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Former Navy Sailor Accused of Attempted Espionage
Robert Patrick Hoffman II, 39, of Virginia Beach, Va., has been indicted by a federal grand jury for allegedly attempting to provide classified information to individuals who he believed to be representatives of the Russian Federation.
According to the indictment, Hoffman is a U.S. citizen born in Buffalo, N.Y., who served for 20 years in the U.S. Navy until his retirement in November 2011. While serving in the Navy, Hoffman was a Cryptologic Technician, which required him to maintain Top Security clearance. Hoffman also had access to sensitive information and special programs.
The indictment and other court documents reveal that Hoffman allegedly supplied “drops” of classified information in September and October 2012 to individuals he believed to be part of the Russian Federation. Hoffman was, in fact, engaging in communications with undercover FBI agents. However, Hoffman was solicited by the FBI agents following his return from a trip to Eastern Europe. Apparently, a letter was mailed to Hoffman “from Moscow” that inquired into his interest in assisting the Russian Federation and requested an immediate response.
Although Hoffman responded to the letter, he never came into actual contact with any Russian nationals, hence the attempt charge under 18 U.S.C. § 794(a). Further, Hoffman argued at his detention hearing that he provided some information as a means to gain the interest and trust of the Russian Federation before reporting the communications to the FBI. Hoffman eventually reported the interactions to the FBI, but since they were behind the whole operation, it obviously provided no benefit to him. With the weight of the evidence against him, the judge ordered that Hoffman be detained until trial.
18 U.S.C. § 794(a) is an espionage statute, and carries with it the potential for up to life in prison, and even death under certain circumstances. To sustain a conviction, the government must be able to prove that the defendant acted intentionally or with reason to believe that the disclosed information will be used to cause injury to the United States. Further, the information must be communicated, delivered, or transmitted, or the defendant must attempt to do so. Lastly, the information must be related to the national defense of the United States.
From a defense perspective, particularly at this early stage in the proceedings, an in-depth review of the evidence is critical. The evidence must be reviewed to determine the defendant’s mental state and whether he/she acted with the specific intent to cause injury to the U.S., whether the defendant attempted to transmit information, and whether such information is so sensitive as to qualify as related to national defense. The evidence must also be evaluated to determine the viability for any justifiable defenses.
Hoffman’s mental state is a major component in this case. If he was acting with the intent to gain the trust of the Russian Federation in order to ultimately benefit the FBI, then the argument that he intended to cause injury to the U.S. fails. Further, court documents indicate that the information that was allegedly communicated or transmitted to the undercover FBI agents pertained to methods of tracking U.S. submarines, including technology and procedures. The issue of whether Hoffman transmitted information does not appear to be in dispute; thus, the relevancy turns to the type and classification of the information, and whether it relates to national defense.
In addition to the two key issues above, another defense that appears to jump out immediately is entrapment by the FBI agents, due to their solicitation of Hoffman. However, an entrapment defense can be a difficult argument to make, particularly because the defendant must prove that he was induced to commit the crime by solicitation plus some overreaching or improper conduct on the part of the government, and that he was not otherwise predisposed to commit the crime. Solicitation by the government, is not in and of itself entrapment.
The defense’s strategy going forward should focus on the strength of the evidence as to Hoffman’s mental state, specifically whether he formed the intent necessary to commit attempted espionage, and whether the information that was communicated to undercover FBI agents did, in fact, relate to national security. Such details may mitigate the ultimate result of the outcome of the case and will effect the defense’s next steps and viability of potential defenses.
The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrariassociatespc.com.
Accused Member of Foreign Terrorist Organization Extradited to United States on Hostage Taking Charges
The Department of Justice announced on March 12, 2012 that Alexander Beltran Herrera, a/k/a Jhon Beltrain Herrera, a/k/a Rodrigo Pirinolo, an accused member of the Revolutionary Armed Forces of Colombia (“FARC”), has been extradited from Colombia to face hostage taking and terrorism charges in the United States.
The indictment alleges that the FARC is an armed and violent organization in the Republic of Colombia. The indictment further alleges that the FARC is a “highly structured criminal organization” divided into seven geographic “blocks” — the Caribbean block, the Northwestern block, the Middle Magdalena block, the Central block, the Eastern block, the Western block, and the Southern block — which are each further subdivided into a number of Fronts and named Mobile Columns. The indictment specifically alleges that Mr. Herrera was a member of the 27th Front in the FARC’s Southern block and committed various crimes against the United States as a member of FARC.
