Newburgh Four Lose Entrapment Appeal

MANHATTAN (CN) - A man who shared violent fantasies against Jews and the United States once lured into an FBI-created terrorist plot cannot claim entrapment, the 2nd Circuit ruled.

Before his involvement in the terror plot, James Cromitie scraped by in his poverty-stricken city of Newburgh, N.Y., by supplementing his $14,000-a-year job at Walmart with petty drug deals. He had no ties to terrorist groups when he first crossed paths with Shahed Hussain, an ex-convict-turned-FBI informant.

After obtaining asylum in the U.S. in the mid-1990s, Hussain had been fighting off possible deportation to his native Pakistan for fraud he had committed as a translator at a Motor Vehicles Bureau in Albany, N.Y. Hussain kept his citizenship by agreeing to help the FBI root out potential terrorist sympathizers. Critics of the program say the FBI had been manufacturing terrorists through entrapment.

Hussain had been on FBI assignment when he offered Cromitie a prodigious bounty to participate in an improbable terror plot.

In exchange for $250,000, luxury cars and other incentives, Cromitie agreed to recruit three of his friends - David Williams, Onta Williams and Laguerre Payen - to plant bombs in front of two Bronx synagogues and shoot Stinger missiles at the Stewart Air Force base.

The FBI supplied them with inert weapons and instructions before swooping in to disrupt the plot on May 20, 2009.

On their way to trial, the so-called Newburgh Four hoped to persuade a federal jury that they would not have committed any crime if not for government entrapment.

That defense required proof that the suspects had no predisposition to commit the crimes, if not for the government incentives for them to participate.

Cromitie's inflammatory bluster against the United States and Jews defeated that argument in the eyes of the court.

"I want to do something to America," Cromitie said in taped conversations, adding that he wanted to "die like a shahid, a martyr."

While watching TV coverage of the funeral of a Jewish man killed on the terrorist attacks on Mumbai, Cromitie ranted to his informant: "Look at the Jewish guy. You're not smiling no more, you fucker. I hate those bastards. ... I hate those motherfuckers. Those fucking Jewish bastards. ... I'd like to get one of those. I'd like to get a synagogue. Me. Yeah, personally."

U.S. District Judge Colleen McMahon ultimately handed each defendant a 25-year sentence. A divided three-judge panel of the 2nd Circuit agreed last week that the recordings of Cromitie's toxic sentiments reflected his true state of mind and criminal intent.

"Their predisposition is to have a state of mind that inclines them to inflict harm on the United States, be willing to die like a martyr, be receptive to a recruiter's presentation, whether over the course of a week or several months, of the specifics on an operational plan, and welcome an invitation to participate," Judge Jon Newman wrote for the majority. "The Air Force personnel at Stewart Airport and the congregants at two synagogues in the Bronx are fortunate that the person who first approached Cromitie and suggested an operational plan was only a government agent."

The court also agreed with McMahon's finding that no plot would have existed without the informant's prodding.

"As the District Court - with the benefit of hearing the recorded evidence and seeing the trial witnesses - forcefully stated, 'I believe beyond a shadow of a doubt that there would have been no crime here except the government instigated it, planned it, and brought it to fruition,'" Newman wrote.

Chief Judge Dennis Jacobs dissented in part, called Cromitie's diatribes "the boastful piety of a foolish man," not the smoking gun.

"It is clear that Cromitie in his unmolested state of grievance would (for all the evidence shows, and as the district court found) have continued to stew in his rage and ignorance indefinitely, and had no formed design about what to do," Jacobs wrote.

His colleagues in the majority bristled at this reasoning.

"We see nothing pious in wanting 'to die like a martyr' when said in the same breath with wanting 'to do something to America,' especially when the statement is followed in a month with a volunteered desire to join what Cromitie believed was a Pakistani terrorist organization," Newman wrote.

The outvoted Jacobs nevertheless concluded: "James Cromitie was entrapped as a matter of law."

He conceded, however, that the other three men knew about the plots going in.

Supreme Court intervention represents the last bastion for the defendants, but Cromitie's attorney Kerry Lawrence has not yet revealed any plan to seek such relief.

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