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Case 1:09-cr-10017-GAO Document 106-1 Filed 12/17/10 Page 1 of 34
UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA . CRIMINAL NO. 09-10017-GAO

.
V. . BOSTON, MASSACHUSETTS
. NOVEMBER 12, 2009
TAREK MEHANNA .
Defendant .
. . . . . . . . . . . . . . . . . .
TRANSCRIPT OF ARRAIGNMENT
AND DETENTION HEARING
BEFORE THE HONORABLE LEO T. SOROKIN
UNITED STATES MAGISTRATE JUDGE
APPEARANCES:
For the government: UNITED STATES ATTORNEY’S OFFICE

BY: Jeffrey Auerhahn, Esq.
One Courthouse Way, Suite 9200
Boston, MA 02210
617-748-3100
Jeffrey.auerhahn@usdoj.gov
For the defendant: CARNEY & BASSIL

BY: J.W. Carney, Esq.
Stephen Morrison, Esq.
20 Park Plaza, Suite 1405
Boston, MA 02116
617-338-5566
jcarney@carneybsasill.com
Court Reporter:
Proceedings recorded by electronic sound recording,

transcript produced by transcription service.
MARYANN V. YOUNG
Certified Court Transcriber
Wrentham, MA 02093
(508) 384-2003
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1 I N D E X
2 Proceedings 3
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1 P R O C E E D I N G S
2 CASE CALLED INTO SESSION
3 THE CLERK: The Honorable Leo T. Sorokin presiding.
4 Today is November 12th. The case of the United States v.
5 Mehanna; Criminal Action 09-10017 will now be heard before this
6 Court. Counsel please identify themselves for the record.
7 THE COURT: Please be seated.
8 MR. CHAKRAVARTY: Good morning, Your Honor, for the
9 government assistant U.S. attorneys, Aloke Chakravarty and
10 Jeffrey Auerhahn.
11 THE COURT: Good morning.
12 MR. AUERHAHN: Good morning, Your Honor.
13 MR. MORRISON: Good morning, Your Honor, Steven R.
14 Morrison for the defendant. J. Carney is in the building.
15 He’s attending to matters dealing with the case, this case. I
16 don’t know what specific they are, but he should be here any
17 minute.
18 THE COURT: Do you want me to wait for Mr. Carney?
19 MR. MORRISON: It would be best to.
20 THE COURT: How about for doing the arraignment?
21 MR. MORRISON: Well, Attorney Carney is the CJA
22 appointed attorney; I’m not.
23 THE COURT: Oh, you’re right.
24 MR. MORRISON: So I couldn’t even represent him--
25 THE COURT: Thank you.

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1 MR. MORRISON: --informally.
2 THE COURT: You’re right. Do you know where he is in
3 the building?
4 MR. MORRISON: No, I don’t. We arrived together. I
5 went to see Mr. Mehanna, and J. Carney went to attend to
6 different matters.
7 MR. CHAKRAVARTY: We have no objection to that, Your
8 Honor,--
9 THE COURT: All right.
10 MR. CHAKRAVARTY: --to waiting.
11 THE COURT: Why don’t we recess for 10 minutes?
12 MR. MORRISON: Yes, ten minutes is probably all we
13 need, sir.
14 THE COURT: All right fine. We’ll recess; I’ll
15 return at 10 after 10.
16 THE CLERK: All rise.
17 RECESS
18 CASE CALLED BACK INTO SESSION
19 THE COURT: Please be seated; ready to proceed? All
20 right, we’ll proceed with the arraignment first.
21 MR. CARNEY: Yes, Your Honor. May I identify myself
22 for the record?
23 THE COURT: Absolutely.
24 MR. CARNEY: J.W. Carney, Jr., representing
25 Mr. Mehanna. With me is my associate Steven Morrison. I

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1 apologize for not being here exactly on time, Your Honor.
2 THE COURT: Thank you.
3 MR. CARNEY: I’ve been in the building since 9:30,
4 but I have no excuse for not being in this courtroom.
5 THE COURT: I accept your apology, Mr. Carney, thank
6 you. Mr. Carney, do you waive reading of the indictment in its
7 entirety?
8 MR. CARNEY: I do, Your Honor.
9 THE COURT: All right, Mr. Mehanna, you’ve been
10 charged in indictment with violations of the law for the United
11 States, specifically conspiracy to provide material support to
12 terrorists, providing, attempting to provide the same,
13 conspiracy to kill in a foreign country, conspiracy, making
14 false statements in criminal forfeiture allegations.
15 Mr. Carney, have you had an opportunity to at least
16 preliminary review the indictment with your client such that
17 he’s ready to be arraigned?
18 MR. CARNEY: Yes, Your Honor.
19 THE COURT: All right, and does he have or has he
20 received a copy of the indictment?
22 THE COURT: All right, Ms. Simeone, oh, actually,
23 Mr. Chakravarty, Mr. Auerhahn, I’m sorry, would you state the
24 maximum punishments?
25 MR. CHAKRAVARTY: Certainly, Your Honor. Counts 1

