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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,

v.

13 CR 304 (MGC)

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AHMED ABASSI,

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Defendant.
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New York, N.Y.

April 29, 2014
12:00 p.m.

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Before:

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HON. MIRIAM GOLDMAN CEDARBAUM,

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District Judge

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APPEARANCES

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PREET BHARARA
United States Attorney for the
Southern District of New York
MICHAEL FERRARA
Assistant United States Attorney

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SABRINA SHROFF
Attorney for Defendant

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ALSO PRESENT:

Marwan Abdel-Rahman, Interpreter (Arabic)

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SOUTHERN DISTRICT REPORTERS, P.C.
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(Case called)

THE COURT:

THE DEPUTY CLERK:

THE COURT:

applied.

Whom do I have here?

I only gave permission for one who

I didn't invite the whole press.

Who are you?

MS. MONTAIGNE:

I'm Genie.

MS. BARSKY:

I work

I'm a social worker.

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THE DEPUTY CLERK:

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they requested permission.

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THE COURT:

Excuse me, Judge.

They say that

The only one who requested permission was

Mr. Weiser.

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I'm a paralegal.

with Ms. Shroff.

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There's four people from the press.

THE DEPUTY CLERK:

So he's the only one who is

allowed?

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THE COURT:

He's the only one I've given permission

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for.

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this court for applying for admission in closed proceedings.

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I haven't heard from anyone else.

MS. SHROFF:

We have a procedure in

Your Honor, we just want to be clear,

this is not a closed proceeding.

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THE COURT:

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MS. SHROFF:

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THE COURT:

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This is not a closed proceeding, so you don't need

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It's not?
No.
Then I don't care.

permission.
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MR. WEISER:

THE COURT:

Would you give your appearances for the

court reporter, please.

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Thank you very much.

MR. MATTHEWS:

Chris Matthews from The Wall Street

Journal.

MR. WEISER:

Ben Weiser, from The New York Times.

MR. RILEY:

John Riley, from Newsday.

THE COURT:

Very well.

MR. AX:

Joseph Ax.

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THE COURT:

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MR. FERRARA:

I work for Reuters.

All right.
Good morning, your Honor.

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Ferrara, for the government.

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MS. SHROFF:

For Mr. Ahmed Abassi, Federal Defenders

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of New York, by Sabrina Shroff.

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my office are Genie Montaigne and Alex Barsky.

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Michael

THE COURT:

Thank you.

Your Honor, also present from

And Mr. Abassi is sitting next

to you.

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What has happened since our last conference?

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MR. FERRARA:

Your Honor, I think it's been a very

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productive couple of weeks.

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THE COURT:

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MR. FERRARA:

Good.
I'd like to tackle two things.

First,

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discovery and then I'd like to put some details of a plea offer

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on the record, and that's not to suggest that the Court in any

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way ought to be involved in that.

But I get very few chances

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to speak in a place where Mr. Abassi can hear the government

and what the government has to say, so I'd just like to take

the opportunity to both educate the Court on what's happening

and Mr. Abassi himself from the government's sort of own mouth.

As to discovery, I think things have been pretty

productive the last couple weeks.

requested that several conversations between the undercover and

other people, including Mr. Abassi and some of his relatives,

be translated in their entirety.

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Specifically, defense has

I have two examples, your

Honor, of what those transcripts look like.

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As your Honor can see, this transcript is 46 pages.

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It's a verbatim transcript.

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Honor is seeing is the speaker in the left-hand column, the

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English translation in the center column, and the Arabic in the

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right-hand column.

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are so detailed and because these conversations are long, it

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takes quite a while to do these.

What your

But, again, for this reason, because these

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THE COURT:

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MR. FERRARA:

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It's very detailed.

Have those been turned over?

They have.

I'm producing them on a

rolling basis, your Honor.

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THE COURT:

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MR. FERRARA:

Good.
These two took two weeks.

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counsel has asked me for maybe eight to ten more.

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recall.

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received them back yet.

Those have been sent out as well.

Defense
I can't

But we haven't

But I will continue to produce them on

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a rolling basis.

