BRAD DUNLEVY
When federal agents arrested a young Muslim man in an undercover sting in Milwaukee, Wisconsin, last year, they played it up big as "terrorism." His defense, however, says any threat was not just overblown, but completely manufactured.
When federal agents arrested a young Muslim man in an undercover sting in Milwaukee, Wisconsin, last year, they played it up big.
According to a U.S. Department of Justice press release, the “well-coordinated” and “extensive” four-month operation that led to the capture of the then twenty-three-year-old Samy Mohamed Hamzeh halted “a detailed plan to commit a mass shooting intended to kill dozens of people.”
The release said two confidential informants aided Hamzeh in illegally purchasing two machine guns and a silencer that he planned to use in an attack on a Masonic Center in the heart of the city. Gregory J. Haanstad, then acting U.S. Attorney for the Eastern District of Wisconsin, crowed in a statement, “It is difficult to calculate the injury and loss of life that was prevented by concerned citizens coming forward and by the tireless efforts of the FBI and the Joint Terrorism Task Force.”
Local, national, and international media immediately latched on to the story. Numerous reports used buzzwords like “lone wolf” and “terrorist” to describe Hamzeh.
Hamzeh’s defense, however, says any threat was not just overblown, but completely manufactured. Instead of a violent mastermind, they say, their client was manipulated by overzealous undercover informants and FBI agents. It’s a case that highlights what some observers say is a larger problem: the targeting of Muslims by law enforcement.
In court filings, the defense claims Hamzeh went to great lengths to reject the “FBI-orchestrated terrorism plot” that the informants pushed on him. Up until the day before his arrest in late January 2016, “he refused to participate and insisted they abandon any plan for violence.” They say the FBI used a variety of tactics to pressure an “adamantly” unwilling Hamzeh to take part in the plan, including selling him weapons for just a few hundred dollars that would normally cost as much as $10,000 apiece.
For these and other reasons, they contend, “Hamzeh has a strong case for entrapment.”
As the case slowly winds through various court procedures in the Eastern District of Wisconsin in preparation for a mid-February trial before U.S. Magistrate Judge David Jones, Hamzeh, now twenty-five, sits in jail. In the meantime, the prosecution is drawing attention from legal experts and critics who have tracked similar cases.
Jesse Norris, who teaches criminal justice at the State University of New York at Fredonia, calls the Hamzeh prosecution “really one of the worst cases I’ve seen and one of the strongest for an entrapment defense because even from the beginning it seemed like they had no evidence that he [Hamzeh] had real terrorist plans.”
The case against Hamzeh, it seems, begins not with actions but words.
According to the criminal complaint, special agents with the FBI “have been investigating Samy Mohamed Hamzeh for threats made by Hamzeh toward persons inside the United States and elsewhere since September 2015.” Although these specific threats aren’t detailed, federal agents sent a pair of informants—or “confidential human sources”—to befriend Hamzeh.
Soon, an informant reported back that “in October 2015, Hamzeh planned to travel to Jordan, enter the West Bank, and conduct an attack on Israeli soldiers and citizens.” This goal was abandoned for personal and logistic reasons, whereupon Hamzeh “refocused his plans on an attack in the United States.”
In mid-January 2016, the complaint states, Hamzeh and the two informants went to a gun range and practiced shooting a handgun. From there, the three men “traveled to [the Humphrey Scottish Rite] Masonic Center in [downtown] Milwaukee and were provided a tour of the facility.” The center has served as the local headquarters for the fraternal organization since 1912.
The defense claims Hamzeh went to great lengths to reject the ‘FBI-orchestrated terrorism plot’ that the informants pushed on him.
Later that day and the next morning, the FBI says, Hamzeh allegedly made gruesome and threatening statements about his desire to attack the Masonic Center. Speaking in Arabic to the informants in conversations that were secretly recorded, Hamzeh is said to have plotted where each participant would be when he begins to “spray everyone in the room” with gunfire. “We will shoot them, kill them, and get out,” he said. He even explained how the receptionist should be killed: “Do not let the blood show, shoot her from the bottom, two or three shots in her stomach and let her sit on the chair and push her to the front, as if she is sleeping.”
Hamzeh is quoted as saying, “If this hit is executed, it will be known all over the world [and] such operations will increase in America . . . . We will be igniting it. I mean, we are marching at the front of the war.” He even gave a desired death toll: “Thirty is excellent. If I got out, after killing thirty people, I will be . . . 100 percent happy, because these thirty will terrify the world.”
On January 25, 2016, Hamzeh and the two informants met with two undercover FBI agents in Kenosha, Wisconsin, a midsized city about an hour north of Chicago. At the meeting, the agents showed two machine guns and a silencer to the three men, describing how the guns can be set to semi- and automatic firing modes.
