Government arguments for more security for HLF defendants
Content
Case 3:04-cr-00240-P
Document 1432
Filed 03/11/2010
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION __________________________ UNITED STATES OF AMERICA v. SHUKRI ABU BAKER (2) MOHAMMAD EL-MEZAIN (3) GHASSAN ELASHI (4) MUFID ABDULQADER (7) § § § § § § § §
NO. 3:04-CR-240-P ECF
GOVERNMENT’S MOTION TO VACATE COURT’S ORDER OF NOVEMBER 5, 2009, DIRECTING THAT DEFENDANTS REMAIN AT FCI SEAGOVILLE The Government moves to vacate the Court’s order of November 5, 2009, which directed that the above named defendants remain at FCI Seagoville pending appeal. (Doc. # 1395.) The Bureau of Prisons (BOP) has requested that the government seek vacation of that order to allow the BOP to transfer the defendants to an appropriate facility within its system. It is the government’s belief that the Court entered the order at the request of defense counsel at sentencing, who stated that they wished their clients to be close to Dallas to assist in the appellate process. However, there are several reasons why the order is inappropriate even in light of that request by defense counsel. 1. The Court does not have jurisdiction to designate a sentenced inmate.
First, the Court does not have jurisdiction to order the BOP to house a sentenced inmate in a particular institution. Congress gave the sole authority to determine an
GOVERNM ENT’S M OTION TO VACATE COURT’S ORDER OF NOVEM BER 5, 2009, DIRECTING THAT DEFENDANTS REM AIN AT FCI SEAGOVILLE - Page 1
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inmate’s place of incarceration to the BOP in 18 U.S.C. § 3621(b). This statute states: The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering – (1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence – (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994 (a) (2) of title 28. 18 U.S.C. § 3621(b). See Abdul-Malik v. Hawk-Sawyer; 403 F.3d 72, 76 (2d Cir. 2005) (“The decision whether to designate a facility as a place of federal detention ‘is plainly and unmistakably within the BOP’s discretion and we cannot lightly second guess a deliberate and informed determination by the agency charged with administering federal prison policy.’”); United States v. King, 388 F.3d 794, 798 (7th Cir. 2003) (“Under 18 U.S.C. § 3621(b), the BOP is authorized to house a prisoner . . . anywhere it deems appropriate.”); Miller v. Whitehead; 527 F.3d 752, 754 (8th Cir. 2008) (“The Bureau of Prisons is authorized by statute ‘to designate the place of [a] prisoner's imprisonment.’”). See also United States v. King, 101 Fed.Appx. 958, 959, 2004 WL 1399211, *1 (5th Cir. 2004) (holding that it is “beyond the district court’s authority to
GOVERNM ENT’S M OTION TO VACATE COURT’S ORDER OF NOVEM BER 5, 2009, DIRECTING THAT DEFENDANTS REM AIN AT FCI SEAGOVILLE - Page 2
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order [an inmate’s] participation in a drug treatment program while incarcerated,” citing 18 U.S.C. § 3621(b), which provides, in addition to the above-quoted content, that the BOP shall make such programs available to inmates who need them.) Pursuant to its statutory authority, the BOP has implemented detailed national policy regarding the classification and designation of federal inmates. Once an inmate has received a federal sentence and the United States Marshals Service has requested designation to the BOP’s Designation and Sentence Computation Center (DSCC), the DSCC designates that inmate to an appropriate institution pursuant to 18 U.S.C. § 3621(b) and Bureau Program Statement (PS) 5100.08, Security Designation and Custody Classification Manual, available on the BOP’s public website at www.bop.gov, “Policy/Forms”, “Find a Policy”, and “Browse 5000 Series”. The factors listed in PS 5100.08 upon which designation is based include the level of security and supervision the inmate requires; the level of security and staff supervision the institution is able to provide; the inmate’s program needs, i.e., need for an immigration hearing or deportation site, substance abuse treatment, educational/ vocational training, individual and/or group counseling, medical/mental health treatment; and various administrative factors, such as balancing inmate populations across BOP and contract facilities, placing an inmate closer to his release residence, complying with judicial recommendations, placing an inmate in a facility where he has no other inmates from whom he requires separation, and any required increases in security measures to protect victims, witnesses, and the public in general.
