commonwealth of massachusetts - · pdf file12.11.2009 · transcript of arraignment...

MARYANN V. YOUNG

Certified Court Transcriber

Wrentham, MA 02093

(508) 384-2003

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA . CRIMINAL NO. 09-10017-GAO

.

V. . BOSTON, MASSACHUSETTS

. NOVEMBER 12, 2009

TAREK MEHANNA .

Defendant .

. . . . . . . . . . . . . . . . . .

TRANSCRIPT OF ARRAIGNMENT

AND DETENTION HEARING

BEFORE THE HONORABLE LEO T. SOROKIN

UNITED STATES MAGISTRATE JUDGE

APPEARANCES:

For the government: UNITED STATES ATTORNEY’S OFFICE

BY: Jeffrey Auerhahn, Esq.

One Courthouse Way, Suite 9200

Boston, MA 02210

617-748-3100

[email protected]

For the defendant: CARNEY & BASSIL

BY: J.W. Carney, Esq.

Stephen Morrison, Esq.

20 Park Plaza, Suite 1405

Boston, MA 02116

617-338-5566

[email protected]

Court Reporter:

Proceedings recorded by electronic sound recording,

transcript produced by transcription service.

Case 1:09-cr-10017-GAO Document 106-1 Filed 12/17/10 of 34

MARYANN V. YOUNG


(508) 384-2003

2 I N D E X 1

Proceedings 3 2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


MARYANN V. YOUNG


(508) 384-2003

3 P R O C E E D I N G S 1

CASE CALLED INTO SESSION 2

THE CLERK: The Honorable Leo T. Sorokin presiding. 3

Today is November 12th. The case of the United States v. 4

Mehanna; Criminal Action 09-10017 will now be heard before this 5

Court. Counsel please identify themselves for the record. 6

THE COURT: Please be seated. 7

MR. CHAKRAVARTY: Good morning, Your Honor, for the 8

government assistant U.S. attorneys, Aloke Chakravarty and 9

Jeffrey Auerhahn. 10

THE COURT: Good morning. 11

MR. AUERHAHN: Good morning, Your Honor. 12

MR. MORRISON: Good morning, Your Honor, Steven R. 13

Morrison for the defendant. J. Carney is in the building. 14

He’s attending to matters dealing with the case, this case. I 15

don’t know what specific they are, but he should be here any 16

minute. 17

THE COURT: Do you want me to wait for Mr. Carney? 18

MR. MORRISON: It would be best to. 19

THE COURT: How about for doing the arraignment? 20

MR. MORRISON: Well, Attorney Carney is the CJA 21

appointed attorney; I’m not. 22

THE COURT: Oh, you’re right. 23

MR. MORRISON: So I couldn’t even represent him-- 24

THE COURT: Thank you. 25


MARYANN V. YOUNG


(508) 384-2003

4 MR. MORRISON: --informally. 1

THE COURT: You’re right. Do you know where he is in 2

the building? 3

MR. MORRISON: No, I don’t. We arrived together. I 4

went to see Mr. Mehanna, and J. Carney went to attend to 5

different matters. 6

MR. CHAKRAVARTY: We have no objection to that, Your 7

Honor,-- 8

THE COURT: All right. 9

MR. CHAKRAVARTY: --to waiting. 10

THE COURT: Why don’t we recess for 10 minutes? 11

MR. MORRISON: Yes, ten minutes is probably all we 12

need, sir. 13

THE COURT: All right fine. We’ll recess; I’ll 14

return at 10 after 10. 15

THE CLERK: All rise. 16

RECESS 17

CASE CALLED BACK INTO SESSION 18

THE COURT: Please be seated; ready to proceed? All 19

right, we’ll proceed with the arraignment first. 20

MR. CARNEY: Yes, Your Honor. May I identify myself 21

for the record? 22

THE COURT: Absolutely. 23

MR. CARNEY: J.W. Carney, Jr., representing 24

Mr. Mehanna. With me is my associate Steven Morrison. I 25


MARYANN V. YOUNG


(508) 384-2003

5 apologize for not being here exactly on time, Your Honor. 1

THE COURT: Thank you. 2

MR. CARNEY: I’ve been in the building since 9:30, 3

but I have no excuse for not being in this courtroom. 4

THE COURT: I accept your apology, Mr. Carney, thank 5

you. Mr. Carney, do you waive reading of the indictment in its 6

entirety? 7

MR. CARNEY: I do, Your Honor. 8

THE COURT: All right, Mr. Mehanna, you’ve been 9

charged in indictment with violations of the law for the United 10

States, specifically conspiracy to provide material support to 11

terrorists, providing, attempting to provide the same, 12

conspiracy to kill in a foreign country, conspiracy, making 13

false statements in criminal forfeiture allegations. 14

Mr. Carney, have you had an opportunity to at least 15

preliminary review the indictment with your client such that 16

he’s ready to be arraigned? 17

MR. CARNEY: Yes, Your Honor. 18

THE COURT: All right, and does he have or has he 19

received a copy of the indictment? 20


THE COURT: All right, Ms. Simeone, oh, actually, 22

Mr. Chakravarty, Mr. Auerhahn, I’m sorry, would you state the 23

maximum punishments? 24

MR. CHAKRAVARTY: Certainly, Your Honor. Counts 1 25


MARYANN V. YOUNG


(508) 384-2003

6 and 2, the conspiracy is a substantive charge for violating 1

materials support to terrorists statute, the maximum penalties 2

15 year period of imprisonment, followed by a period of life of 3

supervised release and $250,000 for each offense; for violating 4

18 U.S.C. 956, the maximum penalty is any term of years up to 5

life, followed by life supervised release; for violations of 6

the regular conspiracy statute in Section 371 of Title 18 is 7

five years imprisonment, $250,000 fine and three years 8

supervised release; and for Counts 5 and 6, violations of the 9

False Statement Statute, 18 U.S.C. 1001 because it involves 10

another crime of terrorism, investigation is terrorism, it’s 8 11

years imprisonment, $250,000 fine and three years supervised 12

release. There is a forfeiture allegation as spelled out in 13

the indictment, and for each of the offenses there is a $100 14

special assessment. 15

THE COURT: All right, thank you. Ms. Simeone? 16

MS. SIMEONE: As to Counts 1 and 2 charging you with 17

conspiracy to provide material support to terrorists and 18

providing material support to terrorists in violation of Title 19

18 United States, Code Section 2339(a); Counts 3 charging you 20

with conspiracy to kill in a foreign country in violation of 21

