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Case 1:09-cr-10017-GAO Document 106-1

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS UNITED STATES OF AMERICA V. TAREK MEHANNA Defendant . . . . . . . . . . . . . . . . . .

. CRIMINAL NO. 09-10017-GAO . . BOSTON, MASSACHUSETTS . NOVEMBER 12, 2009 . .

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. MARYANN V. YOUNG Certified Court Transcriber Wrentham, MA 02093 (508) 384-2003

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I N D E X

1 2

Proceedings

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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 Certified Court Transcriber (508) 384-2003

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P R O C E E D I N G S

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CASE CALLED INTO SESSION THE CLERK:

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The Honorable Leo T. Sorokin presiding.

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Today is November 12th.

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

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Court. Counsel please identify themselves for the record.

The case of the United States v.

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THE COURT:

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MR. CHAKRAVARTY:

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Please be seated. Good morning, Your Honor, for the

government assistant U.S. attorneys, Aloke Chakravarty and Jeffrey Auerhahn.

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THE COURT:

Good morning.

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MR. AUERHAHN:

Good morning, Your Honor.

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MR. MORRISON:

Good morning, Your Honor, Steven R.

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Morrison for the defendant.

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

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

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minute.

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THE COURT:

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MR. MORRISON:

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THE COURT:

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MR. MORRISON:

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J. Carney is in the building.

Do you want me to wait for Mr. Carney? It would be best to.

How about for doing the arraignment? Well, Attorney Carney is the CJA

appointed attorney; I’m not.

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THE COURT:

Oh, you’re right.

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MR. MORRISON:

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THE COURT:

So I couldn’t even represent him--

Thank you. MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

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MR. MORRISON:

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THE COURT:

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--informally.

You’re right.

Do you know where he is in

the building? MR. MORRISON:

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No, I don’t.

We arrived together.

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

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different matters. MR. CHAKRAVARTY:

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THE COURT:

All right.

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MR. CHAKRAVARTY:

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THE COURT:

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MR. MORRISON:

14 15 16

19 20 21 22

Yes, ten minutes is probably all we

need, sir. THE COURT:

All right fine.

We’ll recess; I’ll

return at 10 after 10. 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. MR. CARNEY:

Yes, Your Honor.

May I identify myself

for the record?

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THE COURT:

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MR. CARNEY:

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--to waiting.

Why don’t we recess for 10 minutes?

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We have no objection to that, Your

Honor,--

9

13

I

Mr. Mehanna.

Absolutely. J.W. Carney, Jr., representing

With me is my associate Steven Morrison. MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

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

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THE COURT:

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MR. CARNEY:

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Thank you. I’ve been in the building since 9:30,

but I have no excuse for not being in this courtroom. THE COURT:

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you.

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entirety?

I accept your apology, Mr. Carney, thank

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

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MR. CARNEY:

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THE COURT:

I do, Your Honor. All right, Mr. Mehanna, you’ve been

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charged in indictment with violations of the law for the United

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States, specifically conspiracy to provide material support to

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terrorists, providing, attempting to provide the same,

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conspiracy to kill in a foreign country, conspiracy, making

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false statements in criminal forfeiture allegations.

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

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preliminary review the indictment with your client such that

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he’s ready to be arraigned?

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MR. CARNEY:

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THE COURT:

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Yes, Your Honor. All right, and does he have or has he

received a copy of the indictment?

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MR. CARNEY:

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THE COURT:

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Mr. Chakravarty, Mr. Auerhahn,

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maximum punishments?

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Yes, Your Honor. All right, Ms. Simeone, oh, actually,

MR. CHAKRAVARTY:

I’m sorry, would you state the

Certainly, Your Honor.

MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

Counts 1

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and 2, the conspiracy is a substantive charge for violating

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materials support to terrorists statute, the maximum penalties

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

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

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

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life, followed by life supervised release; for violations of

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the regular conspiracy statute in Section 371 of Title 18 is

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

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

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

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

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

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release.

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

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special assessment.

There is a forfeiture allegation as spelled out in

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THE COURT:

All right, thank you.

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MS. SIMEONE:

Ms. Simeone?

As to Counts 1 and 2 charging you with

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conspiracy to provide material support to terrorists and

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providing material support to terrorists in violation of Title

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

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with conspiracy to kill in a foreign country in violation of

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

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with conspiracy in violation of Title 18 United States Code,

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

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in violation of Title 18 United States Code, Section MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

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

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

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

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guilty or not guilty?