So that's happening.

THE COURT:

MR. FERRARA:

Very well.
I've also been speaking to the F.B.I.

case agents in this matter.

What I've learned is that they are

able to sort data regarding what calls and conversations were

recorded in their computer system.

that uses like what your Honor would think of as Microsoft Word

or Excel.

proprietary software system, and it's able to sort calls and

It's not like that.

It's not a computer system

It's a completely different

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conversations, and I apologize I wasn't able to speak with Ms.

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Shroff about this before the conference; I forgot.

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the conference, I'm going to speak to Ms. Shroff about exactly

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how she'd like me to sort that information for her in a way

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that's helpful for identifying, they can sort by days the

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conversation occurred, times the conversations occurred, what

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numbers were called from, what numbers were called to, that

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sort of thing.

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way that's most helpful, so we'll talk about that after the

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conference.

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But after

And so I want to get her that information in a

Finally, at the last conference, Ms. Shroff brought up

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calls that agents placed to Mr. Abassi's wife during the time

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that Mr. Abassi was making a postarrest statement and allowed

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him to speak to his wife, and Ms. Shroff said she wanted

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details about when those calls were made; that is to say, when

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Mr. Abassi was allowed to speak to his wife.

I've spoken to

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the agents about that.

the provider, the phone provider.

will today have the phone records and we will provide Ms.

Shroff a log of exactly when those calls were made, so I hope

to have that out today.

said he's going to meet me with that document later today.

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What I understand is that they went to

My understanding is they

It might be tomorrow.

But the agent

So those are some of the outstanding discovery issues

that we talked about the last time.
THE COURT:
MR. FERRARA:

Yes.
Now, your Honor, I'd like to turn to the

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plea offer the government's made in this case, and again, your

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Honor, not to put the Court in a position of weighing in on the

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negotiation.

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THE COURT:

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MR. FERRARA:

Certainly not.
Of course, but just to educate the Court

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and Mr. Abassi as to what's happened.

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conference, maybe a day or two later, maybe a little more, I

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sent to Ms. Shroff a draft information, superseding

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information -- this is just a draft, we're not filing this,

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it's not signed; that's a copy for the Court -- and this

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Pimentel letter, your Honor, dated April 15, 2014.

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that the government is making to Mr. Abassi is the following:

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Shortly after our last

The offer

We would accept a plea from Mr. Abassi to the two

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counts in proposed superseding information S1 13 CR 304.

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One of the proposed information would charge a violation of 18

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United States Code, Section 1001, which is a false statement

count.

States Code, Sections 1028(a)(4) and 1028(f).

make it a crime to attempt to possess an identification

document with the intent to defraud the United States.

Count Two would charge a violation of Title 18, United

THE COURT:

MR. FERRARA:

Those sections

How do you attempt to obtain something?

The government's theory here or the

predicate acts would be that Mr. Abassi falsely completed an

application for a green card.

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THE COURT:

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MR. FERRARA:

I see.
Now, neither of these counts charge or

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would require Mr. Abassi to allocute or otherwise plead guilty

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to any terrorism-related enhancement of any kind.

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indictment has what are often called terrorism enhancements,

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increased statutory maximums, because the crime related to or

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allegedly related to a crime of international terrorism.

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charges do not contain that.

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the time of the plea, if he accepted this offer, to in any way

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admit that either of these crimes touched on a crime of

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international terrorism.

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The current

These

Mr. Abassi would not be asked at

Moreover, your Honor, Count Two, as charged here, is a

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misdemeanor.

Count Two, as charged, carries only a one-year

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maximum.

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in total, Mr. Abassi's maximum exposure, if he were to plead

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guilty to S1 13 CR 304, if filed, would be six years' maximum,

Count One carries a five-year maximum as charged, so,

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with no mandatory minimum.

sentence him anywhere from zero years to six years, at the

Court's discretion.

Essentially, the Court could

The government is prepared to file this document if

Mr. Abassi at the time of his plea agrees that upon completion

of his sentence, whatever the Court imposes, he will be

immediately deported.

record.

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THE COURT:

That would be an agreement on the

Why does he have to agree to that?

