781 F.Supp.2d 211 (S.D.N.Y. 2011), 09 Cr. 558 (CM), United States v. Cromitie

Docket Nº:09 Cr. 558 (CM).
Citation:781 F.Supp.2d 211
Opinion Judge:McMAHON, District Judge:
Party Name:UNITED STATES of America, v. James CROMITIE, David Williams, Onta Williams and Laguerre Payen, Defendants.
Attorney:David Seymour Leibowitz, David Alan Raskin, Eric James Snyder, Adam Sean Hickey, U.S. Attorney's Office, New York, NY, Jason P.W. Halperin, U.S. Attorney's Office, White Plains, NY, for United States of America. Kerry Andrew Lawrence, Vincent L. Briccetti, Briccetti, Calhoun & Lawrence, Theodore ...
Case Date:May 03, 2011
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 211

781 F.Supp.2d 211 (S.D.N.Y. 2011)



James CROMITIE, David Williams, Onta Williams and Laguerre Payen, Defendants.

No. 09 Cr. 558 (CM).

United States District Court, S.D. New York.

May 3, 2011

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[Copyrighted Material Omitted]

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David Seymour Leibowitz, David Alan Raskin, Eric James Snyder, Adam Sean Hickey, U.S. Attorney's Office, New York, NY, Jason P.W. Halperin, U.S. Attorney's Office, White Plains, NY, for United States of America.

Kerry Andrew Lawrence, Vincent L. Briccetti, Briccetti, Calhoun & Lawrence, Theodore Samuel Green, Green & Willstatter, White Plains, NY, for Defendants.


McMAHON, District Judge:

Defendants renew a motion, made and denied without prejudice prior to the trial, to have the indictment dismissed on the ground that the Government " created the criminal, then manufactured the crime." (Cromitie Br at 1).

There is some truth to that description of what transpired here. Nonetheless, the motion is denied.

The Law Pertinent to the Motion

The notion that government misconduct could warrant dismissal of an indictment traces back to a remark made by the United States Supreme Court in United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In Russell, the high court posited that it might " some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction." Although a plurality of the court said, in Hampton v. United States, 425 U.S. 484, 490, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), " If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provisions of state or federal law," Justice Powell, concurring in the judgment, preserved the idea that due process might set some outer limit of government involvement in criminal conduct. Id. at 491-95, 96 S.Ct. 1646. However, he emphasized that, " Police involvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction."

However, outrageous government misconduct is " an issue frequently raised that seldom succeeds." United States v. Schmidt, 105 F.3d 82, 91 (2d Cir.1997). The First Circuit has gone so far as to call the doctrine " moribund" because " in practice, courts have rejected its application with almost monotonous regularity," United States v. Santana, 6 F.3d 1, 4 (1st Cir.1993). The Seventh Circuit has gone even further; it announced some years ago that " the doctrine does not exist in this circuit." United States v. Boyd, 55 F.3d 239, 241 (7th Cir.1995). While our Circuit has not gone so far, recognizing the doctrine

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" in principle," it has announced that " only Government conduct that shocks the conscience can violate due process," United States v. Rahman, 189 F.3d 88, 131 (2d Cir.1999). Needless to say, the Circuit has never seen any conduct that it considers conscience-shocking.

Significantly for this case, the Second Circuit has held:

[W]hether investigative conduct violates a defendant's right to due process cannot depend on the degree to which the governmental action was responsible for inducing the defendant to break the law. Rather, the existence of a due process violation must turn on whether the governmental conduct, standing alone, is so offensive that is " shocks the conscience" regardless of the extent to which it led the defendant to commit his crime.

United States v. Chin, 934 F.2d 393, 398 (2d Cir.1991). The outrageousness of the government's conduct must be viewed " standing alone" and (of utmost importance here) without regard to the defendant's criminal disposition. United States v. Cuervelo, 949 F.2d 559, 565 (2d Cir.1991). Governmental instigation of criminal activity does not violate the due process rights of predisposed defendants. Chin, supra, 934 F.2d at 398. Nor does a sting operation— even an elaborate one-violate a defendant's due process rights. United States v. Lakhani, 480 F.3d 171, 182-83 (3d Cir.2007). The due process clause " is not to be invoked each time the government acts deceptively or participates in a crime that it is investigating .... [because agents] often need to play the role of criminal in order to apprehend criminals Wide latitude is accorded the government to determine how best to fight crime." United States v. Mosley, 965 F.2d 906, 910 (10th Cir.1992).

