U.S. v. Goba
| Decision Date | 08 October 2002 |
| Docket Number | No. 02-M-107.,No. 02-M-108.,02-M-107.,02-M-108. |
| Citation | 220 F.Supp.2d 182 |
| Parties | UNITED STATES of America, Plaintiff, v. Yahya GOBA, Sahim Alwan, Shafal Mosed, Yaseinn Taher, Faysal Galab, Defendants. United States of America, Plaintiff, v. Mukhtar Al-Bakri, Defendant. |
| Court | U.S. District Court — Western District of New York |
William Clauss, Federal Public Defender, Rochester, NY, for Yahya Goba.
James P. Harrington, Harrington and Mahoney, Buffalo, NY, for Sahim Alwan.
Patrick J. Brown, LoTempio & Brown, Buffalo, NY, for Shafal Mosed.
Rodney O. Personius, Personius Melber LLP, Buffalo, NY, for Yasein Taher.
Joseph M. LaTona, Buffalo, NY, for Faysal Galab.
Timothy C. Lynch, U.S. Attorney's Office, Buffalo, NY, Martin J. Littlefield, AUSA, United States Attorney's Office, Buffalo, NY, William J. Hochul, Jr., U.S. Attorney for the WDNY, Buffalo, NY, for U.S.
DECISION AND ORDER
Understandably, the infamous, dastardly and tragic deeds and events of September 11, 2001 have caused a maelstrom of human emotions to be not only released but to also create a human reservoir of strong emotional feelings such as fear, anxiety and hatred as well as a feeling of paranoia in many of the hearts and minds of the inhabitants of this great nation. These are strong emotions of a negative nature which, if not appropriately checked, cause the ability of one to properly reason to be impeded or to be blinded in applying our basic principles of law. In applying our democratic principles of law, the only blindness that is allowed and acceptable is that in which justice is blind to such things as a person's national origin or ethnic background or one's race or color or religious beliefs, because those characteristics play no role in deciding legal issues such as those that confront this Court today. If we truly believe in the principles espoused in this nation's Declaration of Independence and the United States Constitution, we must give more than lip service to those principles. We must fairly and fully apply those principles to each and every person entitled to their protection no matter how distasteful, frightening or loathsome it might be to some in doing so. We must always be vigilant to make certain that the rule of law, and not emotion, carries the day. There can be no doubt that the Constitution of the United States and our concepts of democracy provide sufficient strength and protection to bring citizens to justice without weakening our security. We must never adopt an "end justifies the means" philosophy by claiming that our Constitutional and democratic principles must be temporarily furloughed or put on hold in cases involving alleged terrorism in order to preserve our democracy. To do so, would result in victory for the terrorists.
This is indeed a unique case and one of first impression. The defendants herein are charged in a criminal complaint with having violated Title 18 U.S.C. §§ 2339B and 2. The defendants Goba, Alwan, Mosed, Taher and Galab had their initial appearance on the aforesaid complaint on September 14, 2002, and at that time, the government moved to have the defendants detained on the basis that they constitute a danger to the community and were a risk for flight.
The defendant Al-Bakri had his initial appearance on a separate complaint containing the same charges on September 16, 2002, and the government moved for his detention on the same grounds.
All of the defendants requested the Court to appoint counsel to represent them at taxpayers' expense, and this was done.1
Thereafter, the government renewed its motion to have all of the defendants herein detained on the basis that each defendant constituted a danger to the community and was a risk of flight. Each defendant, by his counsel, objected to detention and has requested the Court to release him on bail subject to suggested conditions. The defendants filed a "Joint Memorandum Of Law In Opposition To Detention Motion" on September 18, 2002 and a "Joint Supplemental Memorandum Of Law In Opposition To Detention Motion" was filed on September 19, 2002. A detention hearing was held, and both the government and the defense have presented their positions and support of their positions by proffer. The hearing itself was conducted over a number of days, to wit, September 18, 19, and 20, 2002 and October 3, 2002. Counsel for the government filed a "Memorandum And Proffer In Support Of Pre-Trial Detention" on September 27, 2002 along with an affidavit of Assistant United States Attorney William J. Hochul, Jr. sworn to September 27, 2002 in further support of the government's motion. Counsel for the defendants filed another "Joint Memorandum Of Law In Opposition To The Government's Motion for Detention" on September 27, 2002, and individual filings were made on behalf of the defendants Goba, Alwan, Mosed, Galab, Taher and Al-Bakri on September 27, 2002. However, because of the government's additional filings asserting new information on September 27, 2002, counsel for the defendants requested an opportunity to respond to the content of those filings as part of the public hearing, which request was granted, and the matter was scheduled for October 3, 2002. On October 2, 2002, Assistant United States Attorney Martin J. Littlefield filed two separate affidavits sworn to on October 2, 2002, one of which modified the September 27, 2002 affidavit of Assistant United States Attorney Hochul with respect to quoted recitations from an audio cassette tape entitled "Koranic Recitations." The other was submitted in further support of the government's motion for detention and set forth additional information about the alleged travel arrangements of the defendants Taher, Galab and Mosed in April 2001.
