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– against – : 15-CR-235 (KMW)
Defendant. :


Ezra Spilke
Law Offices of Ezra Spilke
1825 Foster Avenue, Suite 1K
Brooklyn, New York
Tel: (646) 762-9713
Counsel for Amal Said

I. Mr. Said Was Not an Organizer, Leader, Manager, or Supervisor of Others in the
Offense 4
II. Mr. Said Satisfied the Disclosure Requirement of the Safety Valve Statute 6
III. Mr. Said and Mr. Lajaward Did Not Intend to Provide and Were Not Reasonably
Capable of Providing More than 2.98 Kilograms of Heroin 7


At Amal Said's request, the Court held a Fatico hearing on March 13 and July 25, 2018,

at which Mr. Said was the only witness. Mr. Said requested the hearing to establish,

conclusively, his eligibility under the safety valve statute for a sentence below the mandatory

minimum. However, the hearing explored most of the subjects relevant to sentencing under 18

U.S.C. § 3553(a). Mr. Said respectfully requests the Court to make the following findings of fact.

The government has failed to meet its burden with respect to the role enhancement. The

government cannot identify a single participant of the instant offense whom Mr. Said organized,

led, managed, supervised or recruited. Mr. Said satisfied the disclosure requirement of the safety

valve statute by submitting an affidavit and by testifying at the Fatico hearing. Finally, because

Mr. Said and Mr. Lajaward did not intend to provide and were not reasonably capable of

providing more than 2.98 kilograms of heroin, the base offense level should be 30.


When any factor important to the sentencing determination is reasonably in
dispute, the parties shall be given an adequate opportunity to present information
to the court regarding that factor. In resolving any dispute concerning a factor
important to the sentencing determination, the court may consider relevant
information without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient indicia of reliability
to support its probable accuracy.

U.S.S.G. § 6A1.3(a).

The government is seeking a three-level role enhancement under U.S.S.G. § 3B1.1(b) for

allegedly being a manager or supervisor of other participants in the offense. Gov't Sentencing

Ltr. 6-8 (Jan. 16, 2018), ECF No. 95. "[A] defendant may properly be considered a manager or

supervisor if he exercised some degree of control over others involved in the commission of the

offense or played a significant role in the decision to recruit or to supervise lower-level

participants." United States v. Birkin, 366 F.3d 95, 101-02 (2d Cir. 2004) (internal citation,

modification and quotation marks omitted) (quoting United States v. Blount, 291 F.3d 201, 217

(2d Cir. 2002)); see also United States v. Al-Sadawi, 432 F.3d 419, 426 (2d Cir. 2005)

("[E]vidence of a defendant's direct and immediate control over other participants provides

strong support for a role enhancement.").

The control exerted by a manager or supervisor must be of the operations of other

participants and in furtherance of the offense. Thus, a defendant was properly found to have

organized the activities of other participants in a cash-skimming scheme when he instructed the

participants how to shred incriminating documents, what days of the week were best for

skimming funds, which documents to alter, what to do with the cash, how much to skim, how to

make and modify a data-altering computer program, and how to keep those activities secret.

United States v. Leonard, 37 F.3d 32, 38 (2d Cir. 1994).

Under 18 U.S.C. § 3553(f) (the "safety valve" provision), the Court shall disregard the

mandatory minimum if:

(1) the defendant does not have more than 1 criminal history point, as determined
under the sentencing guidelines;

(2) the defendant did not use violence or credible threats of violence or possess a
firearm or other dangerous weapon (or induce another participant to do so) in
connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of others in
the offense, as determined under the sentencing guidelines and was not engaged
in a continuing criminal enterprise, as defined in section 408 of the Controlled
Substances Act; and

(5) not later than the time of the sentencing hearing, the defendant has truthfully
provided to the Government all information and evidence the defendant has
concerning the offense or offenses that were part of the same course of conduct or
of a common scheme or plan, but the fact that the defendant has no relevant or
useful other information to provide or that the Government is already aware of the
information shall not preclude a determination by the court that the defendant has
complied with this requirement.

18 U.S.C. § 3553(f). If a defendant meets all of these prerequisites, a court is required to

disregard a mandatory minimum. E.g., United States v. Jeffers, 329 F.3d 94, 100-01 (2d Cir.


As discussed below, the government does not contest that Mr. Said meets paragraphs (1)

through (3). The government does, however, contest whether Mr. Said meets paragraph (4).