Title 18 United States, Code Section 956; Count 4 charging you 22

with conspiracy in violation of Title 18 United States Code, 23

Section 371; Counts 5 and 6 charging you with false statements 24

in violation of Title 18 United States Code, Section 25


MARYANN V. YOUNG


(508) 384-2003

7 1001(a)(2), and forfeiture allegation in violation of Title 18 1

United States Code, Section 981(a)(1)(C), and Title 18 United 2

States Code Section 28 U.S.C., 2461(c); how do you plead, 3

guilty or not guilty? 4

THE DEFENDANT: Not guilty. 5

MS. SIMEONE: Thank you. 6

THE COURT: All right, thank you very much. 7

Mr. Carney, do you opt into automatic discovery under the local 8

rules? 9

MR. CARNEY: Yes, I do, Your Honor, thank you. 10

THE COURT: All right, Ms. Simeone, can we have a 11

date please? 12

MS. SIMEONE: December 22nd at 3:00? 13

THE COURT: How’s December 22nd at-- 14

MS. SIMEONE: 3:00. 15

MR. CARNEY: How about 2:30? 16

MS. SIMEONE: 2:30 is fine. 17

THE COURT: December 22nd at 2:30? 18

MR. CHAKRAVARTY: Your Honor, I think both government 19

counsel will be-- 20

THE COURT: Be away? 21

MR. CHAKRAVARTY: --be away. 22

THE COURT: All right, Mr. Carney? 23

MR. CARNEY: I’m amendable to going into January if 24

that fits with Your Honor’s schedule and the government’s 25


MARYANN V. YOUNG


(508) 384-2003

8 attorney’s schedule. 1

THE COURT: Fine, how about a date after the 1st of 2

the year? 3

MS. SIMEONE: Why don’t we do January 5th at 3:00? 4

THE COURT: January 5th at 3:00? 5

MR. CHAKRAVARTY: It’s fine for the government. 6

THE COURT: Fine for you, Mr. Carney? 7

MR. CARNEY: If I may just have one moment,-- 8

THE COURT: You may. 9

MR. CARNEY: --Your Honor, please? Yes, Your Honor, 10

thank you. 11

THE COURT: All right, Mr. Carney, do you agree to 12

exclude the time from the Speedy Trial Act for purposes of 13

investigation in discovery for the time period from today to 14

January 5th? 15

MR. CARNEY: I do, Your Honor. 16

THE COURT: All right, Mr. Auerhahn and Mr. 17

Chakravarty, will you file an assented to motion to exclude the 18

time from today to January 5th? 19

MR. CHAKRAVARTY: We will, Your Honor. 20

THE COURT: All right, thank you. Are they going to 21

proceed with the hearing on detention? 22

MR. CHAKRAVARTY: Yes, Your Honor. 23

THE COURT: Mr. Carney, are you ready? 24

MR. CARNEY: I am, Your Honor. 25


MARYANN V. YOUNG


(508) 384-2003

9 THE COURT: All right. I have one question I was 1

unclear on. Mr. Carney, are you seeking to proceed by proffer? 2

MR. CARNEY: Your Honor, I think the critical 3

question before the Court is whether there are conditions of 4

release upon which the Court can set and be assured that the 5

defendant will return for the trial. So on that basis, I’m 6

ready to proceed orally with that. And I believe the 7

government has submitted a proffer. I will not be calling any 8

witnesses at this hearing, and my understanding is neither will 9

the government. 10

THE COURT: All right, fine. I’ll hear from counsel. 11

MR. CARNEY: The government has filed a motion to 12

detain to, I filed a memorandum in opposition. 13

THE COURT: Proceed. 14

MR. CARNEY: I would ask to be heard after the 15

government addresses you, Your Honor? 16

THE COURT: That would be fine. 17

MR. CARNEY: Thank you. 18

THE COURT: Go ahead. 19

MR. CHAKRAVARTY: Thank you, Your Honor. Your Honor, 20

the government has filed a lengthy proffer along with 21

memorandum support of detention, so I won’t belabor a lot of 22

the-- 23

THE COURT: Just to be clear that I have everything, 24

I have your 75-page memorandum in support of your motion for 25


MARYANN V. YOUNG


(508) 384-2003

10 detention. I have the formally signed affidavit from Special 1

Agent Nambu? I assume that’s the same affidavit that was 2

attached unsigned to the memo that I received? 3

MR. CHAKRAVARTY: It is, Your Honor. 4

THE COURT: All right. I have all the attachments 5

that came with that affidavit or that memorandum and all that 6

was cited within it. And I have one CD or DVD. 7

MR. CHAKRAVARTY: Right, it’s in the files. That 8

summarizes the government’s submission. 9

Your Honor, the government has moved under Section 10

3142(f)(1)(A) and (B) as well as (f)(2)(A) and (B), and as Your 11

Honor knows that this significantly changes the legal analysis 12

because of the institution of the presumption in this case that 13

the defendant is a risk of flight and that he is a danger. But 14

even holding aside the discussion of meeting burden of proof, 15

presumably using, relying on the presumption, the evidence in 16

this case is clear that the defendant does pose both a risk of 17

flight and a danger to the community. I should add also danger 18

or risk of obstructing justice or intimidating witnesses or 19

influencing witnesses under (f)(2)(B). 20

Before defendant was brought before the Court on 21

these material support to terrorist charges, it was still a 22

very close question as to whether the defendant indeed was a 23

risk of flight. And that was the sole side of the analysis. 24

And the evidence was abundant that the defendant didn’t want to 25


MARYANN V. YOUNG


(508) 384-2003

11 stay in this country, that he wanted to leave for a variety of 1

reasons, some borne by his interpretation of what his of where 2

it would be more amendable so he could practice his faith. But 3

the information that was not presented to the Court at that 4

time was the abundant evidence of the danger, the risk, the 5

motivations, the sincere motivations for why the defendant 6

chose and wanted to flee as well as the other evidence of his 7

danger because he of, he had actually committed terrorism 8

related offenses here in the United States and was planning to 9