Isn't

that by operation of law here --

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MR. FERRARA:

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THE COURT:

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MR. FERRARA:

That should be operation of law.

-- that he agree to deportation.
It should be, your Honor, but defendants

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can at times try to seek, for instance, asylum, other

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immigration relief, and we would be asking him to put on the

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record.

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THE COURT:

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MR. FERRARA:

That he agrees to do that.

Correct.

And in return, in

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consideration for that, the government would file this document

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and the government would agree at the time of sentencing to

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dismiss the underlying indictment.

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Now, to help Mr. Abassi decide whether or not to

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accept this offer, the government prepared the April 15, 2014,

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Pimentel letter, which I've just given your Honor a copy of.

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This document, your Honor, is written in a way, Ms. Shroff and

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I have talked about this quite a bit, and she finds it somewhat

confusing and I don't blame her for that, so that's why I

wanted to talk about it a little bit in front of the Court and

in front of Mr. Abassi.

this document is to put Mr. Abassi on notice of the maximum he

is facing if he were to plead guilty.

The way the government has written

Ms. Shroff, in conversations with me and I think in

front of the Court, has appropriately and hotly disputed

whether a terrorism enhancement would apply in this case.

I'm

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not talking now about a statutory enhancement.

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Mr. Abassi would say nothing about any sort of terrorism at the

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time of the plea.

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and the guideline, which is commonly referred to as the

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terrorism enhancement, is guidelines Section 3A1.4.

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Again,

I'm now talking just about the guidelines,

Now, the government may opt to argue that the

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terrorism enhancement of the guidelines applies.

If we did, we

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would, of course, have to point your Honor to evidence that

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supported that.

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do that; that is to say, whether we're going to seek the

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terrorism enhancement in this case.

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is put Mr. Abassi on notice of what he would be looking at from

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a guidelines perspective if the government decided to seek that

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enhancement or if your Honor concluded, in the Court's

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discretion, that it ought to apply.

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Mr. Abassi's guideline range, as set out in this Pimentel, it's

We just don't know right now if we're going to

But what we wanted to do

And if it did,

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the government's position, would be six years; that is to say,

the statutory maximum.

imprisonment.

His guidelines range would 72 months'

The reason Ms. Shroff finds this confusing, and again

I don't necessarily blame her, is she would like to know what

the government's position is on Mr. Abassi's guidelines if,

either, the government does not seek the enhancement or the

Court, in any event, finds that the enhancement does not apply.

And I'm happy to go on record right now with our view.

If the

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government does not seek the enhancement or if the Court finds

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it does not apply, the government's view then is that

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Mr. Abassi's guidelines are zero to six months; that is to say,

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if Mr. Abassi were to accept this plea, he will already have

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served more time than the applicable guidelines range would be

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in that case.

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I just wanted to put that on the record.

We wrote this letter not to try to be shifty, but just

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to make sure that Mr. Abassi understood the maximum.

I'm more

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than happy to say that the government's position, based on what

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we know now, is that the guideline range without a terrorism

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enhancement is zero to six months.

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that on the record to make sure that Mr. Abassi understood it,

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to make sure the government's position was clear.

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didn't want to be seen to be doing anything to make anyone's

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life more confusing.

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best I could.

So I just wanted to put

Again, we

I just wanted to try to clarify it as

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MS. SHROFF:

Your Honor, since the government is

putting everything on the record, I think the government should

inform whether or not at this point they plan to seek the

terrorism enhancement because we've communicated to the

government that we do not think that the terrorism enhancement

could be properly applied here in this case given the facts.

So, if Mr. Ferrara could comment on what his position is now,

whether he intends to seek the terrorism enhancement.

MR. FERRARA:

Shall I respond, your Honor?

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THE COURT:

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MR. FERRARA:

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intend to seek the enhancement.

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MS. SHROFF:

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THE COURT:

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MS. SHROFF:

Sure.
As of now, the government does not

May I, your Honor.

Yes.
I just wanted to start with where the

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government started, which was the Court's intervention in

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assisting us in getting at least some of the other calls

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translated.

