Case 1:09-cr GAO Document Filed 12/17/10 Page 1 of 34 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

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1 Case :0-cr-0-GAO Document - Filed // Page of UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS UNITED STATES OF AMERICA. CRIMINAL NO. 0-0-GAO. V.. BOSTON, MASSACHUSETTS. NOVEMBER, 00 TAREK MEHANNA. Defendant APPEARANCES: TRANSCRIPT OF ARRAIGNMENT AND DETENTION HEARING BEFORE THE HONORABLE LEO T. SOROKIN UNITED STATES MAGISTRATE JUDGE For the government: UNITED STATES ATTORNEY S OFFICE BY: Jeffrey Auerhahn, Esq. One Courthouse Way, Suite 00 Boston, MA Jeffrey.auerhahn@usdoj.gov For the defendant: CARNEY & BASSIL BY: J.W. Carney, Esq. Stephen Morrison, Esq. 0 Park Plaza, Suite 0 Boston, MA 0 -- jcarney@carneybsasill.com Court Reporter: Proceedings recorded by electronic sound recording, transcript produced by transcription service. Wrentham, MA 00 (0) -00

2 Case :0-cr-0-GAO Document - Filed // Page of 0 I N D E X Proceedings (0) -00

3 Case :0-cr-0-GAO Document - Filed // Page of P R O C E E D I N G S CASE CALLED INTO SESSION THE CLERK: The Honorable Leo T. Sorokin presiding. Today is November th. The case of the United States v. 0 Mehanna; Criminal Action 0-0 will now be heard before this Court. Counsel please identify themselves for the record. THE COURT: Please be seated. MR. CHAKRAVARTY: Good morning, Your Honor, for the government assistant U.S. attorneys, Aloke Chakravarty and Jeffrey Auerhahn. THE COURT: Good morning. MR. AUERHAHN: Good morning, Your Honor. MR. MORRISON: Good morning, Your Honor, Steven R. Morrison for the defendant. J. Carney is in the building. He s attending to matters dealing with the case, this case. I don t know what specific they are, but he should be here any minute. THE COURT: Do you want me to wait for Mr. Carney? MR. MORRISON: It would be best to. THE COURT: How about for doing the arraignment? MR. MORRISON: Well, Attorney Carney is the CJA appointed attorney; I m not. THE COURT: Oh, you re right. MR. MORRISON: So I couldn t even represent him-- THE COURT: Thank you. (0) -00

4 Case :0-cr-0-GAO Document - Filed // Page of MR. MORRISON: --informally. 0 the building? THE COURT: You re right. Do you know where he is in MR. MORRISON: No, I don t. We arrived together. I went to see Mr. Mehanna, and J. Carney went to attend to different matters. Honor,-- need, sir. MR. CHAKRAVARTY: We have no objection to that, Your THE COURT: All right. MR. CHAKRAVARTY: --to waiting. THE COURT: Why don t we recess for minutes? MR. MORRISON: Yes, ten minutes is probably all we THE COURT: All right fine. We ll recess; I ll return at after. THE CLERK: All rise. RECESS CASE CALLED BACK INTO SESSION THE COURT: Please be seated; ready to proceed? All right, we ll proceed with the arraignment first. for the record? MR. CARNEY: Yes, Your Honor. May I identify myself THE COURT: Absolutely. MR. CARNEY: J.W. Carney, Jr., representing Mr. Mehanna. With me is my associate Steven Morrison. I (0) -00

5 Case :0-cr-0-GAO Document - Filed // Page of apologize for not being here exactly on time, Your Honor. THE COURT: Thank you. MR. CARNEY: I ve been in the building since :0, but I have no excuse for not being in this courtroom. THE COURT: I accept your apology, Mr. Carney, thank 0 you. Mr. Carney, do you waive reading of the indictment in its entirety? MR. CARNEY: I do, Your Honor. THE COURT: All right, Mr. Mehanna, you ve been charged in indictment with violations of the law for the United States, specifically conspiracy to provide material support to terrorists, providing, attempting to provide the same, conspiracy to kill in a foreign country, conspiracy, making false statements in criminal forfeiture allegations. Mr. Carney, have you had an opportunity to at least preliminary review the indictment with your client such that he s ready to be arraigned? MR. CARNEY: Yes, Your Honor. THE COURT: All right, and does he have or has he received a copy of the indictment? MR. CARNEY: Yes, Your Honor. THE COURT: All right, Ms. Simeone, oh, actually, Mr. Chakravarty, Mr. Auerhahn, I m sorry, would you state the maximum punishments? MR. CHAKRAVARTY: Certainly, Your Honor. Counts (0) -00

