UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

_________________

United States of America, )

) No. 15-8378MJ

Plaintiff, )

)

vs. ) Phoenix, Arizona

) September 1, 2015

Ahmed Mohammed El Gammal, ) 

)

Defendant. )

_____________________________ )

BEFORE: THE HONORABLE BRIDGET S. BADE, MAGISTRATE JUDGE

TRANSCRIPT OF PROCEEDINGS

DETENTION HEARING

APPEARANCES:

For the Plaintiff:

U.S. Attorney's Office 

By: Melissa Karlen, Esq.

David Pimsner, Esq.

40 North Central Avenue, Suite 1200 

Phoenix, Arizona 85004 

For the Defendant:

Mitchell Stein & Carey 

By: Michael T. Morrissey, Esq.

2 North Central Avenue, Suite 1900 

Phoenix, Arizona 85004 

Transcriptionist:

Candy L. Potter 

Sandra Day O'Connor U.S. Courthouse, Suite 312

401 West Washington Street, Spc 36

Phoenix, Arizona 85003-2151

(602) 322-7246

Proceedings Recorded by Electronic Sound Recording

Transcript Produced by Transcriptionist

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THE CLERK: On the record in 15-MJ-8378, U.S.A. versus 

Ahmed Mohammed El Gammal, before the Court for a continuation 

of detention hearing. 

Counsel, please state your appearances. 

MS. KARLEN: Good morning, Your Honor, Melissa Karlen 

as well as David Pimsner on behalf of the United States. Here 

present at counsel table as well is Special Agent Jeffrey 

Hebert with the Federal Bureau of Investigation. 

THE COURT: Good morning. 

MR. PIMSNER: Good morning, Your Honor.

MR. MORRISSEY: Good morning, Your Honor, Michael 

Morrissey on behalf of Mr. El Gammal, who is present. 

THE COURT: Good morning, Mr. Morrissey.

And good morning, Mr. El Gammal. 

We are continuing the detention hearing which started 

last week. At the conclusion of that hearing I requested that 

Pretrial Services conduct an investigation to determine whether 

Mr. El Gammal's former mother-in-law would be an appropriate 

third-party custodian, whether her residence would be an 

appropriate place for him to reside, and whether the residence 

would be suitable for active GPS location monitoring. 

Mr. Lara is here. He's also provided a supplemental 

report. 

Counsel, did you receive the supplemental report? 

MS. KARLEN: Yes, Your Honor. 

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MR. MORRISSEY: Yes, Your Honor. 

THE COURT: So you know that Pretrial Services is now 

recommending that Mr. El Gammal be detained. They found that 

the residence was appropriate for location monitoring, but was 

not an appropriate residence at which he could reside. It 

appeared they were concluding that his former mother-in-law 

would be appropriate as a custodian, but not at that residence. 

I've received a notebook from the Government with what 

appear to be translations of e-mails and Facebook posts. I had 

directed Miss Scheel at last week's hearing to produce that to 

Mr. Morrissey before today's hearing. 

Miss Karlen, were those e-mails and Facebook posts 

produced to defense counsel? 

MS. KARLEN: Yes, Your Honor. 

THE COURT: And, Mr. Morrissey, I also have some 

exhibits that were here on the bench for me this morning that 

you've submitted, which could have been an e-mail or -- 

MR. MORRISSEY: Yes, Your Honor. It's a single 

exhibit and it's a series of e-mails. 

THE COURT: All right. The font is very small. 

MR. MORRISSEY: It is. 

Your Honor, the exhibits go to whether or not 

Mr. El Gammal had any present intention to leave Arizona. And 

I believe what you'll see is that he was negotiating for a new 

place to live, was approved for a new place to live, and was 

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providing -- in the process of providing financial payment for 

his new place to live. 

THE COURT: All right. So these three e-mails are 

addressed to locating a new residence; is that correct? 

MR. MORRISSEY: Yes. 

THE COURT: All right. Thank you. 

All right. Miss Karlen, is there anything the 

Government would like to add to the record from last week's 

proceeding? 

MS. KARLEN: May I have one moment?

(Discussion held off the record) 

MS. KARLEN: Your Honor, we stand on the proffer from 

last week. 

THE COURT: Thank you. 

Mr. Morrissey, is there anything you'd like to add or 

argue? 

MR. MORRISSEY: Yes, Your Honor. 

First, Your Honor, I would like to propose that 

Miss Dubrow does remain a valid third-party custodian. As the 

Court indicated, the residence appears suitable for location 

monitoring. The difficulty identified by Pretrial Services 

does not refer to Miss Dubrow, but to somebody who was formerly 

residing in her house and is not currently there. I don't 

believe that's a valid criterion then to say that the 

environment is not appropriate for third-party custody. 

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As to the other individuals residing in the house now, 

which include Miss Dubrow's son, there is a bit of a dispute 

with the Government. The Government, I believe, thinks that 

somebody is out on bond. I don't think that's accurate. I 

think there is a case that could be filed, but there are no 

pending charges. 