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1 and 2, the conspiracy is a substantive charge for violating
2 materials support to terrorists statute, the maximum penalties
3 15 year period of imprisonment, followed by a period of life of
4 supervised release and $250,000 for each offense; for violating
5 18 U.S.C. 956, the maximum penalty is any term of years up to
6 life, followed by life supervised release; for violations of
7 the regular conspiracy statute in Section 371 of Title 18 is
8 five years imprisonment, $250,000 fine and three years
9 supervised release; and for Counts 5 and 6, violations of the
10 False Statement Statute, 18 U.S.C. 1001 because it involves
11 another crime of terrorism, investigation is terrorism, it’s 8
12 years imprisonment, $250,000 fine and three years supervised
13 release. There is a forfeiture allegation as spelled out in
14 the indictment, and for each of the offenses there is a $100
15 special assessment.
16 THE COURT: All right, thank you. Ms. Simeone?
17 MS. SIMEONE: As to Counts 1 and 2 charging you with
18 conspiracy to provide material support to terrorists and
19 providing material support to terrorists in violation of Title
20 18 United States, Code Section 2339(a); Counts 3 charging you
21 with conspiracy to kill in a foreign country in violation of
22 Title 18 United States, Code Section 956; Count 4 charging you
23 with conspiracy in violation of Title 18 United States Code,
24 Section 371; Counts 5 and 6 charging you with false statements
25 in violation of Title 18 United States Code, Section

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1 1001(a)(2), and forfeiture allegation in violation of Title 18
2 United States Code, Section 981(a)(1)(C), and Title 18 United
3 States Code Section 28 U.S.C., 2461(c); how do you plead,
4 guilty or not guilty?
5 THE DEFENDANT: Not guilty.
6 MS. SIMEONE: Thank you.
7 THE COURT: All right, thank you very much.
8 Mr. Carney, do you opt into automatic discovery under the local
9 rules?
10 MR. CARNEY: Yes, I do, Your Honor, thank you.
11 THE COURT: All right, Ms. Simeone, can we have a
12 date please?
13 MS. SIMEONE: December 22nd at 3:00?
14 THE COURT: How’s December 22nd at--
15 MS. SIMEONE: 3:00.
16 MR. CARNEY: How about 2:30?
17 MS. SIMEONE: 2:30 is fine.
18 THE COURT: December 22nd at 2:30?
19 MR. CHAKRAVARTY: Your Honor, I think both government
20 counsel will be--
21 THE COURT: Be away?
22 MR. CHAKRAVARTY: --be away.
23 THE COURT: All right, Mr. Carney?
24 MR. CARNEY: I’m amendable to going into January if
25 that fits with Your Honor’s schedule and the government’s

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1 attorney’s schedule.
2 THE COURT: Fine, how about a date after the 1st of
3 the year?
4 MS. SIMEONE: Why don’t we do January 5th at 3:00?
5 THE COURT: January 5th at 3:00?
6 MR. CHAKRAVARTY: It’s fine for the government.
7 THE COURT: Fine for you, Mr. Carney?
8 MR. CARNEY: If I may just have one moment,--
9 THE COURT: You may.
10 MR. CARNEY: --Your Honor, please? Yes, Your Honor,
11 thank you.
12 THE COURT: All right, Mr. Carney, do you agree to
13 exclude the time from the Speedy Trial Act for purposes of
14 investigation in discovery for the time period from today to
15 January 5th?
16 MR. CARNEY: I do, Your Honor.
17 THE COURT: All right, Mr. Auerhahn and Mr.
18 Chakravarty, will you file an assented to motion to exclude the
19 time from today to January 5th?
20 MR. CHAKRAVARTY: We will, Your Honor.
21 THE COURT: All right, thank you. Are they going to
22 proceed with the hearing on detention?
23 MR. CHAKRAVARTY: Yes, Your Honor.
24 THE COURT: Mr. Carney, are you ready?
25 MR. CARNEY: I am, Your Honor.

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1 THE COURT: All right. I have one question I was
2 unclear on. Mr. Carney, are you seeking to proceed by proffer?
3 MR. CARNEY: Your Honor, I think the critical
4 question before the Court is whether there are conditions of
5 release upon which the Court can set and be assured that the
6 defendant will return for the trial. So on that basis, I’m
7 ready to proceed orally with that. And I believe the
8 government has submitted a proffer. I will not be calling any
9 witnesses at this hearing, and my understanding is neither will
10 the government.
11 THE COURT: All right, fine. I’ll hear from counsel.
12 MR. CARNEY: The government has filed a motion to
13 detain to, I filed a memorandum in opposition.
14 THE COURT: Proceed.
15 MR. CARNEY: I would ask to be heard after the
16 government addresses you, Your Honor?
17 THE COURT: That would be fine.
18 MR. CARNEY: Thank you.
19 THE COURT: Go ahead.
20 MR. CHAKRAVARTY: Thank you, Your Honor. Your Honor,
21 the government has filed a lengthy proffer along with
22 memorandum support of detention, so I won’t belabor a lot of
23 the--
24 THE COURT: Just to be clear that I have everything,
25 I have your 75-page memorandum in support of your motion for

