Entrapment defense in 2016 Masonic Center shooting plot will have to wait as prosecutors appeal judge's rulings

https://ift.tt/2p3p6of The long-awaited trial of a Milwaukee man accused of plotting a mass murder to "defend Islam" that was set to begin Wednesday has been delayed again after prosecutors appealed the judge's decisions to exclude certain evidence. The FBI portrayed Samy Hamzeh's January 2016 arrest as thwarting a planned act of terrorism: He had made detailed preparations to shoot as many as 30 people at downtown Milwaukee's Humphrey Scottish Rite Masonic Temple, 790 N. Van Buren St. Hamzeh's attorneys say he was merely an excitable boaster trying to earn credibility with FBI informants who prodded him for months to buy a machine gun. Hamzeh had been cleared to present the defense that he was entrapped. The new appeals likely will postpone the trial well into 2020. Hamzeh, a 26-year-old American citizen who spent his childhood in Jordan, was charged in early 2016 only with possessing two unregistered Heckler & Koch MP5 machine guns and a silencer sold to him by undercover FBI agents in a deal set up by the informants, his friends who also talked about the Masonic Center attack. Samy Hamzeh (Photo: Family photo) The case has dragged on while hundreds of hours of recorded conversations — mostly in Arabic — were transcribed, then translated to English. Crowded court dockets also contributed to the long wait for a trial. Hamzeh, described by prosecutors as a serious danger, was jailed for more than two years, longer than any sentence he would likely get if convicted, his lawyers argued. In late July 2018, a judge allowed Hamzeh to be released to live with his parents pending trial. Besides all the intrigue — at least 40 documents in the case, many involving classified information, are filed under seal — the trial will feature the fairly rare defense of entrapment. Over strident government objection, U.S. District Judge Pamela Pepper has granted Hamzeh the right to present the defense, which evolved to “ensure that people who are not predisposed to commit a crime are not transformed into criminals by the government," according to case law. U.S. District Judge Pamela Pepper (Photo: Journal Sentinel files) Pepper was persuaded a jury could reasonably find the FBI induced Hamzeh to obtain the weapons, not just by offering them for sale at a fraction of their normal cost ($570 for guns that go for several thousand dollars apiece), but through months of indoctrination by the informants that increased the risk Hamzeh would obtain the guns. Now the prosecutors have the burden to prove Hamzeh — who has no criminal record and never owned a gun — was predisposed to get a machine gun on his own. The final decision will rest with the jury. Michael O'Hear, who teaches criminal law at Marquette University Law School, said the defense is uncommon because the standards are high, and it can't be combined with any other defense since a defendant has to admit to the acts if he's claiming entrapment. Paul Marcus, a professor at William & Mary Law School who wrote the leading book on entrapment, said it is unique to America. It was first raised in the early 20th century and gained traction during Prohibition when many courts became concerned about government overreach. Marcus said while many people have heard of the defense, they often misunderstand it to apply whenever a government solicits a crime. But he said it takes extensive, ongoing and specific kinds of government involvement — with someone who otherwise would not have committed the crime — to amount to acquittal on entrapment. He recalled former auto executive John DeLorean's acquittal on federal cocaine trafficking charges in 1984 as one of the more famous successful entrapment defenses. Statements barred from evidence In pre-trial rulings, Pepper barred prosecutors' use of about 70 statements or discussions between Hamzeh and the informants. Motive is not an element of the crimes, so Hamzeh's early talk of going to Israel is not relevant to him buying the guns, Pepper found, though his comments about wanting to take guns from Israeli soldiers and spraying other people with bullets can be admitted as possibly relevant to his desire to obtain a machine gun. A Heckler & Koch MP5, like the ones undercover FBI agents sold to Samy Hamzeh. (Photo: Heckler & Koch) Much of Hamzeh and the informants' chilling, detailed discussions about how an attack on the Masonic Center would take place will not be allowed either. Pepper again found them irrelevant to buying the guns and highly prejudicial. In a 51-page order, Pepper lays out, passage by passage, which of more than 100 exchanges between Hamzeh and the informants will be admissible and which will not. For example, Hamzeh's statements about going to Israel to fight with Hamas against Jews or how his martyrdom might inspire others don't help prove whether he was inclined to get a machine gun in Milwaukee, Pepper found, and excluded them. But she allowed Hamzeh's talk of taking Kalashnikov rifles from Jewish soldiers and spraying innocent people because it's arguably related to an interest in machine guns. She also excluded testimony from a government expert about the Middle East and whether conspiracy theories about the Masons exist in that region. According to court records, at some point Hamzeh watched YouTube videos espousing the belief that Masons secretly support the Islamic State, which through its terrorism was discrediting all Muslims, which purportedly led Hamzeh and the informants to settle on the Milwaukee center as a target. Milwaukee's former Humphrey Scottish Rite Masonic Center is slated to become a hotel. (Photo: Kraig Kalashian Architecture & Design, Metro Studio) Hamzeh and the informants discussed who would be shot first, whether children would be spared and other details. But those talks "raise the risk that the jury will convict the defendant for his cold, calculating and chilling words, and not because he possessed the charged items," Pepper ruled, and blocked them from use as evidence at trial. The informants and agents themselves will likely testify at an eventual trial. Milwaukee machine gun market Prosecutors argued the excluded discussions show Hamzeh's own interest in obtaining a machine gun. To show Hamzeh could have obtained a machine gun on his own, prosecutors wanted to present an expert to testify that fully automatic machine guns are readily available on the streets of Milwaukee or can be created by anyone with a $20 conversion kit sold online and with access to YouTube. Possessing the parts that make a gun fully automatic is the same crime as possessing a machine gun, prosecutors argued, so the fact Hamzeh could have ordered one means he was in a position to commit the charged crime. Hamzeh objected, and Pepper agreed that the government was overreaching. "The government implies that because the defendant expressed a desire for a handgun, and because conversion kits for turning such a legal weapon into a machinegun arguably were cheap and easy to obtain," Pepper wrote, "the defendant’s desire for the legal gun made him predisposed to obtain the parts (which meet the statutory definition of a prohibited machine gun) to create the illegal gun." Hamzeh doesn't dispute that he did often talk about getting a handgun for his own protection during his job delivering food. He could legally buy and own one. Prosecutors also are appealing Pepper's decision to limit their expert witness's testimony about the conversion kits and her Monday ruling to let Hamzeh introduce portions of two post-arrest statements to agents that the government says should not be heard by the jury. Informants key to case According to court records, the case against Hamzeh started when a longtime friend identified only as Steve — who was in the U.S. illegally — went to the FBI in September 2015 and said Hamzeh was talking of going to Egypt for terrorist training, and of getting a gun. The FBI then planted a professional informant, identified only as Mike, as an employee at the restaurant where Steve and Hamzeh worked. Mike began recording hours of talks with Hamzeh about Israel, Islam and guns. Mike and Steve didn't know the other was also an FBI informant until a few days before Hamzeh's arrest the following January. Mike has worked for the FBI before and since was paid $7,300 and given about $900 for a new phone and number after Hamzeh's arrest. Steve was sent to Jordan in March 2016. Included among the many recordings of Hamzeh's talks with Steve and Mike are his cancellation of the Masonic Center attack and lecture of the two informants after he says he consulted two imams who explained the plan was wrong. Rather than see that as evidence Hamzeh wasn't really committed to violence and was once again finding a way to walk back braggadocio, a magistrate judge who had denied his release on bail observed in 2017: "It comes down to this," wrote then-U.S. Magistrate Judge David E. Jones. "It should not take the spiritual guidance of two religious leaders to dissuade a person from committing mass murder."