Upon completion of the defendants' further proffers and the government's rebuttal to same on October 3, 2002, the matter was taken under advisement by the Court, and the following constitutes this Court's decision with respect to the government's motion to detain the defendants and each defendant's application to be released on bail.
At the outset, counsel for the defendants objected to the government's proceeding by proffer and requested that the government be required to offer testimony along with documentary evidence in support of this motion. This joint objection and request by the defendants was overruled and denied, and the Court allowed all parties to proceed by proffer.
It is well established in this circuit that proffers are permissible both in the bail determination and bail revocation contexts.
United States v. LaFontaine, 210 F.3d 125, 131 (2d Cir.2000). See also United States v. Davis, 845 F.2d 412, 415 (2d Cir.1988).
The government's motion to detain the defendants herein is based on its claim that each defendant is charged with a crime of violence, to wit, with having violated 18 U.S.C. § 2339B and therefore, each defendant constitutes a danger to the community and a risk for flight.
The Bail Reform Act limits the circumstances under which a district court may order pretrial detention. See United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 2102, 95 L.Ed.2d 697 (1987). A motion seeking such detention is permitted only when the charge is for certain enumerated crimes, 18 U.S.C. § 3142(f)(1) (), or when there is a serious risk that the defendant will flee, or obstruct or attempt to obstruct justice. Id. § 3142(f)(2).
After a motion for detention has been filed, the district court must undertake a two-step inquiry. See United States v. Shakur, 817 F.2d 189, 194 (2d Cir.1987). It must first determine by a preponderance of the evidence, see United States v. Jackson, 823 F.2d 4, 5 (2d Cir.1987) that the defendant either has been charged with one of the crimes enumerated in Section 3142(f)(1) or that the defendant presents a risk of flight or obstruction of justice. Once this determination has been made, the court turns to whether any condition or combination of conditions of release will protect the safety of the community and reasonably assure the defendant's appearance at trial. United States v. Berrios-Berrios, 791 F.2d 246, 250 (2d Cir.), cert. dismissed, 479 U.S. 978, 107 S.Ct. 562, 93 L.Ed.2d 568 (1986).
United States v. Friedman, 837 F.2d 48, 49 (2d Cir.1988).
During the course of the proffer on behalf of the government, counsel for the government attempted to activate the presumption "that no condition or combination of conditions will reasonably assure the appearance of the [defendants] as required and the safety of the community" pursuant to § 3142(e) of the Bail Reform Act because each defendant was allegedly involved in an offense covered under section 924(c) of Title 18 U.S.C. This argument is based on the government's proffer that each defendant was engaged in training at a terrorist training camp in Afghanistan and instructed in the use of a Kalashnikov rifle and other types of weaponry and that each defendant participated in the use of such weaponry.
Title 18 U.S.C. § 924(c) provides:
(C)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime —
* * * * * *
The government argues that since the defendants are charged with...
To continue reading
Request your trial
-
U.S. v. Abdi, 2:04-CR-88.
...one would expect to be criminalized under a statute that proscribes the provision of `personnel' to an FTO"); United States v. Goba, 220 F.Supp.2d 182, 194 (W.D.N.Y.2002) (relying upon Lindh, and rejecting vagueness challenge to violation of § 2339B in the form of "providing personnel" to a......
-
U.S. v. Warsame
...the term "personnel" gives Warsame adequate notice of the criminality of attending an Al Qaeda training camp. See United States v. Goba, 220 F.Supp.2d 182, 194 (W.D.N.Y.2002) (rejecting vagueness challenge to "personnel" during pre-trial detention hearing, where defendants allegedly attende......
-
U.S. v. Farhane
...with and fighting alongside terrorist groups in Afghanistan potentially equaled providing self as “personnel”); United States v. Goba, 220 F.Supp.2d 182, 193–94 (W.D.N.Y.2002) (attending al Qaeda training camp for five weeks potentially equaled providing selves as “personnel”); cf. United S......
-
U.S. v. Abu-Jihaad
...who function as employees or quasi-employees—those who serve under the foreign entity's direction or control."); United States v. Goba, 220 F.Supp.2d 182, 194 (W.D.N.Y.2002) (agreeing with Lindh regarding § 2339B); United States v. Marzook, 383 F.Supp.2d 1056, 1066 (N.D.Ill.2005) (same). In......
-
Broken Promises or Unrealistic Expectations?: Comparing the Bush and Obama Administrations on Counterterrorism
...fired upon U.S. troops, for example, the soldiers themselves could testify as to these acts. 159 See, e.g. , United States v. Goba, 220 F. Supp. 2d 182, 194 (W.D.N.Y. 2002). 160 See Norman Abrams, The Material Support Terrorism Offenses: Perspectives Derived from the (Early) Model Penal Cod......
-
U.S. v. Goba.
...District Court BAIL REFORM ACT ALIEN U.S. v. Goba, 220 F.Supp.2d 182 (W.D.N.Y. 2002). Prosecutors asked a federal district court to order the detention of defendants who were charged with conspiracy to provide material support for a foreign terrorist organization. The court granted the moti......