Which means there appears to be no bar to 

Mr. El Gammal residing there. And I would respectfully ask the 

Court to not follow the conclusion that Miss Dubrow's residence 

is inappropriate for third party custody. 

In the event the Court does not agree or -- with my

argument and goes with the Pretrial Services' report, I would 

ask for leave to propose another third-party custodian, if an 

appropriate one can be identified. 

Regarding the substance of the Government's proffer, I 

would note that the Facebook posts provided to the Court relate 

as far back as 2013. They also go as far back as a year ago. 

And at best the inferences to be drawn from them are that 

Mr. El Gammal had strong feelings about the situation in Egypt, 

which has no bearing on the basis for detaining him for these 

charges, which refer to whether or not he gave support or 

advice to an individual traveling from Turkey to Syria. 

There is not a shred of evidence in the Government's 

proffer that indicates that Mr. El Gammal knew that the 

individual was anywhere other than Turkey. And that's not a 

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crime. 

So I do not believe that the proffer or any argument 

made by the Government supports the argument that danger has 

been proven by up to a clear and convincing standard. 

Clearly there is political talk in the proffer, but

that is not illegal. And there is no discussion in the proffer 

that would link Mr. El Gammal with these charges in a manner of 

supporting danger. 

And they do at one point discuss whether Mr. El Gammal 

might himself travel to Turkey, which is also not illegal. And 

that is why the defense exhibit rebuts that. It's quite clear 

from the defense exhibit that he had no present plans to leave 

Arizona, that he had already paid a deposit and had a new 

residence that he was moving to. 

And I would also note that if he is released, he could 

complete that transaction, and he is -- would have a place to 

live. 

So for all those reasons, I would ask that the Court 

allow release of Mr. El Gammal. 

THE COURT: Thank you, Mr. Morrissey. 

MR. PIMSNER: Your Honor, if I may address only the

Watkins residence. If the Court is interested in -- is 

inclined to release him to the Watkins residence, I'd have some 

additional information I can rebut for the record. 

THE COURT: About Miss Dubrow's residence? 

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MR. PIMSNER: Yes. 

THE COURT: Please go -- 

MR. PIMSNER: Leading up to May 20th, Christian 

Dubrow, who is currently in Maricopa County Jail, he's been 

found guilty of dealing marijuana out of that residence. He 

did at least three hand-to-hand marijuana sales from that 

residence. 

The police did a search warrant at that house on May 

20th of 2015. They found numerous quantities of marijuana and 

drug paraphernalia. At least three, possibly four handguns, 

including a sawed-off shotgun. There were marijuana plants 

growing in the back yard. There was marijuana in multiple 

rooms. 

And we believe -- and then Robert Dubrow who currently 

lives there, was arrested. He was originally released on bond. 

That bond may have been exonerated. But it's our belief he has 

charges pending from the May 20th, 2015 search warrant. 

So we don't believe that's an appropriate location for 

Pretrial to have to monitor Mr. El Gammal. 

And lastly, it's our understanding through further 

investigation by the FBI that Miss Dubrow is not 

Mr. El Gammal's former or ex-mother-in-law, she is the former 

mother-in-law of Mr. El Gammal's ex-wife, who -- from a 

previous marriage. So that relationship is attenuated. 

THE COURT: Miss Karlen, Mr. Pimsner, I'm going to ask 

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one or the other of you to speak, it's not really fair to have 

you both speak. 

Mr. Morrissey, was there anything else that you would 

like to add? 

MR. MORRISSEY: Only that the statement that charges 

are pending sounds like there's a present intent to bring 

charges against the son. I would proffer that the reality is, 

no one has made that commitment. They did the search warrant. 

There's a statute of limitations. The State has a certain 

amount of time with which to bring that. They still haven't 

declined the case, but there is no case. 

And, therefore, I don't believe that the statements

about the environment hold up in any way in terms of it being 

an inappropriate environment. 

THE COURT: All right. Thank you, Mr. Morrissey. 

Thank you, Mr. Pimsner, Miss Karlen. 

Counsel agreed at the initiation of this hearing last 

week that this is a case in which the presumption applies. 

That means this is a case in which the statutory presumption 

that the defendant poses a risk of flight and a danger to the 

community applies. That is a rebuttable presumption. 

Mr. Morrissey has previously argued that that 

presumption can be rebutted by Mr. El Gammal's long residence 

in the Phoenix community. He has resided here for 

approximately ten years. And also by his history of employment 

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where he's been self-employed in a business for approximately 

ten years. And he proffered information last week that he 

conducts his business from a warehouse that he leases here in 

Phoenix. 

The information presented at the conclusion of the 

hearing last week was that Mr. El Gammal was changing his 

residence. The residence at which he has been living was no 

longer going to be his residence, and so instead of

investigating whether that residence would be appropriate as a 

possible place for him to reside for GPS location monitoring 

and for a third-party custodian, defense requests and the Court 

directed Pretrial Services to instead investigate a different 

residence, that of Miss Dubrow. 

