727 F.3d 194 (2nd Cir. 2013), 11-2763(L), United States v. Cromitie

Docket Nº:11-2763(L), 11-2884(con), 11-2900(con), 11-3785(con)
Citation:727 F.3d 194
Opinion Judge:JON O. NEWMAN, Circuit Judge.
Party Name:UNITED STATES of AMERICA, Appellee, v. JAMES CROMITIE, AKA Abdul Rehman, AKA Abdul Rahman, DAVID WILLIAMS, AKA Daoud, AKA DL, ONTA WILLIAMS, AKA Hamza, LAGUERRE PAYEN, AKA Amin, AKA Almondo, Defendants-Appellants
Attorney:Adam S. Hickey, Asst. U.S. Atty., New York, NY (Preet Bharara, U.S. Atty., Patrick Ian McGinley, Jason P.W. Halperin, Iris Lan, Asst. U.S. Attys., New York, NY, on the brief), for Appellee. Clinton W. Calhoun, III, White Plains, NY (Calhoun & Lawrence, LLP, White Plains, NY, on the brief), for Ap...
Judge Panel:Before: JACOBS, Chief Judge, and NEWMAN and RAGGI, Circuit Judges. Chief Judge Jacobs concurs in part and dissents in part. DENNIS JACOBS DENNIS JACOBS, Chief Judge, concurring in part and dissenting in part:
Case Date:August 22, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 194

727 F.3d 194 (2nd Cir. 2013)

UNITED STATES of AMERICA, Appellee,

v.

JAMES CROMITIE, AKA Abdul Rehman, AKA Abdul Rahman, DAVID WILLIAMS, AKA Daoud, AKA DL, ONTA WILLIAMS, AKA Hamza, LAGUERRE PAYEN, AKA Amin, AKA Almondo, Defendants-Appellants

Nos. 11-2763(L), 11-2884(con), 11-2900(con), 11-3785(con)

United States Court of Appeals, Second Circuit

August 22, 2013

Heard November 5, 2012.

Page 195

[Copyrighted Material Omitted]

Page 196

[Copyrighted Material Omitted]

Page 197

Appeal from the July 8, 2011, judgments of the United States District Court for the Southern District of New York (Colleen McMahon, District Judge), sentencing four defendants to terms of 25 years after their convictions by a jury of a terrorism plot to launch missiles at military airplanes and bomb two synagogues. Appellants contend primarily that entrapment was established as a matter of law, that outrageous government conduct violated the Due Process Clause, and that the prosecution's knowing use of perjured testimony violated the Due Process Clause. The Court unanimously rejects (1) the claims of David Williams, Onta Williams, and Laguerre Payen as to entrapment as a matter of law, (2) all defendants' claims of outrageous government conduct and knowing use of perjured testimony in violation of the Due Process Clause, and (3) all defendants' other claims; the Court, by a vote of two to one, rejects the claim of James Cromitie as to entrapment as a matter of law.

Affirmed.

Adam S. Hickey, Asst. U.S. Atty., New York, NY (Preet Bharara, U.S. Atty., Patrick Ian McGinley, Jason P.W. Halperin, Iris Lan, Asst. U.S. Attys., New York, NY, on the brief), for Appellee.

Clinton W. Calhoun, III, White Plains, NY (Calhoun & Lawrence, LLP, White Plains, NY, on the brief), for Appellant James Cromitie.

Theodore S. Green, White Plains, NY (Green & Willstatter, White Plains, NY, on the brief), for Appellant David Williams.

David A. Lewis, Federal Defenders of New York, Inc. Appeals Bureau, New York, NY (Mark B. Gombiner, New York, NY, on the brief), for Appellant Onta Williams.

Sam Braverman, Bronx, NY (Jennifer B. Arlin, Bronx, NY, on the brief), for Appellant Laguerre Payen.

Before: JACOBS, Chief Judge, and NEWMAN and RAGGI, Circuit Judges. Chief Judge Jacobs concurs in part and dissents in part.

OPINION

Page 198

JON O. NEWMAN, Circuit Judge.

Table of Contents
Background
The Charged Offenses
Facts of the Offenses
Defense Evidence
Verdicts and Sentencing
Discussion
I. Entrapment
(A) Elements of Entrapment
(1) Design
(2) Time of Predisposition
(3) Type of Evidence Relevant to Predisposition
(B) Entrapment as a Matter of Law
(1) Cromitie
(a) Inducement
(b) Predisposition
(2) David Williams, Onta Williams, and Payen
(a) Inducement
(b) Predisposition
(C) Jury Charge on Entrapment
II. Outrageous Government Conduct
(A) Government's Role in Planning the Crimes
(B) Exploiting Religious Views
(C) Exploiting Professed Love
(D) Monetary and Other Benefits
(E) Aggregation of Persuasion Techniques
III. Prosecution's Knowing Use of Perjured Testimony
(A) False Statements Unrelated to the $250,000 Offer
(B) False Statements Concerning the $250,000
(1) Falsity of the $250,000 Testimony
(2) The Prosecution's Knowledge of the Falsity
(3) The Prosecution's Imputed Knowledge
(4) Likelihood of Affecting the Jury
IV. Other Claims
(A) Admission of Video Evidence
(B) Vouching for Witness's Credibility
(C) Jury's Exposure to Extra-Record Evidence
(D) Sentencing
Conclusion

