Oct. 19 (Bloomberg) -- The convictions of four men for conspiring to bomb New York synagogues vindicated the post-9/11 strategy of using an informant to identify individuals deemed likely to engage in terrorism and encourage them up to the point of arrest, legal experts said.
After being approached by one defendant who said he wanted “to do something to America,” the informant testified, he sought to gain their trust, urging them forward with gifts, scouting targets with them and eventually supplying them with dud bombs. Undercover informants played similar roles in three other recent terrorism cases, helping develop, then foil alleged plots to detonate a bomb near Chicago’s Wrigley Field, attack a federal courthouse in Illinois and blow up a Dallas skyscraper.
Prosecutors told jurors in the New York trial the men were “ready and willing” to commit terrorism. Defense lawyers said their impoverished clients were entrapped by an informant promising them as much as $250,000.
“It tells you that entrapment will not likely work in a terrorism case” as a defense, Karen Greenberg, executive director of the Center on Law and Security at the New York University law school, said outside the court. “This was the strongest entrapment defense we’ve seen.”
Entrapment hasn’t been successfully argued in a post-9/11 terrorism trial, according to the center. To prevail as a defense, the accused must show they wouldn’t have committed the crime without being urged on.
“We’re interested in catching terrorists, not people who have mental problems and wonder what it would be like to blow up the Sears tower but they can’t get out of bed in the morning,” said James J. Wedick, an ex-FBI agent who has been hired as an expert witness for the defense in terrorism cases. “We’re not supposed to do that. But we are.”
Wedick, 60, a 35-year veteran of the Federal Bureau of Investigation who retired in 2004, said there has been “aggressive use of paying individuals large sums of money to go into small ethnic communities and look for individuals who are interested in harming the country.”
As of last month, informants were key to arrests in about 62 percent of the 50 most serious alleged terrorist plots since 9/11, according to the NYU center. The entrapment defense was raised in about 28 percent of those cases, including that of a man convicted of plotting to bomb a subway station in Manhattan before the 2004 Republican National Convention.
93% Conviction Rate
Of the approximately 700 prosecutions of individuals on terror-related charges since the 2001 attacks, the government has a 93 percent conviction rate, the NYU center said last year.
U.S. District Judge Colleen McMahon, who presided over the synagogue plot trial in Manhattan federal court, told jurors before deliberations that the government is allowed to use undercover agents or paid informants to enforce laws and to “resort to artifice and stratagem in order to catch persons who are criminally minded.”
“In their zeal to enforce the law, however, government agents may not originate a criminal design, implant the disposition to commit the charged criminal act into an innocent person’s mind, and then induce the person to commit the crime,” McMahon said.
Cases in which an informant plays a major role are “extremely unsettling,” said Greenberg, of the NYU center. “The question is, are we creating terrorists or finding people who could be terrorists? And how do we draw a distinction between the two?”
The jury in the New York case found James Cromitie 44, Onta Williams, 34, David Williams, 29, and Laguerre Payen, 29, all of Newburgh, New York, guilty of conspiring to blow up a synagogue and a Jewish community center in the Bronx section of New York City. They were also convicted of planning to shoot down military planes at Stewart International Airport with heat-seeking missiles. Sentencing is set for March 24.
The government didn’t deny that the informant in the case, Shahed Hussain, offered rewards to the defendants including cars, cash and meals. Hussain was “not just the eyes and ears,” Assistant U.S. Attorney Adam Hickey told the jury during opening arguments. “He was no wallflower.”
The case started when the FBI’s office in White Plains, New York, began sending Hussain to mosques in late 2007 to pose as a member of the Pakistan-based terror group Jaish-e-Mohammed. He was told to meet with targets of other terror investigations, the informant testified.
Approached by Cromitie
Hussain said he had been attending services at the Masjid-al-Ikhlas mosque in Newburgh for several months when he was approached by Cromitie in June 2008 in the parking lot.
The defendant allegedly introduced himself, held up a finger and expressed a desire “to do something to America.” Cromitie later recruited the other three defendants, Hussain said.
The informant, paid about $96,000 by the FBI for his time and expenses over almost four years, said he bought the defendants coffee, meals and offered them cars, getaway money and vacations.
Hussain eventually provided the defendants with three improvised explosive devices and two heat-seeking Stinger missiles -- all rendered inert by the FBI. They were arrested in the Riverdale section of the Bronx, across the street from one of their alleged targets.
Prosecutors and defense lawyers clashed during closing arguments over a crucial element of entrapment: whether the defendants’ were predisposed toward committing the crimes.
Lawyers for the four men maintained they were petty criminals with no history of violence who were in it for the money, while the government claimed they were intent on attacking the U.S.
“It may shock you to know that the government can offer people money to commit a crime,” Assistant U.S. Attorney David Raskin, the lead prosecutor, told jurors. “It’s not just about what the government did or offered to the defendants. Ordinary people wouldn’t have dreamed of doing the things that these defendants have done.”
Defense attorneys attacked Hussain’s credibility, portraying him as a habitual liar who allegedly falsified financial records and immigration applications, and selectively recorded conversations with the defendants.