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1 detention. I have the formally signed affidavit from Special
2 Agent Nambu? I assume that’s the same affidavit that was
3 attached unsigned to the memo that I received?
4 MR. CHAKRAVARTY: It is, Your Honor.
5 THE COURT: All right. I have all the attachments
6 that came with that affidavit or that memorandum and all that
7 was cited within it. And I have one CD or DVD.
8 MR. CHAKRAVARTY: Right, it’s in the files. That
9 summarizes the government’s submission.
10 Your Honor, the government has moved under Section
11 3142(f)(1)(A) and (B) as well as (f)(2)(A) and (B), and as Your
12 Honor knows that this significantly changes the legal analysis
13 because of the institution of the presumption in this case that
14 the defendant is a risk of flight and that he is a danger. But
15 even holding aside the discussion of meeting burden of proof,
16 presumably using, relying on the presumption, the evidence in
17 this case is clear that the defendant does pose both a risk of
18 flight and a danger to the community. I should add also danger
19 or risk of obstructing justice or intimidating witnesses or
20 influencing witnesses under (f)(2)(B).
21 Before defendant was brought before the Court on
22 these material support to terrorist charges, it was still a
23 very close question as to whether the defendant indeed was a
24 risk of flight. And that was the sole side of the analysis.
25 And the evidence was abundant that the defendant didn’t want to
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1 stay in this country, that he wanted to leave for a variety of
2 reasons, some borne by his interpretation of what his of where
3 it would be more amendable so he could practice his faith. But
4 the information that was not presented to the Court at that
5 time was the abundant evidence of the danger, the risk, the
6 motivations, the sincere motivations for why the defendant
7 chose and wanted to flee as well as the other evidence of his
8 danger because he of, he had actually committed terrorism
9 related offenses here in the United States and was planning to
10 do the same overseas. And so through that lens and through
11 this submission the Court now should, even with, absent a
12 presumption, should easily be able to find that there are no
13 conditions that could ensure that the defendant will not
14 continue to reoffend, continue to engage in the conspiracy and
15 the attempt to provide material support as he has had, as he
16 had done so for the last almost a decade.
17 I should add, Your Honor, he’s done that often from
18 the confines of his own home, often with the assistance, with
19 the knowledge of people in this very same community which he
20 now claims is the community that will ensure that he will not
21 continue to offend. Your Honor sees cases of all sorts in this
22 court. Often you see drug dealers or other individuals charged
23 with offenses which also have a presumption and some not for
24 which the danger is not necessarily a risk of imminent violence
25 but rather other societal harms which the Bail Reform Statute
MARYANN V. YOUNG
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1 was designed to protect against. In a drug dealer
2 circumstance, it’s so that they don’t spread their poison, so
3 that they don’t continue to fuel this machine which ultimately
4 yields violence or ultimately yields destruction of people’s
5 lives. This defendant is in the same boat, Your Honor. The
6 poison that this person was pedaling in this community was the
7 harm not only to the risk of all Americans because of his
8 advocacy for terror and jihad spreading, enabling others both
9 in the United States and around the world to be motivated and
10 justified to engage in violence to reach their political ends,
11 but rather he’s implicating his own community. The very Muslim
12 community that he claims to be standing up for is the community
13 which he is impacting and has been for the last, you know, for
14 the last almost of a decade. And it’s that harm which should
15 also be considered in addition to the harm, very real and
16 palpable violence which have been made known to the Court. One
17 of those examples, Your Honor, and I won’t belabor it, is what
18 should have been much publicized but it was in the original
19 affidavit and it’s in the Nambu affidavit, of the consideration
20 of actually engaging in acts of violence to discriminately kill
21 people here. Those plans were dismissed because of the lack of
22 feasibility or viability of conducting a domestic attack simply
23 because all they could attain were handguns, Your Honor.
24 Unfortunately, the events of the last week have crystallized
25 the fallacy of this lack of feasibility. It’s crystallized the

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1 threat that such a one off plan might actually be brought to
2 fruition. And this is a person who for the last 10 years has
3 single-mindedly thought of how and why he can support his faith
4 or his perception of his faith through defending it through
5 violent means if necessary. This is a person who we’ve only
6 provided a snapshot, a small window over various periods of
7 time to the Court to provide some insight into the G factors
8 under 3142 to the detention statute in which the Court is
9 allowed to assess the personal characteristics of this
10 defendant, the motives for his behavior, what kinds of, you
11 know, the amount of energy and time that he has spent thinking
12 and proselytized and spreading the word about his brand of what
13 he calls religion. And for him that means violent jihad. For
14 him, that means watching videos of mutilation of people. For
15 him, it means watching images and storing and saving images of
16 beheaded people. For him, it means trying to explain to other
17 younger people in the community and beyond this Commonwealth,
18 explaining to them why these things are appropriate and
19 necessary. For him, when posed with the prospect that there
20 might be a just result in the courts for, to resolve a conflict
21 or an injustice done upon Muslims, his answer is who cares.
22 Texas barbecue is the way to go, referring to the burning and
23 mutilation of American soldiers. That is the character of the
24 person at the table that the Court should assess when
25 considering whether he’s a real danger or whether because of

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1 his behavior over the last year when he was charged with a
2 1001 offense why he’s been able to comply with the conditions
3 of release. Even in that context the idea that’s he’s complied
4 with--
5 THE COURT: Do you think he’s complied with the
6 conditions of release over the past year?
7 MR. CHAKRAVARTY: He has not, Your Honor. He has
8 committed a federal offense including continuation of his--
9 THE COURT: During the time period of release.
10 MR. CHAKRAVARTY: --during the time period of
11 release. His duty hasn’t changed, Your Honor. I went on his
12 website yesterday. His, grant it he’s not had access to it
13 since he’s been in custody, but he has document after document
14 purporting to justify through so-called religious doctrine,
15 often not even by scholars of Islam, which justify standing up
16 against the tyrant, disrespecting the laws of the Kirthar or
17 the infidel. This is a person who given his stakes now that he
18 has to face versus what he faced before would be at no qualms
19 either to flee or to actually implement or take his terrorist
20 planning to a next stage. And this is a real concern which
21 there are no conditions which could get into his mind and short
22 circuit the training and the inculcation which he has done to
23 himself and to others over the last 10 years. That’s so deeply
24 imbedded his hatred for the United States government and what
25 it stands for and activities overseas, it’s so deeply imbedded