Page 199 This is an appeal by four defendants convicted of planning and attempting to carry out domestic terrorism offenses involving a plot to launch missiles at an Air National Guard base at Stewart Airport in Newburgh, NY, and bomb two synagogues in the Bronx. The appeal primarily presents issues concerning the extent to which a government informant may lawfully urge the commission of crimes, issues framed as claims of entrapment as a matter of law and outrageous government conduct in violation of the Due Process Clause. The appeal also presents an issue concerning the falsity of portions of the informant's trial testimony. These issues arise on an appeal by defendants-appellants James Cromitie, David Williams, Onta Williams, and Laguerre Payen from the July 8, 2011, judgments of the District Court for the Southern District of New York (Colleen McMahon, District Judge). We reject the defendants' claims of entrapment as a matter of law, outrageous government conduct in the instigation of the offenses, and knowing use of perjured testimony, as well as all other claims raised on appeal. We therefore affirm. Background The charged offenses . All the charged offenses resulted from an elaborate sting operation conducted by the FBI using an undercover informant. An indictment filed in June 2009, charged the four defendants with eight offenses: Count One -- conspiracy to use weapons of mass destruction within the United States (18 U.S.C. § 2332a); Counts Two, Three, and Four -- attempt to use weapons of mass destruction near or at the Riverdale Temple, in the Bronx, the Riverdale Jewish Center (a synagogue) in the Bronx, and the New York Air National Guard Base at Newburgh, respectively (18 U.S.C. § 2332a); Count Five -- conspiracy to acquire and use anti-aircraft missiles (18 U.S.C. § 2332g); Count Six -- attempt to acquire and use anti-aircraft missiles (18 U.S.C. § 2332g); Count Seven -- conspiracy to kill officers and employees of the United States (18 U.S.C. § § 1114, 1117); Count Eight -- attempt to kill officers and employees of the United States (18 U.S.C. § § 1114, 2). Facts of the offenses . The facts are detailed in two comprehensive opinions of the District Court, denying the defendants' post-trial motions. See United States v. Cromitie, 781 F.Supp.2d 211 (S.D.N.Y. 2011) (" Cromitie I " ), and United States v. Cromitie, No. 09 Cr. 558(CM), 2011 WL 1842219 (S.D.N.Y. May 10, 2011) (" Cromitie II " ). We assume familiarity with those opinions and recount at this point only the salient facts that the jury was entitled to find with respect to the defendants' criminal conduct. We set forth facts concerning the claims of entrapment as a matter of law, outrageous government conduct, and knowing use of perjured testimony in the discussion of those claims. A government confidential informant, Shahed Hussain, conducted an undercover investigation for several months in 2008 and 2009. Hussain is a Pakistani national who was granted asylum by the United States in the mid-1990s based on his claim of political persecution in Pakistan. In 2003, Hussain was convicted of fraud based on his misconduct as a translator working at the Motor Vehicles Bureau in Albany. To avoid being deported, Hussain agreed to cooperate with the Government's investigation of another individual. In the spring of 2007, Hussain became a paid informant of the FBI and started working in the lower Hudson Valley. As the District Court stated, Hussain's goal was to " locate disaffected Muslims who might be harboring terrorist designs on the United Page 200 States." Cromitie II, 2011 WL 1842219, at *2. By June 2008, Hussain had been attending services at a mosque in Newburgh at the direction of the FBI. During that time, the FBI provided a house for Hussain that contained concealed video and audio recording equipment. In addition, the FBI provided Hussain with recording devices for his person and his car. Hussain presented himself at the mosque as a wealthy Pakistani businessman with knowledge of Islamic teachings. During a period of several months, Hussain cultivated a friendship with Cromitie, who subsequently recruited the other three defendants. Cromitie, 42 years old, was, in Judge McMahon's words, " an impoverished man," Cromitie I, 781 F.Supp.2d at 226, who sustained himself by committing petty drug offenses for which he had repeatedly been caught and convicted. In addition, he worked a night shift at a local Walmart store, earning less than $14,000 per year. On June 13, 2008, Cromitie walked up to Hussain in the parking lot of the mosque. Hussain testified that Cromitie, in an Arabic accent, introduced himself as Abdul Rahman, and claimed that his father was from Afghanistan. After a short conversation, Hussain drove Cromitie home from the mosque. On the way, Cromitie asked Hussain about violence in Afghanistan that had been reported recently on television. When Hussain asked Cromitie if he would like to travel to Afghanistan, Cromitie responded by saying he would love to. He then said, in the first indication of his proclivity to terrorism, that he wanted " to die like a shahid, a martyr" 1 and " go to paradise," Trial Transcript (" Trial Tr." ) 681, and immediately thereafter said, " I want to do something to America." Id. at 682. As he said these words, he pointed his right index finger in the air in a gesture Hussain testified is used by " somebody[] in radical Islam" to mean " taking an oath in front of Allah to do take part of [ sic ] crime or Jihad act they want to do." Id. at 682. During that first encounter, Hussain told Cromitie that a lot of military planes flew from what was later identified as Stewart Airport to take arms and ammunition to Afghanistan and Iraq. Hussain met with Cromitie three more times in the summer of 2008. Hussain testified that during these meetings Cromitie said that he hated Jews and Americans and that he would kill the President of the United States " 700 times because...

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