For example, according to the indictment, in 2004 the 27th Front allegedly held three Americans for nearly two years. The indictment also alleges that Mr. Herrera was one of the FARC “jailers” who used “choke harnesses, chains, padlocks, and wires to bind the necks and wrists” of American hostages. In addition to these alleged acts, Mr. Herrera was charged with the following specific offenses: 18 U.S.C. 1203(a) (Conspiracy to Commit Hostage Taking); 18 U.S.C. 1203(a),(2) (Hostage Taking; Aiding and Abetting and Causing an Act to be Done); 18 U.S.C. 924(c),(2) (Using and Carrying a Firearm During a Crime of Violence; Aiding and Abetting and Causing an Act to be Done); 18 U.S.C. 2339A (Conspiracy to Provide Material Support to Terrorists); 18 U.S.C. 2339B (Conspiracy to Provide Material Support or Resources to a Designated Foreign Terrorist Organization).
When an individual located in a foreign country has been indicted by a federal grand jury the United States will attempt to compel the government of that country to turn that individual over into the custody of the United States. This request will usually be pursuant to an extradition treaty between the United States and that foreign country. The extradition request is formally made with the foreign government’s embassy in the United States. Additionally, this formal request is made by the U.S. Department of State, not Justice. The U.S. will likely accompany this formal request with a copy of the indictment, arrest warrant, relevant statutes, a photograph of the accused, and the affidavit of an investigating officer on the case.
When this request is made, the terms of the treaty dictate whether the foreign government will agree to turn over the individual into the custody of the United States. Accordingly, most extradition treaties must satisfy a legal concept known as dual criminality. Dual criminality means that the offenses being charged by the requesting country must also be considered punishable offenses in the other country. This very requirement exists in Article 2(1)(a) of the extradition treaty between the United States and Colombia.
The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.
Former Army Soldier Indicted for Allegations of Supporting a Terrorist Organization
A federal grand jury returned an indictment yesterday charging Craig Benedict Baxam, age 24, of Laurel, Maryland, with attempting to provide material support to Al-Shabaab, a foreign terrorist organization. Baxam never actually provided material support to a foreign terrorist organization, but is being accused for such a crime based on his statements made to Special Agents with the Federal Bureau of Investigation (FBI).
Allegedly, Baxam was intentionally traveling to Somalia to join Al-Shabaab. Baxam was arrested in Kenya while traveling by himself. According to court documents, Baxam served in the U.S. Army from 2007 through July 2011, and converted to Islam shortly before he left the military. Baxam served in Iraq and Korea.
The indictment alleges that sometime after July 2011, while living in Maryland, Baxam decided to travel to Somalia to join and fight for Al-Shabaab, which Baxam knew to be a designated foreign terrorist organization. According to court documents, Al-Shabaab is a militia group that uses intimidation and violence to undermine Somalia’s Transitional Federal Government (TFG). In February 2008, the U.S. Department of State designated Al-Shabaab, aka Harakat Shabaab al-Mujahidin, aka The Youth, as a foreign terrorist organization, stating that Al-Shabaab has committed or poses a significant risk of committing acts of terrorism that threaten the security of the United States.
The indictment alleges that Baxam cashed out his retirement savings, purchased a plane ticket to Kenya and traveled in Kenya toward its northern border with Somalia, all in his effort to join and fight for Al-Shabaab. However, Baxam’s statements made to the FBI once in custody indicate he was traveling to Somalia to conduct his “hijra,” or migration to an Islamic land. On December 23, 2011, Kenyan Anti-Terrorism police arrested Baxam near Mombasa, Kenya, for attempting to travel to Somalia to join Al-Shabaab.
Once Baxam was in custody, he provided statements to the FBI without the presence of an attorney. The statements provide the basis for the charges against him. It is unclear whether Baxam would have actually provided support to Al-Shabaab if he had made it to Somalia. Baxam’s statements simply indicate that he had converted to Islam, which is not a crime, and was traveling to an Islamic country based on his religious beliefs.
Baxam faces a maximum sentence of 15 years in prison followed by three years of supervised release. No court appearance has been scheduled. Baxam has been detained since his arrest on a criminal complaint on Friday, January 6, 2012, upon his return to Maryland after traveling to Africa.
The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.
Feds Utilize FISA and Charge Orange County Pharmacist with Providing Material Support to Terrorists and False Statements.
The U.S. Attorney’s Office for the Central District of California recently announced the indictment of Oytun Ayse Mihalik, a Turkish citizen and resident of La Palma, California. The 4-count indictment names Ms. Mihalik and alleges that she sent three wire transfers to an individual in Pakistan with knowledge that the money would be used to prepare for and carry out attacks that would kill United States military personnel overseas. Ms. Mihalik is also alleged to have provided the FBI and the Department of Homeland Security with false statements during the course of the agencies’ investigations into her wire transfers.