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1 that there’s no way to ensure that he won’t take do anything
2 to perpetuate that. And whether that is an act of violence or
3 whether has been his pattern and practice whether it is to
4 encourage or to support others who are in fact engaging in
5 those acts of violence. He now faces potential the life in
6 prison. He now faces the guideline ranges with terrorism
7 enhancement in the multiples of decades. His incentive to
8 remain here, which has solely been secure I would submit,
9 primarily been secured I would submit by secure by the good
10 auspices of his family who, like any good family, would support
11 their kin. They’ve put up their home; they’ve put up their
12 assets. Those would be a small price to pay for the freedom of
13 their son, Your Honor, a son who, in this case, is facing
14 international opprobrium certainly in this community and the
15 specter of a lengthy period of incarceration. So the motive
16 analysis in terms of the value of that surety should be viewed
17 in perspective.
18 And finally, in terms of categories of factors of the
19 good Court to consider, in this case the evidence is, the
20 government would submit at this stage voluminous more than in
21 most cases. You know, the proffer was submitted to provide us
22 insight into the defendant’s state of mind and his intent and
23 the kind of pervasiveness of his thought. But it’s certainly
24 not the four corners of the evidence and the affidavit I
25 submitted are details that there are other types of evidence,

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1 other character of evidence including cooperating witnesses,
2 including recorded statements of the defendant, including the
3 defendant’s own writings and including records and other kind
4 of objective records, all which corroborate each other. But
5 amongst those are cooperating witnesses, people who from the
6 Muslim community and beyond who have answered truthfully when
7 the government has asked them questions. Something which is
8 even in Islam despite what the defendant’s interpretation might
9 be is a legitimate activity. The defendant’s perception of
10 that as detailed in the proffer is that that simple act of
11 cooperating with the government is telling the government the
12 truth when asked is tantamount to apostasy. And there is only
13 one punishment in defendant’s eyes when somebody becomes
14 apostic, when somebody rejects the faith, acts against it, and
15 that is a, that is to exterminate that person. In this case
16 there are several cooperating witnesses. There is a real risk,
17 and defendant knows who they are, but there’s a real risk that
18 no matter what happens if he’s ever released that there is a
19 jeopardy both by himself as well as his associates, some of
20 whom are at large. I point out that in the proffer the
21 defendant had communications with over a dozen individuals.
22 Those individuals are not charged with a crime, but those
23 individuals had conversations with the defendant about the
24 propriety of violent jihad, about the supportive of the
25 horrific acts which defendant was reveling in. And those

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1 people, some of them may be in the courtroom today, those
2 people are still around and still can perpetuate what the
3 defendant has inside and encouraged them to do all this time.
4 I won’t belabor the issues much more, but ,I to
5 address one of the concerns which I anticipate Mr. Carney will
6 raise, which is that the controls at home might be sufficient
7 to ensure the defendant won’t continue to perpetuate this
8 ongoing conspiracy which from he has never withdrawn. In fact
9 his behavior before the Court suggests that his mindset on the
10 last occasion suggests that his mindset is equally as resolved
11 today as it was back then. But it’s the same family, this
12 admirable, upstanding family. There’s no reason to disbelieve
13 that, who, and in this community where he has radicalized
14 himself, he radicalized others and continued to engage,
15 continued to manage his website, continued to communicate with
16 individuals after the initiation of criminal proceedings in
17 this case. There is a co-conspirator who remains overseas
18 who’s been charged. The potential that this defendant can be
19 controlled by a family who has not been able to control his
20 behavior at all regardless of the fact that they may very well
21 disapprove of everything that the defendant has perverted his
22 faith into suggests that merely pulling the plug out of a wall
23 for internet access is not going to prevent him from
24 communicating or from spreading the same desire that he has had
25 to stand up against the disbeliever and the infidels.

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1 The, I just want to outline, before I turn it over
2 some of the character of what this person’s mindset has been.
3 And I know Your Honor has read the detailed sort of chats, but
4 he’s done things such as on the internet or other communication
5 to actually provide material support. We have The 39 Ways of
6 Preserving and Participate in Jihad. This is a textbook, and
7 when you look through the - and you’ll see that based on the
8 allegations thus far proffered, the defendant has either
9 attempted to have accomplished several of these 39 ways. This
10 is a source of pride for this defendant. The, you know, being
11 referred to as the media wing of Al-Qaida, spreading the
12 propaganda of this global terrorist organization is a serious
13 and meaningful contribution to the mission of Al-Qaida.
14 Holding aside the fact that his perception of Osama Bin Laden
15 is like his real father, query how he would respect the wishes
16 of his true father who is in the courtroom. The fact that the
17 defendant didn’t simply regurgitate existing liturgy or
18 existing scholarly work about the benefits and the motivations
19 for violent jihad, but actually did close production work,
20 created videos, did translations, so that the word could be
21 spread across cultures, across countries and especially in this
22 community where he would be released back into. This is
23 somebody, who based on his communications, who relished the
24 importance of his work. He felt it was a called action. He
25 hoped it would cause people to take action. He hoped it made

