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U.S. v. GOBA

January 16, 2003

UNITED STATES OF AMERICA,
V.
YAHYA GOBA, SHAFAL MOSED, YASEIN TAHER, FAYSAL GALAB, MUKHTAR AL-BAKRI AND SAHIM ALWAN, DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny, United States District Judge

DECISION AND ORDER

I. INTRODUCTION

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

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.

II. BACKGROUND

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 and 2.*fn2

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

A. Standard of Review

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 independent conclusion").

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.

1. Proceeding by Proffer

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 ...


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