do the same overseas. And so through that lens and through 10

this submission the Court now should, even with, absent a 11

presumption, should easily be able to find that there are no 12

conditions that could ensure that the defendant will not 13

continue to reoffend, continue to engage in the conspiracy and 14

the attempt to provide material support as he has had, as he 15

had done so for the last almost a decade. 16

I should add, Your Honor, he’s done that often from 17

the confines of his own home, often with the assistance, with 18

the knowledge of people in this very same community which he 19

now claims is the community that will ensure that he will not 20

continue to offend. Your Honor sees cases of all sorts in this 21

court. Often you see drug dealers or other individuals charged 22

with offenses which also have a presumption and some not for 23

which the danger is not necessarily a risk of imminent violence 24

but rather other societal harms which the Bail Reform Statute 25


MARYANN V. YOUNG


(508) 384-2003

12 was designed to protect against. In a drug dealer 1

circumstance, it’s so that they don’t spread their poison, so 2

that they don’t continue to fuel this machine which ultimately 3

yields violence or ultimately yields destruction of people’s 4

lives. This defendant is in the same boat, Your Honor. The 5

poison that this person was pedaling in this community was the 6

harm not only to the risk of all Americans because of his 7

advocacy for terror and jihad spreading, enabling others both 8

in the United States and around the world to be motivated and 9

justified to engage in violence to reach their political ends, 10

but rather he’s implicating his own community. The very Muslim 11

community that he claims to be standing up for is the community 12

which he is impacting and has been for the last, you know, for 13

the last almost of a decade. And it’s that harm which should 14

also be considered in addition to the harm, very real and 15

palpable violence which have been made known to the Court. One 16

of those examples, Your Honor, and I won’t belabor it, is what 17

should have been much publicized but it was in the original 18

affidavit and it’s in the Nambu affidavit, of the consideration 19

of actually engaging in acts of violence to discriminately kill 20

people here. Those plans were dismissed because of the lack of 21

feasibility or viability of conducting a domestic attack simply 22

because all they could attain were handguns, Your Honor. 23

Unfortunately, the events of the last week have crystallized 24

the fallacy of this lack of feasibility. It’s crystallized the 25


MARYANN V. YOUNG


(508) 384-2003

13 threat that such a one off plan might actually be brought to 1

fruition. And this is a person who for the last 10 years has 2

single-mindedly thought of how and why he can support his faith 3

or his perception of his faith through defending it through 4

violent means if necessary. This is a person who we’ve only 5

provided a snapshot, a small window over various periods of 6

time to the Court to provide some insight into the G factors 7

under 3142 to the detention statute in which the Court is 8

allowed to assess the personal characteristics of this 9

defendant, the motives for his behavior, what kinds of, you 10

know, the amount of energy and time that he has spent thinking 11

and proselytized and spreading the word about his brand of what 12

he calls religion. And for him that means violent jihad. For 13

him, that means watching videos of mutilation of people. For 14

him, it means watching images and storing and saving images of 15

beheaded people. For him, it means trying to explain to other 16

younger people in the community and beyond this Commonwealth, 17

explaining to them why these things are appropriate and 18

necessary. For him, when posed with the prospect that there 19

might be a just result in the courts for, to resolve a conflict 20

or an injustice done upon Muslims, his answer is who cares. 21

Texas barbecue is the way to go, referring to the burning and 22

mutilation of American soldiers. That is the character of the 23

person at the table that the Court should assess when 24

considering whether he’s a real danger or whether because of 25


MARYANN V. YOUNG


(508) 384-2003

14 his behavior over the last year when he was charged with a 1

1001 offense why he’s been able to comply with the conditions 2

of release. Even in that context the idea that’s he’s complied 3

with-- 4

THE COURT: Do you think he’s complied with the 5

conditions of release over the past year? 6

MR. CHAKRAVARTY: He has not, Your Honor. He has 7

committed a federal offense including continuation of his-- 8

THE COURT: During the time period of release. 9

MR. CHAKRAVARTY: --during the time period of 10

release. His duty hasn’t changed, Your Honor. I went on his 11

website yesterday. His, grant it he’s not had access to it 12

since he’s been in custody, but he has document after document 13

purporting to justify through so-called religious doctrine, 14

often not even by scholars of Islam, which justify standing up 15

against the tyrant, disrespecting the laws of the Kirthar or 16

the infidel. This is a person who given his stakes now that he 17

has to face versus what he faced before would be at no qualms 18

either to flee or to actually implement or take his terrorist 19

planning to a next stage. And this is a real concern which 20

there are no conditions which could get into his mind and short 21

circuit the training and the inculcation which he has done to 22

himself and to others over the last 10 years. That’s so deeply 23

imbedded his hatred for the United States government and what 24

it stands for and activities overseas, it’s so deeply imbedded 25


