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Case 2:08-cr-00947-NVW Document 74

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1 JOSEPH SHEMARIA (Cal. State Bar No. 47311) 2 1801 Century Park East, Suite 2400 3 Telephone (310) 278-2660

LAW OFFICES OF JOSEPH SHEMARIA Los Angeles, California 90067 Facsimile (310) 388-0979

4 Email: 5

Attorney for Defendant 6 AKRAM MUSA ABDALLAH
7 8 9 10 11 UNITED STATES OF AMERICA, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28


) ) ) Plaintiff, ) ) v. ) ) AKRAM MUSA ABDALLAH, ) ) Defendant. ____________________________________ ) __________________


Defendant AKRAM MUSA ABDALLAH, through counsel, hereby submits his Amended Objections to the Presentence Investigation Report. Defendant reserves the opportunity to make additional arguments in writing prior to sentencing as well as additional comments at the sentencing hearing. Date: November 19, 2009 Respectfully submitted: LAW OFFICES OF JOSEPH SHEMARIA By /s/ Joseph Shemaria Attorney for Defendant AKRAM MUSA ABDALLAH

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7 written Plea Agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), to one 8 count of an indictment charging him with making a false statement to FBI agents in 9 violation of 18 U.S.C. §1001(a)(2). The charge arose from Mr. Abdallah’s untrue 10 statements to FBI agents when he was interviewed in January of 2007 concerning his role 11 in fundraising activities conducted on behalf of the Holy Land Foundation (HLF) between 12 1994 and 1997. 13

In the Presentence Investigation Report (hereinafter PSI) dated October 23, 2009,

14 the Probation Officer disregards the Plea Agreement and recommends a guideline sentence 15 of 46 months based on a total offense level of 23, Criminal History Category I. 16

Mr. Abdallah admittedly did take part in some fundraising activities during the

17 period in question (1994-1997), which is what led to his decision to plead guilty to the 18 charge of making a false statement when questioned concerning those activities some ten 19 years later. He has acknowledged his mistake and accepts full responsibility for having 20 broken the law. However, there are significant equities and mitigating factors which 21 support the joint recommendation of an 18 to 24 month sentencing range as set forth in the 22 Plea Agreement. 23

Mr. Abdallah objects in the strongest terms to the Probation Officer’s proposed 46

24 month sentence. The Probation Officer’s position fails completely to address the 25 defendant’s excellent “history and personal characteristics.” In the body of this 26 memorandum, Defendant Abdallah, through counsel, will respectfully set forth his 27 responses and objections to the Probation Officer’s position. 28 ///


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The Probation Officers Fail to Accurately Perceive the Parameters of This Case With all due respect, in its oversimplified and one-sided analysis, the PSI focuses

3 mainly on the specifics of Mr. Abdallah’s conduct between 1994 and 1997 when he 4 assisted the Holy Land Foundation’s fundraising efforts. The PSI implies that Mr. 5 Abdallah’s fundraising activities on behalf of HLF were carried out with the knowledge 6 that at least some of the money would be channeled to terrorist groups or terrorist activities. 7 Nothing could be further from the truth. Mr. Abdallah’s fundraising activities on behalf of 8 HLF were for the purpose of charitably helping widows, orphans and other poor and needy 9 people in the Middle East, and to build and support schools and day-care centers for the 10 destitute population of that region. Like many religious Muslims, Mr. Abdallah has been 11 deeply involved in charitable and philanthropic work throughout his adult lifetime. At least 12 in recent years, he has been a peaceful man and he has not supported violence on the part 13 of any people or organization, whether Muslim or otherwise. 14

It should be pointed out that a large number of Muslims in the United States who are

15 members of mosques have at one time or another donated or helped raise money for HLF. 16 Although the HLF leaders were convicted at trial, it is apparent that the millions of average, 17 well-meaning community-oriented Muslims who donated funds or helped raise funds for 18 HLF had no inkling that certain elements within HLF may also have been involved in 19 surreptitiously funneling money to terrorist groups. 20 21 22 23 24 25 26 27 28