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Thus, the BOP has the sole authority to designate federal inmates pursuant to 18 U.S.C. § 3621(b), and has implemented national policy that requires consideration of numerous complex factors when designating and transferring federal inmates 2. The BOP is in the best position to determine appropriate housing for federal inmates, and has deemed inmates Baker, El-Mezain, Elashi, and Abdulqader as warranting heightened monitoring.
Second, the BOP has determined based on the statutory factors listed above that inmates Baker, El-Mezain, Elashi, and Abdulqader require heightened controls and monitoring. Specifically, due to their history of providing financial and material support to terrorist movements, and their social and familial ties to the HAMAS movement, the BOP has designated these inmates to a Communications Management Unit (CMU). CMUs are currently located at FCI Terre Haute and USP Marion. CMUs are designed to provide an inmate environment that enables staff monitoring of all communication between CMU inmates and persons in the community. The ability to monitor such communication is necessary to ensure the safety, security, and orderly operation of correctional facilities, and to protect the public. The operational procedures of the CMU ensure 100 percent monitoring of an inmate’s written and oral social (non-legal) communication.1
Inmates in these units, while separated from all other inmates at the institution, are still permitted extensive time out of their cells, open movement, access to indoor and outdoor recreation areas, a satellite law library, religious services, weekly telephone calls, and social visiting hours. Additionally, all inmates are notified of the reasons for their placement in the CMU immediately upon their arrival to the unit and of their rights to appeal that decision through the Administrative Remedy process.
GOVERNM ENT’S M OTION TO VACATE COURT’S ORDER OF NOVEM BER 5, 2009, DIRECTING THAT DEFENDANTS REM AIN AT FCI SEAGOVILLE - Page 4
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The BOP may house an inmate in a CMU if: (1) the inmate's current offense(s) of conviction or offense conduct involved or was related to international or domestic terrorism; (2) the inmate’s current offense(s) of conviction, offense conduct, or activity while incarcerated, indicates a propensity to encourage, coordinate, facilitate, or otherwise act in furtherance of, illegal activity through communication with persons in the community; (3) the inmate has attempted, or indicates a propensity, to contact victims of the inmate’s current offense(s) of conviction; (4) the inmate committed a prohibited activity related to misuse/abuse of approved communication methods while incarcerated; or (5) there is any other evidence of a potential threat to the safe, secure, and orderly operation of prison facilities, or protection of the public, as a result of the inmate’s communication with persons in the community. An important category of inmates which might be designated to a CMU are those whose current offense(s) of conviction, or offense conduct, included association, communication, or involvement, related to international or domestic terrorism. Past behaviors of terrorist inmates provide sufficient grounds to suggest a substantial risk that they may inspire or incite terrorist-related activity, especially if communicated to groups willing to become martyrs, or to provide equipment or logistics to carry out terrorist-related activities. The potential ramifications of this activity outweigh the inmate’s interest in unlimited communication with persons in the community. Communication related to terrorist-related activity can occur in codes which are difficult to detect and extremely time-consuming to interpret. Inmates involved in such
GOVERNM ENT’S M OTION TO VACATE COURT’S ORDER OF NOVEM BER 5, 2009, DIRECTING THAT DEFENDANTS REM AIN AT FCI SEAGOVILLE - Page 5
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communication, and other persons involved or linked to terrorist-related activities, take on an exalted status with other like-minded individuals. Their communications acquire a special level of inspirational significance for those who are already predisposed to these views, causing a substantial risk that such recipients of their communications will be incited to unlawful terrorist-related activity. In this case, the BOP has reviewed the relevant files for inmates Baker, El-Mezain, Elashi, and Abdulquader, and determined placement in a CMU is appropriate. While FDC Seagoville is certainly equipped to monitor inmate correspondence, it does not provide the sort of heightened monitoring deemed appropriate for these inmates given their extensive ties to the terrorist community. 3. Counsel’s stated reasons for wanting their clients nearby are not sound.