MARYANN V. YOUNG


(508) 384-2003

15 that there’s no way to ensure that he won’t take do anything 1

to perpetuate that. And whether that is an act of violence or 2

whether has been his pattern and practice whether it is to 3

encourage or to support others who are in fact engaging in 4

those acts of violence. He now faces potential the life in 5

prison. He now faces the guideline ranges with terrorism 6

enhancement in the multiples of decades. His incentive to 7

remain here, which has solely been secure I would submit, 8

primarily been secured I would submit by secure by the good 9

auspices of his family who, like any good family, would support 10

their kin. They’ve put up their home; they’ve put up their 11

assets. Those would be a small price to pay for the freedom of 12

their son, Your Honor, a son who, in this case, is facing 13

international opprobrium certainly in this community and the 14

specter of a lengthy period of incarceration. So the motive 15

analysis in terms of the value of that surety should be viewed 16

in perspective. 17

And finally, in terms of categories of factors of the 18

good Court to consider, in this case the evidence is, the 19

government would submit at this stage voluminous more than in 20

most cases. You know, the proffer was submitted to provide us 21

insight into the defendant’s state of mind and his intent and 22

the kind of pervasiveness of his thought. But it’s certainly 23

not the four corners of the evidence and the affidavit I 24

submitted are details that there are other types of evidence, 25


MARYANN V. YOUNG


(508) 384-2003

16 other character of evidence including cooperating witnesses, 1

including recorded statements of the defendant, including the 2

defendant’s own writings and including records and other kind 3

of objective records, all which corroborate each other. But 4

amongst those are cooperating witnesses, people who from the 5

Muslim community and beyond who have answered truthfully when 6

the government has asked them questions. Something which is 7

even in Islam despite what the defendant’s interpretation might 8

be is a legitimate activity. The defendant’s perception of 9

that as detailed in the proffer is that that simple act of 10

cooperating with the government is telling the government the 11

truth when asked is tantamount to apostasy. And there is only 12

one punishment in defendant’s eyes when somebody becomes 13

apostic, when somebody rejects the faith, acts against it, and 14

that is a, that is to exterminate that person. In this case 15

there are several cooperating witnesses. There is a real risk, 16

and defendant knows who they are, but there’s a real risk that 17

no matter what happens if he’s ever released that there is a 18

jeopardy both by himself as well as his associates, some of 19

whom are at large. I point out that in the proffer the 20

defendant had communications with over a dozen individuals. 21

Those individuals are not charged with a crime, but those 22

individuals had conversations with the defendant about the 23

propriety of violent jihad, about the supportive of the 24

horrific acts which defendant was reveling in. And those 25


MARYANN V. YOUNG


(508) 384-2003

17 people, some of them may be in the courtroom today, those 1

people are still around and still can perpetuate what the 2

defendant has inside and encouraged them to do all this time. 3

I won’t belabor the issues much more, but ,I to 4

address one of the concerns which I anticipate Mr. Carney will 5

raise, which is that the controls at home might be sufficient 6

to ensure the defendant won’t continue to perpetuate this 7

ongoing conspiracy which from he has never withdrawn. In fact 8

his behavior before the Court suggests that his mindset on the 9

last occasion suggests that his mindset is equally as resolved 10

today as it was back then. But it’s the same family, this 11

admirable, upstanding family. There’s no reason to disbelieve 12

that, who, and in this community where he has radicalized 13

himself, he radicalized others and continued to engage, 14

continued to manage his website, continued to communicate with 15

individuals after the initiation of criminal proceedings in 16

this case. There is a co-conspirator who remains overseas 17

who’s been charged. The potential that this defendant can be 18

controlled by a family who has not been able to control his 19

behavior at all regardless of the fact that they may very well 20

disapprove of everything that the defendant has perverted his 21

faith into suggests that merely pulling the plug out of a wall 22

for internet access is not going to prevent him from 23

communicating or from spreading the same desire that he has had 24

to stand up against the disbeliever and the infidels. 25


MARYANN V. YOUNG


(508) 384-2003

18 The, I just want to outline, before I turn it over 1

some of the character of what this person’s mindset has been. 2

And I know Your Honor has read the detailed sort of chats, but 3

he’s done things such as on the internet or other communication 4

to actually provide material support. We have The 39 Ways of 5

Preserving and Participate in Jihad. This is a textbook, and 6

when you look through the - and you’ll see that based on the 7

allegations thus far proffered, the defendant has either 8

attempted to have accomplished several of these 39 ways. This 9

is a source of pride for this defendant. The, you know, being 10

referred to as the media wing of Al-Qaida, spreading the 11

propaganda of this global terrorist organization is a serious 12

and meaningful contribution to the mission of Al-Qaida. 13

Holding aside the fact that his perception of Osama Bin Laden 14