There is ambiguity as to whether government or the defendant bears the burden of proof under

§ 3553(f)(4). The Second Circuit has framed the ambiguity as follows:

As a rule, a defendant bears the burden of proving that he has met all five safety
valve criteria to qualify for sentencing pursuant to 18 U.S.C. § 3553(f) rather than
a mandatory statutory minimum. On the other hand, § 3553(f) provides that the
safety-valve requirement that the defendant was not an organizer, leader, or
manager or supervisor, is determined under the sentencing guidelines. Under the
Guidelines, it is the government's burden to prove that a defendant qualifies for a
leadership role enhancement pursuant to U.S.S.G. § 3B1.1.

United States v. Holguin, 436 F.3d 111, 119 (2d Cir. 2006) (internal citation, quotation marks

and alteration marks omitted) (citing United States v. Tang, 214 F.3d 365, 371 (2d Cir.2000)).

The Holguin court declined to resolve the ambiguity. Because Congress has not "plainly and

unmistakably," United States v. Gradwell, 243 U.S. 476, 485 (1917), placed the burden on the

defendant to prove that he was not an organizer, leader, manager or supervisor, this Court should

resolve the ambiguity in favor of Mr. Said, see, e.g., United States v. Bass, 404 U.S. 336, 348

(1971), and conclude that the government bears the burden of proving Mr. Said's alleged

aggravating role. It should also be noted that, as the government concedes, the burden is already

on the government to prove that an upward adjustment applies to Mr. Said for an aggravating

role. Gov't Sentencing Ltr. 6; see United States v. Butler, 970 F.2d 1017, 1026 (2d Cir. 1992)

("In the context of sentencing, if the government seeks increased punishment, it has the burden

of proving that the circumstances warrant such an increase.").

As to the disclosure requirement in paragraph (5), "[t]he safety valve statute does not

specify the form, place, or manner of disclosure. A defendant may comply with the safety valve

without ever submitting to a debriefing, and we see no general obligation on the government's

part to grant a defendant a debriefing." United States v. Schreiber, 191 F. 3d 103, 108 (2d Cir.

1999) see Said Sentencing Mem. 17 (quoting Schreiber). In lieu of reading into the statute an

obligation on the government to meet with a defendant, the Schreiber court held that the

government's refusal to meet with a defendant for a safety-valve proffer "may weigh in favor of a

finding that a defendant's written proffer is complete." Schreiber, 191 F.3d at 108.

"In an offense involving an agreement to sell a controlled substance, the agreed-upon

quantity of the controlled substance shall be used to determine the offense level." U.S.S.G.

§ 2D1.1, comment. (n.5). "If . . . the defendant establishes that the defendant did not intend to

provide or was not reasonably capable of providing the agreed-upon quantity of the controlled

substance, the court shall exclude from the offense level determination the amount of controlled

substance that the defendant establishes that the defendant did not intend to provide or was not

reasonably capable of providing." Id.


I. Mr. Said Was Not an Organizer, Leader, Manager, or Supervisor of Others in the

The evidence establishes conclusively that Mr. Said neither personally controlled nor

recruited or supervised any other participant in the instant offense. This uncontested fact is fatal

to the government's argument in favor of a three-level role enhancement pursuant to U.S.S.G.

§ 3B1.1(b). It also establishes that Mr. Said has met 18 U.S.C. § 3553(f)(4).

Although the government correctly acknowledges that, "to qualify for the enhancement, a

defendant need only have managed or supervised one other participant in the criminal activity,"

Letter from AUSA Turner to the Court 1 (Jan. 30, 2018), the government has consistently

attempted to meet its burden by referring to the defendants' roles collectively, e.g., e.g., id. at 2

(emphasis added) ("Salamat and Habibullah are two examples of individuals managed or

supervised by the defendants in their roles as overseers of the heroin-importation scheme."; "the

defendants recruited and brought various other participants into the operation"). This is so even

when the Court has directed the government to proffer what it believes to be Mr. Said's personal

conduct that qualifies for the role enhancement. E.g., Conf. Tr. 5-6 (Jan. 31, 2018) (in response

to the Court's question about Mr. Said specifically, the government stated: "Mr. Said and Mr.

Lajaward were both overseeing the partnership."); Order, Jan. 30, 2018, ECF No. 103. Because

the government cannot identify a single person that Mr. Said organized, led, managed,

supervised or recruited, it cannot meet its burden.

