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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION UNITED STATES OF AMERICA Plaintiff, V. AHMED MUHAMMED DHAKANE Defendant. § § § § § § § § §

SA-10-CR-194-XR

AHMED DHAKANE’S SENTENCING MEMORANDUM TO THE HONORABLE XAVIER RODRIGUEZ, DISTRICT JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS: I. Ahmed Dhakane in Somalia. Ahmed Dhakane was born in Mogadishu, Somalia, in December 1985. By the time he was six years old, Somalia had ceased to exist as a functioning country. In place of a government, there was brutal fighting between groups of clan-based warlords. The United Nations and the United States intervened. The fighting, killing, and disorder continued. The United States left. From 1991 to 2004, the time that Dhakane was growing from a boy to a young man, Somalia lacked any semblance of a functioning government. Since 2004, there has been a nominal national government, a government aided for the last four years by peacekeeping forces belonging to the African Union Mission in Somalia, but the government’s hold on the country remains tenuous and the situation for the people has grown grimmer. According to the United Nations High Commissioner for Refugees “[t]he violence in south and central Somalia and the ensuing humanitarian crisis there show no signs of abating. In Mogadishu, fighting, terrorist attacks and indiscriminate shelling are causing death and destruction,

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forcing hundreds of thousands of people to flee the city.” 1 According to Refugees International, “Somalia is the world’s worst humanitarian disaster.” 2 Nearly 700,000 Somalis have become refugees. Another 1.5 million Somalis have been uprooted and are classified as internally displaced persons.3 At the end of 2009, Somalis constituted the third largest refugee group in the world, behind Iraqis and Afghanis.4 This is the world Ahmed Dhakane grew up in and eventually fled from. He and his family did what people in war-torn regions have always done—they tried to survive. Dhakane's father did not fare well. He had been an officer in the Somali military before the collapse and, deprived of rank and purpose, he sank into despair and drug abuse. He stayed steadfast, however, in his belief in secular rule for Somalia. For that, an Islamic court ordered him executed in 2006. (P.R. 25.) Dhakane's mother did what she could to make money. She sold Khat, a mild stimulant derived from a plant, and eventually fled Mogadishu. Dhakane believes that she is living in the Afgooye region, (P.R. 25), where several hundred thousand Somalis constitute the world’s largest encampment of internally displaced persons in the world.5

1. 2011 UNHCR country operations profile—Somalia, http://www.unhcr.org/pages/ 49e483ad6.html#. 2. Refugees International, Somalia, http://www.refugeesinternational.org/where-we-work/ africa/somalia. 3. See 2011 UNHCR country operations profile—Somalia, http://www.unhcr.org/pages/ 49e483ad6.html#. 4. See ^ “2009 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons.” UNHCR. 15 June 2010. http://www.unhcr.org/4c11f0be9.html. Retrieved 5 August 2010. 5. See Refugees International, Somalia, http://www.refugeesinternational.org/where-we-work/ africa/somalia. 2

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Dhakane, as a teenager and young man, did what was necessary to survive Somalia’s fraught fragments. He found an entry level job with one of the country’s largest employers, al-Barakaat. The collapse of the Somali government had left the country without a central bank. That banks had disappeared did not mean that people’s need for money and foreign exchange had. Nor did it mean that refugees and expatriates fortunate enough to have reached safety in other countries had forgotten their families or ceased to send remittances home to try to keep them alive. It meant only that people had to improvise, and rely on another system. The system they turned to was al-Barakaat, an honorsystem-based money remittance business founded in 1986 and run on centuries-old principles derived from Islamic law.6 The United Nations used al-Barakaat to transmit money in support of its relief operations there.7 As the 9/11 commission found, al-Barakaat provided necessary services, and although in the early fervor of the post-9/11 period it had been denounced as a terrorist organization, the 9/11 commission staff found that label unsubstantiated. Id.8 Dhakane began his employment with al-Barakaat in 1998, pushing a broom. The young man was an honest and diligent employee, whose hard work and trustworthiness earned him promotions. Dhakane eventually became a Hawalandar, one of the persons in the company who handled

6. See, e.g., http://en.wikipedia.org/wiki/Hawala; http://en.wikipedia.org/wiki/Al-Barakaat; http://en.wikipedia.org/wiki/Economy_of_Somalia#Finance. 7. Terrorist Financing Monograph, Chapter 5, al-Barakaat Case Study, the Somali Community a n d a l - B a r a k a a t , a v a i l a b l e a t http://www.9-11commission.gov/staff_statements/911_TerrFin_Ch5.pdf. 8. The 9/11 Commission’s staff report is particularly significant. The Commission was a neutral, high-level effort to look at the events leading up to and of September 11, 2001. The Commission was not “engaged in the often competitive enterprise of ferretting out crime.” Johnson v. United States, 333 U.S. 10, 14 (1948) 3