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THE DEFENDANT:

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MS. SIMEONE:

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THE COURT:

Not guilty. Thank you.

All right, thank you very much.

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

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rules?

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MR. CARNEY:

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THE COURT:

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Yes, I do, Your Honor, thank you. All right, Ms. Simeone, can we have a

date please? December 22nd at 3:00?

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MS. SIMEONE:

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THE COURT:

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MS. SIMEONE:

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MR. CARNEY:

How about 2:30?

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MS. SIMEONE:

2:30 is fine.

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THE COURT:

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MR. CHAKRAVARTY:

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How’s December 22nd at-3:00.

December 22nd at 2:30?

counsel will be--

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THE COURT:

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MR. CHAKRAVARTY:

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THE COURT:

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MR. CARNEY:

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Your Honor, I think both government

Be away? --be away.

All right, Mr. Carney? I’m amendable to going into January if

that fits with Your Honor’s schedule and the government’s MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

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attorney’s schedule.

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THE COURT:

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Fine, how about a date after the 1st of

the year? Why don’t we do January 5th at 3:00?

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MS. SIMEONE:

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THE COURT:

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MR. CHAKRAVARTY:

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THE COURT:

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MR. CARNEY:

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THE COURT:

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MR. CARNEY:

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January 5th at 3:00? It’s fine for the government.

Fine for you, Mr. Carney? If I may just have one moment,-You may. --Your Honor, please?

Yes, Your Honor,

thank you. THE COURT:

All right, Mr. Carney, do you agree to

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exclude the time from the Speedy Trial Act for purposes of

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investigation in discovery for the time period from today to

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January 5th?

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MR. CARNEY:

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THE COURT:

I do, Your Honor. All right, Mr. Auerhahn and Mr.

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

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time from today to January 5th?

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MR. CHAKRAVARTY:

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THE COURT:

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We will, Your Honor.

All right, thank you.

Are they going to

proceed with the hearing on detention?

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MR. CHAKRAVARTY:

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THE COURT:

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MR. CARNEY:

Yes, Your Honor.

Mr. Carney, are you ready? I am, Your Honor.

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THE COURT:

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unclear on.

All right.

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

MR. CARNEY:

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I have one question I was

Your Honor, I think the critical

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question before the Court is whether there are conditions of

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

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defendant will return for the trial.

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ready to proceed orally with that.

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government has submitted a proffer.

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witnesses at this hearing, and my understanding is neither will

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THE COURT:

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MR. CARNEY:

I will not be calling any

All right, fine.

I’ll hear from counsel.

The government has filed a motion to

detain to, I filed a memorandum in opposition.

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THE COURT:

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MR. CARNEY:

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And I believe the

the government.

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So on that basis, I’m

Proceed. I would ask to be heard after the

government addresses you, Your Honor?

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THE COURT:

That would be fine.

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MR. CARNEY:

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THE COURT:

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MR. CHAKRAVARTY:

Thank you. Go ahead. Thank you, Your Honor.

Your Honor,

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the government has filed a lengthy proffer along with

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

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the--

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THE COURT:

Just to be clear that I have everything,

I have your 75-page memorandum in support of your motion for MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

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detention.

I have the formally signed affidavit from Special

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Agent Nambu?

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attached unsigned to the memo that I received?

I assume that’s the same affidavit that was

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MR. CHAKRAVARTY:

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THE COURT:

It is, Your Honor.

All right.

I have all the attachments

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that came with that affidavit or that memorandum and all that

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was cited within it.

8 9 10

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

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

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Honor knows that this significantly changes the legal analysis

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because of the institution of the presumption in this case that

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

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even holding aside the discussion of meeting burden of proof,

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presumably using, relying on the presumption, the evidence in

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

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flight and a danger to the community.

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or risk of obstructing justice or intimidating witnesses or

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

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But

I should add also danger

Before defendant was brought before the Court on

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these material support to terrorist charges, it was still a

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very close question as to whether the defendant indeed was a

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risk of flight.

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

And that was the sole side of the analysis.

