United States District Court, E.D. Wisconsin
ORDER GRANTING THE DEFENDANT’S FIRST MOTION IN
LIMINE: ENTRAPMENT (DKT. NO. 234).
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
January 25, 2016, the defendant was arrested after purchasing
two machineguns from an undercover FBI agent. Dkt. No. 234 at
24. The arrest closed a four-month undercover investigation
of the defendant for alleged potential terrorism crimes,
including an alleged plot to attack a Masonic Temple. See
generally Dkt. No. 255. The defendant was charged with
two counts of possession of an unregistered machinegun and
one count of an unregistered silencer. Dkt. No. 6; see
also 26 U.S.C.A. §5861(d).
first motion in limine, the defendant seeks leave to
present evidence at trial in support of an affirmative
defense of entrapment. Dkt. No. 234. The government opposes
the request. Dkt. No. 255. The court will grant the
reasons that will become clear during the analysis portion of
this order, the court takes most of the facts from the
defendant’s forty-page motion in limine, which
he describes as a factual proffer.
defendant is a United States citizen, a Muslim and has no
prior criminal history. Dkt. No. 234 at 27. He was born in
America but lived in Jordan from infancy until the age of
eighteen. Dkt. No. 47 at 7. At the time of the alleged
offenses, he was twenty-four years old, lived “at
home” (presumably with his parents) and worked at
various restaurant jobs in Milwaukee. Dkt. No. 234 at 6.
According to the defendant, in August of 2015, the
defendant’s best friend Steve called the FBI’s
main line. Id. The defendant claims that Steve was
concerned about his immigration status. Id.
According to the defendant, Steve continued calling the FBI
over the next four weeks. Id.
defendant asserts that in an FBI memo dated September 16,
2015, three agents describe the first in-person meeting Steve
has with the FBI. Id. at 6–7. The defendant
says that Steve claimed the defendant “was talking
about traveling to Egypt for terrorist training, obtaining a
commercial driver’s license to conduct a terrorist
attack in the name of ISIS, and getting a .45 caliber
pistol.” Id. at 7. The defendant asserts that
a week later (September 24), Steve reported that the
defendant had “changed his mind about doing stupid
things, ” and that it was “a bunch of
bullshit.” Id.; see also Dkt. No. 270
at 6. According to the defendant, Steve thought that the
defendant’s biggest flaw was that he “lies all
the time.” Dkt. No. 234 at 7.
defendant alleges that on September 24, 2015, the FBI
directed a “confidential human source, ” or
“CHS, ” who went by the name “Mike, ”
to take a job at the same restaurant where Steve and the
defendant worked; the defendant alleges that Mike spent the
next few months with the defendant on almost a daily basis.
Id. The defendant reports that on October 2, Mike
showed the defendant and Steve a gun in his car. Id.
at 8; Dkt. No. 270 at 6. The defendant later was recorded
asking Mike about his “Kalashnikov.” Dkt. No. 234
at 8. The defendant asserts that Steve, Mike and the
defendant use the word “Kalashnikov”
interchangeably with the word “machinegun.”
November 2, Mike had his first recorded conversation with the
defendant. Id. at 7; Dkt. No. 270 at 6. (Many other
recorded conversations followed, and many are in Arabic.
See Dkt. No. 234 at 20.) According to the defendant,
during the November 2 conversation, the defendant told Mike
that he wanted a “gun for training, ”
id.; dkt. no. 234 at 8, and that he’d never
been shooting before, dkt. no. 270 at 6. The government
asserts that the defendant also said that he wanted to shoot
“Jews” and steal their
“Kalashnikovs.” Dkt. No. 255 at 20, 28.
defendant next points to a November 11 recorded conversation,
in which he told Steve that he wanted a “pistol”
because he was beginning a new job delivering on the north
side and needed it for protection. Dkt. No. 234 at 8. The
defendant says that he asked Mike to get him a pistol for the
same reason. Id.; Dkt. No. 270 at 6.
November 12, Mike asked the defendant why he (the defendant)
wanted a pistol. Dkt. No. 234 at 8–9; Dkt. No. 270 at
6. The defendant told Mike that it was for work, and
specifically for protection when he traveled to high-crime
areas of Milwaukee. Id. The government asserts that
the defendant also said he wanted to kill soldiers, take
their machineguns and kill people in a “temple.”
Dkt. No. 255 at 9.
defendant contends that in a recorded conversation from
November 19, he again told Mike that he wanted a pistol for
protection. Dkt. No. 234 at 9; Dkt. No. 270 at 6. He says
that a couple of weeks later, on December 4, Mike reported
back to his handlers that the defendant “wants to meet
with CHS and possibly have the CHS accompany him to Gander
Mountain to purchase a pistol.” Dkt. No. 234 at 9; Dkt.
No. 270 at 7.
traveled to Gander Mountain on December 7. Id. They
discussed the impending election and its potential effect on
the Muslim-American community. Id. The defendant
states that Mike was recording the conversation, which
included the following exchange:
Mike: I do not know why you need a handgun
Defendant: I have to have it, man Mike: Pardon me?
Defendant: Because it is going to flare up.
Mike: Handgun, do you mean a gun or what? Like what?
Defendant: A handgun.