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remittances and transactions for the business.9 The young man also began to study and, in 2002, he converted to Christianity. (P.R. 28.) Dhakane’s conversion deeply affected his life. Somalia's dissolution had many elements. Although many, if not most, of the warlords, were clan leaders interested in resources and power for their groups,10 some of the groups contending in the broken nation were Islamists. One of those groups was AIAI,11 which sought in the 1990 s to bring an Islamic state to Somalia, and agitated for the return of the Ogaden region of Ethiopia to Somali control. AIAI also provided educational and social services, such as orphanages.12 AIAI’s influence peaked in late 1990 s; after that, different members of the group focused on different agendas. Id. (citing U.S. Department of State report that by 2005, evidence that AIAI was a coherent entity was sparse and there was “no information” indicating the group supported attacks against the U.S. or its interests). Through his job at al-Barakaat , Dhakane knew people who were associated with AIAI. They struck him as strong individuals. (P.R. 29.) In fact, Dhakane learned the power of the Islamists first hand—he was arrested in late 2002, imprisoned, and mistreated because of his Christian religion. See (P.R. 27). Dhakane obtained his release by pretending to abjure his religion, but he knew that his safety was increasingly tenuous. Young, hard-working, and tired of dodging dangers and trying

9. In his sentencing memorandum, the prosecutor writes that Dhakane “served as a hawaladar, or transferor of funds outside the normal banking system” for al-Barakaat. Gov’t Memo at 3. There was no normal banking system in Somalia. The Somalia central bank failed in 1991 and was not reestablished until 2009. http://en.wikipedia.org/wiki/Economy_of_Somalia#Finance; http://www.mareeg.com/fidsan.php?sid=14925&tirsan=3. 10. http://en.wikipedia.org/wiki/Somalia#Somali_Civil_War, 11. References to AIAI connote Al-ittihad Al-Islami. 12. See The Investigative Project on Terrorism, http://www.investigativeproject.org/profile/145. 4

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to placate those who held temporary, but fierce, sway over the lives of persons like him, he wanted out of Somalia. In 2003, Dhakane left Somalia and never returned. He went first to study in Pakistan, at the Quaid-E-Awam University of Engineering Science and Technology.13 He later studied and worked for a time in Maylasia. (P.R. 28.) By March 2006, Dhakane had made his way to Brazil. In June 2006, the Islamic Courts Union (ICU) gained control of Mogadishu. While some AIAI members had made their way into the ICU this was an indication of “leadership regrouping” rather than “a continuation of the Ittihad organization,” which, by that time, had become “largely defunct.” 14 The ICU’s rule was short-lived; Ethiopian forces entered Somalia and drove it from power in December 2006.15 After the Ethiopian incursion, a strong anti-Ethiopian resistence movement emerged led by Al-Shabaab. Id.. While “[m]any Somalis joined [Al-Shabaab] in the fight against the Ethiopian forces . . . . [s]ome of these volunteers did not know or had only limited knowledge of the intent and objectives of Al-Shabaab.” Id. “Al-Shabaab was not active and did not control any territory in Somalia until 2007-2008.” Id. By the time that the ICU gained and lost control of Mogadishu, and Al-Shabaab emerged as a resistance force in Somalia, Dhakane had already been long gone from Somalia. After making his way to South America in March of 2006, he eventually traveled through Central America to the

13. By the end of 2003, the year Dhakane left for college, 402,000 people had left Somalia as refugees. See 2003 UNCHR 2003 Statistical Yearbook—Somalia, http://www.unhcr.org/41d2c19cc.html2. 14. See Somalia’s al-Ittihad al-Islami (AIAI; Islamic Union), at 3, available at http://www.ctc. usma.edu/aq/pdf/AIAI.pdf. 15. See Ted Dagne, Somalia: Current Conditions and Prospects for a Lasting Peace, December 16, 2010, available at http://www.fas.org/sgp/crs/row/RL33911.pdf. 5

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United States border at Brownsville, Texas. There, on March 28, 2008, he and his companion, L.O.A., presented themselves to U.S. Border Patrol agents and requested asylum, explaining that they feared persecution in Somalia. Dhakane filed an asylum application. On that application, he answered some questions untruthfully. That was wrong, and for that wrong he stands before the Court for sentencing. Dhakane also, in the course of his detention, made statements and claims that he hoped would keep him in the United States and out of Somalia. A desire to stay in the United States and away from Somalia, the country that had introduced him figuratively and literally to persons associated with Islamic factions and their vision for his home country—a vision incompatible with his Christianity—is what led Dhakane to make false declarations and later to claim to have important knowledge of Islamic groups. Contrary to the Government's speculations and its unsupported guideline calculations, false declarations, not puffery and speculation, are what Dhakane should be sentenced for. II. The Law and the Evidence Support Sentencing Dhakane for His False Statement Offenses, Not for Speculative “Terrorism” Offenses. Dhakane pleaded guilty to two counts of making a false statement on an asylum application. He admitted that he had falsely stated his route of travel to the United States and that he had falsely stated that he was married to L.O.A. The correctly calculated guideline range for those offenses is 8 to 14 months’ imprisonment. See Dhakane Objections to Presentence Report. The Government, in its sentencing memorandum, seeks to have Dhakane sentenced not for the proved false statements on the asylum application, but for unsubstantiated claims of terrorism and rape it lodges against Dhakane. The Government’s memorandum, filed before the presentence report appears to have heavily influenced the report. The report recommends the adjustments the Government urges in its memorandum, in terms very similar to those used in the Government’s 6