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

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

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

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the information that was not presented to the Court at that

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

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motivations, the sincere motivations for why the defendant

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

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danger because he of, he had actually committed terrorism

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related offenses here in the United States and was planning to

But

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do the same overseas.

And so through that lens and through

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

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

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conditions that could ensure that the defendant will not

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continue to reoffend, continue to engage in the conspiracy and

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

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had done so for the last almost a decade.

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

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

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the knowledge of people in this very same community which he

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

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continue to offend.

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court.

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with offenses which also have a presumption and some not for

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which the danger is not necessarily a risk of imminent violence

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but rather other societal harms which the Bail Reform Statute

Your Honor sees cases of all sorts in this

Often you see drug dealers or other individuals charged

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was designed to protect against.

In a drug dealer

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

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

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yields violence or ultimately yields destruction of people’s

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lives.

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poison that this person was pedaling in this community was the

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

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advocacy for terror and jihad spreading, enabling others both

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

This defendant is in the same boat, Your Honor.

The

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justified to engage in violence to reach their political ends,

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but rather he’s implicating his own community.

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

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

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the last almost of a decade.

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

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palpable violence which have been made known to the Court.

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

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should have been much publicized but it was in the original

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

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of actually engaging in acts of violence to discriminately kill

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people here.

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feasibility or viability of conducting a domestic attack simply

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because all they could attain were handguns, Your Honor.

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Unfortunately, the events of the last week have crystallized

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the fallacy of this lack of feasibility.

The very Muslim

And it’s that harm which should

One

Those plans were dismissed because of the lack of

It’s crystallized the

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

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fruition.

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

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or his perception of his faith through defending it through

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violent means if necessary.

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provided a snapshot, a small window over various periods of

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

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under 3142 to the detention statute in which the Court is

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allowed to assess the personal characteristics of this

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

This is a person who we’ve only

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

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

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and proselytized and spreading the word about his brand of what

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he calls religion.

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him, that means watching videos of mutilation of people.

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

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beheaded people.

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younger people in the community and beyond this Commonwealth,

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explaining to them why these things are appropriate and

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necessary.

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

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

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

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mutilation of American soldiers.

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person at the table that the Court should assess when

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

And for him that means violent jihad.

For For

For him, it means trying to explain to other

For him, when posed with the prospect that there

That is the character of the

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

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

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of release.

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with-THE COURT:

5 6

Do you think he’s complied with the

conditions of release over the past year? MR. CHAKRAVARTY:

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Even in that context the idea that’s he’s complied

He has not, Your Honor.

He has

committed a federal offense including continuation of his-THE COURT:

9

During the time period of release.

MR. CHAKRAVARTY:

10

--during the time period of

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release.

His duty hasn’t changed, Your Honor.

I went on his

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website yesterday.

13

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

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purporting to justify through so-called religious doctrine,

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

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against the tyrant, disrespecting the laws of the Kirthar or

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the infidel.

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

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either to flee or to actually implement or take his terrorist

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planning to a next stage.

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

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circuit the training and the inculcation which he has done to

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himself and to others over the last 10 years.

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imbedded his hatred for the United States government and what

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

His, grant it he’s not had access to it

This is a person who given his stakes now that he

And this is a real concern which

MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

That’s so deeply

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

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to perpetuate that.

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whether has been his pattern and practice whether it is to

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encourage or to support others who are in fact engaging in

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those acts of violence.

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prison.

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enhancement in the multiples of decades.

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

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primarily been secured I would submit by secure by the good

And whether that is an act of violence or

He now faces potential the life in

He now faces the guideline ranges with terrorism His incentive to

10

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

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their kin.

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assets.

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

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international opprobrium certainly in this community and the

15

specter of a lengthy period of incarceration.

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

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in perspective.

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They’ve put up their home; they’ve put up their

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

So the motive

And finally, in terms of categories of factors of the

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

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government would submit at this stage voluminous more than in

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most cases.

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

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the kind of pervasiveness of his thought.

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not the four corners of the evidence and the affidavit I

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submitted are details that there are other types of evidence,

You know, the proffer was submitted to provide us

But it’s certainly

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other character of evidence including cooperating witnesses,

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including recorded statements of the defendant, including the

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defendant’s own writings and including records and other kind

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of objective records, all which corroborate each other.

5

amongst those are cooperating witnesses, people who from the

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Muslim community and beyond who have answered truthfully when

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the government has asked them questions.

