U.S. v. Al-Arian

• Decision Date: 10 April 2003
• Docket Number: No. 8:03-CR-77-T-30TBM.,8:03-CR-77-T-30TBM.
• Citation: 280 F.Supp.2d 1345
• Parties: UNITED STATES of America v. Sami Amin AL-ARIAN, Sameeh Hammoudeh, Ghassan Zayed Ballut, Hatim Naji Fariz, Defendants.
• Court: U.S. District Court — Middle District of Florida

280 F.Supp.2d 1345

UNITED STATES of America v. Sami Amin AL-ARIAN, Sameeh Hammoudeh, Ghassan Zayed Ballut, Hatim Naji Fariz, Defendants.

No. 8:03-CR-77-T-30TBM.

United States District Court, M.D. Florida, Tampa Division.

April 10, 2003.

Walter E. Furr, U.S. Attorney, U.S. Attorney's Office, Tampa, FL, Daniel W. Eckhart, U.S. Attorney, Office of the U.S. Attorney, Orlando, FL, for United States of America.

Jeffrey Geldert Brown, Florin, Roebig & Walker, P.A., Palm Harbor, FL, Franklyn Louderback, Louderback and Helinger, Bruce G. Howie, Piper, Ludin, Howie & Werner, P.A., St. Petersburg, FL, Sami Amin Al-Arian, pro se, Coleman, FL, Nicholas M. Matassini, The Matassini Law Firm, P.A., Linda G. Moreno, The Solomon Tropp Law Group, Daniel Mario Hernandez, Law Office of Daniel M. Hernandez, Donald E. Horrox, M. Allison Guagliardo, Federal Public Defender's Office, Hatim Naji Fariz, pro se, Tampa, FL, Richard P. Condon, Law Office of Richard P. Condon, Kissimmee, FL, Stephen N. Bernstein, Stephen N. Bernstein, P.A., Gainesville, FL, Ghassan Zayed Ballut, pro se, Tinley Park, IL, for Defendants.

ORDER

PIZZO, United States Magistrate Judge.

The government has moved to detain each Defendant pursuant to 18 U.S.C. § 3142(f)(1)(A) and (B). After a detention hearing, and having considered the factors outlined in 18 U.S.C. § 3142(g), the government's motions to detain Defendants Al-Arian and Hammoudeh are granted but denied as to Defendants Fariz and Ballut.

I.

The Bail Reform Act requires a judicial officer to consider certain factors when deciding if conditions of release can be set reasonably assuring a defendant's presence as required and the safety of any other person and the community. These are: (1) the nature and circumstances of the crime charged, and particularly whether the offense is a crime of violence; (2) the weight of the evidence against the person; (3) the history and characteristics of the person; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. See 18 U.S.C. § 3142(g). The government must show the defendant is a serious flight risk by a preponderance of the evidence and dangerousness by clear and convincing evidence. See 18 U.S.C. § 3146(f); United States v. King, 849 F.2d 485, 489 (11th Cir.1988). In this case, because all the Defendants are charged with conspiracy to kill, maim, or injure persons in a foreign country (18 U.S.C. § 956(a)(1); count 2), a rebuttable presumption exists that each Defendant is a flight risk and a danger to the community. See 18 U.S.C. § 3142(e). Thus, each Defendant carries the burden of production to come forward with evidence to rebut these presumptions. In other words, every Defendant has the burden to produce evidence "to suggest that he . . . [is] either not dangerous or not likely to flee if turned loose on bail." United States v. Quartermaine, 913 F.2d 910, 916 (11th Cir.1990) (quoting United States v. Hurtado, 779 F.2d 1467, 1479 (11th Cir.1985)).

Although the Bail Reform Act does not list the length of pretrial delay as a factor a court should consider in weighing conditions of release, the Eleventh Circuit has recognized, accepting the Second Circuit's reasoning, that "at some point and under some circumstances, the duration of pretrial detention becomes unconstitutional." Quartermaine, 913 F.2d at 917 (quoting United States v. Gonzales Claudio, 806 F.2d 334, 339 (2d Cir.1986)).¹ In this case the pretrial delay will be more than a year, perhaps two. Added to this is the length of the anticipated trial — six months to a year. To determine if pretrial detention will become excessive, courts look to these factors: (1) its length, (2) the extent of the prosecution's responsibility for the delay of the trial, (3) the gravity of the charges, and (4) the strength of the evidence upon which detention was based. United States v. El-Hage, 213 F.3d 74, 79 (2d Cir.2000).

II.

A. Perspective

All the Defendants are charged with being members of an international terrorist organization, the Palestinian Islamic Jihad Shiqaqi Faction (PIJ). Comprehending the seriousness of the offenses leveled against these Defendants requires perspective. In the overwhelming majority of cases prosecuted in federal court, the charged offense impacts no more than a few victims. For some cases, like serious drug crimes or organized criminal rings, the breadth of the affected might extend to a neighborhood or the local community. And almost always, the prospect of economic gain drives the conduct. This case is different. The breadth of the affected here extends to nations and world regions. Moreover, a zealous commitment to a violent philosophy fuels the actors. Appreciating the magnitude of the accusations requires examining the PIJ's structure, the Defendants' positions within the organization, and their claimed interaction with one another against the backdrop of the events occurring in the Mid-East during critical dates.

