In their deliberations on the four men accused of trying to bomb Riverdale synagogues in May 2009 and shoot down military planes at the Air National Guard base in upstate Newburgh, the jury honed in on the defense contention that the men were entrapped by an aggressive informant.
But even if the jury ultimately finds the defendants not guilty by reason of entrapment, federal authorities are unlikely to be deterred from using informants in terrorism cases, according to Yehudit Barsky, director of the American Jewish Committee’s Division on Middle East and International Terrorism.
“This has become a well-used [tool] and a successful modus operandi,” she said. “It is used to get inside a terrorist cell and prevent it [the terror attack] from happening. They have had a lot of success using informants. Whatever criticism there has been of informants usually is no more than background noise because the government has been getting convictions despite the controversy over the informant’s relationship with the FBI.”
The Terrorist Trial Report Card prepared by the Center on Law and Security at the New York University School of Law found that informants “most often appear in high-level [terrorism] cases.”
“While informants are used throughout the legal system, they are a complicated category,” the report said. “Their use inevitably generates questions regarding their credibility. This is because informants are compensated for finding crimes (either financially or through reduced sentences or charges), making some believe that they have an improper motive to cause those crimes, or at least the appearance of criminality.”
The report said that 93 percent of federal terrorism prosecutions between 2001 and 2009 brought about at least in part by an informant resulted in a conviction.
Karen J. Greenberg, the center’s executive director, said other terrorism trials have also claimed informant entrapment but that “none resulted in acquittals or dismissals” because of that.
Because the defense claim was built around the defendants’ claim of entrapment, it came as no surprise that the first notes the jurors sent to Manhattan Federal Judge Colleen McMahon last week were, “We the jury would like to know if inducement is different than persuasion,” and “If it’s entrapment on count No. 1, does that mean all counts are entrapment?” And they wanted to know the definition of the word “persuasion.”
Such questions led to the discovery that one of the jurors had mistakenly been given the transcript of a conversation one of the defendants had with his father regarding entrapment. And other jurors had another transcript not entered into evidence — a conversation that one defense attorney said was “like a confession.”
Prosecutors apologized for inadvertently including them in the packet of transcripts given to jurors, and McMahon called it “utterly, completely and totally inadmissible.” But she denied Tuesday a defense motion for a mistrial, and dismissed a juror who said she could not follow the judge’s admonition to disregard it. The remaining 11 jurors then continued deliberations in the seven-week trial.
Attorneys for the defendants in this case, known as the “Newburgh Four” because all are from Newburgh in the Hudson Valley’s Orange County, contended that the informant had pushed their clients into action, coercing them into taking steps they never would have taken by themselves.
“There are a lot of people who would like to say these are people who were just bragging about what they intended to do,” Barsky said. “But the indictment contains anti-Semitic statements indicating they wanted to carry out [the attacks] and that they had issues with Jews. The question is whether it can be proven that they wouldn’t have done it without the informant.”
The four men — James Cromitie, 44, David Williams, 29, Onta Williams, 34, and Laguerre Payen, 28 — were arrested May 20, 2009, after they allegedly planted what they believed to be bombs outside the Riverdale Temple and the nearby Riverdale Jewish Center. They were charged with conspiracy to use weapons of mass destruction and conspiracy to acquire and use anti-aircraft missiles to kill U.S. officers and employees.
The men reportedly met in prison, attended the same mosque and had no ties to any other terrorist cells. Authorities became interested in them in June 2008 after a federal informant, Shahed Hussain, 53, told an FBI agent of the men’s desire to attack targets in the United States — including firing Stinger missiles at military aircrafts at the Air National Guard base.
“The defendants thought this was real — real bombs, real missiles — every step of the way,” Assistant U.S. Attorney David Raskin told the jury. “The FBI did exactly what it’s supposed to do — it caught four dangerous men before they could do any real harm.”
He said that when Hussain told Cromitie — the alleged ringleader — that he would finance and provide the weapons for the attacks, Cromitie “didn’t say, ‘I’m out of here.’ …. Cromitie wanted those weapons.”
Defense attorneys asked the jury to disregard the hundreds of hours of video and audio-recorded conversations secretly taped by Hussain. They said the conversations were selectively taped to impress the FBI and prevent Hussain’s deportation. Cromitie’s lawyer, Vincent Briccetti, insisted that Hussain was a “liar” and claimed the tapes were nothing more than a “movie written, produced and directed” by the FBI.
“There’s no proof James Cromitie had the ability to carry out this type of crime,” he argued. “Without the help of the FBI, Cromitie wasn’t going to do anything.”
But one of the videos shown to the jury shows the men two weeks before their arrest practicing with a shoulder missile launcher and praying together. In another, Cromitie is heard vowing to kill Jews and to retaliate against U.S. military action in the Middle East.
“I’m ready to do this damn thing,” he said. “Anything for the cause.”
And in the fall of 2008, he is heard telling Hussain: “I’m gonna do something, with or without it. I need to make some noise.”
Cromitie was also heard to say, “I’m a soldier in America but not for America.”
Noting that the case also has an “ideological component,” Greenberg said the jury must decide if the “informant introduced the ideology or was the defendant [Cromitie] on the road already. Predisposition [destroys] the entrapment defense. Was his dislike of Jews a predisposition to terrorism? Did the government take a hate crime and bring it along the road to terrorism?”
Should the jury side with the prosecutor and convict the defendants, Greenberg said it would “have a tremendous impact because you might argue that perhaps the entrapment defense doesn’t belong in terrorism trials because it doesn’t work.”
However, should the jury acquit the defendants and say they believed defense claims of entrapment, “it will make the prosecution rethink its informants. There was a lot of information [in this trial] about the informant — that he had several lives. He had a trust fund in Pakistan and was not the poor, bankrupt person the government thought. He was a guy who was leading at least two separate lives.”
Greenberg said that although an acquittal would not keep the FBI from using informants in the future, “it will make them look more carefully about who they are going to use and maybe about their strategy. In other informant cases, the informants were extremely careful not to lead the crime. The FBI has been very careful to draw the line and not lead, but this one seems to be a murkier case, at the very least.”
Nura Maznavi, program counsel for the Muslim Advocates, a national legal advocacy and educational group in San Francisco, said the government’s job is to “investigate leaks, not to conduct a fishing expedition.”
“A lot of what we are seeing is informants who are being used to infiltrate mosques and other houses of worship where there is no evidence of wrongdoing,” she insisted. “We get calls frequently from individuals or their attorneys who have been approached to be informants [for the FBI]. They are being promised that a criminal or immigration problem will go away or will arise” depending on whether or not they cooperate.
Greenberg said that although many of the things Cromitie said “were offensive, going from offensive speech to terrorism is quite a wide divide. The defense says he was led from hate speech to terrorism. This case is a threshold case and one we are all watching.”