A Pakistani immigrant who came to the U.S. illegally in the mid-1990s, Hussain began cooperating with the Justice Department in 2002 after being arrested for helping people fraudulently obtain drivers licenses.
In 2004, he was integral to the conviction of a pizzeria owner and the imam of a mosque, FBI Agent Robert Fuller testified. Three years later, Hussain became a paid informant for the bureau’s White Plains office.
“If you put a rotten egg in an omelet, I can assure you you won’t want to eat that omelet,” Cromitie’s attorney, Vincent Briccetti, told the jury of Hussain’s testimony. “It’s garbage and you should reject all of it.”
Wedick said some informants are “guys with criminal backgrounds, unsavory kind of characters who on any given day may lie, cheat and steal.”
The former FBI agent worked as a defense consultant on two prominent terrorism cases involving informants.
In 2005, he was hired by lawyers for Hamid Hayat, a Lodi, California, man accused of attending a terrorist training camp, and his father, Umid Hayat, accused of lying to investigators. Both were convicted.
Work for Defense
In 2007, Wedick worked for a defense team representing a group of Miami men accused of plotting to blow up the Sears Tower in Chicago. Five of the seven men were convicted.
Ross Rice, a spokesman for the FBI’s Chicago office, said entrapment is “always an issue” in cases involving informants.
The government checks the background of prospective operatives and works closely with the U.S. Attorney’s Office to make sure it doesn’t “cross the line,” he said.
An informant played a key role in the charging by Rice’s office of a man who allegedly planned to bomb a commercial area near Chicago’s Wrigley Field baseball stadium. Others were used in cases over alleged plans to attack a federal courthouse in Springfield, Illinois, and bomb a Dallas skyscraper.
Sami Samir Hassoun, charged last month with the Chicago plot, allegedly conspired with a FBI informant who gave him a fake bomb and timer in a backpack he left in a trash can near the stadium.
Hoped for Violence
Hassoun came to the FBI’s attention from a “cooperating source” who quoted him as saying “that he wanted to commit acts of violence against the city of Chicago and its residents,” according to an FBI affidavit. Hassoun, facing a possible life sentence if convicted, hasn’t entered a plea.
The alleged Springfield and Dallas plots both involved what turned out to be bogus vehicle bombs supplied by the government, prosecutors said. In each, an informant accompanied the would-be bomber to the target, they said.
In Dallas, Hosam Smadi, 20, pleaded guilty to attempted use of a weapon of mass destruction and was sentenced today to 24 years in prison. His lawyer, Peter Fleury of Fort Worth, Texas, didn’t respond to telephone calls seeking comment.
Michael Finton, accused in the Springfield case, is to be tried in March. His lawyer, William Lucco of Edwardsville, Illinois, declined to comment.
The two men came to the attention of investigators because they expressed a desire to attack the U.S., according to prosecutors: Smadi on the Internet and Finton in writings found in his vehicle after a parole-violation arrest.
Need for Informants
It would be impossible for the government to foil terror plots without using undercover agents, said Robert M. Chesney, a University of Texas law professor who lectures on terrorism and the law.
“This is a tension that we normally handle by letting the jury decide whether they credit the defense” of entrapment, he said.
As the jury in the New York case was deliberating, entrapment became an issue of contention. Judge McMahon dismissed a juror after the woman discovered a transcript of a phone call mistakenly provided to the jury.
The transcript, accidentally left in a binder given to the juror by prosecutors, detailed a conversation in June 2009 where one of the defendants, David Williams, and his father discussed entrapment, according to defense attorneys. Jurors also had access to a second telephone call transcript between defendant Onta Williams and an unidentified woman in May 2009 that also wasn’t admitted into evidence.
In that conversation, Williams said the informant, Hussain, offered him $10,000 to participate in the plot. Both conversations were recorded while the defendants were incarcerated following their arrest last year.
McMahon dismissed the juror after she said she didn’t know if she would be able to ignore the telephone conversations during deliberations. The judge ordered the remaining 11 jurors to resume deliberations.
Jake Ryan, a former federal prosecutor, said the FBI and the Joint Terrorism Task Force, which includes local and federal personnel, look for suspects who present a genuine threat.
“They’re not interested in trying to create dangerous people,” said Ryan, who’s now with San Diego-based law firm Latham & Watkins LLP. “They’re interested in identifying dangerous people.”
The New York synagogue case is U.S. v. Cromitie, 09-cr-00558, U.S. District Court, Southern District of New York (Manhattan). The Chicago bomb case is U.S. v. Hassoun, 10-cr-00773, U.S. District Court, Northern District of Illinois (Chicago). The Dallas skyscraper case is U.S. v. Smadi, 09-cr-00294, U.S. District Court, Northern District of Texas (Dallas). The Illinois courthouse case is U.S. v. Finton, 09-cr-30098, U.S. District Court, Central District of Illinois (Springfield).
To contact the editor responsible for this story: David E. Rovella at firstname.lastname@example.org.