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1 an impact. In his ideological motivation for these actions so
2 deeply seeded and so deeply entrenched that in addition to his
3 adulation for individuals like Osama Bin Laden, Al-Qaida in
4 general, Abu Musab al-Zarqawi, Dr. Ayman Al-Zawahiri. This is
5 somebody who would joke with his friends about watching videos,
6 not watching a, you know, American Idol, but rather watching
7 beheading, beheading videos and watching other horrific acts of
8 violence. This is somebody who enjoys that, Your Honor, and
9 did it over a long period of time. There’s nothing, I stress
10 again, there’s nothing to suggest that that has changed. This
11 is someone who had stored multiple and dozens of images of the
12 attacks of 9/11, somebody who actively sought out and became a
13 student in the lives of the 9/11 hijackers. So when Mr. Carney
14 stands up and say there’s nothing, there’s no shred of evidence
15 to suggest that this person before you is a risk of personally
16 engaging in violence, this is somebody who has studied the
17 lives of people across the world, across the world, who come
18 from all different walks of life, all different socio-economic
19 routes. And he has studied how and why they finally engaged in
20 acts of terrorism. And he has looked to those people with
21 admiration because they did what he wanted to do and didn’t
22 have the courage to do, and now he’s a person who has nothing
23 to lose, Your Honor. Now he is a person who is looking at
24 potentially the rest of his life behind bars. The motivation
25 for this person now finally to go out in a blaze of glory or to

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1 do what he was heretofore unable to have the courage to do has
2 gone up tremendously.
3 And then finally, the last category of risk here is
4 his explicit solicitation of others to do what it is that he
5 was unable to do, his referral of others to individuals like
6 Anwar al-Awlaki or others who might perpetuate and who might
7 propagate to the ideology to motivate somebody else to go
8 engage in jihad which he finds as dictated in his 39 Ways to
9 Preserve and Participate in Jihad. He finds as the next
10 approximation of personally participating in jihad is to
11 encourage somebody else or to support somebody else in doing
12 that. This is a person whose risk is beyond simply the risk of
13 the community at large. It’s particularly invasive and
14 infective to his own Muslim community, especially the peaceful
15 and law-abiding community here in the Commonwealth. But more
16 importantly his network, this network of support, which he is
17 praising to the Court, is a network some of whom are supportive
18 of the defendant’s illegal objectives. We don’t know how many,
19 and we don’t know where they are. And more importantly it’s
20 the same community which has allowed him, given him the
21 ability, to engage in this longstanding conspiracy with himself
22 and others both charged and uncharged over the last ten years.
23 So there really are no conditions.
24 THE COURT: Thank you. Mr. Carney?
25 MR. CARNEY: Thank you, Your Honor. The decision

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1 before the Court is not an easy one. If the Court is to be
2 guided by hysteria or fear, then it will stampede into a
3 decision allowing the government’s motion. But I suggest if
4 the Court is guided by the Rule of Law, by the statutes passed
5 by the Congress as interpreted by the Courts then the evidence
6 supports Mr. Mehanna’s release. I have submitted a memorandum
7 that’s given Your Honor background about the defendant, and I
8 won’t rehash all of those--
9 THE COURT: I have it in my notes.
10 MR. CARNEY: --notes. But the events of the last few
11 years provide the very best evidence as to whether Dr. Mehanna,
12 he is a doctor based on his graduation from the Mass College of
13 Pharmacy with a pharmacy degree, whether Dr. Mehanna will flee
14 if he is released by Your Honor, and whether if released he
15 would present a danger to the community.
16 Let’s just look at the last few years to put this in
17 context. Dr. Mehanna was approached on one occasion by FBI
18 agents who wanted to interview him. He consented to the
19 interview and spoke to the agents. They urged him to become a
20 cooperating informant against individuals in the Muslim
21 community, and he declined to do so. They were, he was
22 approached a second time by the FBI agents, and again, again
23 urged to become an informant and declined to do so. At this
24 point now knowing the focus that the FBI had on him, he did not
25 flee. He did not do anything to obstruct justice. He did not

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1 do anything to present a danger to the community. He was
2 visited by the FBI on a third occasion in April of 2008. They
3 confronted him with the fact that they said he had lied to them
4 on a previous occasion about whether his friend, Daniel
5 Maldonado, was in Egypt or in Somalia and that he could and
6 would be charged with a crime if he did not become an informant
7 against the Muslim community. Dr. Mehanna respectfully
8 declined to do so. So despite having been told by the FBI that
9 they knew he had made a false statement to them and he would be
10 charged with a crime, he did not attempt to flee. He did not
11 do something to obstruct justice. He did not do anything to
12 present a danger to the community. He retained counsel. What
13 more American thing is there to do than seek the protection of
14 the Rule of Law? Dr. Mehanna completed college. He got his
15 degree. During college he worked at Walgreens; he worked at
16 CVS in the community. He was very active in his mosque and in
17 his local community. He looked for a job. The best offer he
18 received was one from the most prestigious hospital in the
19 Middle East where he would go under contract and work in Saudi
20 Arabia as a pharmacist, a country where he would feel that his
21 religion is completely embraced by the community and where he
22 felt he would be comfortable. The hospital paid for his
23 airline ticket. Indeed, in his contract says that he would pay
24 for him to fly to Saudi Arabia for his job, and they would fly;
25 they would pay for the ticket for when he would come back and
MARYANN V. YOUNG
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23
1 visit his parents or visit his friends when he returned to the
2 United States. He appeared in this court after he was arrested
3 at the airport where he was getting on a plane with his
4 parents. And after many hearings, this Court decided that
5 there were conditions of release that would ensure that Dr.
6 Mehanna would return to this courtroom. It’s significant to me
7 that if the government says that Dr. Mehanna is such an
8 unbelievable danger to the United States that he has to be
9 locked up, why didn’t they say a darn thing in December of ’08
10 when he was being let out of this courtroom? Was he such a
11 danger that they would withhold this information from Your
12 Honor because of some tactical reason? That they would rather
13 have a dangerous person go out into the community than tell you
14 about all this dangerous stuff that they knew about? Or was it
15 that they knew that this dangerous stuff would not merit
16 holding him? And so Dr. Mehanna was released in December of
17 `08. Your Honor set very strict conditions. A notable
18 condition that I had never experienced before was that the
19 government proposed restrictions on Dr. Mehanna’s free speech.
20 They explicitly proposed to the Court as a condition of release
21 that Dr. Mehanna could not speak to people about cooperating
22 witnesses or say that it was bad to be a cooperating witness or
23 speak about this investigation in that way to members of the
24 public. If he did so he would be in violation of the terms of
25 your release. It was an unprecedented term of release in my