6 Case :0-cr-0-GAO Document - Filed // Page of and, the conspiracy is a substantive charge for violating materials support to terrorists statute, the maximum penalties 0 year period of imprisonment, followed by a period of life of supervised release and $0,000 for each offense; for violating U.S.C., the maximum penalty is any term of years up to life, followed by life supervised release; for violations of the regular conspiracy statute in Section of Title is five years imprisonment, $0,000 fine and three years supervised release; and for Counts and, violations of the False Statement Statute, U.S.C. 0 because it involves another crime of terrorism, investigation is terrorism, it s years imprisonment, $0,000 fine and three years supervised release. There is a forfeiture allegation as spelled out in the indictment, and for each of the offenses there is a $0 special assessment. THE COURT: All right, thank you. Ms. Simeone? MS. SIMEONE: As to Counts and charging you with conspiracy to provide material support to terrorists and providing material support to terrorists in violation of Title United States, Code Section (a); Counts charging you with conspiracy to kill in a foreign country in violation of Title United States, Code Section ; Count charging you with conspiracy in violation of Title United States Code, Section ; Counts and charging you with false statements in violation of Title United States Code, Section (0) -00

7 Case :0-cr-0-GAO Document - Filed // Page of 0(a)(), and forfeiture allegation in violation of Title United States Code, Section (a)()(c), and Title United States Code Section U.S.C., (c); how do you plead, guilty or not guilty? THE DEFENDANT: Not guilty. MS. SIMEONE: Thank you. THE COURT: All right, thank you very much. Mr. Carney, do you opt into automatic discovery under the local rules? MR. CARNEY: Yes, I do, Your Honor, thank you. THE COURT: All right, Ms. Simeone, can we have a date please? MS. SIMEONE: December nd at :00? THE COURT: How s December nd MS. SIMEONE: :00. MR. CARNEY: How about :0? MS. SIMEONE: :0 is fine. at-- 0 counsel will be-- THE COURT: December nd at :0? MR. CHAKRAVARTY: Your Honor, I think both government THE COURT: Be away? MR. CHAKRAVARTY: --be away. THE COURT: All right, Mr. Carney? MR. CARNEY: I m amendable to going into January if that fits with Your Honor s schedule and the government s (0) -00

8 Case :0-cr-0-GAO Document - Filed // Page of attorney s schedule. THE COURT: Fine, how about a date after the st of the year? MS. SIMEONE: Why don t we do January th at :00? THE COURT: January th at :00? MR. CHAKRAVARTY: It s fine for the government. THE COURT: Fine for you, Mr. Carney? MR. CARNEY: If I may just have one moment,-- THE COURT: You may. MR. CARNEY: --Your Honor, please? Yes, Your Honor, thank you. 0 THE COURT: All right, Mr. Carney, do you agree to exclude the time from the Speedy Trial Act for purposes of investigation in discovery for the time period from today to January th? MR. CARNEY: I do, Your Honor. THE COURT: All right, Mr. Auerhahn and Mr. Chakravarty, will you file an assented to motion to exclude the time from today to January th? MR. CHAKRAVARTY: We will, Your Honor. THE COURT: All right, thank you. Are they going to proceed with the hearing on detention? MR. CHAKRAVARTY: Yes, Your Honor. THE COURT: Mr. Carney, are you ready? MR. CARNEY: I am, Your Honor. (0) -00

9 Case :0-cr-0-GAO Document - Filed // Page of THE COURT: All right. I have one question I was 0 unclear on. Mr. Carney, are you seeking to proceed by proffer? MR. CARNEY: Your Honor, I think the critical question before the Court is whether there are conditions of release upon which the Court can set and be assured that the defendant will return for the trial. So on that basis, I m ready to proceed orally with that. And I believe the government has submitted a proffer. I will not be calling any witnesses at this hearing, and my understanding is neither will the government. THE COURT: All right, fine. I ll hear from counsel. MR. CARNEY: The government has filed a motion to detain to, I filed a memorandum in opposition. THE COURT: Proceed. MR. CARNEY: I would ask to be heard after the government addresses you, Your Honor? THE COURT: That would be fine. MR. CARNEY: Thank you. THE COURT: Go ahead. MR. CHAKRAVARTY: Thank you, Your Honor. Your Honor, the government has filed a lengthy proffer along with memorandum support of detention, so I won t belabor a lot of the-- THE COURT: Just to be clear that I have everything, I have your -page memorandum in support of your motion for (0) -00