The Probation Officer’s attempt to connect Mr. Abdallah’s fundraising activities for HLF to terrorist acts by Hamas and even the 9-11 attacks are misguided and quite absurd. This is a good example of how, in emotionally charged situations, a supposed neutral factfinder can veer far from the path of logic, common sense and fair play. C. The Probation Officers Fail to Apply the Current State of Federal Sentencing Law to This Case While focusing primarily on activities that Mr. Abdallah engaged in 15 years ago, the Probation Officer fails to adequately acknowledge this defendant’s exemplary history and personal characteristics which are described in detail in the approximately 30 character reference letters received on his behalf. These letters, which are extremely laudatory,

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1 describe this defendant’s kind and caring nature, his strong family values, and his deep 2 concern for the health and welfare of the community. The Probation Office was provided 3 with these letters more than two months before disclosing the PSI, yet fails to give them 4 any consideration. Such disregard of the mandate to consider the “history and 5 characteristics of the defendant,” as set forth in 18 U.S.C. §3553(a)(1), signals an essential 6 misunderstanding of the current state of Federal Sentencing Law as it has developed in the 7 wake of United States v. Booker, 125 S. Ct. 738 (2005), Gall v. United States, 128 S.Ct.
1 8 582 (2007), and their progeny. In affirming the District Court judge’s eloquent assertion

9 in Gall that a Federal defendant’s history and personal characteristics should be given due 10 weight as part of the sentencing process, the United States Supreme Court ushered in a new 11 sentencing paradigm in which District Court judges are once again called on to be 12 thoughtful and independent arbiters of justice. 13

Prior to Mr. Abdallah’s sentencing date, undersigned defense counsel will be filing a

14 Sentencing Memorandum which will highlight this defendant’s excellent history and 15 personal characteristics. 16

The Probation Officer further signals her misunderstanding of the current state of

17 Federal sentencing law at Paragraph 91 of the PSI (Pages 15-16) in which she posits: 18 19 20 21 22 23 24 25 26 27 28

The defendant pleaded guilty to a one count indictment. The advisory imprisonment guideline range has been established at 46 to 57 months. Pursuant to the written plea agreement, the defendant shall receive up to a three-level downward reduction for acceptance of responsibility. Pursuant to Rule 11(c)(1)(C),

Kimbrough v. United States, 128 S.Ct. 558, 570 (2007), and more recently Spears v. United States, 555 U.S. __ (2009), and Nelson v. United States, 555 U.S. __ (2009), reiterate that United States District Court judges have broad discretion, after considering the totality of factors present in the case, to impose a non-guideline sentence. The Court’s sole statutory mandate is to “impose a sentence sufficient, but not greater than necessary to accomplish the goals of sentencing” under §3553(a)(2) which include the need for just punishment, the need for adequate deterrence and incapacitation, and the need for adequate educational and vocational training.



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the parties stipulate the defendant shall be sentenced to the Bureau of Prisons for a term of imprisonment between 18 and 24 months. A sentence within this range would require an eightlevel downward departure. The plea agreement does not indicate a basis for a downward departure. (Emphasis added). The Probation Officer’s contention that a sentence within the range of 18 to 24

7 months would require an eight-level downward departure is fallacious. Departures, 8 whether upward or downward, have always been, and presumably always will be, formal 9 and technical in nature and inextricably tied to the guidelines. Historically, with the 10 exception of §5K1.1 departures predicated on the Government’s motion, other forms of 11 departure have been quite rare and typically have been granted in cases characterized by 12 more or less extraordinary conditions. 13

In contrast, non-guideline sentences based on “the totality of factors” that may be

14 present in an individual case are much less rare and are typically based on “the history and 15 characteristics of the defendant” and the “nature and circumstances of the offense” as well
2 16 as the other sentencing factors set forth in 18 U.S.C. §3553(a). In this instance, the parties

17 have stipulated to an 18 to 24 month sentencing range based on a mutual belief that a 18 sentence in this range is an accurate measure of Mr. Abdallah’s culpability and would 19 adequately fulfill all of the requirements of 18 U.S.C. §3553(a)(2). 20 D. 21 22 23 24 25 26

The Parties’ Jointly Stipulated Sentencing Range Should Be Honored by The Court The PSI hardly recognizes the Plea Agreement, other than to criticize its lack of

thoroughness. However, rest-assured, the Plea Agreement hammered out in this case, in every way, is entitled to be given its recognized and well-deserved due and respect by the Court, even though not by the Probation Department. Probation appears to overlook that the Plea Agreement was agreed upon only after a complete, honest and accurate assessment, by

In its Sentencing Position, the District Court in Gall went to pains to establish that a defendant’s history and personal characteristics do not need to be “extraordinary” 28 in order to precipitate a downward variance and a resulting non-guideline sentence.



