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Case 2:08-cr-20458-PDB-DAS Document 9 Filed 01/28/2010 Page 1 of 13

UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, CRIMINAL NO. 08-20458

-vs- HON. PAUL D. BORMAN


HON. DONALD A. SCHEER

D-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 SUPPORT


OF ITS REQUEST FOR DETENTION PENDING TRIAL

The United States of America, by Mark Jebson, Special Assistant United States

Attorney, hereby proffers the following information, pursuant to 18 U.S.C. § 3142 (f),1 in

support of its request that defendant be detained pending trial:

1. On December 3, 2008, defendant Mohammed Masfaka (Masfaka), was

indicted by a federal grand jury for False Statements to a Federal Agency (the FBI), in

violation of 18 U.S.C. § 1001(a), Attempted Naturalization Fraud, in violation of 18

U.S.C. § 1425(a), and Perjury During a Naturalization Proceeding, in violation of 18

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Although the government plans to submit a government witness at defendant’s
detention hearing, it will also present some evidence by proffer. Submitting evidence by
proffer is permitted by 18 U.S.C. §3142(f). It is also recognized by the courts as a
common 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 a
detention hearing by proffer or hearsay); United States v. Abuhamra, 389 F.3d 309, 321
n. 7 (2nd Cir. 2004) (“[F]ew detention hearings involve live testimony or cross
examination. Most proceed on proffers.”).

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U.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 $250,000

fine. 18 U.S.C. §§ 1015(a), 3571(b)(3).

2. The charges in the indictment relate to Masfaka’s attempt to conceal from

the government his involvement with the Holy Land Foundation for Relief and

Development (HLF) while the FBI was investigating the HLF for providing material

support to the terrorist group HAMAS.

3. If convicted, the government believes that defendant would be subject to a

terrorism 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 related

to international terrorism. The sentencing guideline range for this offense is 63 – 78

months 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 about

his 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 the

applicable 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
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The indictment referred to in this Proffer is the First Superseding Indictment.

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hundreds of human beings. On January 25, 1995, HAMAS was designated as a Specially

Designated 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 a

Foreign Terrorist Organization under section 219 of the Act. Designation of Foreign

Terrorist 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, tax

exempt, charitable organization designed primarily to assist needy individuals in the West

Bank and Gaza. In addition to its main office in Richardson, Texas, the HLF maintained

offices in other cities in the United States, including Detroit, Michigan. The HLF also

maintained offices outside the United States, including Jerusalem, the West Bank, and

Gaza. On December 4, 2001, the HLF was designated as a Specially Designated Global

Terrorist pursuant to Executive Order 13224 and as a Specially Designated Terrorist

under Executive Order 12947, because it provided millions of dollars of material and

logistical support to HAMAS (Exhibits 2 and 4). The HLF’s designation was

accompanied by an order blocking all of the organization’s assets.

6. Masfaka is a native and citizen of Syria, and a lawful permanent resident

of 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 States

immigration officials denied Masfaka entry into the United States because his lawful

permanent resident card (also known as a “green card”) expired due to his prolonged

absence from the United States. See 8 C.F.R. § 211.3 (Exhibit 5). Further, immigration

officials administratively arrested Masfaka on immigration charges and issued him a

Notice to Appear (NTA), ordering him to appear before an immigration judge to

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determine if he should be deported from the United States (Exhibit 6). ICE detained him

without bond (Exhibit 7). The NTA charges that Masfaka abandoned his legal permanent

residence in the United States and that he committed fraud while attempting to become a

United States citizen.

7. On January 22, 2010, the United States District Court for the Eastern District

of Michigan unsealed the superseding indictment against Masfaka and the United States

Immigration and Customs Enforcement (ICE) arrested Masfaka on the criminal arrest

warrant to appear before this Court (Exhibit 8). ICE has filed a detainer (hold) with the

U.S. Marshals Service (Exhibit 9). Accordingly, if Masfaka is released from U.S.

Marshals custody, he will be immediately returned to ICE custody. When Masfaka is

taken back into ICE custody the immigration court will not have jurisdiction to release

him because he is considered an “arriving alien” and therefore has not been legally

admitted to the United States. See 8 C.F.R. § 1003.19(h)(2)(i)(B); Matter of Oseiwusu,

22 I&N Dec. 19 (BIA 1998) (Exhibit 10). Masfaka could also be subject to

administrative terrorism charges as a result of his participation with the HLF (as

described below). See 8 U.S.C. § 1182(a)(3)(B)(iv).

