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United States v. Hamzeh

United States District Court, E.D. Wisconsin

September 24, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SAMY MOHAMMED HAMZEH, Defendant.

          ORDER GRANTING THE DEFENDANT’S FIRST MOTION IN LIMINE: ENTRAPMENT (DKT. NO. 234).

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         On 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).

         In its 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 defendant’s motion.

         I. Factual Background

         For 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.

         The 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.

         The 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.

         The 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.” Id.

         On 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.

         The 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.

         On 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.

         The 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.

         The two 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?
Defendant: Yeah.
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?
Defendant: What?
Mike: Did you see the machine guns?
Defendant: A machine gun is too big for us right now, we do not want it.
Mike: Yeah?
Defendant: Where are you going to put the machine guns?
Mike: Yeah [Pause] So we would know, man.
Defendant: A handgun is enough.
Mike: What?
Defendant: A handgun is enough. I like this handgun with the wheel.

Dkt. No. 234 at 10–11.

         The 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.

         According 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.

         The 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.

         The defendant alleges that after this trip to the shooting range[1], 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.

         The 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 Jihad.” Id.

         The 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.

         According 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.

         Another 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 ...


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