The complaint states, “After the exchange of money, Hamzeh took possession of a bag containing the automatic weapons and the silencer . . . and placed the bag in the trunk of the vehicle” that he and the informants arrived in.
At this point, Hamzeh was arrested. He was subsequently charged with three counts of “unlawfully receiving and possessing firearms . . . which are not registered to him in the National Firearms Registration and Transfer Record.” Each count carries a maximum ten-year sentence.
Not surprisingly, the FBI isn’t discussing the operation. “It’s an ongoing case [and] we are not able to comment as a matter of Department of Justice policy,” said Leonard Peace, public affairs officer for Milwaukee’s FBI office.
Although they don’t deny that Hamzeh purchased the machine guns or made his recorded statements, his attorneys insist their client repeatedly refused to participate in the Masonic Center plot.
The attorneys, Joseph Bugni and Craig Albee of Federal Defender Services of Wisconsin, an independent, grant-funded law firm for indigent clients, declined to comment on the case. But their intended trial strategy is laid out in court motions, specifically in a lengthy request to Judge Jones stating why Hamzeh should be released on bond while awaiting trial.
In it, they argue that Hamzeh, based on numerous recorded conversations with informants, was at most making “empty boasts” with men he thought were friends. Further, they say the informants—not Hamzeh—were the ones who proposed and pushed for an attack on the Masonic Center.
Hamzeh, his lawyers contend, is an ordinary, law-abiding young man and not a jihadist. “[There’s] nothing to suggest that Hamzeh engaged in prior acts of violence, nor does [he have] any communications with extremist groups,” the motion states. “He has no history of weapon possession or any significant anti-social behavior [and] absent the FBI’s influence on his life, the extent of his criminal behavior appears limited to smoking marijuana.”
The pleading also provides information on Hamzeh. An American citizen born in New Jersey, as a young child he returned with his family to Jordan, where he attended high school. Then, at age nineteen, he moved back to the United States, first to Chicago and then Milwaukee, followed by his parents and younger sister. “The four of them rented an apartment together,” the motion states. “The family relied on Hamzeh’s wages to make ends meet. He turned each paycheck over to his dad, who would give [him] a small allowance for cigarettes and coffee.”
In describing the interactions between Hamzeh and the informants, the defense writes, “As young men often do, they frequently socialized and gossiped, joked, made up stories, and tried to sound more important than they were.”
The defense details how the informants began pushing Hamzeh toward violence and guns. It says Hamzeh made clear he only wanted a handgun for his protection as a delivery driver and that when one of the informants first mentions a machine gun “Hamzeh tells him he’s not interested.” But the informant kept suggesting “a machine gun [because that] is illegal while a pistol is not.”
According to the defense, “All of the weapons were provided by the government, at the government’s suggestion, and for a price that was a fraction of the going rate.”
The defense in its motion also argues that the informants “fostered” and “provoked” the idea of an attack on the Masonic Center. Hamzeh, they say, sought the advice of two Islamic spiritual leaders, known as imams, who refuted the plan as “Haram,” or religiously forbidden.
In a visit to an informant’s hotel room, the pleadings say, Hamzeh fervently backed out of the planned attack, stating “this operation will be considered Haram [and] will be forbidden” and prompt an anti-Muslim backlash. In a final refusal, Hamzeh said, “Get me out of this and do as you please.”
If Hamzeh’s attorneys do present an entrapment defense, as their motions
Samy Mohamed Hamzeh
strongly imply, his lawyers will have their work cut out, according to lawyers familiar with this case and the entrapment defense.
Dan Stiller, former executive director of Federal Defender Services of Wisconsin, says entrapment is “very frequently misunderstood.”
“A person is not entrapped merely because law enforcement provides [an] opportunity to commit a crime,” he explains. “Entrapment occurs where law enforcement, by its conduct, induces the commision of a crime.”
Stiller, now an attorney in private practice, gives a scenario in which a person who is predisposed to sell drugs is given an opportunity by law enforcement to do so. “That’s not entrapment.” he says. But let’s say a person who is down on his luck and in desperate need of money is persuaded by law enforcement to seek out drugs to provide for cash. That is entrapment, because the person was not “independently inclined to sell drugs” and only did so because of the actions of law enforcement.
The entrapment defense in Hamzeh’s case is “uniquely strong based on the facts and the circumstances,” Stiller says. “While perhaps Mr. Hamzeh had a desire to obtain a gun, the defense filings make a pretty strong case that the idea of a machine gun came from informants working on the FBI’s behalf.”