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memorandum. Compare Gov’t Memo. 8–16 with Presentence Report 22–24.16 The problem is that the adjustments are legally incorrect and factually unsupported. The application of the terrorism adjustment, alone, propels Mr. Dhakane’s guideline range from a sentence within the time he has already served to a range in excess of the statutory maximum. See P.R. at 30 (proposing guideline sentence range of 324 to 405 months’ imprisonment). The adjustment does not, however, fit the facts of the case—neither of the two circumstances in which the adjustment is triggered exists in this case. Nor is a sentence of the length sought by the Government warranted on suppositions about what may have occurred in other countries at other times. The Government’s assertions are based on speculation and on questionable sources, persons who had a strong motive to tell the government what they believed the government wanted to hear, in order to improve their chances of getting asylum. The desire to remain in this country is understandable; sentencing a defendant on the basis of questionable and unreliable evidence is not. It is within this context that the credibility of the Government’s allegations must be assessed, and it is against this backdrop that Dhakane’s culpability for making false declarations must be evaluated. A. The Terrorism Adjustment Does Not Apply.

The Government requests application of the “terrorism adjustment” in guideline §3A1.4(a). The Court should reject this request. In order for the terrorism adjustment to apply the Government must show either that Dhakane’s offense “involved” a federal crime of terrorism or that the offense

16. Because the presentence report makes the adjustment in the order in which they appear in the manual, the terrorism adjustment subsumes the victim-related adjustments and the report recommends a total offense level of 36. The Government erroneously added the victim-related adjustments on top of the terrorism adjustment, and thus ran the total offense level to 41. 7

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was “intended to promote” such a crime. U.S.S.G §3A1.4(a); see also United States v. Awan, 607 F.3d 306, 313 (2d Cir. 2010) (noting requirements of guideline). It can show neither. Nor can the Government force the facts of this case into a “terrorism” variance. 1. The Government cannot meet the requirements of §3A1.4.

An offense “involves” a crime of terrorism only if it “actually includes. . . a crime of terrorism as defined in 18 U.S.C. § 2332b(g)(5),” or if its relevant conduct includes such a crime. Awan, 607 F.3d at 313–14; see also United States v. Stewart, 590 F.3d 93, 138 (2d Cir. 2009) (enhancement applicable under “involved” prong only if defendant himself had committed a federal crime of terrorism). The Government does not attempt to argue that Dhakane’s false-statement offenses involved or their relevant conduct involved the commission of a federal crime of terrorism.17 See Gov’t Memo. 9 (proceeding straight to intent-to-promote prong). 17. A “federal crime of terrorism” is defined in 18 U.S.C. § 2332b, as “an offense that— (A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and (B) is a violation of— (I) section 32 (relating to destruction of aircraft or aircraft facilities), 37 (relating to violence at international airports), 81 (relating to arson within special maritime and territorial jurisdiction), 175 or 175b (relating to biological weapons), 229 (relating to chemical weapons), subsection (a), (b), (c), or (d) of section 351 (relating to congressional, cabinet, and Supreme Court assassination and kidnaping), 831 (relating to nuclear materials), 842(m) or (n) (relating to plastic explosives), 844(f)(2) or (3) (relating to arson and bombing of Government property risking or causing death), 844(I) (relating to arson and bombing of property used in interstate commerce), 930(c) (relating to killing or attempted killing during an attack on a Federal facility with a dangerous weapon), 956(a)(1) (relating to conspiracy to murder, kidnap, or maim persons abroad), 1030(a)(1) (relating to protection (continued...) 8

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The Government bears the burden of proving that the terrorism adjustment is warranted. United States v. Rabanal, 508 F.3d 741 (5th Cir. 2007) (party seeking adjustment to sentence level bears burden). To justify the application of the “intended to promote” prong of §3A1.4, the