is like his real father, query how he would respect the wishes 15

of his true father who is in the courtroom. The fact that the 16

defendant didn’t simply regurgitate existing liturgy or 17

existing scholarly work about the benefits and the motivations 18

for violent jihad, but actually did close production work, 19

created videos, did translations, so that the word could be 20

spread across cultures, across countries and especially in this 21

community where he would be released back into. This is 22

somebody, who based on his communications, who relished the 23

importance of his work. He felt it was a called action. He 24

hoped it would cause people to take action. He hoped it made 25


MARYANN V. YOUNG


(508) 384-2003

19 an impact. In his ideological motivation for these actions so 1

deeply seeded and so deeply entrenched that in addition to his 2

adulation for individuals like Osama Bin Laden, Al-Qaida in 3

general, Abu Musab al-Zarqawi, Dr. Ayman Al-Zawahiri. This is 4

somebody who would joke with his friends about watching videos, 5

not watching a, you know, American Idol, but rather watching 6

beheading, beheading videos and watching other horrific acts of 7

violence. This is somebody who enjoys that, Your Honor, and 8

did it over a long period of time. There’s nothing, I stress 9

again, there’s nothing to suggest that that has changed. This 10

is someone who had stored multiple and dozens of images of the 11

attacks of 9/11, somebody who actively sought out and became a 12

student in the lives of the 9/11 hijackers. So when Mr. Carney 13

stands up and say there’s nothing, there’s no shred of evidence 14

to suggest that this person before you is a risk of personally 15

engaging in violence, this is somebody who has studied the 16

lives of people across the world, across the world, who come 17

from all different walks of life, all different socio-economic 18

routes. And he has studied how and why they finally engaged in 19

acts of terrorism. And he has looked to those people with 20

admiration because they did what he wanted to do and didn’t 21

have the courage to do, and now he’s a person who has nothing 22

to lose, Your Honor. Now he is a person who is looking at 23

potentially the rest of his life behind bars. The motivation 24

for this person now finally to go out in a blaze of glory or to 25


MARYANN V. YOUNG


(508) 384-2003

20 do what he was heretofore unable to have the courage to do has 1

gone up tremendously. 2

And then finally, the last category of risk here is 3

his explicit solicitation of others to do what it is that he 4

was unable to do, his referral of others to individuals like 5

Anwar al-Awlaki or others who might perpetuate and who might 6

propagate to the ideology to motivate somebody else to go 7

engage in jihad which he finds as dictated in his 39 Ways to 8

Preserve and Participate in Jihad. He finds as the next 9

approximation of personally participating in jihad is to 10

encourage somebody else or to support somebody else in doing 11

that. This is a person whose risk is beyond simply the risk of 12

the community at large. It’s particularly invasive and 13

infective to his own Muslim community, especially the peaceful 14

and law-abiding community here in the Commonwealth. But more 15

importantly his network, this network of support, which he is 16

praising to the Court, is a network some of whom are supportive 17

of the defendant’s illegal objectives. We don’t know how many, 18

and we don’t know where they are. And more importantly it’s 19

the same community which has allowed him, given him the 20

ability, to engage in this longstanding conspiracy with himself 21

and others both charged and uncharged over the last ten years. 22

So there really are no conditions. 23

THE COURT: Thank you. Mr. Carney? 24

MR. CARNEY: Thank you, Your Honor. The decision 25


MARYANN V. YOUNG


(508) 384-2003

21 before the Court is not an easy one. If the Court is to be 1

guided by hysteria or fear, then it will stampede into a 2

decision allowing the government’s motion. But I suggest if 3

the Court is guided by the Rule of Law, by the statutes passed 4

by the Congress as interpreted by the Courts then the evidence 5

supports Mr. Mehanna’s release. I have submitted a memorandum 6

that’s given Your Honor background about the defendant, and I 7

won’t rehash all of those-- 8

THE COURT: I have it in my notes. 9

MR. CARNEY: --notes. But the events of the last few 10

years provide the very best evidence as to whether Dr. Mehanna, 11

he is a doctor based on his graduation from the Mass College of 12

Pharmacy with a pharmacy degree, whether Dr. Mehanna will flee 13

if he is released by Your Honor, and whether if released he 14

would present a danger to the community. 15

Let’s just look at the last few years to put this in 16

context. Dr. Mehanna was approached on one occasion by FBI 17

agents who wanted to interview him. He consented to the 18

interview and spoke to the agents. They urged him to become a 19

cooperating informant against individuals in the Muslim 20

community, and he declined to do so. They were, he was 21

approached a second time by the FBI agents, and again, again 22

urged to become an informant and declined to do so. At this 23

point now knowing the focus that the FBI had on him, he did not 24

flee. He did not do anything to obstruct justice. He did not 25


MARYANN V. YOUNG


(508) 384-2003

22 do anything to present a danger to the community. He was 1

visited by the FBI on a third occasion in April of 2008. They 2

confronted him with the fact that they said he had lied to them 3

on a previous occasion about whether his friend, Daniel 4

Maldonado, was in Egypt or in Somalia and that he could and 5

would be charged with a crime if he did not become an informant 6