MARYANN V. YOUNG
(508) 384-2003
24
1 experience, but I discussed it with my client, and he said
2 that would cause no problem whatsoever. If that’s what the
3 government insisted that he do, fine, he’ll do it because he
4 wasn’t going to do it anyway. And over the past year where the
5 government says he continues to be involved in this jihad, we
6 have never once had presentation in this court that he is in
7 violation of your order strictly limiting what this man had
8 said. Did he flee or attempt to flee? Did he obstruct
9 justice? Was he a danger to the community over the last almost
10 year that he’s been under your supervision and the supervision
11 of pretrial services? The absence of any allegation is the
12 answer to that. He had been under a nighttime curfew, but on
13 occasion the Court has even released him from that. For
14 example, there was a religious ceremony where people of his
15 faith try to pray all night at a mosque, and we asked that he
16 be relieved of his curfew, and Your Honor permitted him, and he
17 did not flee. There was another occasion where he was taking
18 his pharmacy exam which is a two-day exam comparable to our bar
19 exam. And he asked for permission to be off the curfew, not so
20 that he was going any place but simply so that he would not be
21 woken up two or three times a night by the automatic calling to
22 verify that he is in his home; and that way he could get a good
23 night’s sleep for his exam, and the Court permitted that. This
24 window of opportunity would have permitted Dr. Mehanna to flee,
25 and he didn’t; or obstruct justice, and he never did; or

MARYANN V. YOUNG
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25
1 present a danger to the community, and he never did. If one
2 looks at the proffer put forward by the government, the major
3 focus is on the years 2002 to 2006, and they focus on
4 statements made by Dr. Mehanna when he was a college student,
5 people who were friends of his, he thought, who were recording
6 his conversations. And so that the kind of sharing that one’s
7 one does with friends in college, the exuberance of youth, I
8 can recall distinctly when I was in college in the days of
9 BSDS, and the Black Panthers, and going to see Stokely
10 Carmichael or other people who had come to speak on college
11 campuses and listened to what they say. And in the youthful
12 idealism believing gee, that sounds good. That’s got to be,
13 that’s a good idea, for going beyond that? No, not going
14 beyond that. And their focus on statements he made or postings
15 or emails that he sent while he was in college is the heart of
16 the government’s case here against Dr. Mehanna.
17 It’s interesting that the prosecutor said that he
18 went on Dr. Mehanna’s blog where there are translations of
19 texts, where there are scholarly articles that he has
20 translated, where he has had videos that were obtained from CNN
21 or FOX News, and he has saved them, and where he supports
22 ideas. Listening to the prosecutor makes me afraid about where
23 the First Amendment stands in the eyes of this government if
24 this is what he is saying. If he disagrees that Dr. Mehanna
25 cannot keep CNN or FOX News videos on his website or translate

MARYANN V. YOUNG
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26
1 texts, someone who’s assisting me in this case pointed out the
2 irony that one of the texts that the government has focused on
3 was cited by the Secretary of Defense when he went to
4 Afghanistan to support the Taliban in trying to get the
5 Russians out of Afghanistan. I’m hoping during the trial they
6 could play for the jury the movie Charlie Wilson’s War to show
7 what the United States did during Afghanistan to support the
8 Muslims in trying to get an outside country out of Afghanistan,
9 which many Muslims are still trying to get outside countries
10 out of Iraq and Afghanistan and Pakistan. The fact that he
11 might support those views is what the First Amendment is all
12 about. First Amendment isn’t about supporting popular speech;
13 it’s about supporting unpopular speech.
14 But what else has occurred over the last several
15 years that should guide Your Honor? After Dr. Mehanna was
16 released from this court, by this Court, he tried to get a job.
17 He was unable to get a job in his chosen profession. So he did
18 get a job. He’s been teaching at a private school at a private
19 Jr. High school. He has been teaching math, science and
20 religion. That’s how he has been occupying his time during the
21 day. There are many letters of support that have been provided
22 to me that I’m going to give to the Court, and I have a motion
23 in that regard in that I want to give the originals of the
24 letters to Your Honor, a copy of the letters to the
25 prosecution, and I want to file those letters, but I’m asking

MARYANN V. YOUNG
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27
1 the Court’s permission to just redact the names of the people
2 from the public record so that there’s no chance that they will
3 bear any problems because they’ve written a letter to this
4 Court. Among--
5 THE COURT: Any objection to that, Mr. Chakravarty?
6 MR. CHAKRAVARTY: None, Your Honor.
8 MR. CARNEY: But among those letters you will see are
9 letters from his seventh grade students who, on their own, have
10 written letters to Your Honor to tell you about the man who’s
11 been their teacher and how even during the religion classes
12 that he teaches, how he always says non-violence is the way to
13 go. That’s what he is teaching to the young, impressionable
14 minds at the school where he has been a teacher. That’s what
15 he’s been doing instead of fleeing or obstructing justice or
16 presenting a danger to the community.
17 Your Honor, our country has a ignominious history
18 about acting in fear. We showed it when we interned thousands
19 of Japanese during World War II. We showed it after 9/11 when
20 we rounded up all of the Muslims to question them as suspects
21 in terrorism. We acted out of fear when a professor at the
22 University of South Florida was indicted on 51 counts of
23 providing support to terrorists. And the professor went to
24 trial for two months. The defense rested after the
25 government’s case without calling a single witness. And the