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even in Islam despite what the defendant’s interpretation might

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be is a legitimate activity.

But

Something which is

The defendant’s perception of

10

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

11

cooperating with the government is telling the government the

12

truth when asked is tantamount to apostasy.

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one punishment in defendant’s eyes when somebody becomes

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

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that is a, that is to exterminate that person.

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there are several cooperating witnesses.

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

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

19

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

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whom are at large.

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defendant had communications with over a dozen individuals.

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Those individuals are not charged with a crime, but those

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individuals had conversations with the defendant about the

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propriety of violent jihad, about the supportive of the

25

horrific acts which defendant was reveling in.

And there is only

In this case

There is a real risk,

I point out that in the proffer the

MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

And those

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

2

people are still around and still can perpetuate what the

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defendant has inside and encouraged them to do all this time. I won’t belabor the issues much more, but ,I to

4 5

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

6

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

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to ensure the defendant won’t continue to perpetuate this

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ongoing conspiracy which from he has never withdrawn.

9

his behavior before the Court suggests that his mindset on the

10

last occasion suggests that his mindset is equally as resolved

11

today as it was back then.

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admirable, upstanding family.

13

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

14

himself, he radicalized others and continued to engage,

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continued to manage his website, continued to communicate with

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individuals after the initiation of criminal proceedings in

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this case.

18

who’s been charged.

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

20

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

21

disapprove of everything that the defendant has perverted his

22

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

23

for internet access is not going to prevent him from

24

communicating or from spreading the same desire that he has had

25

to stand up against the disbeliever and the infidels.

In fact

But it’s the same family, this There’s no reason to disbelieve

There is a co-conspirator who remains overseas The potential that this defendant can be

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

2

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

3

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

4

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

5

to actually provide material support.

We have The 39 Ways of

6

Preserving and Participate in Jihad.

This is a textbook, and

7

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

8

allegations thus far proffered, the defendant has either

9

attempted to have accomplished several of these 39 ways.

This

10

is a source of pride for this defendant.

The, you know, being

11

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

12

propaganda of this global terrorist organization is a serious

13

and meaningful contribution to the mission of Al-Qaida.

14

Holding aside the fact that his perception of Osama Bin Laden

15

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

16

of his true father who is in the courtroom.

17

defendant didn’t simply regurgitate existing liturgy or

18

existing scholarly work about the benefits and the motivations

19

for violent jihad, but actually did close production work,

20

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

21

spread across cultures, across countries and especially in this

22

community where he would be released back into.

23

somebody, who based on his communications, who relished the

24

importance of his work.

25

hoped it would cause people to take action.

The fact that the

This is

He felt it was a called action.

MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

He

He hoped it made

Case 1:09-cr-10017-GAO Document 106-1

Filed 12/17/10 Page 19 of 34 19

1

an impact.

In his ideological motivation for these actions so

2

deeply seeded and so deeply entrenched that in addition to his

3

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

4

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

5

somebody who would joke with his friends about watching videos,

6

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

7

beheading, beheading videos and watching other horrific acts of

8

violence.

9

did it over a long period of time.

This is

This is somebody who enjoys that, Your Honor, and There’s nothing, I stress

10

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

This

11

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

12

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

13

student in the lives of the 9/11 hijackers.

14

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

15

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

16

engaging in violence, this is somebody who has studied the

17

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

18

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

19

routes.

20

acts of terrorism.

21

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

22

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

23

to lose, Your Honor.

24

potentially the rest of his life behind bars.

25

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

So when Mr. Carney

And he has studied how and why they finally engaged in And he has looked to those people with

Now he is a person who is looking at

MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

The motivation

Case 1:09-cr-10017-GAO Document 106-1

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1

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

2

gone up tremendously. And then finally, the last category of risk here is

3 4

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

5

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

6

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

7

propagate to the ideology to motivate somebody else to go

8

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

9

Preserve and Participate in Jihad.

He finds as the next

10

approximation of personally participating in jihad is to

11

encourage somebody else or to support somebody else in doing

12

that.

13

the community at large.

14

infective to his own Muslim community, especially the peaceful

15

and law-abiding community here in the Commonwealth.

16

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

17

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

18

of the defendant’s illegal objectives.

19

and we don’t know where they are.