10 Case :0-cr-0-GAO Document - Filed // Page of detention. I have the formally signed affidavit from Special Agent Nambu? I assume that s the same affidavit that was attached unsigned to the memo that I received? MR. CHAKRAVARTY: It is, Your Honor. THE COURT: All right. I have all the attachments that came with that affidavit or that memorandum and all that was cited within it. And I have one CD or DVD. MR. CHAKRAVARTY: Right, it s in the files. That summarizes the government s submission. Your Honor, the government has moved under Section 0 (f)()(a) and (B) as well as (f)()(a) and (B), and as Your Honor knows that this significantly changes the legal analysis because of the institution of the presumption in this case that the defendant is a risk of flight and that he is a danger. But even holding aside the discussion of meeting burden of proof, presumably using, relying on the presumption, the evidence in this case is clear that the defendant does pose both a risk of flight and a danger to the community. I should add also danger or risk of obstructing justice or intimidating witnesses or influencing witnesses under (f)()(b). Before defendant was brought before the Court on these material support to terrorist charges, it was still a very close question as to whether the defendant indeed was a risk of flight. And that was the sole side of the analysis. And the evidence was abundant that the defendant didn t want to (0) -00

11 Case :0-cr-0-GAO Document - Filed // Page of 0 stay in this country, that he wanted to leave for a variety of reasons, some borne by his interpretation of what his of where it would be more amendable so he could practice his faith. But the information that was not presented to the Court at that time was the abundant evidence of the danger, the risk, the motivations, the sincere motivations for why the defendant chose and wanted to flee as well as the other evidence of his danger because he of, he had actually committed terrorism related offenses here in the United States and was planning to do the same overseas. And so through that lens and through this submission the Court now should, even with, absent a presumption, should easily be able to find that there are no conditions that could ensure that the defendant will not continue to reoffend, continue to engage in the conspiracy and the attempt to provide material support as he has had, as he had done so for the last almost a decade. I should add, Your Honor, he s done that often from the confines of his own home, often with the assistance, with the knowledge of people in this very same community which he now claims is the community that will ensure that he will not continue to offend. Your Honor sees cases of all sorts in this court. Often you see drug dealers or other individuals charged with offenses which also have a presumption and some not for which the danger is not necessarily a risk of imminent violence but rather other societal harms which the Bail Reform Statute (0) -00

12 Case :0-cr-0-GAO Document - Filed // Page of was designed to protect against. In a drug dealer circumstance, it s so that they don t spread their poison, so that they don t continue to fuel this machine which ultimately yields violence or ultimately yields destruction of people s lives. This defendant is in the same boat, Your Honor. The poison that this person was pedaling in this community was the harm not only to the risk of all Americans because of his advocacy for terror and jihad spreading, enabling others both in the United States and around the world to be motivated and justified to engage in violence to reach their political ends, 0 but rather he s implicating his own community. The very Muslim community that he claims to be standing up for is the community which he is impacting and has been for the last, you know, for the last almost of a decade. And it s that harm which should also be considered in addition to the harm, very real and palpable violence which have been made known to the Court. One of those examples, Your Honor, and I won t belabor it, is what should have been much publicized but it was in the original affidavit and it s in the Nambu affidavit, of the consideration of actually engaging in acts of violence to discriminately kill people here. Those plans were dismissed because of the lack of feasibility or viability of conducting a domestic attack simply because all they could attain were handguns, Your Honor. Unfortunately, the events of the last week have crystallized the fallacy of this lack of feasibility. It s crystallized the (0) -00

13 Case :0-cr-0-GAO Document - Filed // Page of threat that such a one off plan might actually be brought to fruition. And this is a person who for the last years has 0 single-mindedly thought of how and why he can support his faith or his perception of his faith through defending it through violent means if necessary. This is a person who we ve only provided a snapshot, a small window over various periods of time to the Court to provide some insight into the G factors under to the detention statute in which the Court is allowed to assess the personal characteristics of this defendant, the motives for his behavior, what kinds of, you know, the amount of energy and time that he has spent thinking and proselytized and spreading the word about his brand of what he calls religion. And for him that means violent jihad. For him, that means watching videos of mutilation of people. For him, it means watching images and storing and saving images of beheaded people. For him, it means trying to explain to other younger people in the community and beyond this Commonwealth, explaining to them why these things are appropriate and necessary. For him, when posed with the prospect that there might be a just result in the courts for, to resolve a conflict or an injustice done upon Muslims, his answer is who cares. Texas barbecue is the way to go, referring to the burning and mutilation of American soldiers. That is the character of the person at the table that the Court should assess when considering whether he s a real danger or whether because of (0) -00