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the government has made in giving us some of the discovery: the

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two calls, which we had alluded to when we were here last,

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which is a February 26, 2013, call from the government

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undercover agent to Mr. Abassi's wife, and then the February 7,

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2013, call between Mr. Abassi, Mr. Abassi's mother, and then

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the undercover agent, both of these calls.

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the Court these calls because to the extent that we proceed by

I planned to file at some point the progress that

And I point out to

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plea and if there is any application whatsoever by the

government to either move for a terrorism enhancement or to ask

for a greater-than-guidelines sentence based on 3553(a)

factors, these kind of calls become extremely relevant.

The February 26 call, for example, is a detailed

conversation between the undercover, who is talking to

Mr. Abassi's wife, asking her to please let Mr. Abassi travel

to the United States, that he is going to go get him a visa,

and I'm quoting where he says, "See what I'm saying?

Even

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though he's been there, it's easier.

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here," meaning New York, "immigration consultants, attorneys,

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anybody we can get him in contact with.

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the Canadian embassy by my apartment in New York, right next to

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the apartment.

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day and keep bugging them until they let him in."

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He can talk to people

He can walk right into

He can go right to the Canadian embassy every

Basically, this has long been an issue for us.

The

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calls make clear that the undercover is asking Mr. Abassi to

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come here under the guise of he's going to help him from

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America get a visa to go back to Canada so that he can reunite

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with his wife.

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THE COURT:

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MS. SHROFF:

That's where his wife now lives?

Right.

So the undercover goes on to say,

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"I'm not an expert in this matter, but we must get him,"

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meaning Mr. Abassi, "with the people who might be able to help

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him.

If he remains in Tunisia, he will not be able to get into

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Canada just like that because they're harassing him.

my thinking, so."

know what, his application is pending.

hoping to hear from the Canadian embassy.

the visa on his own."

wife and says, "No, no, send him here because if he applies for

a U.S. visa and I'm able to help him get the U.S. visa, it will

then be something of assistance for him to get a visa to go to

Canada and be reunited."

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This is

And then Mr. Abassi's wife says, "No, you

This Thursday, I'm
Maybe he'll just get

And the undercover goes on to urge the

I'm putting this on the record, your Honor, because to

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the extent that the government seeks a sentence beyond six

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months, which is the guideline range, either by 3553(a) or by

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the enhancement, we would like to make clear that we fully

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intend to call, subpoena the undercover agent that they have

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employed to set up this case, and we would seek a Fatico

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hearing to address any enhanced sentence beyond six months.

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We do not have for the Court right now a decision from

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Mr. Abassi as to whether or not he's going to proceed by trial

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or proceed by plea.

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waiting on from the government.

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take a plea, we would be asking the Court for an expedited PSR

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and an expedited sentence because Mr. Abassi has been in

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custody for almost 12 months.

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is sort of correct.

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time we were here.

There are several other calls that we are

To the extent Mr. Abassi does

So I think that the government

We've made some progress since the last

It's taken an inordinately long time

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because discovery a year later is still not fully complete in

the sense that -- well, I don't want to upset the government by

saying that too broadly.

information, and hopefully in the next week or so, we will be

able to apprise the Court whether we're going to try this case

or plead.

MR. FERRARA:

But we're still waiting on

Your Honor, I would only say two things.

First, just again for clarity, it is possible that the

government would ask for a sentence above six months based on

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3553(a) factors.

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It's not up to me.

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I just don't know.

I just have no idea.

As to an expedited PSR, if it comes to that, the

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government would have no objection to that.

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your Honor, I think that some of the issues that Ms. Shroff

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identified regarding a Fatico or the undercover, I think we'd

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sort of deal with those issues as we come to them.

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THE COURT:

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MR. FERRARA:

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THE COURT:

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Other than that,

As they arise.
If necessary.
What you're telling me is you're not

really in a position yet to respond.

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MS. SHROFF:

I am.

That is what I'm telling the

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Court.

You see Mr. Abassi is detained.

This is a serious

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decision because he has fair defenses to the charges.