MARYANN V. YOUNG
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28
1 defense counsel, Bill Moffitt, said what this case is about is
2 the First Amendment. That defendant was acquitted of all 51
3 charges. And the reason past we have been turning against fear
4 and back to the rule of law, that’s the direction we should go
5 in this case. The decision Your Honor will make may be the
6 very toughest decision you make in your entire career, this
7 one, in this case on this issue. Has the government proven to
8 you that if released Dr. Mehanna will flee or obstruct justice
9 or present a danger to the community? Not only hasn’t the
10 government met its burden of proof, but by the evidence I have
11 presented to Your Honor, I have proven the opposite.
12 Dr. Mehanna’s terms of release currently can be supplemented in
13 whichever way Your Honor thinks is appropriate. We’ve
14 suggested some ways, if that would give greater confidence to
15 the Court. It includes 24-hour house arrest so that he’s not
16 able to leave his home or curtilage. The government has a
17 concern about the use of the internet. We’ve suggested that
18 the internet be removed, and we’ll sign a waiver and be able to
19 allow the government or its investigators to confirm that there
20 is no Wi-Fi or other ability to communicate over the internet.
21 Any other conditions that the government, that the Court wants
22 to set are amenable. But he should not be held in jail under a
23 23-hour a day lock-up, which is his current regimen. He has an
24 incredible amount of support in the community.
25 This past Sunday I went to the Islamic Center in

MARYANN V. YOUNG
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29
1 Wayland at their invitation to speak about the case. It was
2 packed with standing room only surrounding every one of them in
3 the place because they wanted to hear from me and show support
4 for Dr. Mehanna. I will be presenting dozens of letters to the
5 Court showing this community’s support. Not only do you have
6 all of or most of these people in the courtroom, but there are
7 dozens more waiting outside who could not come in. How often
8 does that happen in this court that there’s such a community
9 outpouring of support? People who are doctors, lawyers,
10 professors, retail, at-home moms, all coming forward and saying
11 we know he can be released and not flee. The parents are not
12 just saying that he’s a good person. They said they will lose
13 their house if he leaves and their life savings if he leaves.
14 That’s how strongly they support him.
15 Your Honor, I conclude the way I began. I urge Your
16 Honor to be guided by the rule of law because if Your Honor is
17 guided by the rule of law then you will see Tarek Mehanna
18 should be released. Thank you.
19 THE COURT: Okay.
20 MR. CHAKRAVARTY: Just a very brief--
21 THE COURT: Go ahead.
22 MR. CHAKRAVARTY: -- on three points Mr. Carney
23 raised. One the idea of community support is admirable. It’s
24 admirable to the community. It’s a credit to Mr. Mehanna’s
25 family and to their devotion to their son. But the defendant

MARYANN V. YOUNG
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30
1 is a person of two faces, Your Honor. He’s had a very public
2 face in the community, very well-respected. All of the things
3 which I’m sure are in the letters of support and that Mr.
4 Carney represented were not statements of people who know what
5 the evidence is, are not statements of people who know what was
6 really in the heart of this man who stands before you or who
7 sits before but rather their perception, and the defendant is
8 innocent until proven guilty and after a trial if that evidence
9 comes out and the community sees it, then and only then will
10 their perception likely change. So the idea that the community
11 is supportive is admirable, but it really does not influence,
12 should not influence, the Court’s analysis of whether it’s a
13 suitable place to put this defendant back.
14 The second is on the important issue of defendant’s
15 protected speech. The government shares and vigorously
16 enforces the ability for every American, everyone in this
17 country, to be able to say and think whatever they want even if
18 it is to want to kill Americans. It’s entirely protected. But
19 this Court is too sophisticated for the argument that the
20 defendant is somehow a martyr because he’s a Muslim and because
21 he said things which are not popular. That’s not what this
22 case is about. This case is about the defendant crossing that
23 line, actually engaging in action and inciting other people to
24 action, a very meaningful and, in his words, important,
25 impactful ways. And it’s that action which means that the
MARYANN V. YOUNG
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31
1 defendant is, any expression of the defendant’s belief does
2 become squarely relevant in terms of this Court’s analysis as
3 to whether this person is truly a danger or not. He is not
4 free to conspire, to violate criminal offense. He is not free
5 to use words to perpetuate a conspiracy or to incite other
6 people to engage in conspiracy. And he’s certainly not free to
7 go to Yemen to conspire with others to go to Pakistan on
8 multiple occasions, conspire with others to go to Iraq all for
9 the sole purpose, not of defending against the Russians in 1980
10 but to kill American soldiers who are over there right now.
11 That is not freedom that our laws protect. And to bring this
12 Court back to the rule of law, the rule of law here is from the
13 presumption of detention for a variety of reasons. But the
14 rule of law also means that when somebody engages in those acts
15 that the Court and the law is not blind by their protection of
16 civil liberties such that they ignore when there is a real and
17 present danger within their own community, and that’s what the
18 defendant poses greatest.
19 THE COURT: All right, anything else from either of
20 you?
21 MR. CARNEY: No, thank you.
22 THE COURT: All right, and are there letters you wish
23 to file, Mr. Carney?
24 MR. CARNEY: May I approach, please?
25 THE COURT: You may. You have, you engaged