8. Masfaka was employed by the HLF in 1997 and 1998 and served as the

Detroit HLF representative. In that capacity, he ran the HLF operations in the Detroit

area, to include organizing fund-raising events for the HLF. Masfaka was also a member

of a band named Al-Noujm, which played at numerous fund-raising events for the HLF.

Masfaka was at that time, and remains today, a famous signer who regularly travels

abroad to sing in musical engagements. For instance, Masfaka admitted on immigration

forms that from 1999 to 2002 he traveled to Morocco, Saudi Arabia, Qatar, Jordan,

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Swaziland, France, Germany, Holland and Bahrain (Exhibit 11). Furthermore, after

Masfaka left the United States in July 2008, he traveled to (according to his Syrian

passport) Jordan, the United Arab Emirates, Turkey, Qatar, Saudi Arabia, Lebanon,

Algeria, Kingdom of Bahrain, Kuwait, the United Kingdom, Egypt, Germany, Italy,

Australia and Canada (Exhibit 12). As mentioned above, Masfaka is a citizen and

national of Syria and is fluent in Arabic. Syria maintains an Embassy in Washington,

D.C. Thus, even if the Court were to seize Masfaka’s Syrian passport, U.S. immigration

officials believe he could obtain a new Syrian passport (or other suitable travel

document) within a few weeks. Further, according to U.S. immigration officials, some

foreign countries issue its nationals travel document on-the-spot to permit them to return

to their home country immediately. The United States does not currently have an

extradition treaty with Syria. Accordingly, Masfaka’s flight to Syria would completely

prevent this case from going forward against him.

9. The FBI began its criminal investigation of the HLF on December 10, 2001,

shortly after the federal government designated the HLF as a terrorist organization by

executive order. On September 27, 2002, Masfaka filed an application with U.S.

immigration officials to afford him the status of a United States citizen (Exhibit 11). As

alleged in the indictment, Masfaka omitted and failed to affirmatively disclose in his

naturalization application that he was employed by the HLF in 1997 and 1998 as its

Detroit representative, and that he sang at numerous fund-raising events for the HLF.

10. The FBI has video evidence of Masfaka praising HAMAS in songs he and

his band sang at HLF fundraisers. For instance, in one song Masfaka and a child sing a

duet where both praise HAMAS:

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Masfaka: “. . . is burned with the fire of humiliation the absement is


drawn and written on the coward’s forehead. O my son, with the knife
and the dagger and with your stones and the axe. In the name of God the
Most Great, smash these filthy ones. With the knife and the dagger and
with your stones and the axe. In the Name of God the Most Great, smash
these filthy ones. O my son, I do not want you to listen to some of the
people. O my son, I do not want you to listen to some of the people. O
my son, I do not want you to listen to some of the people. O my son, I do
not want you to listen to some of the people.”

Child: “O Father, do not advice me; what do I care what people say? Oh
Father, do not advise me; what do I care what people say? Give me a
knife and wait for the ceremonies. I am leaving; pray for me; HAMAS is
calling me. I am leaving; pray for me; HAMAS is calling me. I am
leaving; pray for me; HAMAS is calling me. I am leaving; pray for me;
HAMAS is calling me.” (Exhibit 13.)

In another video (the date, location and context currently unknown), which was

displayed on YouTube, Masfaka and a chorus of individuals praise HAMAS no less than

10 times. A sampling of the lyrics include:

“One thousand salutes, one thousand salutes to Palestine and the recruits
of HAMAS . . . For the disabled Sheikh, for the hero, the symbol of
strength and freedom, who ignited it, despite paralysis, a Koranic glory
revolution? One thousand salutes, one thousand salutes, one thousand
salutes, one thousand salutes for the recruits of HAMAS. . . . And the
outcry of your tears, the free sacrifice for you as well as our blood and
heart, one thousand salutes, one thousand salutes, one thousand salutes for
the recruits of HAMAS.” (Exhibit 14.)

11. On September 3, 2003, as part of its criminal investigation of the HLF’s

connection to HAMAS, the FBI interviewed Masfaka about his relationship with the

HLF. As alleged in the indictment, although Masfaka admitted that he was previously

employed by the HLF, he lied and attempted to mislead the FBI by stating that his

employment was solely as a singer in a band that performed in fundraising events for the

HLF. Masfaka also falsely told FBI agents that he never received payment directly from

the HLF.