17. (...continued) of computers), 1030(a)(5)(A)(I) resulting in damage as defined in 1030(a)(5)(B)(ii) through (v) (relating to protection of computers), 1114 (relating to killing or attempted killing of officers and employees of the United States), 1116 (relating to murder or manslaughter of foreign officials, official guests, or internationally protected persons), 1203 (relating to hostage taking), 1362 (relating to destruction of communication lines, stations, or systems), 1363 (relating to injury to buildings or property within special maritime and territorial jurisdiction of the United States), 1366(a) (relating to destruction of an energy facility), 1751(a), (b), (c), or (d) (relating to Presidential and Presidential staff assassination and kidnaping), 1992 (relating to wrecking trains), 1993 (relating to terrorist attacks and other acts of violence against mass transportation systems), 2155 (relating to destruction of national defense materials, premises, or utilities), 2280 (relating to violence against maritime navigation), 2281 (relating to violence against maritime fixed platforms), 2332 (relating to certain homicides and other violence against United States nationals occurring outside of the United States), 2332a (relating to use of weapons of mass destruction), 2332b (relating to acts of terrorism transcending national boundaries), 2339 (relating to harboring terrorists), 2339A (relating to providing material support to terrorists), 2339B (relating to providing material support to terrorist organizations), or 2340A (relating to torture) of this title; (ii) section 236 (relating to sabotage of nuclear facilities or fuel) of the Atomic Energy Act of 1954 (42 U.S.C. 2284); or (iii) section 46502 (relating to aircraft piracy), the second sentence of section 46504 (relating to assault on a flight crew with a dangerous weapon), section 46505(b)(3) or (c) (relating to explosive or incendiary devices, or endangerment of human life by means of weapons, on aircraft), section 46506 if homicide or attempted homicide is involved (relating to application of certain criminal laws to acts on aircraft), or section 60123 (b) (relating to destruction of interstate gas or hazardous liquid pipeline facility) of title 49.” 9

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Government must show that the Dhakane had “as one purpose of his substantive count of conviction or his relevant conduct the intent to promote a federal crime of terrorism.” United States v. Graham, 275 F.3d 490, 516 (6th Cir. 2001); see also United States v. Mandhai, 375 F.3d 1243, 1248 (11th Cir. 2004) (the “promote” language in §3A1.4 enhancement applies “if [the defendant's] purpose is to promote a terrorism crime”); United States v. Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005) (“[T]errorism enhancement is applicable . . . where the district court finds that the purpose or intent of the defendant's substantive offense of conviction or relevant conduct was to promote a federal crime of terrorism as defined by § 2332b(g)(5)(B).”). The Government fails to do so. The Government acknowledges, as it must, that Dhakane committed his false statement offenses in an effort to obtain asylum in this country. Gov’t Memo. 10. It nonetheless asks the Court to conclude that Dhakane committed his offenses with the requisite intent to promote a crime of terrorism. However, the Government not only fails to identify a specific crime of terrorism that Dhakane’s offense was intended to promote, it appears to agree that Dhakane knew of no particular plans on the part of any individual to commit such crime: it offers only the speculation that if a series of ifs happened, then something else might happen. Gov’t Memo. 10–11. This cannot satisfy its burden of showing an actual crime that the false statements were intended to promote or an actual investigation that was affected. Indeed, the Government admitted when this case was brought that “there was no apparent terrorist plot identified” found during the two-year (2008 to 2010) investigation of Dhakane’s case. See San Antonio Express News, Somali Man Accused of Smuggling Ea s t Af r i cans t hr ough T exas , M arch 6, 2010, Gui l l erm o C ont reras ,

http://www.mysanantonio.com/default/article/Somali-man-accused-of-smuggling-East-Africans793518.php. Nothing in its sentencing memorandum shows that any terrorism crime to promote has

10

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been found since the indictment was returned. The failure to identify a particular crime of terrorism that the false statements were intended to promote renders the Government’s position legally untenable. See See Graham, 275 F.3d at 517 (in applying terrorism adjustment, the district court is required to “identify which enumerated ‘Federal crime of terrorism’ the defendant intended to promote, and ensure that the elements of § 2332b(g)(5)(A) are satisfied) 18; also see United States v. Benkahla, 530 F.3d 300, 305 (4th Cir. 2008) (applying §3A1.4 where defendant’s false statements to grand jury actually obstructed investigation of offenses). In lieu of identifying a specific crime of terrorism that Dhakane’s false statement offenses were intended to promote, the Government suggests that the terrorism adjustment might be justified on a theory that “law enforcement authorities are constantly trying to investigate, detect, and prevent the infiltration of potentially violent jihadists, [thus] the Defendant’s lies hid critical information from the United States authorities regarding his successful smuggling activities[.]” Gov’t Memo. 11. The most critical problem with this theory is that the Government fails to identify an actual investigation that Dhakane’s false statements might have intended to obstruct. Applying a huge guideline increase on a theory that the Government is always looking even when it doesn’t know it is looking or for what it is looking, offends notions of fairness and allows sentencing based on posthoc speculation and rationalization.

