Lawyers for four men convicted of plotting to bomb synagogues in Riverdale and shoot down military planes at Stewart International Airport insisted yesterday the men were entrapped by the government.
In almost 2 1/2 hours of arguments, attorneys for the four men insisted before the U.S. Court of Appeals for the Second Circuit there would have been no crime but for the FBI and a perjuring confidential informant hatching the plot, providing the means and offering money to James Cromitie, David Williams, Onta Williams and Laguerre Payen.
Cromitie attorney Clinton Calhoun told Judges Dennis Jacobs (See Profile), Jon Newman (See Profile) and Reena Raggi (See Profile) that the case was not about terrorism, but about the power of the government to “manipulate, bribe and lure” the defendants “into these crimes in a way that mocks fundamental fairness” and violates due process.”
Calhoun told the panel that confidential informant Shahed Hussain played on religion to recruit Cromitie from a Newburgh mosque and used money to enlist him in the plot and recruit the others. Cromitie was not predisposed to commit the crime, Calhoun said, and his case was a prime example of when “you have the government pounding on the defendant to do something.”
The four men were arrested in May 2009 near the Riverdale Temple and the Riverdale Jewish Center with what they thought were real bombs.
In 2010, after a trial before Southern District Judge Colleen McMahon (See Profile), the jury rejected the entrapment defense and convicted Cromitie and David Williams on eight counts, and Onta Williams and Payen on seven counts, including conspiracy to use weapons of mass destruction against the United States (NYLJ, Oct. 18, 2010).
All four men were later sentenced to serve 25 years in prison by McMahon, who despite harsh words for Hussain and the government’s investigation, nonetheless refused to set aside the verdict.
Yesterday, the three-judge panel asked several questions of Calhoun and attorneys Samuel Braverman for Payen, David Lewis for Onta Williams and Theodore Green for David Williams on the facts of the case and the willingness of the four men to act without government instigation.
But the panel also had some tough questions for Adam Hickey of the U.S. Department of Justice.
More than once, the judges asked Hickey whether Hussain’s conduct crossed the line into the outrageous, particularly when Hussain, posing as a Pakistani terrorist, told Cromitie that Hussain’s own people would kill him if the plot was aborted.
But Hickey said it was Cromitie who approached Hussain at the Newburgh mosque and that he was eager to get involved. Cromitie told Hussain he wanted to bring harm to America and Jews, Hickey said, and he bragged about his experience with bombs to impress Hussain.
Critical to his argument that Cromitie was not just a patsy along for the ride, Hickey told the court, “We believe it was Cromitie who picked the targets.”
Under the law of entrapment, it is the burden of the defense to show that a defendant was induced into committing a crime. Once inducement is shown, the burden shifts to the government to demonstrate that the defendant was predisposed to criminal activity. Thus, the payment of money in a criminal conspiracy to the defendant will not be considered entrapment if the defendant already had the requisite mindset.
In the Riverdale case, Cromitie is in a separate posture from his co-defendants, because he discussed money with Hussain, including a payment of $5,000 (and a disputed figure of $250,000) and Cromitie can be heard on tape-recorded conversations developing the plot with Hussain.
By contrast, his codefendants came late to the conspiracy and there was little, if any direct evidence of inducement by Hussain.
The recruitment of Cromitie began in 2008. After meeting several times with Hussain and making plans in the fall of 2008, Cromitie went away for six weeks in 2009, a period in which Calhoun said he had “gone into hiding” and was “actively avoiding Hussain.”
Hussain “never stopped trying to contact Cromitie,” Calhoun said.
But Hickey said Hussain stopped trying to contact Cromitie for the last two weeks of his absence and, when Cromitie resumed contact in April 2009, “the plot took off.” In short order, Hickey said, Cromitie recruited his three codefendants.
Jacobs questioned Hickey on the government’s “hyperactive” development and management of the conspiracy.
“I’m having trouble finding what Cromitie did here,” he said. “He couldn’t even open the trunk of the car” and was “essentially, quite useless.”
“It looks like the government is doing everything and Cromitie was doing nothing,” he said, adding later, “He is undoubtedly a very horrible person,” he’s “a bigot, he’s an idiot, but you’re saying he’s a terrorist. That’s something else.”
But Hickey said once Cromitie approached Hussain at the mosque, “the government has no choice but to follow up.”
“Cromitie showed he would do exactly what he said he would do,” Hickey said.
Newman pressed Hickey hard on McMahon’s finding that Hussain had committed perjury on the witness stand, especially when he insisted that the only time he made an “offer” to Cromitie was when they discussed the $5,000.
“The statement was false,” Newman said, and he faulted the government for saying to the jury in closing argument “he had no incentive to lie.”
Hickey got no further when he answered, “We believe lying requires you to know you are telling an untruth,” and that Hussain never denied there had been other discussions about money.
But Raggi said “I always understood the government cannot allow false testimony to stand on the record.”
Despite its tough questioning of Hickey, the panel was also skeptical of some of the arguments offered by the defense.
Questioning Calhoun, Newman said Cromitie was quoted as saying he “wanted to do something to America” and then, on tape when talking about taking action against the enemies of the Muslim people, Hussain asks him what he’s talking about.
Cromitie, Newman said, answered “I don’t know yet. I’m going to put a good plan together.”
“That doesn’t sound like an absence of predisposition,” Newman said, adding a moment later “You’re talking about action. You’re not talking about a political” statement, especially as Cromitie talked about weapons in the same conversation.
Arguing for Payen, Braverman said the first time his client was caught on tape, he is thanking Hussain for the “job.”
The problem is that Payen is also seen on tape with the others picking up a would-be stinger missile that was to be used to shoot down aircraft.
Jacobs said the evidence appeared to show Payen was “avid and all sparked up to attack aviation and a synagogue.”
For Onta Williams, Lewis said “clearly there was an inducement” and “Hussain is a liar.”
But Newman asked whether it was Lewis’s position “that if a non-governmental terrorist had come to these defendants with the exact same offer,” including the disputed evidence of a $250,000 inducement in a conversation between Hussain and Cromitie, “we can be confident it wouldn’t be accepted?”
Lewis answered that the defendants were not dedicated terrorists and were barely capable of anything.
“No reasonable terrorist organization would have hired these guys,” he said.
@|Mark Hamblett can be contacted at firstname.lastname@example.org.