To the extent counsel gave the Court reason to believe that they would be able to communicate more easily with their clients if they remained at Seagoville pending appeal, that is not the case. First of all, visitor logs at Seagoville (reviewed by the undersigned) showed not a single visit to the institution by any of these inmates’ lawyers during 2009. Second, while the lawyers claimed that because classified evidence had to be kept in Dallas, it was necessary for the clients to be here also, the fact is that the lawyers may not remove such classified evidence from its designated SCIF in this building. Thus, they may not take the evidence to Seagoville (which they have not visited anyway) and they may not have their clients moved to the SCIF while incarcerated. Even if they could do
GOVERNM ENT’S M OTION TO VACATE COURT’S ORDER OF NOVEM BER 5, 2009, DIRECTING THAT DEFENDANTS REM AIN AT FCI SEAGOVILLE - Page 6
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either of those things, the defendant-clients themselves do not have clearance to look at classified evidence. For all of these reasons, the government asks that the Court vacate its 11/5/09 order and permit the BOP to exercise its statutory functions as Congress has directed.
Date:
March 11, 2010
Respectfully submitted, JAMES T. JACKS United States Attorney
/s/ James T. Jacks JAMES T. JACKS United States Attorney 1100 Commerce St., Suite 300 Dallas, TX. 75242 Texas State Bar No. 10449500 214.659.8600 (tel.) 214.767.2898 (facsimile) [email protected]
CERTIFICATE OF CONFERENCE I certify that I have conferred with counsel for the defendants named in the caption and they are opposed to this motion.
/s/ James T. Jacks JAMES T. JACKS United States Attorney
GOVERNM ENT’S M OTION TO VACATE COURT’S ORDER OF NOVEM BER 5, 2009, DIRECTING THAT DEFENDANTS REM AIN AT FCI SEAGOVILLE - Page 7
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Filed 03/11/2010
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CERTIFICATE OF SERVICE I hereby certify that on March 11, 2010, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to all counsel of record.
/s/ James T. Jacks JAMES T. JACKS United States Attorney
GOVERNM ENT’S M OTION TO VACATE COURT’S ORDER OF NOVEM BER 5, 2009, DIRECTING THAT DEFENDANTS REM AIN AT FCI SEAGOVILLE - Page 8
Document 1432
Filed 03/11/2010
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION __________________________ UNITED STATES OF AMERICA v. SHUKRI ABU BAKER (2) MOHAMMAD EL-MEZAIN (3) GHASSAN ELASHI (4) MUFID ABDULQADER (7) § § § § § § § §
NO. 3:04-CR-240-P ECF
GOVERNMENT’S MOTION TO VACATE COURT’S ORDER OF NOVEMBER 5, 2009, DIRECTING THAT DEFENDANTS REMAIN AT FCI SEAGOVILLE The Government moves to vacate the Court’s order of November 5, 2009, which directed that the above named defendants remain at FCI Seagoville pending appeal. (Doc. # 1395.) The Bureau of Prisons (BOP) has requested that the government seek vacation of that order to allow the BOP to transfer the defendants to an appropriate facility within its system. It is the government’s belief that the Court entered the order at the request of defense counsel at sentencing, who stated that they wished their clients to be close to Dallas to assist in the appellate process. However, there are several reasons why the order is inappropriate even in light of that request by defense counsel. 1. The Court does not have jurisdiction to designate a sentenced inmate.