This is the second investigation that Pretrial 

Services conducted to determine if there was an appropriate 

third-party custodian. The first proposed custodian was found 

not to be suitable. 

At Mr. Morrissey's request Pretrial Services 

considered Miss Dubrow, and Pretrial Services has concluded 

that her residence is not an appropriate location at which to 

provide supervision and for Mr. El Gammal to reside because of 

criminal activity at the residence. 

The Pretrial Services' report indicates the sale of

marijuana to an undercover officer by a family member of 

Miss Dubrow at that residence. There's also some indication 

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that that family member could return to reside at that 

residence. 

Although Mr. El Gammal has factors that weigh in favor 

of release, including that he is a naturalized citizen, that he 

has resided in this area for some time, and that he has stable 

employment, and that his criminal history is minimal -- it 

appears primarily related to some driving offenses and some 

issues that could be related to domestic disputes that are 

quite dated from 1998 and 1999. So he doesn't have a current 

or continuing criminal history. 

Balanced against that are other factors in the 

detention statute, which specifically include the charges 

against the defendant, and list that the Court should consider 

whether one of the charges is a federal crime of terrorism. 

The charges against this defendant are very serious. So 

serious, in fact, that they are sufficient for the statutory 

presumption of detention of flight and danger to apply. 

Although the information about his history and 

characteristics weighs in his favor, that also cuts against him 

in that he has dual citizenship, strong family ties in Egypt, 

friends in Turkey. And the Government has presented in the 

exhibits e-mails and Facebook posts to substantiate their 

proffer from last week that he has communicated with what 

appears to be a family member in Egypt about sending large sums 

of money there. The Pretrial Services' report indicates he has 

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approximately $90,000 in his bank account. 

Also that he's communicated with the U.S. citizen who 

has left the United States and is basically the factual 

predicate for the offenses now pending against Mr. El Gammal. 

And the communications lead the Court to conclude that 

the discussion relates to Mr. El Gammal leaving the country and 

moving to where that other individual's residing, which from 

the evidence presented is now in Syria. 

The communication's coded, but not particularly 

difficult coding. It refers to a job in a parking lot. That's 

language that this individual used in other messages. It 

appears fairly obvious from reading the communications that the 

discussion is about leaving the United States and going to the 

Middle East, at least to Turkey and perhaps into Syria. 

The other concern is that this is a Rule 5 proceeding. 

The defendant is facing charges out of an Indictment from the 

Southern District of New York. That means if he were released 

here he'd be on courtesy supervision in this District, but he 

would be required to travel to the Southern District of 

New York for court appearances, to meet with his attorney, 

perhaps for some other reasons. That travel is a significant 

distance across the United States, either by a vehicle or an 

airplane. Even on GPS monitoring, because he would be 

authorized to travel at various points, it would be extremely 

difficult if not impossible for Pretrial Services to really 

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keep track of him, even with GPS monitoring, to make sure that 

he wouldn't flee. 

He has the resources to flee. He has contacts in 

another country to where he could flee. And he has every 

incentive to flee. He's facing very significant charges with a 

maximum sentence of ten years. 

So the Court finds for all these reasons that he has 

not rebutted the presumption of flight. And also based on the 

nature of the charges and the discussions in the e-mails and 

the Facebook texts, that the Government has proposed that he 

also poses a danger to the community. 

Although there was information about him belonging 

to -- defendant offered that he belongs to a shooting club to 

explain the ammunition in his home, and an argument that owning 

a drone plane is innocuous, there's also discussion in the 

e-mails about using that plane to load bombs on it, and that it 

could be dropped on Gaza. 

All of this information suggests a mindset that poses 

a very significant and serious danger to the community and to 

others. 

So for these reasons I'm going to order that he be 

detained and transported to the Southern District of New York. 

Counsel, is there anything else that we need to 

address this morning? 

MR. PIMSNER: Yes, Your Honor. 

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May I have one moment with counsel? 

THE COURT: Certainly. 

(Discussion held off the record.) 

MR. PIMSNER: Your Honor, we do have one request, that 

the exhibits that we filed as part of this hearing, or 

proffered for this hearing, that they be kept under seal for 

reasons that if I may approach. 

THE COURT: Certainly.

MR. PIMSNER: I have a motion. 

THE COURT: Thank you, Mr. Pimsner. 

MR. MORRISSEY: Your Honor, the defense has no 

objection to the motion to seal. 

THE COURT: All right. The exhibits will be filed and 

maintained under seal. 

Is there anything else that we need to address this

morning? 

MR. PIMSNER: No, Your Honor. Thank you. 

THE COURT: All right. Thank you then. 

The hearing is adjourned.

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C E R T I F I C A T E

I, CANDY L. POTTER, court-approved transcriber, 

certify that the foregoing is a correct transcript from the 

official electronic sound recording of the proceedings in the 

above-entitled matter.

DATED at Phoenix, Arizona, this 18th day of 

September, 2015.

s/Candy L. Potter__

Candy L. Potter 

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