14 Case :0-cr-0-GAO Document - Filed // Page of his behavior over the last year when he was charged with a 0 offense why he s been able to comply with the conditions 0 of release. Even in that context the idea that s he s complied with-- THE COURT: Do you think he s complied with the conditions of release over the past year? MR. CHAKRAVARTY: He has not, Your Honor. He has committed a federal offense including continuation of his-- THE COURT: During the time period of release. MR. CHAKRAVARTY: --during the time period of release. His duty hasn t changed, Your Honor. I went on his website yesterday. His, grant it he s not had access to it since he s been in custody, but he has document after document purporting to justify through so-called religious doctrine, often not even by scholars of Islam, which justify standing up against the tyrant, disrespecting the laws of the Kirthar or the infidel. This is a person who given his stakes now that he has to face versus what he faced before would be at no qualms either to flee or to actually implement or take his terrorist planning to a next stage. And this is a real concern which there are no conditions which could get into his mind and short circuit the training and the inculcation which he has done to himself and to others over the last years. That s so deeply imbedded his hatred for the United States government and what it stands for and activities overseas, it s so deeply imbedded (0) -00

15 Case :0-cr-0-GAO Document - Filed // Page of that there s no way to ensure that he won t take do anything to perpetuate that. And whether that is an act of violence or whether has been his pattern and practice whether it is to encourage or to support others who are in fact engaging in those acts of violence. He now faces potential the life in prison. He now faces the guideline ranges with terrorism enhancement in the multiples of decades. His incentive to remain here, which has solely been secure I would submit, primarily been secured I would submit by secure by the good 0 auspices of his family who, like any good family, would support their kin. They ve put up their home; they ve put up their assets. Those would be a small price to pay for the freedom of their son, Your Honor, a son who, in this case, is facing international opprobrium certainly in this community and the specter of a lengthy period of incarceration. So the motive analysis in terms of the value of that surety should be viewed in perspective. And finally, in terms of categories of factors of the good Court to consider, in this case the evidence is, the government would submit at this stage voluminous more than in most cases. You know, the proffer was submitted to provide us insight into the defendant s state of mind and his intent and the kind of pervasiveness of his thought. But it s certainly not the four corners of the evidence and the affidavit I submitted are details that there are other types of evidence, (0) -00

16 Case :0-cr-0-GAO Document - Filed // Page of other character of evidence including cooperating witnesses, including recorded statements of the defendant, including the defendant s own writings and including records and other kind of objective records, all which corroborate each other. But amongst those are cooperating witnesses, people who from the Muslim community and beyond who have answered truthfully when the government has asked them questions. Something which is 0 even in Islam despite what the defendant s interpretation might be is a legitimate activity. The defendant s perception of that as detailed in the proffer is that that simple act of cooperating with the government is telling the government the truth when asked is tantamount to apostasy. And there is only one punishment in defendant s eyes when somebody becomes apostic, when somebody rejects the faith, acts against it, and that is a, that is to exterminate that person. In this case there are several cooperating witnesses. There is a real risk, and defendant knows who they are, but there s a real risk that no matter what happens if he s ever released that there is a jeopardy both by himself as well as his associates, some of whom are at large. I point out that in the proffer the defendant had communications with over a dozen individuals. Those individuals are not charged with a crime, but those individuals had conversations with the defendant about the propriety of violent jihad, about the supportive of the horrific acts which defendant was reveling in. And those (0) -00

17 Case :0-cr-0-GAO Document - Filed // Page of 0 people, some of them may be in the courtroom today, those people are still around and still can perpetuate what the defendant has inside and encouraged them to do all this time. I won t belabor the issues much more, but,i to address one of the concerns which I anticipate Mr. Carney will raise, which is that the controls at home might be sufficient to ensure the defendant won t continue to perpetuate this ongoing conspiracy which from he has never withdrawn. In fact his behavior before the Court suggests that his mindset on the last occasion suggests that his mindset is equally as resolved today as it was back then. But it s the same family, this admirable, upstanding family. There s no reason to disbelieve that, who, and in this community where he has radicalized himself, he radicalized others and continued to engage, continued to manage his website, continued to communicate with individuals after the initiation of criminal proceedings in this case. There is a co-conspirator who remains overseas who s been charged. The potential that this defendant can be controlled by a family who has not been able to control his behavior at all regardless of the fact that they may very well disapprove of everything that the defendant has perverted his faith into suggests that merely pulling the plug out of a wall for internet access is not going to prevent him from communicating or from spreading the same desire that he has had to stand up against the disbeliever and the infidels. (0) -00