The allegations against Ms. Mihalik are substantial. The charge of providing material support to terrorists carries a statutory maximum penalty of 15 years in federal prison. Ms. Mihalik is facing three of these charges. Additionally, the charge of making false statements in a matter involving international terrorism carries a maximum sentence of eight years in federal prison. Even though the charges carry significant maximum penalties, the most unsettling aspect of these charges against Ms. Mihalik is that the charges are premised on classified evidence that neither Ms. Mihalik nor defense counsel has reviewed.
The Foreign Intelligence Surveillance Act (“FISA”) permits the U.S. Government to perform electronic surveillance and physical searches to obtain intelligence in the U.S. on foreign powers (such as enemy agents or spies) or individuals connected to international terrorist groups. As such, most of the information and evidence collected pursuant to such surveillance and searches pertains to the national defense and is classified. The prosecution may therefore protect the interests of the United States by requesting protective orders or offer to provide redacted summaries of the evidence against the defendant pursuant to the Classified Information Procedure Act (“CIPA”). Nonetheless, CIPA provides the defense with some very valuable tools.
Therefore defense counsel must be familiar with CIPA. Proper access to classified information is critically important to ensuring the government is put to its burden of proof and to afford defense counsel a meaningful opportunity to put forth applicable defenses. However, the defense’s needs are tempered by CIPA to avoid instances of “graymail” by defendants who might threaten to reveal classified information if prosecuted without saying what the evidence was or allowing the court to determine its relevance.
Accordingly, CIPA states that “if a defendant reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with any trial or pretrial proceeding involving criminal prosecution, the defendant shall . . . within 30 days prior to trial . . . notify the attorney for the United States and the court in writing.” Failing to follow such procedure risks empowering the court to deny the defense from accessing, reviewing, disclosing, or otherwise benefiting from classified information in its case. There is also a continuing obligation to disclose and describe any new classified information that may come up. This continuing responsibility states that such disclosures should be made “in writing as soon as possible” to both the attorney for the government and the court.
Defending national security related crimes presents both intellectual and procedural challenges. Defense counsel should therefore be well versed in both national security and criminal jurisprudence.
The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.
Virginia Man Accused of Acting as Unregistered Agent of Syrian Government and Spying on Syrian Protestors in America
Mohamad Anas Haitham Soueid, 47, a resident of Leesburg, Va., has been charged for his alleged role in a conspiracy to collect video and audio recordings and other information about individuals in the United States and Syria who were protesting the government of Syria and to provide these materials to Syrian intelligence agencies in order to silence, intimidate and potentially harm the protestors.
Soueid, aka “Alex Soueid” or “Anas Alswaid,” a Syrian-born naturalized U.S. citizen, was charged by a federal grand jury on Oct. 5, 2011, in a six-count indictment in the Eastern District of Virginia. Soueid is charged with conspiring to act and acting as an agent of the Syrian government in the United States without notifying the Attorney General as required by law; two counts of providing false statements on a firearms purchase form; and two counts of providing false statements to federal law enforcement.
According to the indictment, since March 2011, Soueid has acted in the United States as an agent of the Syrian Mukhabarat, which refers to the intelligence agencies for the Government of Syria, including the Syrian Military Intelligence and General Intelligence Directorate. At no time while acting as an agent of the government of Syria in this country did Soueid provide prior notification to the Attorney General as required by law.
Under the direction and control of Syrian officials, Soueid is accused of recruiting individuals living in the United States to collect information on and make audio and video recordings of protests against the Syrian regime – including recordings of conversations with individual protestors – in the United States and Syria. He is also charged with providing the recordings and other information to individuals working for the Mukhabarat. Soueid and others conspired to use this information to undermine, silence, intimidate and potentially harm those in the United States and Syria who engaged in the protests. The indictment also alleges that Soueid provided information regarding U.S. protestors against the Syrian regime to an individual who worked at the Syrian Embassy in Washington, D.C.
On Aug. 3, 2011, FBI agents interviewed Soueid, and the indictment accuses him of lying to the agents when he denied that he had collected information on U.S. persons and transmitted that information to the government of Syria. In addition, Soueid allegedly made further false statements when he denied to FBI agents that he had directed someone to audio or videotape a conversation, meeting, rally or protest, or that he was aware of any individual taking photographs or videotaping people. He also allegedly made false statements when he denied that he had ever been an agent of the Syrian government or a foreign intelligence officer.