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12. The government has in its possession a multitude of physical evidence

(obtained from search warrants in the main HLF case that was prosecuted in the Northern

District of Texas) that reveal the true nature of Masfaka’s relationship with the HLF.

This evidence includes: (1) numerous HLF payroll checks issued to Masfaka in 1997 and

1998, which he cashed, establishing he was an employee of the HLF, (2) HLF satellite

office list stating that Masfaka is the Detroit representative, (3) Minutes from a HLF

meeting, attended by Masfaka, where Masfaka is identified as the Detroit HLF

representative, (4) IRS Form 1099 for 1997 and 1998 issued to Masfaka for his work for

the HLF, (5) HLF cash disbursement journals for 1997 and 1998 stating that the HLF

paid Masfaka as an employee during that time period, and (6) a document prepared by the

HLF setting forth the potential liability for hiring Masfaka without immigration work

authorization.

13. On January 30, 2004, Masfaka continued his lies and deception about his

relationship with the HLF when immigration officials interviewed him while processing

his naturalization application. As alleged in the indictment, during the naturalization

interview, Masfaka once again omitted and failed to affirmatively disclose his

employment with the HLF. Masfaka also falsely stated that his only association (not

employment) with the HLF was limited to playing in a band that performed for the HLF.

The government has a videotape recording of this interview. U.S. immigration officials

denied Masfaka’s naturalization application on December 23, 2009, because, among

other things, he lied about his relationship with the HLF (Exhibit 15).

14. On July 26, 2004, a federal grand jury in Dallas, Texas, indicted the HLF

and seven of its employees charging the defendants with, among other things, conspiracy

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to provide material support to a designated foreign terrorist organization (HAMAS),

providing material support to a foreign terrorist organization (HAMAS), conspiracy to

provide funds, goods and services to a Specially Designated Terrorist (HAMAS), and

providing funds, goods and services to a Specially Designated Terrorist (HAMAS). One

of the HLF defendants was Mufid Abdulqader, an individual who played at HLF

fundraising events with Masfaka. Musfaka admitted to the FBI that he knew that

Abdulqader was the brother of HAMAS leader Khalid Mishal.

15. On July 9, 2008, before the HLF criminal trial, the FBI approached

Masfaka and advised him that the FBI wanted to once again discuss with him his

activities with the HLF and requested that he participate in an interview. The FBI

explained to him that he had criminal exposure given his past lies to them about his

relationship to the HLF. Masfaka told the FBI that he was traveling to the Middle East,

but would return for an interview with the FBI, immigration officials and federal

prosecutors in August 2008. According to the Department of Homeland Security’s

Arrival Departure Information System (ADIS), Masfaka left the United States on

business or pleasure on July 9, 2008. Despite Masfaka’s promise to the FBI, he did not

return in August 2008. Rather, he remained outside the United States until January 21,

2010, allowing his legal permanent residence card (“green card”) to expire, subjecting

him to removal (deportation) proceedings. Moreover, when immigration officials

arrested him at the border on January 21, 2010, he told them that he remained outside the

United States since July 2008 because he was “threatened by the FBI” (Exhibit 16). In

other words, he remained outside the United States to avoid criminal prosecution. He

presumably only returned when he thought enough time had passed and the criminal

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prosecution was not likely. U.S. immigration officials denied his naturalization

application on December 23, 2009 (Exhibit 15). Masfaka likely thought that denying his

naturalization application was the chosen enforcement tool of the U.S. government

(rather than charging him with a crime) because it was only after the immigration

officials denied Masfaka’s naturalization application that he decided to try to return to

this country.

16. On November 24, 2008, the jury in the HLF trial convicted the HLF and

five of its employees on all counts (two charged employees remain international

fugitives). This included 21 counts relating to providing material support to a designated

terrorist organization, namely HAMAS. On May 27, 2009, the U.S. District Judge, in

addition to a criminal forfeiture money judgment of $12.4 million, imposed prison

sentences on the HLF defendants ranging from 15 to 65 years imprisonment (Exhibit 17).

Mufid Abdelqader, who played with Masfaka at HLF fundraising events, was sentenced

to 20 years imprisonment .

17. After the HLF defendants were convicted, Masfaka’s attorney telephoned

the federal prosecutor assigned to his case and requested an assurance that the federal

government was no longer interested in Masfaka given the HLF defendants were

convicted in the HLF trial. The assigned prosecutor refused to give such assurance.