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unable to discuss such an important decision with his family

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because any discussion of this, and people plead guilty for all
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kinds of reasons, but the calls would be recorded.

government would use them as consciousness of guilt, which they

wouldn't be; they would be a discussion with family prompted by

his lawyers advising him to talk to his family.

that the government will allow him the opportunity to discuss

such a serious matter with his family without that threat

hanging over his head.

that will happen this week, and then we'll be in a better

position to proceed.

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The

We'll ask the government.

We're hoping

Hopefully

But as I've just articulated for the Court, from the

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government's own recording, it is very clear that the United

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States urged his family to send him to the United States of

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America.

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did not seek out a visa.

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where he says and directs the family as to how they can apply

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online and urges them to apply before he's rejected by Canada.

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The government is the one that paroles him into this country.

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They grant him a visa.

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that we would seek to cross-examine this undercover on because

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it goes to, at the very least, if not a full entrapment

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defense, sentencing entrapment, and that is a very big issue

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because he was entrapped.

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He did not seek out coming to the United States.

THE COURT:

The undercover, in fact, has a call

So there are a lot of substantial facts

The guidelines are not binding, so how can

you entrap?
MS. SHROFF:

He

The guidelines are not binding, your

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Honor, but under 3553(a), the government could make any

argument.

seeking a terrorism enhancement, and frankly, I don't think

they can; I think they would lose.

government would lose a terrorism enhancement here if they

sought it under the guidelines per se, which is why I'm worried

that they are going to try and back-door it in under the guise

of 3553(a).

but I think that's what's going to end up happening.

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that is.

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succeed?

I'm quite confident the

I don't think I'm like the smartest girl on earth,

THE COURT:

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The government could come back and say, We're not

I don't understand what the relevance of

Suppose the government tries and they shouldn't

MS. SHROFF:

Yes, I am saying, one, that they

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shouldn't succeed.

But more importantly what I'm saying is

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that Mr. Abassi should have full and fair opportunity to call

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this undercover, Thomas, put him on the stand and cross-examine

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him about all of the things he said to Mr. Abassi, his family

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in Tunisia, his family in Canada, and all the steps he took,

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including putting him up in an apartment not very far here, on

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West Street, giving him a life of luxury, getting him a lawyer

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to apply for a visa, doing all kinds of things to lead

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Mr. Abassi to first believe he was lawfully coming to the

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United States and then build up a case that they thought would

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be the case of the century which never came to bear because

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Mr. Abassi refused to engage in any concrete plan of terrorism.

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That is what brings us here to this plea and to this juncture.

So, yes, my concern really is that Mr. Abassi will de facto

face the same facts and not have the protection of the

challenge, the challenge of a Fatico, to be able to call this

undercover.

apprised the government.

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So that is why it's a difficult decision, and I've

THE COURT:

But so far, you have not asked for a

Fatico hearing.

MS. SHROFF:

I have.

I've asked the government that

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in the event they seek a sentence beyond six months, would they

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stipulate to calling their undercover as a witness, and they've

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declined.

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THE COURT:

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MS. SHROFF:

I see.
I mean, of course they would decline.

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They have no legal obligation, and I don't think it would be to

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the government's benefit for us to call this witness.

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has been our request.

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MR. FERRARA:

But that

Your Honor, the horse can't even see the

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cart at this point.

We don't have a plea.

I suggest that we

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put this over for whatever amount of time Ms. Shroff thinks she

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needs, Mr. Abassi thinks he needs.

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plea, Ms. Shroff and I have a very good working relationship;

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we will discuss it.

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Shroff what we plan to argue at sentencing.

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at that point is not willing to accept or stipulate to what we

If there's going to be a

I'm more than happy to front for Ms.

And if Ms. Shroff

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will be arguing, we'll make our motions to the Court.

seek relief.

And your Honor will make decisions and we will amend our

positions accordingly.

That's fine.

We'll

That's the way it's always done.

But right now, I think we need to give Mr. Abassi time

to decide whether this offer is attractive to him.

We will

continue to produce these verbatim translations, and I'm happy

to come back at a time convenient for the defense to decide

what steps we're taking next.