In addition, the indictment alleges that, when purchasing a Beretta pistol on July 11, 2011, Soueid listed a false current residence address on a firearms purchase application and in records that were kept by a licensed firearms dealer.
If convicted, he faces a maximum penalty of 15 years in prison on the conspiracy and foreign agent charges, 15 years in prison on the firearms purchase charges and 10 years in prison on the false statement charges
The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.
U.S. Citizen Indicted for Plotting to Attack Capitol, Pentagon, and U.S. Soldiers
On September 29, 2011, the U.S. Attorney’s Office for the District of Massachusetts indicted Rezwan Ferdaus, a 26 year old Northeastern University physics graduate. The indictment states that Mr. Ferdaus is accused of planning to commit acts of violence against the United States “with the goal of terrorizing the United States, decapitating its ‘military center,’ and killing as many [non-believers] as possible.”
Mr. Ferdaus has been specifically charged with 18 U.S.C. sections 844(f) for attempting to damage or destroy a Federal building, section 2155 for attempting to damage and destroy national-defense premises, section 844(d) for being in receipt and possesion of explosive materials, section 2339A for attempting to provide material support to terrorists, and section 2339B for attempting to provide material support to a designated Foreign Terrorist Organization (FTO). Mr.Ferdaus was also charged with 26 U.S.C. section 5861 for being in receipt of non-registered firearms.
Mr. Ferdaus thought he was meeting with members of al-Queda when in fact the individuals he was meeting with were undercover federal agents. Mr. Ferdaus revealed to federal agents that he extensively planned and took substantial steps to bomb the United States Pentagon and United States Capitol Building using remote controlled aircraft filled with explosives.
Mr. Ferdaus began designing and constructing detonation components for improvised explosive devices (IEDs) using mobile phones. These modified mobile phones were given to the undercover agents by Mr. Ferdaus who thought they were going to be used to kill U.S. soldiers overseas.
Mr. Ferdaus also requested firearms, ammunition, and explosives from the undercover agents whom he thought were al-Queda operatives. They provided him with C-4 explosives, AK-47 assault rifles and grenades. These items were needed for him to carry out a detailed plan to attack the Capitol and Pentagon with remote control aircraft that he shared with the undercover agents on two USB storage devices. The plans were highly detailed and contained “recon” photos of the proposed attack sites. As soon as Mr. Ferdaus was in receipt of these items he was arrested by federal law enforcement in Massachusetts.
If convicted on all counts, Mr. Ferdaus would face up to 80 years in prison and have any property linked to his criminal conduct subject to forfeiture. Had his conduct caused anyone to actually died, Mr. Ferdaus’ would be facing life in prison or even the death penalty.
What is apparent from this indictment is that the federal government is well prepared to deal with threats against the national security of the United States. With undercover agents and a series of effective criminal statutes, would-be terrorists often face many years in prison before their conduct actually harms anyone. However, investigators must conduct their sting operations carefully to ensure the target cannot utilize an entrapment defense.
Entrapment is a complete defense to a criminal charge on the theory that “government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.” Thus there are two elements to the defense: (1) inducment by the government; and (2) the defendant’s lack of predisposition to engage in the criminal conduct. From the facts alleged in Mr. Ferdaus’ indictment, it seems that an entrapment defense would be unsuccessful because he possessed the disposition to engage in criminal conduct. He authored the plans to attack U.S. buildings and soldiers while the government merely “facilitated” his plans by providing the hardware necessary.
The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.
U.S. Scientist with NASA Attempted to Sell State Secrets to Israel
It’s been reported that Stewart David Nozette, a former U.S. government scientist with NASA, has pleaded guilty to one count of attempted espionage for trying to sell classified information to an undercover FBI agent posing as an Israeli spy. The offense of espionage has a maximum penalty of death, but because Nozette cooperated with the investigation he was offered a plea agreement with a 13 year sentence.
The secrets Nozette attempted to sell to Israel included information about satellites, early warning systems, ways of retaliating against large-scale attacks, communications intelligence information and major elements of defense strategy. In a recorded conversation with an undercover agent Nozette had estimated the secret information could have cost the U.S. government between $200 million and $1 billion to develop and that he expected around 1% of that value as compensation from Israel. He also requested an Israeli passport in case he needed to flee the country.
Espionage is a serious federal offense, one that carries penalties as stiff as life imprisonment or death. The law was first passed as the Espionage Act of 1917 and is now codified at 18 U.S.C. 792 et. seq. In relevant part, the statute Nozette pleaded guilty to makes it a crime for anyone who “attempts to communicate, deliver, or transmit, to any foreign government . . . either directly or indirectly, any document, writing . . . or information relating to the national defense” with intent or reason to belive that such information is to be used “to the injury of the United States or to the advantage of a foreign nation.”