20

the same community which has allowed him, given him the

21

ability, to engage in this longstanding conspiracy with himself

22

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

23

So there really are no conditions.

This is a person whose risk is beyond simply the risk of

24

THE COURT:

25

MR. CARNEY:

It’s particularly invasive and

Thank you.

But more

We don’t know how many,

And more importantly it’s

Mr. Carney?

Thank you, Your Honor.

MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

The decision

Case 1:09-cr-10017-GAO Document 106-1

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1

before the Court is not an easy one.

2

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

3

decision allowing the government’s motion.

4

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

5

by the Congress as interpreted by the Courts then the evidence

6

supports Mr. Mehanna’s release.

7

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

8

won’t rehash all of those--

9

THE COURT:

10

MR. CARNEY:

If the Court is to be

But I suggest if

I have submitted a memorandum

I have it in my notes. --notes.

But the events of the last few

11

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

12

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

13

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

14

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

15

would present a danger to the community. Let’s just look at the last few years to put this in

16 17

context.

Dr. Mehanna was approached on one occasion by FBI

18

agents who wanted to interview him.

19

interview and spoke to the agents.

20

cooperating informant against individuals in the Muslim

21

community, and he declined to do so.

22

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

23

urged to become an informant and declined to do so.

24

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

25

flee.

He consented to the They urged him to become a

They were, he was

He did not do anything to obstruct justice. MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

At this

He did not

Case 1:09-cr-10017-GAO Document 106-1

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1

do anything to present a danger to the community.

He was

2

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

3

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

4

on a previous occasion about whether his friend, Daniel

5

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

6

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

7

against the Muslim community.

8

declined to do so.

9

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

They

Dr. Mehanna respectfully

So despite having been told by the FBI that

10

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

He did not

11

do something to obstruct justice.

12

present a danger to the community.

13

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

14

the Rule of Law?

15

degree.

16

CVS in the community.

17

his local community.

18

received was one from the most prestigious hospital in the

19

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

20

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

21

religion is completely embraced by the community and where he

22

felt he would be comfortable.

23

airline ticket.

24

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

25

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

He did not do anything to He retained counsel.

Dr. Mehanna completed college.

What

He got his

During college he worked at Walgreens; he worked at He was very active in his mosque and in He looked for a job.

The best offer he

The hospital paid for his

Indeed, in his contract says that he would pay

MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

Case 1:09-cr-10017-GAO Document 106-1

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1

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

2

United States.

3

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

4

parents.

5

there were conditions of release that would ensure that Dr.

6

Mehanna would return to this courtroom.

7

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

8

unbelievable danger to the United States that he has to be

9

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

He appeared in this court after he was arrested

And after many hearings, this Court decided that

It’s significant to me

10

when he was being let out of this courtroom?

Was he such a

11

danger that they would withhold this information from Your

12

Honor because of some tactical reason?

13

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

14

about all this dangerous stuff that they knew about?

15

that they knew that this dangerous stuff would not merit

16

holding him?

17

`08.

18

condition that I had never experienced before was that the

19

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

20

They explicitly proposed to the Court as a condition of release

21

that Dr. Mehanna could not speak to people about cooperating

22

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

23

speak about this investigation in that way to members of the

24

public.

25

your release.

That they would rather

Or was it

And so Dr. Mehanna was released in December of

Your Honor set very strict conditions.

A notable

If he did so he would be in violation of the terms of It was an unprecedented term of release in my MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

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1

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

2

that would cause no problem whatsoever.

3

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

4

wasn’t going to do it anyway.

5

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

6

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

7

violation of your order strictly limiting what this man had

8

said.

9

justice?

If that’s what the

And over the past year where the

Did he flee or attempt to flee?

Did he obstruct

Was he a danger to the community over the last almost

10

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

11

of pretrial services?

12

answer to that.

13

occasion the Court has even released him from that.

14

example, there was a religious ceremony where people of his

15

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

16

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

17

did not flee.

18

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

19

exam.

20

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

21

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

22

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

23

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

24

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

25

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

The absence of any allegation is the

He had been under a nighttime curfew, but on For

There was another occasion where he was taking

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

MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

This

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1

present a danger to the community, and he never did.

If one

2

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

3

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

4

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

5

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

6

his conversations.

7

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

8

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

9

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

And so that the kind of sharing that one’s

10

Carmichael or other people who had come to speak on college

11

campuses and listened to what they say.