After this, Masfaka absented himself from the United States for approximately another

year despite the fact that his wife and five children reside in Farmington Hills, Michigan.

In fact, instead of returning to his family in Farmington Hills, Masfaka moved to

Windsor, Canada, just across the river from Detroit to avoid criminal prosecution. In

Windsor, he rented an apartment and was given a job offer by an Islamic School in

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Windsor. Moreover, Masfaka’s wife Batoul Qaweqji and their children frequently

traveled from the family home in Farmington Hills to Winsdor to visit Masfaka.

Canadian immigration authorities confirmed that Masfaka entered Canada on three

occasions since he departed the United States on July 9, 2008: (1) entered Canada via

Montreal on June 19, 2009; (2) entered Canada via Toronto on July 18, 2009; and (3)

entered Canada via Toronto on October 1, 2009. U.S. immigration officials have

determined that Masfaka’s wife crossed from Windsor, Canada into the United States

(presumably after visiting Masfaka) on at least 16 occasions since Masfaka first entered

Canada on June 19, 2009:

1. June 26, 2009

2. July 23, 2009

3. July 27, 2009

4. August 1, 2009

5. October 4, 2009

6. October 11, 2009

7. October 18, 2009

8. October 25, 2009

9. November 1, 2009

10. November 8, 2009

11. November 22, 2009

12. November 28, 2009

13. December 6, 2009

14. January 3, 2010

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15. January 17, 2010

16. January 21, 2010

According to Canadian Immigration officials, when Masfaka’s wife applied for

admission to Canada at the Ambassador Bridge on December 6, 2009, Canadian

immigration officials asked her about Masfaka. Masfaka’s wife became avoidant and

told the immigration officials that her husband (Masfaka) does not allow her to tell

people where he is. She then lied to Canadian immigration officials and told them that

Masfaka was in the United States. Canadian immigration officials denied Masfaka’s wife

entry into Canada and returned her to the United States. Masfaka’s wife told Canadian

immigration officials the same lie on December 19, 2009 (that her husband was at home

in Farmington Hills, Michigan) when she entered Canada at Windsor with her five

children.

18. Further evidence that Masfaka has stayed outside of the United States to

avoid prosecution is the fact that he applied with U.S. Immigration officials on three

separate occasions to obtain a replacement legal permanent residence card through a third

party in Windsor, Canada and failed to appear to process the application in the United

States. On each occasion, U.S. immigration officials made an appointment for Masfaka

to appear in Detroit and process his application (November 6, 2009, December 1, 2009,

and December 24, 2009), which he failed to appear for. The government believes that

Masfaka may have made these appointments in an attempt to determine if the United

States had charged him with a crime. It was only after the U.S. immigration officials

denied his naturalization application on December 23, 2009 (and mailed him a copy of

the decision the same day) that he attempted to return to this country. Presumably, he

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believed he avoided criminal prosecution because he was under the mistaken belief that

United States law enforcement officials decided to refuse him citizenship instead of

charging him with a crime.

Relief Requested

Based upon Masfaka’s substantial and extended travel abroad, his willingness and

desire to stay abroad for the admitted purpose of avoiding criminal prosecution (even to

the point of allowing his U.S. lawful permanent resident card to expire), his ability to

live and work abroad, the substantial amount of prison time he faces given the possible

12 level sentencing terrorism enhancement (63 – 78 months imprisonment), and his likely

ability to obtain a replacement Syrian passport or other travel document to travel abroad,

there is no condition or combination of conditions that will reasonably assure the

appearance of Masfaka, as required. It is therefore respectfully requested that the Court

order the detention of Masfaka pending trial pursuant to the Bail Reform Act.

Respectfully submitted,

BARBARA L. McQUADE
United States Attorney

________________________________
MARK JEBSON (P53457)
Special Assistant United States Attorney
211 W. Fort St., Ste. 2001
Detroit, MI 48226
(313) 568-6033

Dated: January 28, 2010

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CERTIFICATE OF SERVICE

I hereby certify that on January 28, 2010, I electronically filed the foregoing document
with the Clerk of the Court using ECF System which will cause a copy of this filing to be
automatically e-mailed to:

Doraid Elder, Esq.


13530 Michigan Ave.
Suite 322A
Dearborn, MI 48126

s/Mark J. Jebson___________
MARK J. JEBSON (P53457)
Special Assistant U.S. Attorney
211 W. Fort, Suite 2001
Detroit, MI 48226
(313) 568-6033
mark.jebson@dhs.gov

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