Historically, criminal defense attorneys have argued that the espionage statute is an unconstitutional infringement on a person’s 1st Amendment right to free speech. However, the Supreme Court unanimously decided in Schenk v. United States that the government can infringe upon free speech if such words being infringed upon “are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Thus validating the Espionage Act’s constitutionality in 1919.
Any future attempts to construe the statute as unconstitutional on the basis of the First Amendment will likely be unsuccessful because since 1919 the Supreme Court has eased the restrictions imposed upon Congress’ ability to restrict free speech. Namely that the “clear and present danger” test from Schenk has been replaced with the “imminent lawless action” test from Brandenberg v. Ohio. Congress is allowed to restrict speech so long as the defendant, through his speech, (1) intended the occurence of an evil Congress is authorized to protect against; (2) the evil was actually imminent; and (3) the evil was likely to occur.
In the case of espionage, the sharing of state secrets with foreign nations implicates all three requirements of this test: (1)Compromising the national security interests of the United States is an evil Congress is authorized to avoid; (2) Sharing top secret information with an agent of a foreign government makes such an evil imminent; and (3) it is likely that U.S. national security concerns are compromised if a foreign government possesses U.S. state secrets. Thus fighting the espionage statute itself will likley bear little fruit.
Therefore a defendant facing federal criminal charges implicating national security should hire experienced counsel that is capable of leveraging the defendant’s knowledge of facts that interest the government against the prosecutor in order to negotiate a plea arrangement that benefits both sides. Avoiding life imprisonment or the death penalty is imperative. Much like Nozette, who is only being sentenced to 13 years, the opportunity to cooperate should be seized by a defendant facing similar offenses.
The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.
The Incorporation Transparency and Law Enforcement Assistance Act: The End of Anonymous Corporations and Hidden Owners?
On August 2, 2011 Senators Carl Levin and Chuck Grassley introduced bi-partisan legislation requiring companies to disclose the names of beneficial owners of corporations and limited liability companies. The legislation is intended “to ensure that persons who form corporations in the United States disclose the benficial owners of those corporations, in order to prevent wrongdoers from exploiting United States corporations in ways that threaten homeland security, to assist law enforcement in detecting, preventing, and punishing terrorism, money laundering, and other misconduct.”
According to anti-money laundering proponents, law enforcement groups, and financial transparency organizations, the legislation is a crucial step toward strengthening law enforcement and keeping criminal and tax evading money out of the U.S. As reported by the Center for International Policy’s Global Financial Integrity, “Criminals, kleptocrats, and tax evaders from around the world are taking advantage of . . . U.S. law to hide and launder illicit money . . . [because] financial opacity puts law enforcement at a major disadvantage. Too often cases are dropped, or investigations are closed, due to a lack of evidence connecting the illicit funds held in accounts owned by anonymous corporations to the criminal owners of those corporations.”
The problem identified by this piece of legislation is two-fold: First, that it is too easy to gain access to financial services in the U.S. through anonymous U.S. corporations; and second, that it is too difficult for law enforcement groups to figure out the real owners behind anonymous corporations. Therefore, this legislation imposes both civil and criminal penalties on anyone who (1) knowingly provides, or attempts to provide, false or fraudulent beneficial ownership information; (2) willfully fails to provide complete or updated beneficial ownership information; and (3) knowingly discloses the existence of a subpoena, summons or other request for beneficial ownership information.
However, the true crux of this legislation is that it prohibits States or corporate formation agents from knowingly failing to obtain or maintain credible, legible, and updated beneficial ownership information, including any required identifying photographs. The federal government will be able to require this from any state receiving funds from the Department of Homeland Security even though corporate formation has traditionally been a matter of state law.
States must be in full compliance with the requirements of this law no later than 2014. They must implement an incorporation system that follows specific guidelines “to protect the security of the United States from corporations and limited liability companies with hidden owners.”
In addition to any civil or criminal penalties that may be imposed by a State, any person who violates the requirements of this legislation can be fined up to $10,000 by the United States and imprisoned for up to 3 years. Thus the federal government continues to impose upon U.S. persons more regulations and criminal statutes by leveraging the U.S. economy in the name of national security and transparency. Now, when forming corporations or LLCs U.S. persons must be wary of significant federal requirements (with the risk of imprisonment) in an area of law that has traditionally been left to the states.
The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.
