MANHATTAN (CN) - A federal judge appeared receptive to defense attorneys' claims that the FBI entrapped the four men convicted in October of planning to blow up synagogues in the Bronx and use missiles to shoot down military planes at Stewart Air National Guard Base. "The FBI did not infiltrate a plot," U.S. District Judge Colleen McMahon said at a Thursday hearing. "There was no plot."
James Cromitie, Onta Williams, David Williams and Laguerre Payen say they were entrapped by an FBI agent who promised them $250,000 to participate in a plot they never conceived.
Despite a wiretap showing an FBI informant referring to a money offer in that amount, the government says the figure was closer to $5,000 and denies allegations of misconduct.
Whatever the amount, Payen's attorney, Sam Braverman, rejected the argument that the relative paltriness of the $5,000 bait shows that the men weren't in it for the money.
"It's 'only $5,000' if you have $5,000," Braverman said.
In determining whether the defendants could receive a new trial, Judge McMahon said that the jury's convictions obligate her to read evidence in a light most favorable to the government, but she appeared convinced that the defendants were not planning terrorism before meeting a government agent.
Though the judge said that "there was no plot," she joined Assistant U.S. Attorney David Raskin in her condemnation of the defendants for their willingness to agree to the government agent's plans.
"No good, responsible human being could have done what these people brought themselves to do," she said. "No question about it."
Raskin said that wiretaps showed the defendants' "enthusiastic" endorsements of violence and anti-Semitism, which the judge said were among the most vicious expressions she had heard.
"He said things that were just as despicable as I'd ever heard come out of a human being's mouth," McMahon said about Cromitie.
"It's tremendously powerful evidence of predisposition," Raskin said. "He did things that most people wouldn't dream of doing."
Cromitie's attorney, Vincent Bricceti, countered that the tapes record FBI informant Shahed Hussain making more virulent remarks and goading his client into doing the same.
"Every time he said something Hussain wanted him to say, he got money for it," Bricceti said, adding that Hussain's rewards and promises included cash, rent payment, a Puerto Rican vacation, and a BMW and Mercedes-Benz.
Dozens of supporters for the so-called Newburgh Four filled the courtroom and an overflow room that displayed a live video feed of the proceedings. The quartet's nickname comes from the Orange County town that is home to the targeted National Guard base. It plays upon the Guildford Four nickname given to a group found to have been wrongly convicted by an English court of orchestrating the Irish Republican Army's 1974 Guildford pub bombings.
Judge McMahon referred to Newburgh as "an orphaned community and an impoverished population." She asked prosecutor Jason Halperin if the "use of money to recruit" from this population might rise to the level of "shocking governmental misconduct" needed to grant a new trial.
Referring to the supporters who came for the hearing, McMahon said, "They're outside the courthouse every day. They're shocked."
The men's attorney's filed their appeal motions in January 2011, one of which had a subheading that read: "The Government Manufactured the Crime and Coaxed It to Fruition."
Mark Gombinder, the attorney for Onta Williams, said, "We don't want the kind of world where the government can throw out money as bait."
Braverman, the attorney for Laguerre Payen, said tapes did not record his client making incriminating statements. Payen, he said, has the intellect of a 6 year old and told his co-conspirators that he couldn't take a bus trip to Florida because he didn't have a passport. Payen seemed more interested in food than jihad, Braverman said.
"In tactical meetings, he's discussing lunch," Braverman said.
He added that the tapes capture Payen joining the co-conspirators in a prayer and eating halal food.
"We all agree, being a Muslim is not a crime," Braverman said.
In its motion in opposition to a new trial, the government wrote that the sting operation was legal, even though the government acknowledge, "It is also true that that the sting was, by law enforcement standards, relatively elaborate."
Bricceti called that phrase an "understatement," saying that the government could only have made it more elaborate by introducing nuclear weapons or arranging helicopters for the defendants.
He and the other attorneys called for a fact-finding hearing to determine how much FBI Agent Robert Fuller and the U.S. Attorney's Office knew of Hussain's enticements to their clients.
Braverman added that the hearing was essential because, by creating a plot involving weapons of mass destruction along with military and religious targets, the government "manufactured" crimes that carried the heaviest sentences.
"The missiles did not come from this table," Braverman said, indicating the defense. Gesturing to the prosecutors and FBI agent, he said the missiles came from "somewhere at that table."
Judge McMahon granted that it would be "very interesting" to discover where the details originated, but said the information was not necessary to her ruling on the motions.
By the end of the hearing, she did not rule out the possibility of such a hearing or make a decision on the motion.
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