On the other side of the balance, Mr. Said's testimony about his role is uncontested and

consistent with his own statements and with Mr. Lajaward's April 21, 2017, proffer, which the

government has repeatedly credited. Ltr. from gov't to the Court 2, July 11, 2018, ECF 126; Ltr.

from gov't to the Court 1-2, Jan. 30, 2018, ECF 105; Gov't Sentencing Ltr. 7-8 (citing, with

approval, Mr. Lajaward's proffer). At the Fatico hearing, Mr. Said testified that he was never

directly involved in Mr. Lajaward's heroin sales but agreed to receive a portion of the profits.

Hr'g Tr. (7/25/2018) at 47. Mr. Said further testified that he never led, organized, managed,

supervised, recruited a single participant in the offense, including Salamat or Habibullah. Hr'g

Tr. (3/13/2018) at 11-12; Hr'g Tr. (7/25/2018) at 53-55. In his March 2, 2018, affidavit, Mr. Said

stated categorically: "I have never – either directly or indirectly – led, organized, managed,

supervised or recruited anyone involved in this or any other drug transaction." Said Aff.

(3/2/2018) at 2, ECF No. 110. In his proffer with the government, Mr. Lajaward stated: "SAID

did not do any physical work in their partnership but they would share the profit or loss together.

KHAN stated that he would pay profits from the heroin dealings while SAID would pay profits

from his spare parts business." Gov't Sent. Ltr. Ex. A ("Lajaward Proffer") at 6.1

As explained further below, it is plain that Mr. Said's role was to negotiate with UC Omar

and "sell" him and Mr. Lajaward as big heroin suppliers. In this light, Mr. Said's recorded

promises to Omar that he would supervise the production of the heroin, GX 267-T at 28, 36,

were clearly puffing. Mr. Said credibly testified that he picked up the detail of stamping the top

of sealed packages of heroin by hearing others tell of that practice. Hr'g Tr. (7/25/2018) at 89.

Indeed, Mr. Lajaward told the government that "everybody in Afghanistan stamps their heroin."

Lajaward Proffer at 2.

II. Mr. Said Satisfied the Disclosure Requirement of the Safety Valve Statute

Mr. Said attempted to meet with the government to satisfy 18 U.S.C. § 3553(f)(5) and

expressed his eagerness to do so. The government refused to meet with Mr. Said for a safety-

valve proffer, citing its position that Mr. Said does not meet other requirements of § 3553(f). Ltr.

from Ezra Spilke to the Court, Jan. 17, 2017, Ex. A, ECF No. 96. Because of the government's

refusal, Mr. Said was compelled to swore an affidavit and submit it to the government. Id.

Although this disclosure alone satisfies the disclosure requirement, see Schreiber, 191 F.3d at

108, Mr. Said also testified at the Fatico hearing as to every aspect of his involvement in the

As to this final point about sharing profits, Mr. Said's testimony is corroborated by Mr.
Lajaward's proffer even in small details. Mr. Said testified on cross-examination that Mr.
Lajaward promised to pay him the profit from the three-kilogram sale, but had yet to give it to
Mr. Said. Hr'g Tr. (7/25/2018) at 75. This is consistent with what Mr. Lajaward told the
government. ("KHAN stated they would keep track and write down when sharing profits. . . .
KHAN stated that if he had his ledger with him he could tell whole account between him and

instant offense and accepted responsibility without hesitation. Accordingly, the Court should find

that Mr. Said has satisfied every requirement of 18 U.S.C. § 3553(f).

III. Mr. Said and Mr. Lajaward Did Not Intend to Provide and Were Not Reasonably
Capable of Providing More than 2.98 Kilograms of Heroin

Mr. Said's testimony conclusively establishes that he and Mr. Lajaward intended to

obtain payment for the profits from the three-kilogram sample and/or advanced payment for

some greater amount without supplying Omar with any further heroin. This was their "Plan A."

Supplying the additional promised heroin was Mr. Said and Mr. Lajaward's contingent plan, or

"Plan B." However, they were not reasonably capable of providing the quantity that they

promised to Omar.

Mr. Said is a used auto parts broker of humble means. E.g., Hr'g Tr. (7/25/2018) at 78-79

(testifying that he makes just enough in auto parts to pay for family expenses); Lajaward Proffer

at 3; Said Aff. (1/17/2018), ECF No. 96. When asked to describe his neighborhood in Jamrud,

Mr. Said testified that "[m]ostly lower income people" lived there. Hr'g Tr. (7/25/2018) at 45.