18 Case :0-cr-0-GAO Document - Filed // Page of The, I just want to outline, before I turn it over some of the character of what this person s mindset has been. And I know Your Honor has read the detailed sort of chats, but 0 he s done things such as on the internet or other communication to actually provide material support. We have The Ways of Preserving and Participate in Jihad. This is a textbook, and when you look through the - and you ll see that based on the allegations thus far proffered, the defendant has either attempted to have accomplished several of these ways. This is a source of pride for this defendant. The, you know, being referred to as the media wing of Al-Qaida, spreading the propaganda of this global terrorist organization is a serious and meaningful contribution to the mission of Al-Qaida. Holding aside the fact that his perception of Osama Bin Laden is like his real father, query how he would respect the wishes of his true father who is in the courtroom. The fact that the defendant didn t simply regurgitate existing liturgy or existing scholarly work about the benefits and the motivations for violent jihad, but actually did close production work, created videos, did translations, so that the word could be spread across cultures, across countries and especially in this community where he would be released back into. This is somebody, who based on his communications, who relished the importance of his work. He felt it was a called action. He hoped it would cause people to take action. He hoped it made (0) -00

19 Case :0-cr-0-GAO Document - Filed // Page of 0 an impact. In his ideological motivation for these actions so deeply seeded and so deeply entrenched that in addition to his adulation for individuals like Osama Bin Laden, Al-Qaida in general, Abu Musab al-zarqawi, Dr. Ayman Al-Zawahiri. This is somebody who would joke with his friends about watching videos, not watching a, you know, American Idol, but rather watching beheading, beheading videos and watching other horrific acts of violence. This is somebody who enjoys that, Your Honor, and did it over a long period of time. There s nothing, I stress again, there s nothing to suggest that that has changed. This is someone who had stored multiple and dozens of images of the attacks of /, somebody who actively sought out and became a student in the lives of the / hijackers. So when Mr. Carney stands up and say there s nothing, there s no shred of evidence to suggest that this person before you is a risk of personally engaging in violence, this is somebody who has studied the lives of people across the world, across the world, who come from all different walks of life, all different socio-economic routes. And he has studied how and why they finally engaged in acts of terrorism. And he has looked to those people with admiration because they did what he wanted to do and didn t have the courage to do, and now he s a person who has nothing to lose, Your Honor. Now he is a person who is looking at potentially the rest of his life behind bars. The motivation for this person now finally to go out in a blaze of glory or to (0) -00

20 Case :0-cr-0-GAO Document - Filed // Page 0 of 0 0 do what he was heretofore unable to have the courage to do has gone up tremendously. And then finally, the last category of risk here is his explicit solicitation of others to do what it is that he was unable to do, his referral of others to individuals like Anwar al-awlaki or others who might perpetuate and who might propagate to the ideology to motivate somebody else to go engage in jihad which he finds as dictated in his Ways to Preserve and Participate in Jihad. He finds as the next approximation of personally participating in jihad is to encourage somebody else or to support somebody else in doing that. This is a person whose risk is beyond simply the risk of the community at large. It s particularly invasive and infective to his own Muslim community, especially the peaceful and law-abiding community here in the Commonwealth. But more importantly his network, this network of support, which he is praising to the Court, is a network some of whom are supportive of the defendant s illegal objectives. We don t know how many, and we don t know where they are. And more importantly it s the same community which has allowed him, given him the ability, to engage in this longstanding conspiracy with himself and others both charged and uncharged over the last ten years. So there really are no conditions. THE COURT: Thank you. Mr. Carney? MR. CARNEY: Thank you, Your Honor. The decision (0) -00

21 Case :0-cr-0-GAO Document - Filed // Page of before the Court is not an easy one. If the Court is to be guided by hysteria or fear, then it will stampede into a decision allowing the government s motion. But I suggest if the Court is guided by the Rule of Law, by the statutes passed by the Congress as interpreted by the Courts then the evidence supports Mr. Mehanna s release. I have submitted a memorandum that s given Your Honor background about the defendant, and I won t rehash all of those-- THE COURT: I have it in my notes. 0 MR. CARNEY: --notes. But the events of the last few years provide the very best evidence as to whether Dr. Mehanna, he is a doctor based on his graduation from the Mass College of Pharmacy with a pharmacy degree, whether Dr. Mehanna will flee if he is released by Your Honor, and whether if released he would present a danger to the community. Let s just look at the last few years to put this in context. Dr. Mehanna was approached on one occasion by FBI agents who wanted to interview him. He consented to the interview and spoke to the agents. They urged him to become a cooperating informant against individuals in the Muslim community, and he declined to do so. They were, he was approached a second time by the FBI agents, and again, again urged to become an informant and declined to do so. At this point now knowing the focus that the FBI had on him, he did not flee. He did not do anything to obstruct justice. He did not (0) -00

