for revocation with this Court. At a status conference on
October 28, 2002, I accepted the parties' jointly proposed briefing
schedule, which culminated in oral argument on the motions on December
30, 2002. Upon completion of oral argument, I deemed Defendants' motions
submitted and took the matters under advisement.
III. DISCUSSION and ANALYSIS
Eighteen U.S.C. § 3145(b) provides the mechanism by which a
defendant may seek review of a magistrate judge's pretrial detention
order by a district judge having original jurisdiction over the matter.
Defendants properly invoked this review procedure by timely filing the
instant motions for revocation as provided for in § 3145(b).
Having received Defendants' motions, this Court must conduct a de novo
review of Judge Schroeder's detention order. See United States v. Leon,
766 F.2d 77, 80 (2d Cir. 1985); United States v. Marra, 165 F. Supp.2d 478,
481 (W.D.N.Y. 2001). Under this review standard, this Court will judge
the issues anew, but in doing so, utilize the factual and evidentiary
record developed during the detention hearing before Judge Schroeder.
However, as is required under de novo review, this Court will reach its
own independent findings of fact and conclusions of law. See Leon, 766
F.2d at 80 (finding that on de novo review, a district court "should not
simply defer to the judgment of the magistrate, but reach its own
B. Bail Reform Act Overview
Pretrial detention under § 3142(e), however, must be predicated on
at least one of the six categories or entry points enumerated in §
3142(f). Satisfaction of any category triggers a mandatory detention
hearing before a judicial officer. See 18 U.S.C. § 3142(f). Three of
the categories, §§ 3142(f)(1)(A)-(C), are based on the nature of the
charged offense, including the potential term of incarceration; §
3142(f)(1)(D) is based on the nature of the charged offense and the
defendant's prior criminal record; and the final categories, §§
3142(f)(2)(A) and (B), are based on whether there is a serious risk that
the defendant will either flee, or obstruct justice or threaten a
prospective witness or juror. See Dillard, 214 F.3d at 91; see also
18 U.S.C. § 3142(f). It is the government's burden to prove by a
preponderance of the evidence that the defendant falls into one or more of
the six categories. See United States v. Friedman, 837 F.2d 48, 49 (2d
Cir. 1988) (per curiam).
Assuming satisfaction of one of the six entry points, the court must
next examine the factors set forth in § 3142(g) in connection with
its determination as to whether any condition or combination of
conditions set forth in § 3142(c) will reasonably assure the
defendant's appearance and the safety of other persons and the
community. See 18 U.S.C. § 3142(c) and (g); see also Friedman, 837
F.2d at 49. In this regard, the Government must establish risk of flight
by a preponderance of the evidence, see United States v. Jackson,
823 F.2d 4, 5 (2d Cir. 1987), or danger to others and the community by
clear and convincing evidence, see United States v. Ferranti, 66 F.3d 540,
542 (2d Cir. 1995).*fn5
C. Defendants' Points of Argument
Defendants' points of argument can be distilled into five distinct
areas: (1) the Government improperly proceeded by proffer, (2)
18 U.S.C. § 2339B is not a "crime of violence," (3) Defendants are
not flight risks, (4) Defendants are not dangers to the community, and
(5) there are conditions that this Court could impose to assure each
defendant's future appearance and the safety of the community.*fn6 Each
point will be discussed in turn.
The Bail Reform Act remains silent, however, regarding how the
Government must proceed in satisfaction of its burdens. In this Circuit
it is well established that the Government may, at a minimum, proceed by
way of proffer, just as the defendant is permitted to do under §
3142(f). See United States v. LaFontaine, 210 F.3d 125, 131 (2d Cir.
2000); United States v. Martir, 782 F.2d 1141, 1145 (2d Cir. 1986).
This seemingly low threshold is consistent with the informal nature of
detention proceedings and the desire to keep them from morphing into
"mini-trials," yet tempered by the court's obligation to ensure the
reliability of proffered information. See Martir, 782 F.2d at 1145
(detention proceedings should not resemble "mini-trials"); LaFontaine,
210 F.3d at 131 (courts must ensure the reliability of evidence). Whether
presented by proffer or direct evidence, courts retain the responsibility
for assessing the accuracy of the Government's proof. Martir, 782 F.2d at
1145. To that end, courts are vested with considerable discretion to
determine, on a case-by-case basis, the appropriate method by which the
Government must present its case. Id. at 1147 ("In the informal
evidentiary framework of a detention hearing, the methods used to
scrutinize government proffers for reliability must lie within the
discretion of the presiding judicial officer. . . ."); LaFontaine, 210
F.3d at 131 (courts have discretion to insist upon the production of the
underlying evidence or sources where their accuracy is in question).
Here, the parties do not contest the state of the law as set forth
above: all acknowledge that the Government may proceed by proffer and
that this Court retains considerable discretion to order the production
of underlying evidence if questions of reliability arise. (OA Tr. at 17,
40, 41.)*fn7 However, Defendants contend that in light of their
challenges to portions of the Government's proffer, this Court should
direct the Government to produce live witnesses subject to
cross-examination, namely FBI Special Agent Edward Needham, who took
Defendant Alwan's statement (OA Tr. at 32), and either Agent Gamal
Abdel-Hafiz or Agent Rachel F. Pifer, one or both of whom took Defendant
Al-Bakri's statement (OA Tr. at 32). Defendants argue that further
inquiry into the reliability of these statements is crucial because they
comprise the critical pieces of evidence supporting the Government's
proffer. (OA Tr. at 28, 30.) By Defendants' account, the absence of the
agents' live testimony undermines the sufficiency of the Government's
proffer in its totality. (OA Tr. at 31.) This Court disagrees.
The Government proffered a great deal of information during the
proceedings before Judge Schroeder. Some of that information was drawn
from the statements given by Defendants Alwan and Al-Bakri, while other
information was presented by way of direct evidence, e.g., passports,
passport stamps, customs reports, airline boarding passes and the fruits
of executed search warrants. (Government Exhibit 1.) Further, the
Government proffered additional information that was neither derived
from the statements nor from the direct evidence identified above.
To be sure, the statements at issue are salient. Defendants Alwan and
Al-Bakri admit that they traveled to Afghanistan and attended the
al-Farooq training camp operated by al-Qaeda.*fn8 (See Government's
Exhibit 1; Det. Hr'g. Tr. at 97-98, 313;*fn9 OA Tr. at 60.) Moreover,
they expressly place Defendants Goba, Mosed, Galab and Taher at the
al-Farooq camp. (Det. Hr'g. Tr. at 89, 95, 103, 376-77.) Further,
Defendant Alwan's statement is proffered to support the ...