But former federal prosecutor Jeff Cramer says he faced entrapment defenses as a prosecutor a handful of times and won each case at trial. “While it’s a reasonable defense, it is rarely successful,” he says. “In fact, I’m hard pressed to think of a single time when it worked.”
The reason is that it’s an easy defense to poke holes in, Cramer explains. “If I say ‘You entrapped me,’ the prosecution is going to say, ‘Wait, are you kidding me? . . . You were predisposed for this,’ ” he says. “Once the jury starts hearing a lot of that, it doesn’t take long for them to figure, ‘Yeah, the government had a hand in this and thankfully they did because if left to your own devices, you could have done some damage.’ ”
Despite its sensational nature, the Hamzeh case isn’t all that uncommon. Earlier this year, The Progressive wrote about several questionable terrorism prosecutions in Arizona, which also involved elements of alleged entrapment.
According to a recent article in The New York Times, the FBI “has significantly increased its use of stings in terrorism cases, employing agents and informants to pose as jihadists, bomb makers, gun dealers or online ‘friends’ in hundreds of investigations” involving suspected terrorists. The paper reported that “undercover operations are now used in about two of every three prosecutions involving people suspected of supporting the Islamic State.”
Despite its sensational nature, the Hamzeh case isn’t all that uncommon.
Project SALAM, which stands for Support and Legal Advocacy for Muslims, has been tracking cases like Hamzeh’s since 2008. “They’re all over the country,” says Stephen Downs, an attorney and co-founder of the group. “We started a database to track these cases to determine which ones were real and which ones were fake. We call the fake ones ‘preemptive prosecution,’ where the government preemptively prosecuted someone that they were suspicious of but had no evidence of a crime, so they would simply fabricate a crime and then they could lock them up.”
A recent search of the database shows that 696 individual defendants’ cases were marked as “preemptive prosecution.” Hamzeh is one of them. Another 271 defendants’ cases were listed as having “elements of preemptive prosecution.” About 90 percent of the database’s 1,076 cases “were either preemptively prosecuted or had elements of preemptive prosecution in them,” says Downs.
He believes law enforcement has been targeting Muslims since 9/11 with undercover tactics including entrapment: “If you are a Muslim, there is a special focus, a special sensitivity that gets you on the FBI radar.” He says the same scrutiny is not being brought to other groups, including white nationalists and neo-Nazis. “They don’t target those people. For some reason, they don’t seem to be particularly concerned about them.”
Norris, the criminal justice professor at the State University of New York at Fredonia, produced a 2015 study titled, “Estimating the Prevalence of Entrapment in Post-9/11 Terrorism Cases.” In it, he evaluated 580 terrorism prosecutions from September 11, 2001, to 2014. He concluded that 317 involved an informant or undercover agent, and most of those showed signs of entrapment.
“Most of the time in these cases, you have people who have some vague, pro-terrorist ideas but there’s no indication that they would have ever done anything about it,” he says. “[It’s] usually a lot of testosterone-filled young men sitting around BS-ing.”
According to Norris, the informants in these cases are “either getting paid or not deported or not prosecuted, so they have a really strong motivation” to succeed. He says what happened to Hamzeh shows that law enforcement will continue to push after a target proves himself to be harmless because they don’t want to lose “all of the investment they’ve put into the case.”
At press time, Hamzeh was still locked up in the Kenosha County Detention Center as Judge Jones weighed a defense motion to release him on bail. That’s unlikely, says former prosecutor Cramer: “He’s not going anywhere. While the defense might say he’s just full of bravado, no judge is going to let this guy go and cross his fingers and hope he’s right.”
Even if Jones grants the motion, prosecutors can appeal that decision to a higher court, likely leaving Hamzeh in jail until his February 2018 trial date. In their bail motion, Hamzeh’s attorneys note that if he remains detained until trial, he will have spent twenty-five months behind bars; if convicted, the sentencing guidelines for the alleged crimes is twenty-four to thirty months.
But Cramer thinks the two sides will reach a plea bargain before the case gets to trial. “It will probably plead out because most cases do. The conviction rate for the U.S. Attorney’s office is above 90 percent. That’s not a coincidence. The federal government doesn’t go to bat unless they’ve got a really strong, compelling case.”
Norris agrees a deal might be made.
“While the FBI is confident in themselves, they don’t want to get beat,” he says. “They’re making this into a terrorism case. If they lose at trial on the entrapment defense, that’s going to look really bad for them.”
Steven Potter began his reporting career in Milwaukee, Wisconsin, but now lives in his hometown of Madison, where he is a University of Wisconsin graduate student studying multimedia reporting and data visualization.