18. The Government appears to believe that Graham is helpful to it, though it does not explain why. Gov’t Memo. 9–10. In Graham, the court found the adjustment applicable to defendant’s § 371 conspiracy offense based on the conclusion that Graham and his co-conspirators had conspired to obtain machine guns, to murder federal officers, to influence and intimidate federal officers in the performance of their duties, and to attack property in interstate commerce. Dhakane was not charged with conspiracy. Nor has the Government shown any uncharged conspiracy. The Government merely offers a speculative chain of what ifs that have nothing to do with the object of Dhakane’s substantive false-statement offenses. 11

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A second problem with the Government’s theory is that it simply does not make sense. Why would Dhakane have walked up to the port of entry and turned himself in as an asylum seeker if his goal were to conceal the presence in the United States of the men he supposedly helped get here? Surely, that goal would have been best accomplished if Dhakane had remained in Central or South America. And it would have been better accomplished if Dhakane, rather than walking up to immigration officials, had himself sneaked into the United States at a place other than a checkpoint, something many other people do. The Government’s theory is illogical; illogical theories cannot provide a reliable basis on which to make a sentence adjustment.19 A third second problem with the Government’s theory is that the questions that Dhakane answered falsely had nothing to do with his alleged smuggling activities and thus could not have been intended to obstruct discovery of the activities—even if the Government could show, which it cannot, that the smuggling was intended to promote a crime of terrorism.20 A fourth problem with the Government’s theory is that it has simply found no terrorism-related activity to prosecute: the case agent’s report recommended an indictment for false statements with no mention of even a possible terrorism prosecution. Three years after Dhakane turned himself in, the Government can point to no terrorism-related plot. There isn’t one, and there never was. The Government can only speculate that maybe the Somalis whom Dhakane supposedly helped get to the United States might still be AIAI members who, if called upon, might answer, and who, if they answered, might be

19. It makes far more sense that Dhakane walked up to the immigration agents to seek asylum and respite from the hardships he had known for most of his life, hardships that had increased when he decided to become a Christian in 2002. 20. It seems more likely that, like the nearly 700,000 Somalians who have become refugees, the men who have supposedly come to the United States came to get away from the horror and constant fear of the twenty-year conflict in their homeland. 12

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persuaded to do some unspecified something. Gov’t Memo. 10–11. This speculation does not show a crime of terrorism—an offense calculated to influence, affect, or retaliate against the government by specific acts listed in 2332b. It shows the adjustment the Government seeks is not warranted. The Court should therefore reject the Government’s attempt to use the guidelines to accuse Dhakane of something that neither investigators nor prosecutors were willing to ask the grand jury to do, even under the minimal probable cause standard that applies to Government requests to the grand jury.21 2. The Government overstates the evidence.

The Government’s 240-month sentence request rests on misunderstandings of the facts. Because of these distortions, the Government’s arguments lack force. The Court should therefore reject not only the Government’s request to apply the terrorism adjustment, but its request for an upward variance on “terrorism” grounds under the sentencing factors in 18 U.S.C. § 3553(a). Gov’t Memo. 11–12. a. Dhakane’s al-Barakaat employment. Dhakane explained in his statements to the Government that he worked for al-Barakaat, a money-remittance company in Somalia. The

21. If the Government’s assertions as to Dhakane’s purported smuggling of the men were accurate, they would, at most, support a finding that Dhakane may have acted recklessly or negligently about whether his conduct contributed to an inchoate, or more accurately theoretical, threat. This would be insufficient to support a finding that Dhakane intended to promote such a crime by his actions. It is instructive that the sentencing guideline that applies in an alien smuggling case, §2L1.1, does not contain a cross-reference to the terrorism adjustment even when the defendant knowingly smuggles in an individual who would be deemed inadmissible due to his association with terrorist groups. Instead, there is a specific adjustment that calls for a base offense level of 25 when the smuggled alien has terrorist ties. See U.S.S.G. §2L1.1(a)(1). With a base offense level of 25, Dhakane’s calculated range would be 57 to 71 months imprisonment, below the sentence requested by the Government. 13