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1 both very experienced Government Counsel from both the Department of Justice as well as 2 the United States Attorney’s Office in Phoenix as well as defense counsel. Most all of the 3 key terms and provisions were negotiated at length, compromises being made by both sides 4 to reach a fair and just result. If the Government had thought a sentence outside of the 18 to 5 24 month range was appropriate, it obviously would not have agreed to this range as part of 6 a Rule 11(c)(1)(C) Plea Agreement. Likewise, had the sentence not been the one agreed 7 upon, the defense would have never agreed to it. 8

In the body of the PSI, the Probation Officer quotes the FBI as stating it originally had

9 no plans of bringing any criminal charges against Mr. Abdallah. Prior to the trial of the 10 Holy Land Foundation (HLF) in Texas, the FBI approached the defendant in the hope that 11 he would be able to aid the Government in its prosecution of HLF (see PSI, Page 9, ¶41, 12 quoting FBI Special Agents Andrew Braun and Robert Miranda): 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

After the HLF’s well publicized indictment in 2004, but before the commencement of trial, Case Agents investigating the HLF approached Abdallah in 2007. Seeking nothing more than Abdallah’s truthful cooperation as a citizen of the United States, Abdallah was approached by the FBI as a potential witness for the government against the HLF. Case agents believed that Abdallah’s HLF connections and involvement in HLF fundraising efforts…made him a potentially significant witness... Mr. Abdallah initially denied his involvement in fundraising activities on behalf of HLF, and this led to the Government indicting him for making a false statement. For his part, Mr. Abdallah feels remorse and contrition for having made false representations to law enforcement, which is why he has chosen to forego his constitutional right to a trial and has, instead, accepted responsibility for his mistake and agreed to the stipulated sentencing range of 18 to 24 months. // //


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II. THE PARTIES’ STIPULATED PLEA AGREEMENT EPITOMIZES THE MANNER IN WHICH OUR SYSTEM IS SUPPOSED TO WORK, AND SHOULD BE FOLLOWED The parties worked tirelessly together in an attempt to reach a fair disposition of this

6 case—one which was equitable and well-considered. The Government was spared the 7 burden and expense of preparing for and going to trial, and Akram Abdallah was spared the 8 anguish, uncertainty, cost and disruption to his personal life of standing trial, with all of the 9 resulting anxiety and pain for his family and harm to his reputation in his community. 10

While our judicial system is adversarial in nature, and the respective sides have an

11 obligation to advocate their positions with appropriate vigor, our system also depends on 12 cooperation and honorable dealings by all parties. After a good deal of time was spent 13 explaining how his responses were inaccurate, incomplete and some just false, Mr. 14 Abdallah changed his mind and expressed his desire to resolve this case in a reasonable and 15 expeditious fashion. In effect, as the case moved forward, it became clear that both parties 16 wished to work out a reasonable resolution that would enable the case to be resolved 17 without further expense and delays. 18

This is the way our system is supposed to work. This level of good faith cooperation

19 by the parties is what enables United States District Courts to move cases along in an
3 20 expeditious manner, thus freeing up valuable Government resources. It is further

21 interesting to note that, notwithstanding the somewhat inflammatory tone of the PSI, the 22 23 24 25 26

Probation Officer actually concedes that “the defendant was not directly involved with a terrorist or public destruction act.”4 For a free society to maintain itself, its essential institutions must be healthy and strong. In an adversarial system such as our legal process, it is essential that the two sides

Based on the statistics currently available, around 97% of Federal criminal cases are settled through Plea Agreements, while only around 3% actually proceed to trial. 27

See PSI, Page 18, bottom two lines.