22 Case :0-cr-0-GAO Document - Filed // Page of do anything to present a danger to the community. He was visited by the FBI on a third occasion in April of 00. They 0 confronted him with the fact that they said he had lied to them on a previous occasion about whether his friend, Daniel Maldonado, was in Egypt or in Somalia and that he could and would be charged with a crime if he did not become an informant against the Muslim community. Dr. Mehanna respectfully declined to do so. So despite having been told by the FBI that they knew he had made a false statement to them and he would be charged with a crime, he did not attempt to flee. He did not do something to obstruct justice. He did not do anything to present a danger to the community. He retained counsel. What more American thing is there to do than seek the protection of the Rule of Law? Dr. Mehanna completed college. He got his degree. During college he worked at Walgreens; he worked at CVS in the community. He was very active in his mosque and in his local community. He looked for a job. The best offer he received was one from the most prestigious hospital in the Middle East where he would go under contract and work in Saudi Arabia as a pharmacist, a country where he would feel that his religion is completely embraced by the community and where he felt he would be comfortable. The hospital paid for his airline ticket. Indeed, in his contract says that he would pay for him to fly to Saudi Arabia for his job, and they would fly; they would pay for the ticket for when he would come back and (0) -00

23 Case :0-cr-0-GAO Document - Filed // Page of 0 visit his parents or visit his friends when he returned to the United States. He appeared in this court after he was arrested at the airport where he was getting on a plane with his parents. And after many hearings, this Court decided that there were conditions of release that would ensure that Dr. Mehanna would return to this courtroom. It s significant to me that if the government says that Dr. Mehanna is such an unbelievable danger to the United States that he has to be locked up, why didn t they say a darn thing in December of 0 when he was being let out of this courtroom? Was he such a danger that they would withhold this information from Your Honor because of some tactical reason? That they would rather have a dangerous person go out into the community than tell you about all this dangerous stuff that they knew about? Or was it that they knew that this dangerous stuff would not merit holding him? And so Dr. Mehanna was released in December of `0. Your Honor set very strict conditions. A notable condition that I had never experienced before was that the government proposed restrictions on Dr. Mehanna s free speech. They explicitly proposed to the Court as a condition of release that Dr. Mehanna could not speak to people about cooperating witnesses or say that it was bad to be a cooperating witness or speak about this investigation in that way to members of the public. If he did so he would be in violation of the terms of your release. It was an unprecedented term of release in my (0) -00

24 Case :0-cr-0-GAO Document - Filed // Page of experience, but I discussed it with my client, and he said that would cause no problem whatsoever. If that s what the government insisted that he do, fine, he ll do it because he 0 wasn t going to do it anyway. And over the past year where the government says he continues to be involved in this jihad, we have never once had presentation in this court that he is in violation of your order strictly limiting what this man had said. Did he flee or attempt to flee? Did he obstruct justice? Was he a danger to the community over the last almost year that he s been under your supervision and the supervision of pretrial services? The absence of any allegation is the answer to that. He had been under a nighttime curfew, but on occasion the Court has even released him from that. For example, there was a religious ceremony where people of his faith try to pray all night at a mosque, and we asked that he be relieved of his curfew, and Your Honor permitted him, and he did not flee. There was another occasion where he was taking his pharmacy exam which is a two-day exam comparable to our bar exam. And he asked for permission to be off the curfew, not so that he was going any place but simply so that he would not be woken up two or three times a night by the automatic calling to verify that he is in his home; and that way he could get a good night s sleep for his exam, and the Court permitted that. This window of opportunity would have permitted Dr. Mehanna to flee, and he didn t; or obstruct justice, and he never did; or (0) -00

25 Case :0-cr-0-GAO Document - Filed // Page of present a danger to the community, and he never did. If one looks at the proffer put forward by the government, the major focus is on the years 00 to 00, and they focus on statements made by Dr. Mehanna when he was a college student, people who were friends of his, he thought, who were recording his conversations. And so that the kind of sharing that one s one does with friends in college, the exuberance of youth, I can recall distinctly when I was in college in the days of BSDS, and the Black Panthers, and going to see Stokely Carmichael or other people who had come to speak on college campuses and listened to what they say. And in the youthful idealism believing gee, that sounds good. That s got to be, that s a good idea, for going beyond that? No, not going 0 beyond that. And their focus on statements he made or postings or s that he sent while he was in college is the heart of the government s case here against Dr. Mehanna. It s interesting that the prosecutor said that he went on Dr. Mehanna s blog where there are translations of texts, where there are scholarly articles that he has translated, where he has had videos that were obtained from CNN or FOX News, and he has saved them, and where he supports ideas. Listening to the prosecutor makes me afraid about where the First Amendment stands in the eyes of this government if this is what he is saying. If he disagrees that Dr. Mehanna cannot keep CNN or FOX News videos on his website or translate (0) -00