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Government has attempted to build a damning case against Dhakane based, in part, on his connection to that enterprise. It claims that al-Barakaat was outside “normal” channels. Gov’t Memo. 3. This claim is simply wrong. After Somalia’s banking system collapsed, al-Barakaat was the normal channel. It was an economic engine and a large employer of Somalis. It was the channel used by the United Nations. See nn. 6–9, supra. The idea that working for al-Barakaat was evidence of terrorism is insupportable. There is no reason to believe that a person, by virtue of his mere employment at alBarakaat, was involved in unlawful activities. To automatically assign terroristic motives to an employee of al-Barakaat would be like concluding that an employee of the Bank of America was a drug dealer because someone later found to be a drug dealer had opened and used an account at the bank. The weakness of the Government’s al-Barakaat claims is further shown by its statement that “[a]fter 9/11, the Defendant stated that the Somalis structured their money transfers to be $3,500 or less to avoid detection by the US government.” Gov’t Memo. 3. That Dhakane noted a change after the U.S. came out against al-Barakaat shows that he, as an employee, made an observation, not that he was a terrorist. His observation suggests only that the United States’s suspicions made the Somali people understandably wary. In a “Terrorist Financing Staff Monograph” put out by the National Commission on Terrorist Attacks Upon the United States, al-Barakaat was demystified: [Al-Barakaat was set up because] Somalia simply had no other banking system and no central bank by which foreign exchange of funds could be made. . . . At the time of the terrorist attacks [of September 11, 2001], al-Barakaat was considered the largest money remittance system operating in Somalia; in addition to being used by a significant number of Somalis who had fled the anarchy in their home country, it was the primary means that the United Nations used to transmit money in support of its relief operations there[.] 14

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Terrorist Financing Monograph, Chapter 5, al-Barakaat Case Study, the Somali Community and al-Barakaat, available at http://www.9-11commission.gov/staff_statements/911_TerrFin_Ch5.pdf. The staff monograph goes on to detail an extensive, multi-year, multi-agency investigation of alBarakaat and concludes “notwithstanding the unprecedented cooperation by the UAE, significant FBI interviews of the principal players involved in al-Barakaat (including its founder), and complete and unfettered access to al-Barakaat’s financial records, the FBI could not substantiate any links between al-Barakaat and terrorism.” 22 As the foregoing makes clear, it is unfounded to conclude that Dhakane’s work with al-Barakaat implicates him in any terrorist plots or other criminal wrongdoing. b. The Government misreads of the significance of Dhakane’s association with AIAI Supporters. The Government asserts that Dhakane was a member or associated with AIAI. In fact, Dhakane did not tell the Government that he was a member of AIAI or that he was associated with that group. Dhakane told the Government that he had knowledge of and involvement with people associated with AIAI. Dhakane offered to help the Government by providing information about AIAI and related organizations, as well as people associated, or at least associated at one time, with AIAI both in Somalia and in the United States. The Government now attempts to use this information to show that Dhakane intended to promote terrorism. In order to avoid the constitutional infirmity of sentencing Dhakane based on speculation and prejudice, it is important to place in context any implications that may properly be drawn from

22. It is true, as the Government says, that al-Barakaat was placed on a terrorist group list after the tragic events of September 11, 2001. Being placed on a list may denominate a group as terroristrelated, but it cannot in fact make a group terrorist-related, as the 9/11 Commission’s staff report demonstrates. A court in sentencing must act carefully and on reliable evidence, unlike law enforcement groups which may issue warnings or form suspicions on considerably less information than is expected in a court of law. 15

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Dhakane’s involvement with individual’s connected to AIAI or the related Islamic Courts Union (ICU) in Somalia. The reality is far more ambiguous than the Government would have the Court believe. In a series of Congressional reports made between 2001, when AIAI was placed on the terrorist list, and 2010, Ted Dagne, an expert with the Congressional Research Service, warned against oversimplification of the AIAI presence in Somalia, calling the reality of the situation “complex,” and noting that AIAI is “a genuine social movement and has different factions” which “operate[] differently in different parts of Somalia.” 23 In his 2006 report to Congress, Dagne explained that a Somali’s “support” of AIAI and the ICU may be more of a reflection of the realities in Somalia than an indication that the individual aligned himself with any Jihadist or extremist ideals. Dagne explained: The recent fighting in Mogadishu between Islamic Courts Union (ICU) forces and the now defunct Alliance for the Restoration of Peace and Counter-Terrorism (ARPCT), reportedly formed in February 2006, . . . represents an important shift in the balance of power in Mogadishu. The so-called Alliance was the creation of well-known warlords in Mogadishu who have been the main source of instability and violence in Somalia. . . . . The forces of the Islamic Courts Union expanded areas under their control after the defeat of the warlords in Mogadishu. . . , for the first time in years, Mogadishu appears relatively peaceful and the Islamic Courts Union seems to have the support of the population in areas it controls. . . . The label of some Somali groups as terrorists or extremists may have led some in Somalia to reach the conclusion that they are being labeled because of their religion. Somalis are Muslims and secular. No Somali extremist or fundamentalist group has succeeded in dominating the political scene since independence. The desperation and anger

23. News Analysis, U.S. Returning to nightmare Called Somailia, Simon Reeves, Dec. 16, 2001, available at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2001/12/16/MN115486.DTL&ao=2. 16