against the Muslim community. Dr. Mehanna respectfully 7

declined to do so. So despite having been told by the FBI that 8

they knew he had made a false statement to them and he would be 9

charged with a crime, he did not attempt to flee. He did not 10

do something to obstruct justice. He did not do anything to 11

present a danger to the community. He retained counsel. What 12

more American thing is there to do than seek the protection of 13

the Rule of Law? Dr. Mehanna completed college. He got his 14

degree. During college he worked at Walgreens; he worked at 15

CVS in the community. He was very active in his mosque and in 16

his local community. He looked for a job. The best offer he 17

received was one from the most prestigious hospital in the 18

Middle East where he would go under contract and work in Saudi 19

Arabia as a pharmacist, a country where he would feel that his 20

religion is completely embraced by the community and where he 21

felt he would be comfortable. The hospital paid for his 22

airline ticket. Indeed, in his contract says that he would pay 23

for him to fly to Saudi Arabia for his job, and they would fly; 24

they would pay for the ticket for when he would come back and 25


MARYANN V. YOUNG


(508) 384-2003

23 visit his parents or visit his friends when he returned to the 1

United States. He appeared in this court after he was arrested 2

at the airport where he was getting on a plane with his 3

parents. And after many hearings, this Court decided that 4

there were conditions of release that would ensure that Dr. 5

Mehanna would return to this courtroom. It’s significant to me 6

that if the government says that Dr. Mehanna is such an 7

unbelievable danger to the United States that he has to be 8

locked up, why didn’t they say a darn thing in December of ’08 9

when he was being let out of this courtroom? Was he such a 10

danger that they would withhold this information from Your 11

Honor because of some tactical reason? That they would rather 12

have a dangerous person go out into the community than tell you 13

about all this dangerous stuff that they knew about? Or was it 14

that they knew that this dangerous stuff would not merit 15

holding him? And so Dr. Mehanna was released in December of 16

`08. Your Honor set very strict conditions. A notable 17

condition that I had never experienced before was that the 18

government proposed restrictions on Dr. Mehanna’s free speech. 19

They explicitly proposed to the Court as a condition of release 20

that Dr. Mehanna could not speak to people about cooperating 21

witnesses or say that it was bad to be a cooperating witness or 22

speak about this investigation in that way to members of the 23

public. If he did so he would be in violation of the terms of 24

your release. It was an unprecedented term of release in my 25


MARYANN V. YOUNG


(508) 384-2003

24 experience, but I discussed it with my client, and he said 1

that would cause no problem whatsoever. If that’s what the 2

government insisted that he do, fine, he’ll do it because he 3

wasn’t going to do it anyway. And over the past year where the 4

government says he continues to be involved in this jihad, we 5

have never once had presentation in this court that he is in 6

violation of your order strictly limiting what this man had 7

said. Did he flee or attempt to flee? Did he obstruct 8

justice? Was he a danger to the community over the last almost 9

year that he’s been under your supervision and the supervision 10

of pretrial services? The absence of any allegation is the 11

answer to that. He had been under a nighttime curfew, but on 12

occasion the Court has even released him from that. For 13

example, there was a religious ceremony where people of his 14

faith try to pray all night at a mosque, and we asked that he 15

be relieved of his curfew, and Your Honor permitted him, and he 16

did not flee. There was another occasion where he was taking 17

his pharmacy exam which is a two-day exam comparable to our bar 18

exam. And he asked for permission to be off the curfew, not so 19

that he was going any place but simply so that he would not be 20

woken up two or three times a night by the automatic calling to 21

verify that he is in his home; and that way he could get a good 22

night’s sleep for his exam, and the Court permitted that. This 23

window of opportunity would have permitted Dr. Mehanna to flee, 24

and he didn’t; or obstruct justice, and he never did; or 25


MARYANN V. YOUNG


(508) 384-2003

25 present a danger to the community, and he never did. If one 1

looks at the proffer put forward by the government, the major 2

focus is on the years 2002 to 2006, and they focus on 3

statements made by Dr. Mehanna when he was a college student, 4

people who were friends of his, he thought, who were recording 5

his conversations. And so that the kind of sharing that one’s 6

one does with friends in college, the exuberance of youth, I 7

can recall distinctly when I was in college in the days of 8

BSDS, and the Black Panthers, and going to see Stokely 9

Carmichael or other people who had come to speak on college 10

campuses and listened to what they say. And in the youthful 11

idealism believing gee, that sounds good. That’s got to be, 12

that’s a good idea, for going beyond that? No, not going 13

beyond that. And their focus on statements he made or postings 14

or emails that he sent while he was in college is the heart of 15

the government’s case here against Dr. Mehanna. 16

It’s interesting that the prosecutor said that he 17

went on Dr. Mehanna’s blog where there are translations of 18

texts, where there are scholarly articles that he has 19

translated, where he has had videos that were obtained from CNN 20