Mike: Or. machinegun?
Mike: Pardon me? [Noise] [Background voices] Pardon me?
Defendant: A handgun, man! What do I need a machinegun for?
Mike: You got excited about the handgun, right?
Defendant: Oh, yeah.
Mike: Which one? Did you see the machine guns?
Mike: Did you see the machine guns?
Defendant: A machine gun is too big for us right now, we do
not want it.
Defendant: Where are you going to put the machine guns?
Mike: Yeah [Pause] So we would know, man.
Defendant: A handgun is enough.
Defendant: A handgun is enough. I like this handgun with the
Dkt. No. 234 at 10–11.
defendant also reports that Mike told the defendant that they
could buy cheap “Kalishnikovs” from a man in
Texas. Id. The defendant responded that he wants a
pistol “for protection only.” Id. The
government asserts that the defendant also said in this
conversation that it’s acceptable to shoot people for
“cussing the Messenger, or cussing God or the
Qur’an.” Dkt. No. 255 at 14.
to the defendant, when Mike dropped the defendant off after
their trip to Gander Mountain, he told the defendant that
he’d be getting guns with no serial numbers. Dkt. No.
234 at 11. The defendant refused, telling Mike that
“they will ‘fuck you’” if Mike buys
illegal guns. Id. The defendant also told Mike to
“leave matters for now until it gets really
serious.” Id. at 12.
defendant reports that a week later, on December 14, Mike
took him to the shooting range. Id. at 12; Dkt. No.
270 at 7. In their recorded conversation, the defendant asks
Mike why Mike didn’t bring his
“Kalashnikov” to the range. Dkt. No. 234 at 12.
Mike says that his Kalashnikov is too strong to use there.
Id. According to the defendant, Mike continued to
“badger” the defendant about carrying out an
“operation” and about why he wanted Mike to get
him a handgun. Id. The defendant told Mike to
“leave [him] alone” and says that Mike asks him
the same question “every day.” Id. Mike
responded that he asked because the defendant had a
“different mentality every day.” Id. The
defendant reiterated that he wants a handgun “for the
house . . . not for anything else.” Id. at 13.
defendant alleges that after this trip to the shooting
range, Mike stopped recording conversations, but
continued to meet the defendant daily. Id.; Dkt. No.
270 at 7. The defendant says that on January 4, 2016, Mike
reported to the FBI that the defendant had asked Mike to
obtain a weapon for the defendant and a co-worker because the
co-worker had been carjacked. Dkt. No. 234 at 13. Mike also
reported that the defendant told him he wanted a weapon
because “the war will be soon . . . you’ll
see.” Id. Mike reported that the defendant had
made no further comments about “his plan to attack
overseas or within the homeland.” Id.
defendant says that on January 8, 2016, Steve told the FBI
that “[the defendant] no longer speaks about jihad with
CHS, [the defendant] recently has told CHS that [the
defendant] intended to travel to Jordan for a
vacation.” Id. at 14. He says that January 11,
Mike reported to the FBI that the defendant had asked him to
go to a gun store to look at guns; the defendant says that
Mike told the FBI that “he believed this was because he
had been talking to [the defendant] about the AK-47 he
owned.” Id. at 14. The defendant asserts that
Mike also told the agents that the defendant
“hadn’t recently spoken about traveling for
defendant proffers that between January 1 and January 16,
2016, the FBI “conducted near-constant
surveillance” on the defendant; the defendant says this
surveillance “inexplicably” stopped on January 17
and 18, but resumed on January 19 “when Mike met with
the FBI and claimed that on January 17 and 18 (the only days
when [the defendant] was not being watched) the defendant was
talking about an attack on the Masonic Center in
Milwaukee.” Id. at 15. The defendant says that
on January 19, Mike reported to the agents that he, Steve,
the defendant and another person had watched internet videos
about the Masons and were planning an attack; Mike also
reported that the defendant claimed to have saved $7, 000 to
fund a trip to Texas with Mike to buy “Ak-47s,
silencers, and bullet-proof vests.” Id.
to the defendant, that same day-January 19, 2016-Mike resumed
recording his conversations with the defendant. Id.
at 15; Dkt. No. 270 at 7. The defendant says that “out
of the blue, Mike, Steve and [the defendant] had discussed an
attack on the Masonic Center;” the defendant asserts
that this was a “sudden development.”
Id. The defendant indicates that the defendant told
Steve and another man that Mike had come to the defendant
about two weeks earlier and started talking about the Masonic
Temple, and saying that Masons spread negative propaganda
against Islam and the Prophet Muhammad. The defendant said
that Mike told him that the Masons were ISIS, were anti-Islam
and tarnished the Prophet’s image. Id. at 16.
The defendant claims that this conversation spanned the
evening of January 19 into the wee hours of January 20, and
included the defendant’s complaint to Steve that Mike
“brainwashes you, ” and telling Steve that
attacking the Masonic Center was Mike’s idea.
Id. at 16-17.
significant event occurred on January 19. According to the
government, that day the three men toured the Masonic Center
in Milwaukee and discussed their plan of attack. Dkt. No. 255
at 1, 10, 16–17. The defendant also states that on
January 19, “the three men toured the Masonic Center