Friday, June 07, 2013
When a federal judge sentenced two women who
raised money for al-Shabaab to prison terms of 20 and 10 years last
month, some spectators in the courtroom gasped.
Mohamed Hassan, left, and Amina Farah Ali, both of Rochester, Minn.,
leave the U.S. District Court after appearing at a hearing in St. Paul
on Thursday, August 5, 2010. (AP Photo/Craig Lassig)
Some Somalis were taken aback by the length of the sentences --
especially since the same jurist, Chief U.S. District Judge Michael
Davis, earlier had handed down three-year prison terms to three men who
traveled to Somalia with intent to fight for the Islamic terror group.
But as countless defendants from low-level drug mules to Mafia
hitmen to a top lieutenant of Tom Petters have learned, the men had an
advantage that defendants Amina Farah Ali and Hawo Mohamed Hassan
lacked: They pleaded guilty and provided what prosecutors and Davis
considered "substantial assistance" to the FBI.
Under U.S. Federal Sentencing Guidelines, cooperating with the
government is one of the few ways a defendant can significantly shorten
"The usual advice is that you can cut your time in half if you
cooperate," said Minneapolis attorney Paul Engh, who represented
Abdifatah Yusuf Isse, one of the men who drew a three-year sentence.
Isse admitted to a single count of providing material support to
terrorists. The guidelines called for a 15-year sentence, and
prosecutors said his cooperation merited reducing that by more than
half, to six years and nine months.
Davis gave him three years.
"Had he gone to trial, it would appear from the other sentences that he would've received 20 years," Engh said of Isse.
Another factor that influenced Isse and the other defendants who
cooperated: Prosecutors told them that when their sentencings came
around, the government might seek a "terrorism enhancement." The
provision is a sometimes-controversial 1995 addition to the sentencing
guidelines that lets a judge hand down sentences longer than what the
crime normally would bring.
"Everybody knows that it's the 800-pound gorilla in the room,"
Engh said of the terrorism enhancement. Without it, his client would
have faced less than six years in prison.
The government sought the terrorism enhancement for all nine
al-Shabaab defendants sentenced last month. Davis granted each, saying
their crimes qualified because they sought to influence or affect the
governments of Somalia and Ethiopia, whose troops al-Shabaab was
Because the enhancements added hefty time to the prison terms
each defendant faced, their cooperation became even more critical if
they hoped to shorten their time.
Dan Scott, the attorney representing Amina Ali, said that under
the terrorism enhancement, "the government doesn't care if you're
putting a dollar into the bucket for the Irish Republican Army or you're
giving money to al-Qaida or you're providing humanitarian support to
some rebel organization that the government doesn't like."
"The government makes absolutely no distinction. It's all 30
years-to-life," he said. "The government is saying you should keep your
nose out of the foreign policy of the United States, and if you don't,
you deserve the kind of sentence that people get for treason."
THE CALL: FIGHT THE INVASION
The seven men Davis sentenced last month had been charged in
"Operation Rhino," the FBI's investigation into the exodus of more than
20 (the FBI refuses to be more specific) young Somali or Muslim men from
the Twin Cities to Somalia in 2007 and 2008.
At the time, al-Shabaab controlled much of southern Somalia and
sought to wrest control from the country's struggling U.N.-backed
Transitional Federal Government, or TFG. To prop up its regime, the TFG
called in troops from neighboring Ethiopia, even though that violated a
U.N. arms embargo.
Ethiopian soldiers entered Somalia; the U.N. Security Council
later allowed the TFG to bring in troops from the African Union, but
specifically excluded Somalia's neighbors, including Ethiopia.
When a group aligned with al-Shabaab attacked Ethiopian positions
in December 2006, Ethiopia sent more troops. Many Somalis viewed it as
an invasion, and al-Shabaab used the soldiers' presence to recruit
fighters, including from the Somali Diaspora in the United States,
particularly the Twin Cities.
After local men began to disappear, worried family members sought
the FBI's help. In 2008, the State Department designated al-Shabaab a
Foreign Terrorist Organization, making it illegal to provide aid.
The FBI investigation led to charges against 18 men. (The women's
case stemmed from a separate investigation.) Seven of the men cut deals
with the government and pleaded guilty, while one took his case to
trial, was convicted and was sentenced to 20 years.
Eight defendants are fugitives. Two died in Somalia.
(In a bit of irony, the "Rhino" defendant who got the shortest
sentence, Abdow Munye Abdow, didn't cooperate; in fact, he was charged
with lying to the FBI and obstruction of justice. He pleaded to a single
count of obstruction. The government didn't seek a terrorism
enhancement and asked for a 10- to 16-month sentence. In 2010, U.S.
District Judge James Rosenbaum gave him three months behind bars and
three months' home confinement.)
HOW IT WORKED IN PETTERS CASE
At last month's proceedings, prosecutors said the six men who
pleaded guilty and provided "substantial assistance" deserved less
prison time than what sentencing guidelines called for.
There's nothing new about the concept of cooperating with the
government in the hope prosecutors will recommend a shorter sentence to
the judge, who has the final say. It plays out in cases that make
headlines and cases few hear about.