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in Somalia may be so entrenched that many Somalis are likely to support and fight for any group that aims or claims to fight for peace and stability.24 Finally, in Dagne’s 2010 update of the Somali situation, he advised Congress that “Somalia remains in a state of anarchy, despite a peace agreement reached in 2004 that led to the formation of the Transitional Federal Government (TFG). Ethiopia’s intervention in December 2006 to install the TFG in power by ousting the Islamic Courts Union (ICU), a group that took power in Mogadishu in June2006, made Somalia more unstable than it was during the six months the ICU was in power. More than 22,000 people were reportedly killed during the Ethiopian occupation.” 25 While AIAI and the Islamic Courts Union undoubtedly contain extremist elements, it also appears that a Somali may have been supportive of the ICU not because of an alignment with the Jihadist or extremist ideals of the ICU, but because of the practical realities of the political situation, and the relative calm and stability in Mogadishu when the ICU was in power as compared to the violence and instability experienced when rival warlords were vying for control. Dhakane, like most expatriate Somalis, has a perspective on the political crisis in Somalia, including the factions vying for power and the threats that may be posed by these various factions. His offer to work with the Government should be viewed as an attempt on his part to offer assistance in parsing through some of these ambiguities, and his statements made to the authorities about the

24. Ted Dagne Report to Congress, Available at Http://allafrica.com/download/resource/main/main/idatcs/00010916:4b224706565c9efbf7340cb3 2c3c7b66.pdf. (Emphasis added). 2 5 . Http://allafrica.com/download/resource/main/main/idatcs/00010916:4b224706565c9efbf7340cb3 2c3c7b66.pdf. (Emphasis added). 17

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people he encountered on his journey to America should be viewed in this context as well. While Dhakane may have had a unique understanding of the desperation of those people he met as he made his way to this country, he knew of no terrorist plots or any people who came to this country with any calculation “to influence or affect the conduct of [our] government by intimidation or coercion, or to retaliate against government conduct.” See 18 U.S.C. § 2332b. He knew only people who, at one point or another in Somalia had been connected with AIAI.26 He attempted to use that knowledge, as a means of getting to stay in the United States after it was clear his asylum application was not going to succeed. III. Dhakane’s Sentence Should Not Be Increased Based on Speculations About the Nature of the Relationship Between L.O.A. and Dhakane. Dhakane has objected to the Government’s suggestion, which was incorporated into the PSR, that a 5-level increase under guideline §3A1.1 be given based on the assertion that L.O.A. qualifies as a “hate-crime” victim and a vulnerable victim of the offense. (See Gov. Memo 13). Section 3A1.1(a) provides for a 3-level increase when “the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim . . . as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation.” Section 3A1.1(b) provides for a 2-level increase and when the chosen victim is a "vulnerable victim." The application of these adjustments is inappropriate for several reasons. First, it is inaccurate to classify L.O.A. as a hate-victim of the false statement offenses to which Dhakane pleaded guilty. By its terms, the hate-crime adjustment in §3A1.1(a) applies only if

26. Dhakane may also have exaggerated his own status to fellow detainees, a not uncommon event in jails, where status can confer protection. 18

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the victim is a direct victim of the offense of conviction. See §3A1.1(a) (applies if defendant “selected any victim . . . as the object of the offense of conviction”) (emphasis added)). The United States and its Immigration agency are the victims of the false statement offense. L.O.A. was not even an indirect victim of the false statement offense; she certainly was not a direct victim of the false statement offense. Second, L.O.A. may not properly be considered a “hate-crime” victim as contemplated by guideline §3A1.1(a). In none of Dhakane's dealings with L.O.A. did he target her based on her national origin, ethnicity, gender, or any of the other listed conditions. The adjustment is intended to be applied in a "hate-crime" where the crime victim was chosen and the crime was, itself, motivated by racial, ethnic, or gender hatred. Such was not the case in this false-statement prosecution. The Court cannot find beyond a reasonable doubt that L.O.A. was selected by Dhakane based on these factors so that he could make a false statement on an immigration form months after entering the United States. The §3A1.1 "vulnerable victim" adjustment is also inappropriate. The conduct to which L.O.A. was allegedly subjected may not properly be considered relevant conduct to the false statement offenses. This conduct purportedly occurred outside the United States, and it was remote in time to when the false statements were made. In fact, Dhakane remained in immigration detention for 6 months prior to completing the asylum application in which he falsely claimed to be married to L.O.A. Any alleged mistreatment of L.O.A.—even if it is found to be “factually related to” the offenses of conviction—is still not relevant conduct because it did not “occur[ ] during the commission of the offense of conviction,” “in preparation for the offense,” or in an attempt to avoid detection for the offense of conviction. U.S.S.G. §1.B1.3(a)(1); also see, e.g., United States v. Tai,