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MS. SHROFF:

The whole point, your Honor, of having

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legal counsel is so that the horse can see beyond the cart.

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That is my job, to make sure I tell the client what could

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happen in the event the government proceeds in the various ways

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it can.

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government to make the undercover available for testimony at

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the sentencing hearing, and I just wanted to make clear that

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we've made the request, and that's all.

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can rule when the issue is ripe.

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Mr. Ferrara could convince the powers that be to put that in

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his plea agreement, I think it would go a long way, because we

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would like the opportunity to confront him, cross-examine him,

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and show the Court that a sentence of time served is the only

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appropriate sentence in this case.

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should come back in a week and inform the Court whether there's

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going to be a trial or a plea.

So to fully inform the client, I've asked the

Of course, the Court

There's no doubt.

But if

But where we are now, we

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

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THE COURT:

What is the estimated length of this

trial?
MR. FERRARA:

I'm just thinking about it, your Honor.

I would suspect the trial would take maybe two weeks, the

government's case.

THE COURT:

MR. FERRARA:

You have two weeks' worth of witnesses?

We have a lot of recordings that we

would want to play, your Honor, and those sometimes take a

little bit of time.

There would be many hours of recordings.

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I suspect that, in fairness to the defense, they would want us

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to play portions of recordings that we might not think to play,

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but that we would conclude in maybe a week and a half.

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prefer to guess a little on the long side than come in under

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and please the Court rather than guess under and take up

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everyone's time.

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THE COURT:

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MR. FERRARA:

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Have you actually made this offer?

Yes, your Honor.

This is a formal offer

that has been made as I described it on the record.

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THE COURT:

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MS. SHROFF:

And you have not yet responded?

We have not, your Honor.

It is an issue

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for us that we would not be able to call this undercover as a

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witness so that we can demonstrate through him, his

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cross-examination, the appropriateness of Mr. Abassi getting a

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sentence of time served.

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Mr. Abassi should take some time, unless the government wants

That is our concern, and that is why

SOUTHERN DISTRICT REPORTERS, P.C.

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to stipulate that they'll let us call him.

accept our subpoena.

know, 15 minutes or so.

They could agree to

We could get one to them in, I don't

MR. FERRARA:

I'm happy to agree to the following

thing, your Honor:

fact that we are trying to prove and the Court agrees with Ms.

Shroff that the undercover ought to be called on that point, we

will either call the undercover to make the point or abandon

the point.

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MS. SHROFF:

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THE COURT:

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MS. SHROFF:

At sentencing, if Ms. Shroff disputes a

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We're making progress, your Honor.

It does appear that way.
Your Honor, we could let the Court know

in a week.

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THE COURT:

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MR. FERRARA:

Very well.
Your Honor, the government would move to

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exclude time between this conference and the next conference

17

date in the interest of justice, pursuant to Section

18

3161(h)(7)(A), to allow Mr. Abassi time to consider this offer

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and to allow the defense to continue to go through the

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translations as the government produces them.

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THE COURT:

Mr. Abassi, do you agree that you need the

22

time between now and next week to consider all of this, before

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making up your mind, and that that need outweighs, in the

24

interest of justice, your right to a speedy trial?

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THE DEFENDANT:

Yeah (in English).

SOUTHERN DISTRICT REPORTERS, P.C.

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THE COURT:

Very well.

I will adopt that finding and

on that basis I will exclude the time between now, and I will

give you a return date, next Wednesday, the seventh of May.

Very well.

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6

MR. FERRARA:

THE COURT:

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I missed the

Next Wednesday, the seventh of May, at

noon.

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10

I apologize, your Honor.

date and time.

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8

Good luck to everybody.

MR. FERRARA:

And time is excluded until then, your

Honor?
THE COURT:

I have just adopted Mr. Abassi's view that

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the time required between now and then outweighs in the

13

interest of justice a speedy trial.

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MR. FERRARA:

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from the government.

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MS. SHROFF:

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THE COURT:

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(Adjourned)

Thank you, your Honor.

Nothing further

Thank you, your Honor.

Very well.

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SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300