26 Case :0-cr-0-GAO Document - Filed // Page of 0 texts, someone who s assisting me in this case pointed out the irony that one of the texts that the government has focused on was cited by the Secretary of Defense when he went to Afghanistan to support the Taliban in trying to get the Russians out of Afghanistan. I m hoping during the trial they could play for the jury the movie Charlie Wilson s War to show what the United States did during Afghanistan to support the Muslims in trying to get an outside country out of Afghanistan, which many Muslims are still trying to get outside countries out of Iraq and Afghanistan and Pakistan. The fact that he might support those views is what the First Amendment is all about. First Amendment isn t about supporting popular speech; it s about supporting unpopular speech. But what else has occurred over the last several years that should guide Your Honor? After Dr. Mehanna was released from this court, by this Court, he tried to get a job. He was unable to get a job in his chosen profession. So he did get a job. He s been teaching at a private school at a private Jr. High school. He has been teaching math, science and religion. That s how he has been occupying his time during the day. There are many letters of support that have been provided to me that I m going to give to the Court, and I have a motion in that regard in that I want to give the originals of the letters to Your Honor, a copy of the letters to the prosecution, and I want to file those letters, but I m asking (0) -00

27 Case :0-cr-0-GAO Document - Filed // Page of the Court s permission to just redact the names of the people 0 from the public record so that there s no chance that they will bear any problems because they ve written a letter to this Court. Among-- THE COURT: Any objection to that, Mr. Chakravarty? MR. CHAKRAVARTY: None, Your Honor. THE COURT: All right. MR. CARNEY: But among those letters you will see are letters from his seventh grade students who, on their own, have written letters to Your Honor to tell you about the man who s been their teacher and how even during the religion classes that he teaches, how he always says non-violence is the way to go. That s what he is teaching to the young, impressionable minds at the school where he has been a teacher. That s what he s been doing instead of fleeing or obstructing justice or presenting a danger to the community. Your Honor, our country has a ignominious history about acting in fear. We showed it when we interned thousands of Japanese during World War II. We showed it after / when we rounded up all of the Muslims to question them as suspects in terrorism. We acted out of fear when a professor at the University of South Florida was indicted on counts of providing support to terrorists. And the professor went to trial for two months. The defense rested after the government s case without calling a single witness. And the (0) -00

28 Case :0-cr-0-GAO Document - Filed // Page of 0 defense counsel, Bill Moffitt, said what this case is about is the First Amendment. That defendant was acquitted of all charges. And the reason past we have been turning against fear and back to the rule of law, that s the direction we should go in this case. The decision Your Honor will make may be the very toughest decision you make in your entire career, this one, in this case on this issue. Has the government proven to you that if released Dr. Mehanna will flee or obstruct justice or present a danger to the community? Not only hasn t the government met its burden of proof, but by the evidence I have presented to Your Honor, I have proven the opposite. Dr. Mehanna s terms of release currently can be supplemented in whichever way Your Honor thinks is appropriate. We ve suggested some ways, if that would give greater confidence to the Court. It includes -hour house arrest so that he s not able to leave his home or curtilage. The government has a concern about the use of the internet. We ve suggested that the internet be removed, and we ll sign a waiver and be able to allow the government or its investigators to confirm that there is no Wi-Fi or other ability to communicate over the internet. Any other conditions that the government, that the Court wants to set are amenable. But he should not be held in jail under a -hour a day lock-up, which is his current regimen. He has an incredible amount of support in the community. This past Sunday I went to the Islamic Center in (0) -00

29 Case :0-cr-0-GAO Document - Filed // Page of Wayland at their invitation to speak about the case. It was 0 packed with standing room only surrounding every one of them in the place because they wanted to hear from me and show support for Dr. Mehanna. I will be presenting dozens of letters to the Court showing this community s support. Not only do you have all of or most of these people in the courtroom, but there are dozens more waiting outside who could not come in. How often does that happen in this court that there s such a community outpouring of support? People who are doctors, lawyers, professors, retail, at-home moms, all coming forward and saying we know he can be released and not flee. The parents are not just saying that he s a good person. They said they will lose their house if he leaves and their life savings if he leaves. That s how strongly they support him. Your Honor, I conclude the way I began. I urge Your Honor to be guided by the rule of law because if Your Honor is guided by the rule of law then you will see Tarek Mehanna should be released. Thank you. THE COURT: Okay. MR. CHAKRAVARTY: Just a very brief-- THE COURT: Go ahead. MR. CHAKRAVARTY: -- on three points Mr. Carney raised. One the idea of community support is admirable. It s admirable to the community. It s a credit to Mr. Mehanna s family and to their devotion to their son. But the defendant (0) -00