or FOX News, and he has saved them, and where he supports 21

ideas. Listening to the prosecutor makes me afraid about where 22

the First Amendment stands in the eyes of this government if 23

this is what he is saying. If he disagrees that Dr. Mehanna 24

cannot keep CNN or FOX News videos on his website or translate 25


MARYANN V. YOUNG


(508) 384-2003

26 texts, someone who’s assisting me in this case pointed out the 1

irony that one of the texts that the government has focused on 2

was cited by the Secretary of Defense when he went to 3

Afghanistan to support the Taliban in trying to get the 4

Russians out of Afghanistan. I’m hoping during the trial they 5

could play for the jury the movie Charlie Wilson’s War to show 6

what the United States did during Afghanistan to support the 7

Muslims in trying to get an outside country out of Afghanistan, 8

which many Muslims are still trying to get outside countries 9

out of Iraq and Afghanistan and Pakistan. The fact that he 10

might support those views is what the First Amendment is all 11

about. First Amendment isn’t about supporting popular speech; 12

it’s about supporting unpopular speech. 13

But what else has occurred over the last several 14

years that should guide Your Honor? After Dr. Mehanna was 15

released from this court, by this Court, he tried to get a job. 16

He was unable to get a job in his chosen profession. So he did 17

get a job. He’s been teaching at a private school at a private 18

Jr. High school. He has been teaching math, science and 19

religion. That’s how he has been occupying his time during the 20

day. There are many letters of support that have been provided 21

to me that I’m going to give to the Court, and I have a motion 22

in that regard in that I want to give the originals of the 23

letters to Your Honor, a copy of the letters to the 24

prosecution, and I want to file those letters, but I’m asking 25


MARYANN V. YOUNG


(508) 384-2003

27 the Court’s permission to just redact the names of the people 1

from the public record so that there’s no chance that they will 2

bear any problems because they’ve written a letter to this 3

Court. Among-- 4

THE COURT: Any objection to that, Mr. Chakravarty? 5

MR. CHAKRAVARTY: None, Your Honor. 6


MR. CARNEY: But among those letters you will see are 8

letters from his seventh grade students who, on their own, have 9

written letters to Your Honor to tell you about the man who’s 10

been their teacher and how even during the religion classes 11

that he teaches, how he always says non-violence is the way to 12

go. That’s what he is teaching to the young, impressionable 13

minds at the school where he has been a teacher. That’s what 14

he’s been doing instead of fleeing or obstructing justice or 15

presenting a danger to the community. 16

Your Honor, our country has a ignominious history 17

about acting in fear. We showed it when we interned thousands 18

of Japanese during World War II. We showed it after 9/11 when 19

we rounded up all of the Muslims to question them as suspects 20

in terrorism. We acted out of fear when a professor at the 21

University of South Florida was indicted on 51 counts of 22

providing support to terrorists. And the professor went to 23

trial for two months. The defense rested after the 24

government’s case without calling a single witness. And the 25


MARYANN V. YOUNG


(508) 384-2003

28 defense counsel, Bill Moffitt, said what this case is about is 1

the First Amendment. That defendant was acquitted of all 51 2

charges. And the reason past we have been turning against fear 3

and back to the rule of law, that’s the direction we should go 4

in this case. The decision Your Honor will make may be the 5

very toughest decision you make in your entire career, this 6

one, in this case on this issue. Has the government proven to 7

you that if released Dr. Mehanna will flee or obstruct justice 8

or present a danger to the community? Not only hasn’t the 9

government met its burden of proof, but by the evidence I have 10

presented to Your Honor, I have proven the opposite. 11

Dr. Mehanna’s terms of release currently can be supplemented in 12

whichever way Your Honor thinks is appropriate. We’ve 13

suggested some ways, if that would give greater confidence to 14

the Court. It includes 24-hour house arrest so that he’s not 15

able to leave his home or curtilage. The government has a 16

concern about the use of the internet. We’ve suggested that 17

the internet be removed, and we’ll sign a waiver and be able to 18

allow the government or its investigators to confirm that there 19

is no Wi-Fi or other ability to communicate over the internet. 20

Any other conditions that the government, that the Court wants 21

to set are amenable. But he should not be held in jail under a 22

23-hour a day lock-up, which is his current regimen. He has an 23

incredible amount of support in the community. 24

This past Sunday I went to the Islamic Center in 25


MARYANN V. YOUNG


(508) 384-2003

29 Wayland at their invitation to speak about the case. It was 1

packed with standing room only surrounding every one of them in 2

the place because they wanted to hear from me and show support 3

for Dr. Mehanna. I will be presenting dozens of letters to the 4

Court showing this community’s support. Not only do you have 5

all of or most of these people in the courtroom, but there are 6

dozens more waiting outside who could not come in. How often 7

does that happen in this court that there’s such a community 8

outpouring of support? People who are doctors, lawyers, 9

professors, retail, at-home moms, all coming forward and saying 10

we know he can be released and not flee. The parents are not 11

just saying that he’s a good person. They said they will lose 12

