MANHATTAN (CN) - The 2nd Circuit on Monday ended its weeklong hiatus for Sandy by hearing the appeal of four men who say the FBI set them up in a plot to blow up two Bronx synagogues and an Air Force base.
The conviction of the so-called Newburgh 4 fueled a polarizing controversy.
Trial evidence showed that ex-con-turned-FBI informant Shahed Hussain offered the lead defendant, former petty drug offender James Cromitie, hundreds of thousands of dollars, luxury cars, a barber shop and trips outside his poverty-stricken city if he found three people to participate in terrorist attacks.
The conspiracy involved planting bombs in front of two Bronx synagogues and shooting Stinger missiles at Stewart Air Force Base.
The informant conceived the plan, picked the targets and supplied Cromitie and his co-conspirators, David Williams, Onta Williams and Laguerre Payen, with inert weapons before they were arrested.
A federal jury rejected their entrapment defense and convicted them on multiple charges, including a weapons of mass destruction count that carried a potential life sentence.
U.S. District Judge Colleen McMahon gave the men 25-year terms , the statutory minimum, at a hearing during which she excoriated the government's methods.
On Monday, Assistant U.S. Adam Hickey had no easier time persuading three appellate judges that the agents' actions were appropriate.
But defense attorneys also struggled to persuade the appeals panel to negate the jury's verdict.
Cromitie's attorney, Clinton Calhoun III, framed opening arguments by saying, "It became apparent that the case was not so much about terrorism than about the power of the government to use a corrupt informant to entrap U.S. citizens in crimes that they never would have or could have committed."
Chief Circuit Judge Dennis Jacobs told Calhoun that wiretaps depicted his client as more than an innocent dupe.
"Didn't he say that he'd been dreaming of doing acts of terrorism since the age of seven?" the judge asked.
Calhoun replied that his client "said a lot of things" to ingratiate himself to a man who presented himself as a wealthy Muslim scholar.
"When you have an Islamic scholar driving up to a mosque in Newburgh in a BMW, it makes an impression," he said.
Judge Jacobs picked up on that point when questioning the government.
He said that Cromitie's statement indicated that he dreamed of jihad before he became a Muslim, a discrepancy that Jacobs found "odd."
Calhoun claimed that the "outrageous government conduct" fell into four categories: the informant's excessive involvement in the crime, flaunting wealth in an impoverished city, exploitation of religious beliefs, and targeting of a vulnerable defendant.
Judge Jon Newman asked Calhoun's co-counsel whether any of these factors would excuse a defendant susceptible to similar tactics from a "non-government terrorist" actor.
"These guys were too inept," attorney David Lewis said, referring to his clients. "No reasonable terrorist organization would have hired these guys."
Newman countered: "You mean the suicide bombers that we read about in other parts of the world aren't poor and unsophisticated?"
Despite their skepticism, the three judges peppered the prosecutor with a barrage of questions.
Cromitie's entrapment defense largely hinged on the claim that he was so reluctant to participate in the plot that he avoided Hussain for more than a month.
This fact resonated with Judge Jacobs.
"He seemed to think of this provocateur as a pest," Jacobs said.
Cromitie said he called Hussain back after he lost his job and needed money.
Prosecutor Hickey said the FBI could not ignore that Cromitie took this initiative. He downplayed the FBI's involvement, saying it simply removed "logistical hurdles between Cromitie and the underlying offenses."
"I don't think that's all the government did," Judge Reena Raggi said pointedly.
While a wiretap showed Hussein offering Cromitie $250,000, the informant testified that this was code for the cost of the operation, and that he really offered $5,000.
The defense called that explanation perjury, and the judges seemed to agree that Hussein was probably lying.
Hickey defended him as probably believing it was true, even if it was false.
"Isn't part of the government's preparatory obligation to help a witness undeceive himself?" Judge Raggi asked, provoking laughter.
Judge Newman was not amused.
"I don't want to play games with Your Honor," Hickey insisted. "I'm not trying to be cute."
"Was it true or false?" Newman pressed.
"It was inaccurate," Hickey responded, after several non-answers.
Losing his patience, Newman's voice rose as he asked, "Did you ever convey to the jury that what your star witness said was false?"
Judge Raggi chimed in, "How is it that the government got into this situation at all? How did the government allow him to get on the stand and testify that it was $5,000 when you had him on tape [saying $250,000]?"
The judges indicated that the fate of the appeal may hang on the deference courts give law enforcement agencies in cases involving plans for mass murder.
"The government can go farther in a case involving a suitcase atomic bomb than it could with a case involving a pornography ring," Jacobs said.
While agreeing that was true, Payen's attorney Sam Braverman said, "The problem is, it doesn't change the nature of the case law.
"We still have rule of process and notice and fair play. We can't say, 'We give up,' because we don't."
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