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994 F.2d 1204, 1213 (7th Cir. 1993) (actions taken in preparation for offense of conviction must be distinguished from actions that are merely factually related to offense of conviction); also see United States v. Ritsema, 31 F.3d 559, 567 (7th Cir. 1994) (temporal dimension of relevant conduct could not reasonably have been intended as sweeping tool to gather in all of otherwise unrelated criminality of defendant). The alleged mistreatment of L.O.A. was not relevant conduct. Because, L.O.A. was not a victim of the offense conduct or any relevant conduct, it is improper to assess the victim-related adjustment. See Ritsema, 31 F.3d at 567 (where district court may not count obstruction of justice conduct as relevant conduct to offense of conviction, it is improper to apply vulnerable victim adjustment based on vulnerability of obstruction of justice victim). The requested victim-related adjustments are inappropriate not just for the legal bases stated, but more importantly because they grossly distort the relationship between Dhakane and L.O.A. L.O.A., since coming to the United States and requesting asylum has made allegations against Dhakane. The Government thinks the allegations warrant an upward departure. They do not. The allegations are serious, but unsupported by anything except themselves. Such allegations do not become true and inherently credible merely by being included in a presentence report. Dhakane has forcefully and sadly denied allegations. Dhakane was not legally married to L.O.A., and he lied when he stated otherwise on his asylum application. Nonetheless, Dhakane, a Christian Somali, and L.O.A., a Muslim woman, had a genuine relationship; he loved her and he loves their son, and he, at one time, did consider L.O.A. to be his spouse. It is anticipated that the evidence adduced at the sentencing hearing will bear this out. For instance, the Government’s assertion that L.O.A. was extremely fearful of Dhakane and that “[b]ecause her child is a product

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of rape, she is constantly reminded of both the defendant’s crimes against her” are called into question by the fact that, even after Dhakane was locked away in a detention facility, months after the couple ceased to have direct contact, L.O.A. maintained a relationship with Dhakane through telephonic communication. She gave him updates on their son, with photographs bearing captions reading “I love you daddy.” 27 At the very least, it is anticipated that the evidence will show that there is another side to the story than the one presented in the PSR. In the gestures and communications of parents about their son, there may be more truth than in broken affairs or in asylum applications of people seeking to remain in a long-dreamed of peaceful country and avoiding a return to a ravaged and violent country.28 For these reasons, Dhakane asks that the Court reject the Government’s request for a sentence increase based on any alleged mistreatment of L.O.A. IV. The Two Counts to which Dhakane Pleaded Guilty Are Not Subject to Multiple Punishments. The Government had suggested that a ten-year sentence was available on each count of conviction, for a total of twenty years maximum possible sentence.29 Dhakane had argued that the maximum possible sentence is ten years’s imprisonment. The false statements that Dhakane pleaded guilty to making were made on a single immigration document. The fourth paragraph of Title 18 U.S.C. § 1546 penalizes “knowingly subscribing as true any false statement with respect to a material fact in any application [etc]” required by the immigration laws. Dhakane, as he admitted,

27. A copy of excerpts from these recorded phone conversations and the referenced photograph are attached to this memorandum. 28. P.R. 17 (L.O.A. says “everyone thinks America is the best place to be”); P.R. 22 (L.O.A. says “I don’t want my son to go to Somalia). 29. Paragraph 69 of the PSR also suggested that a ten-year sentence is available on each count of conviction. 21

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made two false statements on the asylum form that he submitted. He can be convicted of two counts, but, because Congress did not make it clear that multiple false statements on a single submitted immigration form may be multiply punished, he can be punished only once. United States v. Sahley, 526 F.2d 913, 918 (5th Cir. 1976) (vacating two sentences because only a single sentence was permitted for three false statements on single loan application); See Dhakane Objections to Presentence Report. In the addendum to the presentence report, received today, April 20, 2011, the Government and the probation officer agreed that the maximum sentence was ten years’ imprisonment. P.R. Add. Although Dhakane agrees that a sentence of ten years’ imprisonment is the most that can be imposed for the reasons set out in his objection, he believes, that, for the reasons given in this memorandum, a sentence of ten years’s imprisonment is not warranted by the facts of this false statement case. CONCLUSION For the reasons stated above, and in the objections to the presentence report, counsel requests a sentence within the guideline range of 8 to 14 months’ imprisonment. Respectfully submitted. HENRY J. BEMPORAD Federal Public Defender

/S/ ALFREDO R. VILLARREAL Assistant Federal Public Defender Western District of Texas 727 E. Durango Blvd., B–207 San Antonio, Texas 78206–1278 (210) 472-6700 Fax: (210) 472–4454 State Bar Number: 20581850 Attorney for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on the 21st day of April, 2011, I electronically filed the foregoing Sentencing Memorandum using the CM/ECF system which will send notification of such filing to the following: Mark Roomberg Assistant United States Attorney Western District of Texas 601 N.W. Loop 410, Suite 600 San Antonio, Texas 78216

/s/ ALFREDO R. VILLARREAL Attorney for Defendant

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