First, the Court does not have jurisdiction to order the BOP to house a sentenced inmate in a particular institution. Congress gave the sole authority to determine an
GOVERNM ENT’S M OTION TO VACATE COURT’S ORDER OF NOVEM BER 5, 2009, DIRECTING THAT DEFENDANTS REM AIN AT FCI SEAGOVILLE - Page 1
Case 3:04-cr-00240-P
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Filed 03/11/2010
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inmate’s place of incarceration to the BOP in 18 U.S.C. § 3621(b). This statute states: The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering – (1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence – (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994 (a) (2) of title 28. 18 U.S.C. § 3621(b). See Abdul-Malik v. Hawk-Sawyer; 403 F.3d 72, 76 (2d Cir. 2005) (“The decision whether to designate a facility as a place of federal detention ‘is plainly and unmistakably within the BOP’s discretion and we cannot lightly second guess a deliberate and informed determination by the agency charged with administering federal prison policy.’”); United States v. King, 388 F.3d 794, 798 (7th Cir. 2003) (“Under 18 U.S.C. § 3621(b), the BOP is authorized to house a prisoner . . . anywhere it deems appropriate.”); Miller v. Whitehead; 527 F.3d 752, 754 (8th Cir. 2008) (“The Bureau of Prisons is authorized by statute ‘to designate the place of [a] prisoner's imprisonment.’”). See also United States v. King, 101 Fed.Appx. 958, 959, 2004 WL 1399211, *1 (5th Cir. 2004) (holding that it is “beyond the district court’s authority to
GOVERNM ENT’S M OTION TO VACATE COURT’S ORDER OF NOVEM BER 5, 2009, DIRECTING THAT DEFENDANTS REM AIN AT FCI SEAGOVILLE - Page 2
Case 3:04-cr-00240-P
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Filed 03/11/2010
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order [an inmate’s] participation in a drug treatment program while incarcerated,” citing 18 U.S.C. § 3621(b), which provides, in addition to the above-quoted content, that the BOP shall make such programs available to inmates who need them.) Pursuant to its statutory authority, the BOP has implemented detailed national policy regarding the classification and designation of federal inmates. Once an inmate has received a federal sentence and the United States Marshals Service has requested designation to the BOP’s Designation and Sentence Computation Center (DSCC), the DSCC designates that inmate to an appropriate institution pursuant to 18 U.S.C. § 3621(b) and Bureau Program Statement (PS) 5100.08, Security Designation and Custody Classification Manual, available on the BOP’s public website at www.bop.gov, “Policy/Forms”, “Find a Policy”, and “Browse 5000 Series”. The factors listed in PS 5100.08 upon which designation is based include the level of security and supervision the inmate requires; the level of security and staff supervision the institution is able to provide; the inmate’s program needs, i.e., need for an immigration hearing or deportation site, substance abuse treatment, educational/ vocational training, individual and/or group counseling, medical/mental health treatment; and various administrative factors, such as balancing inmate populations across BOP and contract facilities, placing an inmate closer to his release residence, complying with judicial recommendations, placing an inmate in a facility where he has no other inmates from whom he requires separation, and any required increases in security measures to protect victims, witnesses, and the public in general.
GOVERNM ENT’S M OTION TO VACATE COURT’S ORDER OF NOVEM BER 5, 2009, DIRECTING THAT DEFENDANTS REM AIN AT FCI SEAGOVILLE - Page 3
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Thus, the BOP has the sole authority to designate federal inmates pursuant to 18 U.S.C. § 3621(b), and has implemented national policy that requires consideration of numerous complex factors when designating and transferring federal inmates 2. The BOP is in the best position to determine appropriate housing for federal inmates, and has deemed inmates Baker, El-Mezain, Elashi, and Abdulqader as warranting heightened monitoring.
Second, the BOP has determined based on the statutory factors listed above that inmates Baker, El-Mezain, Elashi, and Abdulqader require heightened controls and monitoring. Specifically, due to their history of providing financial and material support to terrorist movements, and their social and familial ties to the HAMAS movement, the BOP has designated these inmates to a Communications Management Unit (CMU). CMUs are currently located at FCI Terre Haute and USP Marion. CMUs are designed to provide an inmate environment that enables staff monitoring of all communication between CMU inmates and persons in the community. The ability to monitor such communication is necessary to ensure the safety, security, and orderly operation of correctional facilities, and to protect the public. The operational procedures of the CMU ensure 100 percent monitoring of an inmate’s written and oral social (non-legal) communication.1
Inmates in these units, while separated from all other inmates at the institution, are still permitted extensive time out of their cells, open movement, access to indoor and outdoor recreation areas, a satellite law library, religious services, weekly telephone calls, and social visiting hours. Additionally, all inmates are notified of the reasons for their placement in the CMU immediately upon their arrival to the unit and of their rights to appeal that decision through the Administrative Remedy process.