12

idealism believing gee, that sounds good.

13

that’s a good idea, for going beyond that?

14

beyond that.

15

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

16

the government’s case here against Dr. Mehanna.

And in the youthful That’s got to be, No, not going

And their focus on statements he made or postings

It’s interesting that the prosecutor said that he

17 18

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

19

texts, where there are scholarly articles that he has

20

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

21

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

22

ideas.

23

the First Amendment stands in the eyes of this government if

24

this is what he is saying.

25

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

Listening to the prosecutor makes me afraid about where

If he disagrees that Dr. Mehanna

MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

Case 1:09-cr-10017-GAO Document 106-1

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1

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

2

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

3

was cited by the Secretary of Defense when he went to

4

Afghanistan to support the Taliban in trying to get the

5

Russians out of Afghanistan.

6

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

7

what the United States did during Afghanistan to support the

8

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

9

which many Muslims are still trying to get outside countries

I’m hoping during the trial they

10

out of Iraq and Afghanistan and Pakistan.

The fact that he

11

might support those views is what the First Amendment is all

12

about.

13

it’s about supporting unpopular speech.

First Amendment isn’t about supporting popular speech;

But what else has occurred over the last several

14 15

years that should guide Your Honor?

After Dr. Mehanna was

16

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

17

He was unable to get a job in his chosen profession.

18

get a job.

19

Jr. High school.

20

religion.

21

day.

22

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

23

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

24

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

25

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

So he did

He’s been teaching at a private school at a private He has been teaching math, science and

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

There are many letters of support that have been provided

MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

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1

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

2

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

3

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

4

Court.

Among--

5

THE COURT:

6

MR. CHAKRAVARTY:

7

THE COURT:

8

MR. CARNEY:

9

Any objection to that, Mr. Chakravarty? None, Your Honor.

All right. But among those letters you will see are

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

10

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

11

been their teacher and how even during the religion classes

12

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

13

go.

14

minds at the school where he has been a teacher.

15

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

16

presenting a danger to the community.

17

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

Your Honor, our country has a ignominious history

18

about acting in fear.

We showed it when we interned thousands

19

of Japanese during World War II.

20

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

21

in terrorism.

22

University of South Florida was indicted on 51 counts of

23

providing support to terrorists.

24

trial for two months.

25

government’s case without calling a single witness.

We showed it after 9/11 when

We acted out of fear when a professor at the

And the professor went to

The defense rested after the

MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

And the

Case 1:09-cr-10017-GAO Document 106-1

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1

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

2

the First Amendment.

3

charges.

4

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

5

in this case.

6

very toughest decision you make in your entire career, this

7

one, in this case on this issue.

8

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

9

or present a danger to the community?

That defendant was acquitted of all 51

And the reason past we have been turning against fear

The decision Your Honor will make may be the

Has the government proven to

Not only hasn’t the

10

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

11

presented to Your Honor, I have proven the opposite.

12

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

13

whichever way Your Honor thinks is appropriate.

14

suggested some ways, if that would give greater confidence to

15

the Court.

16

able to leave his home or curtilage.

17

concern about the use of the internet.

18

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

19

allow the government or its investigators to confirm that there

20

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

21

Any other conditions that the government, that the Court wants

22

to set are amenable.

23

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

24

incredible amount of support in the community.

25

We’ve

It includes 24-hour house arrest so that he’s not The government has a We’ve suggested that

But he should not be held in jail under a He has an

This past Sunday I went to the Islamic Center in MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

Case 1:09-cr-10017-GAO Document 106-1

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1

Wayland at their invitation to speak about the case.

It was

2

packed with standing room only surrounding every one of them in

3

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

4

for Dr. Mehanna.

5

Court showing this community’s support.

6

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

7

dozens more waiting outside who could not come in.

8

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

9

outpouring of support?

I will be presenting dozens of letters to the Not only do you have

How often

People who are doctors, lawyers,

10

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

11

we know he can be released and not flee.

12

just saying that he’s a good person.

13

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

14

That’s how strongly they support him.

The parents are not

They said they will lose

Your Honor, I conclude the way I began.

15

I urge Your

16

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

17

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

18

should be released.

Thank you.

19

THE COURT:

Okay.

