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Mohamad Mustapha Ali Masfaka evidence proffer

Mohamad Mustapha Ali Masfaka evidence proffer

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Published by: The Dallas Morning News on Oct 15, 2010
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 1UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGANSOUTHERN DIVISIONUNITED STATES OF AMERICA,Plaintiff, CRIMINAL NO. 08-20458-vs- HON. PAUL D. BORMANHON. DONALD A. SCHEERD-1 MOHAMMED MUSTAPHA ALI MASFAKA,a/k/a Mohammad Masfaka,a/k/a Mohamad Rateb,a/k/a Abu Ratib,a/k/a Abu Rateb,Defendant._________________________________________/ 
GOVERNMENT’S WRITTEN PROFFER IN SUPPORTOF ITS REQUEST FOR DETENTION PENDING TRIAL
The United States of America, by Mark Jebson, Special Assistant United StatesAttorney, hereby proffers the following information, pursuant to 18 U.S.C. § 3142 (f),
1
insupport of its request that defendant be detained pending trial:1.
 
On December 3, 2008, defendant Mohammed Masfaka (Masfaka), wasindicted by a federal grand jury for False Statements to a Federal Agency (the FBI), inviolation of 18 U.S.C. § 1001(a), Attempted Naturalization Fraud, in violation of 18U.S.C. § 1425(a), and Perjury During a Naturalization Proceeding, in violation of 18
1
Although the government plans to submit a government witness at defendant’sdetention hearing, it will also present some evidence by proffer. Submitting evidence byproffer is permitted by 18 U.S.C. §3142(f). It is also recognized by the courts as acommon way to present evidence in the pre-trial context.
See e.g.
,
United States v.Winsor 
, 785 F.2d 755, 756 (6th Cir. 1986) (holding that the government may proceed in adetention hearing by proffer or hearsay);
United States v. Abuhamra
, 389 F.3d 309, 321n. 7 (2nd Cir. 2004) (“[F]ew detention hearings involve live testimony or crossexamination. Most proceed on proffers.”).
Case 2:08-cr-20458-PDB-DAS Document 9 Filed 01/28/2010 Page 1 of 13
 
 2U.S.C. § 1015(a).
2
The indictment was under seal until the time of arrest on January 22,2010. The maximum penalties for these offenses are as follows:a. False Statements – 8 years imprisonment and a $250,000 fine. 18 U.S.C. §§1001(a), 3571(b)(3).b. Attempted Naturalization Fraud – 10 years imprisonment and a $250,000 fine.18 U.S.C. §§ 1425(a), 3571(b)(3).c. Perjury in Naturalization Proceedings – 5 years imprisonment and a $250,000fine. 18 U.S.C. §§ 1015(a), 3571(b)(3).2. The charges in the indictment relate to Masfaka’s attempt to conceal fromthe government his involvement with the Holy Land Foundation for Relief andDevelopment (HLF) while the FBI was investigating the HLF for providing materialsupport to the terrorist group HAMAS.3. If convicted, the government believes that defendant would be subject to aterrorism sentencing enhancement (12 levels) pursuant to U.S.S.G. § 2J1.2(a) and(b)(1)(C) on the basis that his false statements to the FBI concerned a matter that relatedto international terrorism. The sentencing guideline range for this offense is 63 – 78months imprisonment. In a similar case in the United States District Court, District of Arizona, the defendant, Akram Musa Abdallah, who, like Masfaka, lied to the FBI abouthis involvement with the HLF during the FBI’s investigation of that organization,recently stipulated in a plea agreement that U.S.S.G. § 2J1.2(a) and (b)(1)(C) was theapplicable guideline section for his offense conduct (case no. 08-0947) (Exhibit 1).4. HAMAS is a terrorist organization based in the West Bank and Gaza Strip(Gaza), that has engaged in dozens of suicide bombings resulting in the deaths of 
2
The indictment referred to in this Proffer is the First Superseding Indictment.
 
Case 2:08-cr-20458-PDB-DAS Document 9 Filed 01/28/2010 Page 2 of 13
 
 3hundreds of human beings. On January 25, 1995, HAMAS was designated as a SpeciallyDesignated Terrorist by the President in the Annex to Executive Order 12947 (Exhibit 2).On October 8, 1997, then Secretary of State Madeleine Albright designated HAMAS as aForeign Terrorist Organization under section 219 of the Act.
 Designation of ForeignTerrorist Organizations
, 62 Fed. Reg. 52,650, 52,650-1 (1997) (Exhibit 3).5. The HLF was created in 1988 and represented itself to be a non-profit, taxexempt, charitable organization designed primarily to assist needy individuals in the WestBank and Gaza. In addition to its main office in Richardson, Texas, the HLF maintainedoffices in other cities in the United States, including Detroit, Michigan. The HLF alsomaintained offices outside the United States, including Jerusalem, the West Bank, andGaza. On December 4, 2001, the HLF was designated as a Specially Designated GlobalTerrorist pursuant to Executive Order 13224 and as a Specially Designated Terroristunder Executive Order 12947, because it provided millions of dollars of material andlogistical support to HAMAS (Exhibits 2 and 4). The HLF’s designation wasaccompanied by an order blocking all of the organization’s assets.6. Masfaka is a native and citizen of Syria, and a lawful permanent residentof the United States. Masfaka has been outside of the United States since July 9, 2008.He applied for readmission to the United States on January 21, 2010. United Statesimmigration officials denied Masfaka entry into the United States because his lawfulpermanent resident card (also known as a “green card”) expired due to his prolongedabsence from the United States.
See
8 C.F.R. § 211.3 (Exhibit 5). Further, immigrationofficials administratively arrested Masfaka on immigration charges and issued him aNotice to Appear (NTA), ordering him to appear before an immigration judge to
Case 2:08-cr-20458-PDB-DAS Document 9 Filed 01/28/2010 Page 3 of 13

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