POINT OF VIEW

Newburgh Four face uphill appeal

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If legal precedent means anything — and it does — then the lawyers for the Newburgh Four, convicted last October of plotting to blow up the Riverdale Temple and the Riverdale Jewish Center, among other crimes, have their work cut out for them.

In a decision issued late last month, the United States Court of Appeals for the Second Circuit denied an appeal by a Spanish arms dealer and two associates who were convicted of conspiring to sell surface-to-air missiles to two agents of the Drug Enforcement Administration, posing as members of a left-wing Columbian terrorist organization. The defendants claimed they had been entrapped by an overzealous U.S. government.

Although the facts in United States v. Al Kassar, are admittedly different than the facts in the case of the Newburgh Four, the court’s holding is instructive. The Court of Appeals held that because the jury had rejected the defendants’ claim that they had been entrapped by the DEA (just as the jury rejected the Four’s claim that they had been entrapped by the FBI), the defendants had to prove, “as a matter of law,”   “(1) the government originated the criminal design, (2) the government suggested the design to the defendant[s] and induced [them] to adopt it, and (3), that the defendant[s] had no predisposition to engage in the criminal design prior to the government’s inducement.”  The phrase, “as a matter of law,” means that there are no factual issues for a jury to decide; that the only issues are legal ones that can be determined by the judge.

Applying that three-prong test, the Court of Appeals held that it could not be said, “as a matter of law,” that the three “defendants lacked the predisposition to conspire to illegally sell arms to known terrorists.” Although the court said that it was a “close call,” the court held that the call was for the jury to make.

As to the defendants’ other argument, that the government had engaged in outrageous conduct, the Court of Appeals, quoting prior precedent, stated that in order to prevail on that point, the defendants had to show that the complained-of governmental conduct was “so outrageous that common notions of fairness and decency would be offended were judicial process invoked to obtain a conviction.” The court noted that there had been no allegations that the DEA agents used coercion, intimidation or force. The fact that the agents may have enticed the defendants with inflammatory political speeches and promises of fast money did not rise to the level of outrageous conduct so as to constitute a deprivation of due process. As the court stated, “[s]ting operations, by nature, involve lies told to the target.”     

So what does that mean for the Newburgh Four?  Plenty. As those who have followed the case in The Press know, all four have asserted they were entrapped and that the government’s conduct was illegal. The Second Circuit’s disinclination to accept those defenses in Al Kassar’s case spells trouble for the four, since that is the court they will have to convince if they hope to overturn their convictions.
In June, US District Court Judge Colleen McMahon, in a written decision addressing various challenges raised by three of the four, cited statements made by the defendants during the planning stage that belied their claim that they had been induced to act by the government’s confidential informer. Defendant James Cromitie had said that he wanted to harm America, that he was not motivated by money but by jihad, and that he did not “give a [expletive deleted] if a bunch of Jews” were in the two synagogues when the bombs went off, since “[Jews are] the most wickedest [sic] people that Allah has created.” Defendant David Williams, who had a prior criminal record, echoed that sentiment, speculating that if they planted their explosives in an area near a particular synagogue in Brooklyn, they could take out “[t]he whole strip” and kill “all [the] Jews.” And Onta Williams (no relation to David Williams) had “handled the bombs and the missiles, fully aware of what was at stake.”  These are hardly the words and actions of men not predisposed to commit the crimes they were convicted of.   

The only one of the four who can arguably make that claim is Laguerre Payen, whose lawyers have insisted all along that he lacked the mental capacity to engage in terrorism.  But as Judge McMahon aptly pointed out to Payen when he rhetorically asked the court, just before he was sentenced, whether he was a terrorist or an extremist, that while he may not be either, he most certainly was a criminal.  A criminal who was ready, willing and able to kill people. And that is why he was going to prison for 25 years. 

The fact that Payen and the others may not have been terrorists before the plan was presented to them by the FBI’s informant is irrelevant. The only relevant inquiry as far as their entrapment defense is concerned, is whether they were predisposed to participate in the plot.  Will they be able to prove, as a matter of law, that they were not inclined to such criminality?  And can they show that the jury’s finding that they were was unreasonable?  I do not think so. Not with the kind of comments they made to the FBI informant. 

That leaves the question of whether the government’s conduct was illegal. Judge McMahon criticized the prosecution at Payen’s sentencing, saying that “[t]he government made them terrorists,” and that she was “not proud of what [our] government did in this case.” But creating a scenario for terrorism by choosing targets and supplying the actors with props does not, without more, constitute illegal conduct. As the Second Circuit explained in Al Kassar, there has to be coercion, force or intimidation. And there wasn’t any in the case of the Newburgh Four.
Nor were the government’s actions anything to be ashamed of, notwithstanding Judge McMahon’s comments to the contrary. Sting operations catch criminals. No one can deny that. There is nothing inherently devilish about what our government did in this case. Indeed, from my point of view, it is far better for our government to supply would-be terrorists like the Newburgh Four with simulated weapons, than to wait for rogue states or ideological zealots to provide them with real ones.

Mr. Berg is an attorney at Cornicello, Tendler & Baumel-Cornicello, LLP.

Jay Berg, Point of View, Newburgh Four, the Riverdale Temple, Riverdale Jewish Center, United States Court of Appeals, United States v. Al Kassar.

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