30 Case :0-cr-0-GAO Document - Filed // Page 0 of is a person of two faces, Your Honor. He s had a very public face in the community, very well-respected. All of the things which I m sure are in the letters of support and that Mr. Carney represented were not statements of people who know what 0 0 the evidence is, are not statements of people who know what was really in the heart of this man who stands before you or who sits before but rather their perception, and the defendant is innocent until proven guilty and after a trial if that evidence comes out and the community sees it, then and only then will their perception likely change. So the idea that the community is supportive is admirable, but it really does not influence, should not influence, the Court s analysis of whether it s a suitable place to put this defendant back. The second is on the important issue of defendant s protected speech. The government shares and vigorously enforces the ability for every American, everyone in this country, to be able to say and think whatever they want even if it is to want to kill Americans. It s entirely protected. But this Court is too sophisticated for the argument that the defendant is somehow a martyr because he s a Muslim and because he said things which are not popular. That s not what this case is about. This case is about the defendant crossing that line, actually engaging in action and inciting other people to action, a very meaningful and, in his words, important, impactful ways. And it s that action which means that the (0) -00

31 Case :0-cr-0-GAO Document - Filed // Page of defendant is, any expression of the defendant s belief does become squarely relevant in terms of this Court s analysis as to whether this person is truly a danger or not. He is not free to conspire, to violate criminal offense. He is not free to use words to perpetuate a conspiracy or to incite other 0 people to engage in conspiracy. And he s certainly not free to go to Yemen to conspire with others to go to Pakistan on multiple occasions, conspire with others to go to Iraq all for the sole purpose, not of defending against the Russians in but to kill American soldiers who are over there right now. That is not freedom that our laws protect. And to bring this Court back to the rule of law, the rule of law here is from the presumption of detention for a variety of reasons. But the rule of law also means that when somebody engages in those acts that the Court and the law is not blind by their protection of civil liberties such that they ignore when there is a real and present danger within their own community, and that s what the defendant poses greatest. you? to file, Mr. Carney? THE COURT: All right, anything else from either of MR. CARNEY: No, thank you. THE COURT: All right, and are there letters you wish MR. CARNEY: May I approach, please? THE COURT: You may. You have, you engaged (0) -00

32 Case :0-cr-0-GAO Document - Filed // Page of Mr. Chakravarty? MR. CARNEY: Yes, Your Honor. THE COURT: All right. MR. CARNEY: Your Honor, I simply handed a copy so Your Honor can see the motion that I will electronically file today. THE COURT: I ll allow the motion. MR. CARNEY: And then I will provide your clerk with a pleading to which the letters will be appended, and the pleading will be offered up to seal. And then I will electronically file a duplicate of all of those letters with simply the name or identifying address redacted. THE COURT: When will you give to Ms. Simeone the letters? MR. CARNEY: Today, Your Honor. THE COURT: All right. Right now or sometime today? MR. CARNEY: I can give them right now. 0 THE COURT: If you have them, I ll take them. If you need time to prepare them then I ll let you. MR. CARNEY: Do you need a copy? MR. CHAKRAVARTY: Yes. These are the copies that are going to be redacted on? MR. CARNEY: Yes. The ones handwritten in pencil are fairly obviously students. THE COURT: All right. (0) -00

33 Case :0-cr-0-GAO Document - Filed // Page of 0 MR. CARNEY: Thank you. A copy has been given to the government. THE COURT: All right thank you. MR. CARNEY: That concludes my submission, Your Honor. THE COURT: All right, I will read the letters, review the filings both of you made, take the matter under advisement and issue a written decision. Anything else? MR. CARNEY: No, Your Honor, thank you. THE COURT: All right we ll adjourn. THE CLERK: All rise; this matter s adjourned. // // // // // // // // // // // // // // (0) -00

34 Case :0-cr-0-GAO Document - Filed // Page of 0 CERTIFICATION I, Maryann V. Young, court approved transcriber, certify that the foregoing is a correct transcript from the official digital sound recording of the proceedings in the above-entitled matter. /s/ Maryann V. Young January, 0 (0) -00