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1 proceed honorably, which is exactly what has been done in this case. Defendant Abdallah, 2 through counsel, therefore respectfully requests that the Court disregard the Probation 3 Officers’ poorly reasoned recommendation and honor the Plea Agreement, and sentence 4 him to a term of imprisonment of 18 months at the low end of the jointly stipulated range. 5 Defendant Abdallah’s rationale for seeking a sentence at the low end of the stipulated range 6 will be set forth in detail in his Sentencing Memorandum which be filed prior to the 7 sentencing date. 8 9 10 11 12 13 14


15 consider the “history and circumstances of the defendant.” The PSI spends eight full pages 16 poring over the Charge(s) and Conviction(s), the Offense Conduct, and the Offense Level 17 Computations. In contrast, the entire life and background of this accomplished 55 year 18 family man, whose time on this earth has been characterized by real care and concern not 19 only for his immediate family but for the larger community as well, is dispensed with 20 perfunctorily in a mere two pages. There is not one word concerning this defendant’s long 21 history of legitimate charitable and philanthropic activities. Nor is there any mention of the 22 23 24 25 26 27 28

extreme collateral consequences Mr. Abdallah and his wife and family have suffered as a result of his conviction. (This issue will be addressed in more detail in our subsequent Sentencing Memorandum. The Court is asked to note, however, that Defendant’s wife Areej Qada not only lost her engineering job of long standing due to the investigation, but has also suffered serious heart problems as a result of the pressure and sadness she has endured. She has been hospitalized twice due to severe tachycardia brought on by stress, and her hospital bills have totaled at least $53,000. Further, Mr. Abdallah’s phone card business has been decimated by his conviction and is now a mere shadow of its former self.)

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Revealingly, the PSI spends the same amount of space, two pages, analyzing Mr.

2 Abdallah’s finances that it expends describing his history and personal characteristics. The 3 financial analysis concludes that the Abdallahs are approximately $79,000 “in the red” and 4 have a monthly cash flow totaling negative $4,687. Yet, the Probation Office recommends 5 that Mr. Abdallah be required to pay a fine of $10,000 even though the family income is 6 just $2,000 per month and will be reduced to $0 when this defendant reports to serve his 7 upcoming term of imprisonment. It is most probable that Mrs. Abdallah, given her heart 8 condition and emotional distress, will be unable to contribute to her family’s financial 9 support during the period of her husband’s incarceration. 10

Simple logic suggests that the Government, based its monitoring of Mr. Abdallah’s

11 phone calls for 14 years and its interviews of a great many individuals in its attempt to fully 12 ascertain the scope and nature of his activities during the period in question, is best situated 13 to gauge the seriousness of his offense conduct. Furthermore, though it can perhaps be 14 inferred that the Probation Office believes “just punishment” would be achieved through a 15 sentence of 46 months, the Probation Officers never directly address this issue, nor for that 16 matter, any of the other relevant 18 U.S.C. §3553(a)(2) sentencing factors. 17 18 19

IV. CONCLUSION Defendant Akram Abdallah respectfully urges the Court to accept the plea

20 agreement as it was written and signed. Of course, this includes rejecting Probation’s 21 recommendation of a term of 46 months imprisonment. While the PSR gives a correct 22 23 24 25 26 27 28

numerical USSG presentation, the hard portion of the sentencing, calculating and giving appropriate weight to defendant’s history and personal characteristics and other 3553(a) factors, must be done by this Court. The PSI’s suggestion that the stipulated sentencing range can only be reached by means of a downward departure reveals a surprising misunderstanding of the current state of Federal sentencing law. In addition, the Probation Officer does not consider any of the various other sentencing factors as set forth in 18 U.S.C.§3553(a), and does not address the extreme collateral consequences the Abdallah family has suffered as a result of this conviction.

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In Defendant Abdallah’s subsequent Sentencing Memorandum, the reasons why the

2 “totality of factors” present in this case support a sentence of 18 months, at the low end of 3 the stipulated sentencing range, will be set forth. 4 Date: November 19, 2009 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted: LAW OFFICES OF JOSEPH SHEMARIA By /s/ Joseph Shemaria Attorney for Defendant AKRAM MUSA ABDALLAH