B. The government's proffer

The PIJ considers itself the "vanguard of the Islamic Revolutionary Movement." (Court's ex. 3). Its creed is blunt, violent, and uncompromising. The PIJ rejects any peaceful solution to the Palestinian question. It advocates the destruction of Israel, the elimination of Western influence, particularly from the United States, in the region, and the creation of an Islamist state. And it aims to achieve all this through terror — the senseless, brutal murder of innocents in public places designed to instill fear, instability, and panic in the populace and the government of Israel. The PIJ killed over a hundred in Israel and the occupied territories during the period referenced in the indictment. It maimed many more. The roll call of dead and wounded included Americans.

The "Secretary General" and a ten-member "Shura Council," or managing board of directors, run the PIJ. Fathi Shiqaqi acted as the PIJ's Secretary General from its beginning until his assassination in October 1995. Defendants Al-Arian, Muhammed Tasir Hassan Al-Khatib (Al-Arian's brother-in-law), Abd Al Aziz Awda, Ramadan Abdullah Shallah, and Bashir Musa Mohammed Nafi served on the Shura. The PIJ operates cells worldwide. For example, Al-Arian, according to the government, acted as the PIJ's leader in North America and operated the Tampa cell that included Defendants Shallah (for a time), Hammoudeh, Fariz, and Mazen Al-Najjar (Unindicted Co-Conspirator Twelve and Al-Arian's brother-in-law). Defendants Ballut and Fariz, until he recently moved to this district, were alleged members of the PIJ's Chicago unit. Notably, the PIJ paid some members, like Hammoudeh and Al-Najjar, though they were not on the Shura.

Al-Arian, Shallah, Hammoudeh, and Mazen Al-Najjar taught or attended the University of South Florida (USF); the government asserts this was not a coincidence. USF provided them academic cover and the opportunity to bring PIJ members and associates into the United States. See doc. 1 at ¶ s 16 and 28. From 1986 through the return of the indictment, Al-Arian served on the engineering faculty.² Shallah taught Mid-East studies in the early 1990's. Al-Najjar entered USF as a student in 1986 and eventually earned his Ph.D. in industrial engineering in 1994. Hammoudeh is a candidate for his Ph.D. in applied anthropology and an adjunct professor. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1271-1273 (11th Cir.2001) (outlining Shallah's and Al-Najjar's relationship to USF and the PIJ).³

The Tampa cell used other covers besides USF. The government proffered Al-Arian and other PIJ members conducted PIJ activity through three fronts, the Islamic Concern Project, Inc. (ICP), the World and Islam Studies Enterprise, Inc. (WISE), and the Islamic Academy of Florida, Inc (IAF). Al-Arian incorporated both ICP, ostensibly a charitable organization, and WISE, a think tank for Islamic issues, in the late 1980s and early 1990s. Al-Najjar acted as executive director of ICP and WISE. WISE also employed Shallah and Hammoudeh. And both Al-Arian and Hammoudeh are officers of IAF, a private Muslim school offering classes from kindergarten through high school. Al-Arian, who founded the school along with Al-Najjar, was its principal and chairman of the board; Hammoudeh is the assistant principal and, according to the government, its treasurer.

From February 1992 through January 22, 1995, the PIJ tried to derail the peace process through suicide attacks within Israel and the occupied territories in places named Hula, Afula, Mirage Junction, Netzarim Junction, and Beit Lid. See doc. 1, ¶ 43(11, 13, 80, 109, 115, and 121). Dozens died. Over a hundred injured. Despite the carnage, the political leaders in the region progressed toward peace. In September 1993, the Israel-Palestinian Declaration of Principles (Oslo Accords) was signed. The PLO acknowledged Israel's right to exist, and the declaration accepted United Nations resolutions renouncing terrorism. In October 1994, the Nobel Committee awarded Israel's Prime Minister, Yitzhak Rabin, and the Palestinian's chairman, Yasser Arafat, its Peace Prize as a consequence of the Oslo efforts. That same month, Jordan and Israel signed a peace treaty. After several wars and decades of instability in the region, the world could genuinely hope for peace.⁴

The PIJ, however, abhorred any peaceful solution. On January 22, 1995, it sent two of its operatives to Beit Lid, Israel for a double suicide attack. The bombers killed twenty-two as if to emphasize to all the PIJ's commitment to its violent, uncompromising creed. The brutality also portended a pattern of savage attacks. The PIJ trumpeted these killings, denounced the Clinton administration's peace efforts, criticized any Arab government which supported the peace process, and condemned the Palestinian Authority's crackdown on PIJ members. The day after Beit Lid, the President issued Executive Order No. 12947. Claiming a national emergency, ...