Mr. Said realized no profit from the sale of the three-kilogram sample and left his family

no money. Hr'g Tr. (7/25/2018) at 42-43. Mr. Said's six children, wife and ailing mother live off

the proceeds from selling the family home. Id. at 43-44. When asked how his family supports

itself, Mr. Said broke down crying. The interpreter had trouble understanding what Mr. Said was

saying through his sobs. Mr. Said could not compose himself for at least an entire minute. Id. at

42-43, 50.

Thus, when Omar dangled the prospect of hundreds of thousands of dollars, Mr. Said and

Mr. Lajaward were especially susceptible. Mr. Said testified that Mr. Lajaward had never before

introduced him to a potential heroin buyer. Id. at 48. But Mr. Lajaward made an exception in this

case. Mr. Said explained the reason:

Q. . . . How much money did you understand Omar would pay you and Mr.

A. As he promised, Omar said that he would pay 300 or $350,000.

Q. Was that amount a lot of money in comparison to the other heroin deals that
you knew about that you and Mr. Lajaward conducted?

A. Yeah, much more.

Id. at 48. Mr. Said testified that Mr. Lajaward figured that Mr. Said would be more convincing

than he would be as a world traveler and successful businessman: "I can sit with Omar and tell

him, brag to him, that I have a big business in Japan, in Hong Kong, in other places so he would

be better convinced to give us money." Id. at 48-49. Mr. Lajaward corroborated Mr. Said's

account. Lajaward Proffer at 3-4 ("KHAN stated that SAID was a good talker with Omar and he

could travel to Dubai and come back."). It also remained unchanged throughout his affidavits

and live testimony. E.g., Hr'g Tr. (3/13/2018) at 12 ("I just exaggerated, and I bragged, and I said

-- I introduced myself like a big dealer so he would trust us and he would give us the money.");

Said Aff. (3/2/2018) at 2, ECF No. 110 ("My overall intention in my discussions with UC Omar

was to deceive him into believing that Mr. Lajaward and I were important and experienced

international heroin distributors and producers. The representations that I made to UC Omar

were intended to cultivate that impression."); Said Aff. (1/17/2018) at 2 ("I also emphasized the

truth to imply that we were more important than we really were. That is why I mentioned

Singapore and Dubai. . . . [M]y understanding is that Lajaward viewed me as better at making a

convincing impression of an international business man.").

Mr. Said and Mr. Lajaward's intent was to deceive Omar about their capacity to supply

heroin, promise to supply him any amount he asked for, obtain advanced payment and disappear

into the Federally Administered Tribal Areas ("FATAs"). Hr'g Tr. (7/25/2018) 48, 50-51, 77-78,

80, 87; Lajaward Affidavit at 5-6, ECF No. 128; see Said Sentencing Submission at 10-11, ECF

No. 94. At the same time, they were attempting to collect their share of the profits from the

three-kilogram sample. Hr'g Tr. (7/25/2018) 50. "Plan B" was to provide Omar with 100

kilograms somehow. Id. at 50-51; Lajaward Proffer at 4.

There is serious reason to doubt that Mr. Said and Mr. Lajaward would have been able to

provide more than three kilograms at a time. First, as Mr. Lajaward convincingly illustrates in his

sentencing submission, "[t]he defendants were not, in fact, able to produce even a sample size of

heroin on short notice. They had over a month to produce and could not meet the deadline. In

addition, their dire financial circumstances ill-fit their puffed-up claim that they could be a big

time, regular source." Lajaward Sentencing Submission at 5, ECF No. 93; see id. at 3-5. Second,

Mr. Said clearly had no idea what he was talking about when he agreed to provide 100 kilograms

and Omar took advantage of his ignorance.

Nothing demonstrates this latter point better than Mr. Said's boastful promise that he and

Mr. Lajaward could provide 1,000 kilograms (one metric ton) of pure heroin within ten days. At

the January 28, 2015 meeting between Mr. Said and Omar in Dubai, the following exchange


Omar I said what is your capabilities?

Said That way, if you ask for a thousand too, we can make.

Omar You can make one thousand kilos?

Said That is not much.

Omar Now, God willing I got it. For example they say prepare one hundred for
us, can you do?

Said It can be prepared, for example tell him in ten days.

GX 253-T at 26-27.

Needless to say, this claim was not true. Hr'g Tr. (7/25/2018) at 54-55 ("Q. So was it true that

you could get a thousand kilograms of heroin within ten days? A. No."). But to place 1,000

kilograms of heroin in context, it should be noted that such a shipment would have amounted to

thirty to forty percent of the total amount of heroin seized in Afghanistan in a typical year.