GOVERNM ENT’S M OTION TO VACATE COURT’S ORDER OF NOVEM BER 5, 2009, DIRECTING THAT DEFENDANTS REM AIN AT FCI SEAGOVILLE - Page 4
1
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The BOP may house an inmate in a CMU if: (1) the inmate's current offense(s) of conviction or offense conduct involved or was related to international or domestic terrorism; (2) the inmate’s current offense(s) of conviction, offense conduct, or activity while incarcerated, indicates a propensity to encourage, coordinate, facilitate, or otherwise act in furtherance of, illegal activity through communication with persons in the community; (3) the inmate has attempted, or indicates a propensity, to contact victims of the inmate’s current offense(s) of conviction; (4) the inmate committed a prohibited activity related to misuse/abuse of approved communication methods while incarcerated; or (5) there is any other evidence of a potential threat to the safe, secure, and orderly operation of prison facilities, or protection of the public, as a result of the inmate’s communication with persons in the community. An important category of inmates which might be designated to a CMU are those whose current offense(s) of conviction, or offense conduct, included association, communication, or involvement, related to international or domestic terrorism. Past behaviors of terrorist inmates provide sufficient grounds to suggest a substantial risk that they may inspire or incite terrorist-related activity, especially if communicated to groups willing to become martyrs, or to provide equipment or logistics to carry out terrorist-related activities. The potential ramifications of this activity outweigh the inmate’s interest in unlimited communication with persons in the community. Communication related to terrorist-related activity can occur in codes which are difficult to detect and extremely time-consuming to interpret. Inmates involved in such
GOVERNM ENT’S M OTION TO VACATE COURT’S ORDER OF NOVEM BER 5, 2009, DIRECTING THAT DEFENDANTS REM AIN AT FCI SEAGOVILLE - Page 5
Case 3:04-cr-00240-P
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Filed 03/11/2010
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communication, and other persons involved or linked to terrorist-related activities, take on an exalted status with other like-minded individuals. Their communications acquire a special level of inspirational significance for those who are already predisposed to these views, causing a substantial risk that such recipients of their communications will be incited to unlawful terrorist-related activity. In this case, the BOP has reviewed the relevant files for inmates Baker, El-Mezain, Elashi, and Abdulquader, and determined placement in a CMU is appropriate. While FDC Seagoville is certainly equipped to monitor inmate correspondence, it does not provide the sort of heightened monitoring deemed appropriate for these inmates given their extensive ties to the terrorist community. 3. Counsel’s stated reasons for wanting their clients nearby are not sound.
To the extent counsel gave the Court reason to believe that they would be able to communicate more easily with their clients if they remained at Seagoville pending appeal, that is not the case. First of all, visitor logs at Seagoville (reviewed by the undersigned) showed not a single visit to the institution by any of these inmates’ lawyers during 2009. Second, while the lawyers claimed that because classified evidence had to be kept in Dallas, it was necessary for the clients to be here also, the fact is that the lawyers may not remove such classified evidence from its designated SCIF in this building. Thus, they may not take the evidence to Seagoville (which they have not visited anyway) and they may not have their clients moved to the SCIF while incarcerated. Even if they could do
GOVERNM ENT’S M OTION TO VACATE COURT’S ORDER OF NOVEM BER 5, 2009, DIRECTING THAT DEFENDANTS REM AIN AT FCI SEAGOVILLE - Page 6
Case 3:04-cr-00240-P
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Page 7 of 8
either of those things, the defendant-clients themselves do not have clearance to look at classified evidence. For all of these reasons, the government asks that the Court vacate its 11/5/09 order and permit the BOP to exercise its statutory functions as Congress has directed.
Date:
March 11, 2010
Respectfully submitted, JAMES T. JACKS United States Attorney
/s/ James T. Jacks JAMES T. JACKS United States Attorney 1100 Commerce St., Suite 300 Dallas, TX. 75242 Texas State Bar No. 10449500 214.659.8600 (tel.) 214.767.2898 (facsimile) [email protected]
CERTIFICATE OF CONFERENCE I certify that I have conferred with counsel for the defendants named in the caption and they are opposed to this motion.
/s/ James T. Jacks JAMES T. JACKS United States Attorney
GOVERNM ENT’S M OTION TO VACATE COURT’S ORDER OF NOVEM BER 5, 2009, DIRECTING THAT DEFENDANTS REM AIN AT FCI SEAGOVILLE - Page 7
Case 3:04-cr-00240-P
Document 1432
Filed 03/11/2010
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CERTIFICATE OF SERVICE I hereby certify that on March 11, 2010, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to all counsel of record.
/s/ James T. Jacks JAMES T. JACKS United States Attorney
GOVERNM ENT’S M OTION TO VACATE COURT’S ORDER OF NOVEM BER 5, 2009, DIRECTING THAT DEFENDANTS REM AIN AT FCI SEAGOVILLE - Page 8