20

MR. CHAKRAVARTY:

21

THE COURT:

22

MR. CHAKRAVARTY:

Just a very brief--

Go ahead. -- on three points Mr. Carney

23

raised.

One the idea of community support is admirable.

24

admirable to the community.

25

family and to their devotion to their son.

It’s

It’s a credit to Mr. Mehanna’s

MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

But the defendant

Case 1:09-cr-10017-GAO Document 106-1

Filed 12/17/10 Page 30 of 34 30

1

is a person of two faces, Your Honor.

He’s had a very public

2

face in the community, very well-respected.

3

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

4

Carney represented were not statements of people who know what

5

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

6

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

7

sits before but rather their perception, and the defendant is

8

innocent until proven guilty and after a trial if that evidence

9

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

All of the things

10

their perception likely change.

11

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

12

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

13

suitable place to put this defendant back.

14

So the idea that the community

The second is on the important issue of defendant’s

15

protected speech.

The government shares and vigorously

16

enforces the ability for every American, everyone in this

17

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

18

it is to want to kill Americans.

19

this Court is too sophisticated for the argument that the

20

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

21

he said things which are not popular.

22

case is about.

23

line, actually engaging in action and inciting other people to

24

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

25

impactful ways.

It’s entirely protected.

But

That’s not what this

This case is about the defendant crossing that

And it’s that action which means that the MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

Case 1:09-cr-10017-GAO Document 106-1

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1

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

2

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

3

to whether this person is truly a danger or not.

4

free to conspire, to violate criminal offense.

5

to use words to perpetuate a conspiracy or to incite other

6

people to engage in conspiracy.

7

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

8

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

9

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

He is not He is not free

And he’s certainly not free to

10

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

11

That is not freedom that our laws protect.

12

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

13

presumption of detention for a variety of reasons.

14

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

15

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

16

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

17

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

18

defendant poses greatest. THE COURT:

19 20

And to bring this

But the

All right, anything else from either of

you?

21

MR. CARNEY:

22

THE COURT:

23

to file, Mr. Carney?

No, thank you. All right, and are there letters you wish

24

MR. CARNEY:

25

THE COURT:

May I approach, please? You may.

You have, you engaged

MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

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1

Mr. Chakravarty?

2

MR. CARNEY:

3

THE COURT:

4

MR. CARNEY:

Yes, Your Honor. All right. Your Honor, I simply handed a copy so

5

Your Honor can see the motion that I will electronically file

6

today.

7

THE COURT:

8

MR. CARNEY:

9

I’ll allow the motion. And then I will provide your clerk with

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

10

pleading will be offered up to seal.

11

electronically file a duplicate of all of those letters with

12

simply the name or identifying address redacted. THE COURT:

13 14

When will you give to Ms. Simeone the

letters?

15

MR. CARNEY:

16

THE COURT:

17

MR. CARNEY:

18

THE COURT:

19

Today, Your Honor. All right.

If you have them, I’ll take them.

21

MR. CHAKRAVARTY:

24 25

If you

need time to prepare them then I’ll let you. MR. CARNEY:

23

Right now or sometime today?

I can give them right now.

20

22

And then I will

Do you need a copy? 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. MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

Case 1:09-cr-10017-GAO Document 106-1

Filed 12/17/10 Page 33 of 34 33

MR. CARNEY:

1 2

Thank you.

A copy has been given to

the government.

3

THE COURT:

4

MR. CARNEY:

That concludes my submission, Your

THE COURT:

All right, I will read the letters,

5

All right thank you.

Honor.

6 7

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

8

advisement and issue a written decision.

Anything else?

9

MR. CARNEY:

10

THE COURT:

All right we’ll adjourn.

11

THE CLERK:

All rise; this matter’s adjourned.

12

//

13

//

14

//

15

//

16

//

17

//

18

//

19

//

20

//

21

//

22

//

23

//

24

//

25

//

No, Your Honor, thank you.

MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003

Case 1:09-cr-10017-GAO Document 106-1

Filed 12/17/10 Page 34 of 34 34

CERTIFICATION

1 2

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

3

that the foregoing is a correct transcript from the official

4

digital sound recording of the proceedings in the

5

above-entitled matter.

6 7

/s/ Maryann V. Young

January 26, 2010

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MARYANN V. YOUNG Certified Court Transcriber (508) 384-2003