MARYANN V. YOUNG
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32
1 Mr. Chakravarty?
4 MR. CARNEY: Your Honor, I simply handed a copy so
5 Your Honor can see the motion that I will electronically file
6 today.
7 THE COURT: I’ll allow the motion.
8 MR. CARNEY: And then I will provide your clerk with
9 a pleading to which the letters will be appended, and the
10 pleading will be offered up to seal. And then I will
11 electronically file a duplicate of all of those letters with
12 simply the name or identifying address redacted.
13 THE COURT: When will you give to Ms. Simeone the
14 letters?
15 MR. CARNEY: Today, Your Honor.
16 THE COURT: All right. Right now or sometime today?
17 MR. CARNEY: I can give them right now.
18 THE COURT: If you have them, I’ll take them. If you
19 need time to prepare them then I’ll let you.
20 MR. CARNEY: Do you need a copy?
21 MR. CHAKRAVARTY: Yes. These are the copies that are
22 going to be redacted on?
23 MR. CARNEY: Yes. The ones handwritten in pencil are
24 fairly obviously students.

MARYANN V. YOUNG
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33
1 MR. CARNEY: Thank you. A copy has been given to
2 the government.
3 THE COURT: All right thank you.
4 MR. CARNEY: That concludes my submission, Your
5 Honor.
6 THE COURT: All right, I will read the letters,
7 review the filings both of you made, take the matter under
8 advisement and issue a written decision. Anything else?
9 MR. CARNEY: No, Your Honor, thank you.
10 THE COURT: All right we’ll adjourn.
11 THE CLERK: All rise; this matter’s adjourned.
12 //
13 //
14 //
15 //
16 //
17 //
18 //
19 //
20 //
21 //
22 //
23 //
24 //
25 //
MARYANN V. YOUNG
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34
1 CERTIFICATION
2 I, Maryann V. Young, court approved transcriber, certify
3 that the foregoing is a correct transcript from the official
4 digital sound recording of the proceedings in the
5 above-entitled matter.
7 /s/ Maryann V. Young January 26, 2010
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Case 1:09-cr-10017-GAO Document 106-1 Filed 12/17/10 Page 1 of 34

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA . CRIMINAL NO. 09-10017-GAO

For the government: UNITED STATES ATTORNEY’S OFFICE

For the defendant: CARNEY & BASSIL

Proceedings recorded by electronic sound recording,

2 CASE CALLED INTO SESSION

3 THE CLERK: The Honorable Leo T. Sorokin presiding.

4 Today is November 12th. The case of the United States v.

5 Mehanna; Criminal Action 09-10017 will now be heard before this

6 Court. Counsel please identify themselves for the record.

7 THE COURT: Please be seated.

8 MR. CHAKRAVARTY: Good morning, Your Honor, for the

9 government assistant U.S. attorneys, Aloke Chakravarty and

11 THE COURT: Good morning.

12 MR. AUERHAHN: Good morning, Your Honor.

13 MR. MORRISON: Good morning, Your Honor, Steven R.

14 Morrison for the defendant. J. Carney is in the building.

15 He’s attending to matters dealing with the case, this case. I

18 THE COURT: Do you want me to wait for Mr. Carney?

19 MR. MORRISON: It would be best to.

20 THE COURT: How about for doing the arraignment?

21 MR. MORRISON: Well, Attorney Carney is the CJA

22 appointed attorney; I’m not.

23 THE COURT: Oh, you’re right.

24 MR. MORRISON: So I couldn’t even represent him--

25 THE COURT: Thank you.

2 THE COURT: You’re right. Do you know where he is in

4 MR. MORRISON: No, I don’t. We arrived together. I

5 went to see Mr. Mehanna, and J. Carney went to attend to

7 MR. CHAKRAVARTY: We have no objection to that, Your

9 THE COURT: All right.

10 MR. CHAKRAVARTY: --to waiting.

11 THE COURT: Why don’t we recess for 10 minutes?

12 MR. MORRISON: Yes, ten minutes is probably all we

14 THE COURT: All right fine. We’ll recess; I’ll

15 return at 10 after 10.

16 THE CLERK: All rise.

18 CASE CALLED BACK INTO SESSION

19 THE COURT: Please be seated; ready to proceed? All

20 right, we’ll proceed with the arraignment first.

21 MR. CARNEY: Yes, Your Honor. May I identify myself

22 for the record?

23 THE COURT: Absolutely.

24 MR. CARNEY: J.W. Carney, Jr., representing

25 Mr. Mehanna. With me is my associate Steven Morrison. I

2 THE COURT: Thank you.

3 MR. CARNEY: I’ve been in the building since 9:30,

4 but I have no excuse for not being in this courtroom.

5 THE COURT: I accept your apology, Mr. Carney, thank

6 you. Mr. Carney, do you waive reading of the indictment in its

8 MR. CARNEY: I do, Your Honor.

9 THE COURT: All right, Mr. Mehanna, you’ve been

10 charged in indictment with violations of the law for the United

11 States, specifically conspiracy to provide material support to

12 terrorists, providing, attempting to provide the same,

13 conspiracy to kill in a foreign country, conspiracy, making

14 false statements in criminal forfeiture allegations.

15 Mr. Carney, have you had an opportunity to at least

16 preliminary review the indictment with your client such that

17 he’s ready to be arraigned?

18 MR. CARNEY: Yes, Your Honor.

19 THE COURT: All right, and does he have or has he