Consider the different fates of former Twin Cities businessman
Tom Petters and one of his top executives, Deanna Lynn Coleman, both of
whom were charged in 2008 in a Ponzi scheme that defrauded investors of
Coleman, a central figure in the fraud, went to the feds and
disclosed the scam. She wore a wire to secretly record her boss, and
later pleaded to a single count of conspiracy. When Petters went to
trial, Coleman testified against him.
Petters was convicted on 20 counts and got 50 years in prison.
Coleman got a year. She was out before an appeals court had time to rule
on Petters' appeal. (It was denied.)
"As a general matter, downward departure motions from the
government are earned and not given away," said Anders Folk, a former
assistant U.S. attorney who was involved in the al-Shabaab cases and is
now with the Leonard Street and Deinard law firm in Minneapolis.
He said people who cooperate with the government sometimes do so
at risk to themselves, and that judges, prosecutors and defense
attorneys want to make sure they get credit for that.
"When a witness takes the stand at a trial and provides public
testimony against a criminal organization ... they're putting themselves
at some risk by doing that," said Folk, who left the U.S. attorney's
office in 2010. "They're kind of indelibly showing the world that they
have made a decision to provide testimony against people who might be
friends or colleagues."
Part of the cooperation: They testified against others,
particularly Mahamud Said Omar, who was tried last year. He was
convicted, and with the terrorism enhancement he faced life in prison.
The government asked for 50 years; Davis gave him 20.
'AN INSIDE VIEW'
Before the al-Shabaab sentencings, Davis met privately with
prosecutors to learn the extent of the assistance the defendants had
provided. Folk said the prison terms that followed "certainly reflect
... a judge who obviously thought these individuals provided substantial
assistance or extraordinary help to the government."
Although Isse and three other defendants testified at last year's
trial of Mahamud Said Omar (who was convicted and sentenced to 20
years), the full extent of their cooperation remains secret. Davis
detailed his rationales for the sentences he handed out in documents
known as "Statement of Reasons," but they are sealed. The U.S. Judicial
Conference decided in 2001 that because the documents often contain
sensitive information, they could be distributed only to the lawyers and
U.S. attorney's office spokeswoman Jeanne Cooney said she
couldn't comment on what aid the men provided because the investigation
remains open and the government still hopes to nab the fugitives.
But Engh said his client, Isse, "provided an inside view that was otherwise unobtainable."
"They provided names, locations of camps, identification of
leadership and general modus operandi," the lawyer said. "It was
invaluable because the government can't go over there and investigate.
They provided a portal into a world that was inaccessible, and that was
SENTENCES 'HARSH AND CRUEL'
Despite the dictates of the sentencing guidelines, some in the
local Somali community believe the sentences were unduly harsh,
especially for Hawo Hassan, 66, and co-defendant Ali, 36, the two
Rochester women convicted by a jury in 2011 in a scheme to raise money
and send it to al-Shabaab.
Prosecutors said that over a 10-month period, the women organized
telephone conferences, door-to-door solicitations and other fundraising
schemes and came up with $8,600, which they sent to al-Shabaab leaders.
Their lawyers and supporters said the women intended it for
humanitarian purposes, but jurors disagreed.
Davis sentenced Ali to 20 years in prison, which is what
prosecutors had asked for. With the terrorism enhancement, she faced a
sentence of 30 years to life.
Hassan was sentenced to 10 years, five less than what the
government sought. She also got the terrorism enhancement, and could
have faced 31 years.
Some Somalis who sat through the three days' worth of sentences
felt the prison terms were too lengthy, particularly for the two women.
Among them was Hassan Mohamud, an imam and the director of the Minnesota
Da'Wah Institute in St. Paul.
"The disparity of the sentencing looks like it was unfair," said
Mohamud, who earned a law degree in his native Somalia and also a law
degree from William Mitchell College of Law in St. Paul.
He called the sentences for the women "harsh and cruel."
In handing down the punishments, Davis said he had researched the
sentences handed down by other federal judges in terrorism-related
cases across the country and that he believed his sentences were in line
with those and fit the crimes.
At Hassan and Ali's trial, jurors heard secretly recorded phone
conversations of Ali talking to al-Shabaab leaders, as well as the two
women rejoicing in attacks on government leaders and foreign troops. But
Mohamud said the women had to deal with al-Shabaab since they sought to
send aid and the group controlled much of the country at the time --
and the rest was governed, marginally, by the TFG, which even the U.N.
conceded was rife with corruption.
"My younger brother lived in that area," Mohamud said. "You
cannot tell me that when I send my brother $100 to $125 every month, and
al-Shabaab was controlling the hawala system (the international money
transfer arrangement many Somalis use), that al-Shabaab didn't tax it.
But that doesn't mean I'm supporting them."
But when he sentenced the women, Davis made clear they had been
convicted of serious crimes and that their aid wasn't humanitarian in
nature. He said the money they raised and sent helped fund a dangerous
terrorist organization that employed suicide bombings and often killed
and injured civilians.
David Hanners can be reached at 612-338-6516.