their house if he leaves and their life savings if he leaves. 13

That’s how strongly they support him. 14

Your Honor, I conclude the way I began. I urge Your 15

Honor to be guided by the rule of law because if Your Honor is 16

guided by the rule of law then you will see Tarek Mehanna 17

should be released. Thank you. 18

THE COURT: Okay. 19

MR. CHAKRAVARTY: Just a very brief-- 20

THE COURT: Go ahead. 21

MR. CHAKRAVARTY: -- on three points Mr. Carney 22

raised. One the idea of community support is admirable. It’s 23

admirable to the community. It’s a credit to Mr. Mehanna’s 24

family and to their devotion to their son. But the defendant 25


MARYANN V. YOUNG


(508) 384-2003

30 is a person of two faces, Your Honor. He’s had a very public 1

face in the community, very well-respected. All of the things 2

which I’m sure are in the letters of support and that Mr. 3

Carney represented were not statements of people who know what 4

the evidence is, are not statements of people who know what was 5

really in the heart of this man who stands before you or who 6

sits before but rather their perception, and the defendant is 7

innocent until proven guilty and after a trial if that evidence 8

comes out and the community sees it, then and only then will 9

their perception likely change. So the idea that the community 10

is supportive is admirable, but it really does not influence, 11

should not influence, the Court’s analysis of whether it’s a 12

suitable place to put this defendant back. 13

The second is on the important issue of defendant’s 14

protected speech. The government shares and vigorously 15

enforces the ability for every American, everyone in this 16

country, to be able to say and think whatever they want even if 17

it is to want to kill Americans. It’s entirely protected. But 18

this Court is too sophisticated for the argument that the 19

defendant is somehow a martyr because he’s a Muslim and because 20

he said things which are not popular. That’s not what this 21

case is about. This case is about the defendant crossing that 22

line, actually engaging in action and inciting other people to 23

action, a very meaningful and, in his words, important, 24

impactful ways. And it’s that action which means that the 25


MARYANN V. YOUNG


(508) 384-2003

31 defendant is, any expression of the defendant’s belief does 1

become squarely relevant in terms of this Court’s analysis as 2

to whether this person is truly a danger or not. He is not 3

free to conspire, to violate criminal offense. He is not free 4

to use words to perpetuate a conspiracy or to incite other 5

people to engage in conspiracy. And he’s certainly not free to 6

go to Yemen to conspire with others to go to Pakistan on 7

multiple occasions, conspire with others to go to Iraq all for 8

the sole purpose, not of defending against the Russians in 1980 9

but to kill American soldiers who are over there right now. 10

That is not freedom that our laws protect. And to bring this 11

Court back to the rule of law, the rule of law here is from the 12

presumption of detention for a variety of reasons. But the 13

rule of law also means that when somebody engages in those acts 14

that the Court and the law is not blind by their protection of 15

civil liberties such that they ignore when there is a real and 16

present danger within their own community, and that’s what the 17

defendant poses greatest. 18

THE COURT: All right, anything else from either of 19

you? 20

MR. CARNEY: No, thank you. 21

THE COURT: All right, and are there letters you wish 22

to file, Mr. Carney? 23

MR. CARNEY: May I approach, please? 24

THE COURT: You may. You have, you engaged 25


MARYANN V. YOUNG


(508) 384-2003

32 Mr. Chakravarty? 1



MR. CARNEY: Your Honor, I simply handed a copy so 4

Your Honor can see the motion that I will electronically file 5

today. 6

THE COURT: I’ll allow the motion. 7

MR. CARNEY: And then I will provide your clerk with 8

a pleading to which the letters will be appended, and the 9

pleading will be offered up to seal. And then I will 10

electronically file a duplicate of all of those letters with 11

simply the name or identifying address redacted. 12

THE COURT: When will you give to Ms. Simeone the 13

letters? 14

MR. CARNEY: Today, Your Honor. 15

THE COURT: All right. Right now or sometime today? 16

MR. CARNEY: I can give them right now. 17

THE COURT: If you have them, I’ll take them. If you 18

need time to prepare them then I’ll let you. 19

MR. CARNEY: Do you need a copy? 20

MR. CHAKRAVARTY: Yes. These are the copies that are 21

going to be redacted on? 22

MR. CARNEY: Yes. The ones handwritten in pencil are 23

fairly obviously students. 24



MARYANN V. YOUNG


(508) 384-2003

33 MR. CARNEY: Thank you. A copy has been given to 1

the government. 2

THE COURT: All right thank you. 3

MR. CARNEY: That concludes my submission, Your 4

Honor. 5

THE COURT: All right, I will read the letters, 6

review the filings both of you made, take the matter under 7

advisement and issue a written decision. Anything else? 8

MR. CARNEY: No, Your Honor, thank you. 9

THE COURT: All right we’ll adjourn. 10

THE CLERK: All rise; this matter’s adjourned. 11

// 12

// 13

// 14

// 15

// 16

// 17

// 18

// 19

// 20

// 21

// 22

// 23

// 24

// 25


MARYANN V. YOUNG


(508) 384-2003

34 CERTIFICATION 1

I, Maryann V. Young, court approved transcriber, certify 2

that the foregoing is a correct transcript from the official 3

digital sound recording of the proceedings in the 4

above-entitled matter. 5

6

/s/ Maryann V. Young January 26, 2010 7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


commonwealth of massachusetts - · pdf file12.11.2009 · transcript of arraignment...

Documents