The Government suggests that the jury's verdict on entrapment— its finding that the defendants were predisposed to engage in criminal activity of the sort proposed to them by the Government— necessarily disposes of the outrageous government misconduct motion. It does not. The jury did not reject any contention that the Government was " overinvolved" in this case— the case was tried, and the charge was carefully crafted, to avoid submitting that question to the jury. Whether the Government's conduct in this case rises to the requisite (and rarely met) level of constitutional outrageousness presents an issue of law to be determined by the court; the jury never considered it.

The defendants bear the burden of demonstrating, by a preponderance of the evidence, that the indictment was the product of outrageous government misconduct. United States v. Nunez-Rios, 622 F.2d 1093, 1098 (2d Cir.1980). The parties agree that when considering this constitutional question the court is to view the evidence de novo, and that it is defendants' burden to prove, by a preponderance of the evidence, that that the Government's conduct was so outrageous as to violate their due process rights.1 (Transcript of oral argument, March 24, 2011, at 70-73).

Findings of Fact Relevant to the Outrageous Government Misconduct Motion

While the findings of fact that follow duplicate in many ways the summary of the evidence prepared in connection with the companion motion pursuant to Fed.R.Crim.P. 29, it represents the court's

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view of the evidence after de novo review, rather than as viewed most favorably to the Government. It is, necessarily, more detailed than was the Rule 29 summary of evidence, and it varies in some particulars from the Rule 29 discussion.

1. Contacts Prior to the Formal Opening of an Investigation

Hussain and Cromitie had first met at the Masjid al-Ikhlas Mosque in Newburgh during the early summer of 2008. Hussain testified that he met Cromitie on June 13, 2008. (Tr. 675). This is corroborated in an FBI report prepared by Special Agent Fuller (3501-1) and in a recording of a conversation among Cromitie and his co-defendants on May 1, 2009, when he says that he first met Hussain " ten months ago."

There were a total of five meetings between Hussain and Cromitie (June 13, June 23, July 3, August 20, and October 10, 2008), before the F.B.I. began recording their conversations. The only version that we have of their first encounter is Hussain's, since Cromitie did not testify.

On June 13, Cromitie walked up to Hussain in the parking lot of the mosque and introduced himself as Abdul Rehman. Id. During the ensuing conversation, Cromitie gave Hussain his telephone number and his home address; told the CI about his family in Brooklyn and the Bronx; and said (falsely) that while he (Cromitie) was born in the United State, his father was born in Kabul, Afghanistan. Cromitie also claimed (again falsely) to have visited Afghanistan three times, most recently in 1995. Id.

Cromitie told Hussain that he wanted to go back to Afghanistan, both to obtain a wife (though he already has one) and because of all the " brothers killed in Pakistan and Afghanistan." Hussain prompted Cromitie, telling defendant that he recently was at Stewart Airport and that he spoke with a military employee who told him the transport planes were bringing military supplies to Afghanistan. Cromitie responded, " The weapons made today are used to kill Muslims," and complained that " the television news stations report on the deaths of a single soldier and not the hundreds or thousands of Muslims killed." He continued: " Look brother, I might have done a lot of sin but to die like a (shahid martyr), I will go to paradise.... I want to do something to America." Id. All of this testimony is confirmed by Special Agent Fuller's report (3501-1), which is based on what Hussain told Fuller about this first meeting.

The two men next met on June 23: Hussain picked up Cromitie at his apartment and drove defendant to a house on Shipp Street in Newburgh. The Shipp Street house was wired to record what went on in the living room and Hussain had previously used this house to meet with people he wanted to record. However, the June 23 meeting was not recorded. (Tr. 1592, 2907).

According to Hussain, Cromitie expressed hatred toward Jews and Americans at this meeting. (Tr. 1590, 2903-05). Special Agent Fuller's debriefing notes include references to Cromitie's anti-American comments: Cromitie stated he watched too many Muslims dying and said that he wanted to shoot President Bush seven hundred times. He referred to Bush as the anti-Christ, and asserted that if Allah did not kill him, then " a brother" will. Id.; (3501-3). Asked by Hussain about the 9/11 attacks, Cromitie purportedly claimed that no Muslims were involved, but one million Muslims were killed by the United States Government. Id. When asked if he followed the news from Quandahar, Afghanistan, Cromitie stated that he...

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