UNODC, The Global Afghan Opium Trade: A Threat Assessment 31 & Table 8 (July 2011)

(hereinafter "UNODC").2 It was so ludicrous to promise 1,000 kilograms of heroin as if it were

nothing that Omar repeatedly brought Mr. Said back to a more a "realistic" amount. E.g., GX

253-T at 26-27; GX 267-T at 22-23.3 Nonetheless, even that amount was a fantasy given the

difficulty in producing even three kilograms of insufficient purity.

Some of Mr. Said's other boasts were similarly unrealistic. Mr. Said told Omar at the

April 2, 2015, meeting that $450,000 was tied up in China. Particularly, Mr. Said told Omar:

Said I purchase acid.


Omar How much, how much did you buy?

The United Nations Office on Drugs and Crime tracked annual heroin seizures in
Afghanistan from 2002 to 2009. The median annual quantity of heroin seized during that time
was 2,585 kilograms. The mean was 3,208.5 kilograms. Id.
In an echo of the prior meeting, Omar again brought Mr. Said back to earth at the April
2, 2015, meeting in Dubai by suggesting that 1,000 kilograms was fantastical and by saying that
100 kilograms would suffice:

Omar Can you do one hundred units, one hundred units?

Said We can do, we can do a thousand units too. There are one hundred kilos,
fifty kilos, say forty, say twenty, say two hundred however much you say,
is not a problem for us, you.

Omar One hundred unit is good Haji sir because it goes from here to there, we
spend this much, there has got to be some profit.

GX 267-T at 22-23.

Said Four hundred fifty thousand dollars.

Omar How much, do you buy by liter?

Said I give money to the company guy, now he has pulled six thousand liters
for me.

GX 267-T at 142-43. But this amount of money makes no sense. Between 2016 and 2017, the

price of "acid" – acetic anhydride, the main precursor chemical essential to the production of

heroin, UNODC at 9 – dropped from $1,090 to $636 per liter. Dr. David Mansfield, Bombing

Heroin Labs in Afghanistan: The Latest Act in the Theatre of Counternarcotics 12 (LSE

International Drug Policy Unit Jan. 2018). The lower amount that 6,000 liters would sell for was

thus $3,816,000, much higher than $450,000. It is also an astronomical amount of the chemical.

Six-thousand liters would produce between 4,000 and 6,000 kilograms of brown heroin. See

UNODC at 94 ("[F]or the purposes of this report it is assumed that producers use 1-1.5 litres of

acetic anhydride for every kilogram of Afghan heroin.").

Omar, a DEA agent, likely had at least an inkling of these fundamental prices and

chemical amounts. He certainly knew enough to know that Mr. Said was a fabulist and not a

serious drug supplier. This explains why he was so focused on the 100-kilogram quantity, a high

but not physically impossible amount. Mr. Said, knowing nothing of the heroin trade,

credulously agreed to that amount.

Because Mr. Said and Mr. Lajaward were not reasonably capable of providing 100

kilograms of heroin and intended to merely obtain whatever payment they could from Omar, the

amount for which Mr. Said and Mr. Lajaward should be held accountable is the size of the

sample. Although the parties have been referring to the sample as "the three-kilogram sample,"

that is merely a shorthand. The true weight of the sample was just under three kilograms, or 2.98

kilograms. See GX 603 (attached as Ex. A).

The Sentencing Commission provided an explicit example of the present scenario. The

Commission provided the following example:

a defendant agrees to sell 500 grams of cocaine, the transaction is completed by
the delivery of the controlled substance — actually 480 grams of cocaine, and no
further delivery is scheduled. In this example, the amount delivered more
accurately reflects the scale of the offense.

U.S.S.G. § 2D1.1, comment. (n.5). This compels the Court to find that the quantity of heroin

used to determine the base offense level is 2.98 kilograms, which corresponds to a base offense

level of 30.


The Court should find that a role enhancement under the guidelines does not apply to Mr.

Said, should disregard the statutory mandatory minimum pursuant to 18 U.S.C. § 3553(f), and

determine that the quantity of drugs at issue under § 2D1.1 is three kilograms of heroin.

Dated: Brooklyn, New York
August 3, 2018

Respectfully submitted,

/s Ezra Spilke
Ezra Spilke
Law Offices of Ezra Spilke
1825 Foster Avenue, Suite 1K
Brooklyn, New York
Tel: (646) 762-9713
Counsel for Amal Said