1vIOllAMED ALESSA,

UNITED STATES OF AMERICA,

Plaintiff

-v

CARLOS E. ALMONTE,

Crirn No, ll-cr-132

OPINION

TO: Paul J. Fishman. United States Attorney

United States Attorney’s Office

970 Broad Street

Newark, New Jersey 07102

By: L. Judson Welle, Asst. U.S. Attorney

Andrew D. Kogan, Asst.

U.S. Attorney’s Office

970 Broad Street

U.S. Attorney

Newark. New Jersey 07102

Stanley L, Cohen, Esq,

119 Avenue D, Fifth Floor

Tew York, New York 10009

Attorney for Movant Mohamed Alessa

James C. Patton, Esq.209 So. Livingston Avenue. Suite 9Livingston. New Jersey 07039

Attorney for Movant Carlos F, Almonte

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Guidelines, sentenced Alessa to 22 years imprisonment and Almonte to 20 years imprisonment,each with lifetime supervised release. On April 29, 2013. the Defendants filed a motion seeking

an Order:

1. Pursuant to Local Rule 7.1(I) of the Federal Rules of Criminal Procedure, and the

Court’s inherent authority, to reconsider the sentences previously imposed upon the co

Defendants; and

2. Following such reconsideration, to order a new sentencing hearing; or

3. For a hearing upon the instant application.

The reasons for the motion were:

1) the Government had learned during the sentencing hearing about the Boston Marathon

bombing;

2) the Government reshaped its closing argument to include as a basis for a lengthy

sentence the danger Defendants posed to the New York metropolitan area;

3) the Court learned of the Boston bombings before imposing the sentence; and

4) Defendants were unaware ofthe Boston bombings.

Under the circumstances described below, the Boston bombing did not and could not

have affected the Defendants’ sentence, and Defendants’ motion will be denied.

The sentencing hearing was the culmination of a lengthy process during which the
reviewed with care the material thus provided and reached tentative conclusions, subject to anyadditional considerations presented at the sentencing hearing. The Court prepared a 43 page

preliminary Statement of Reasons for granting a variance, albeit not for the 15 years thatDefendants sought.

The sentencing hearing commenced on the morning of April 15. The Defendants and the

Government submitted into the record the voluminous material which they had previously

furnished to the Court. During the morning session. counsel for Mr. Alessa presented his

argument and Mr. Alessa addressed the Court. Then counsel for Mr. Almonte presented his

argument and Mr. Almonte addressed the Court. The arguments of counsel contained the pointsexpressed at much greater length in the previously submitted written material. At approximately

12:30, a lunch recess was taken, after which AUSA Welle argued for the Government.

Defendants Memorandum in support of their motion was prepared without the benefit of

a transcript and was based upon counsel’s recollection of the trial events. Their recollection was

faulty in part, They noted that the bombings in Boston occurred at approximately 2:50 p.m.. TheMemorandum recited that “the federal agent [attending the sentencing hearing] was observed

reading his smartphone at approximately 3:00 p.m., then writing a note which he handed forward

to the prosecutor seated at the table - -Mr. Welle proceeded to read the note, before walking upto hand it -mid-sentence - to AUSA Kogan at the lectern.”
terms the vulnerability ofthe American environment to terrorists - - argued that any sentence tobe imposed must deter others from carrying out domestic attacks against citizens in Newark andelsewhere.” (Defense Memo at 2. 3).

The actual events, as revealed by the transcript, occurred somewhat differently. AUSA

Welle, the first person to argue for the Government sought to rebut the defense contention that

Defendants were not truly dangerous conspirators and were affected by an extreme case of

adolescent angst. As shown at page 113 ofthe transcript, USA Welle, who had proposed toaddress the § 3553(a) factors, moved on to the subject of deterrence. Before news of the Boston

bombings was received, he described the dangers that terrorists pose to the people and facilities

in the New York metropolitan area, citing examples and using language that defense counsel

attribute to AUSA Kogan. AUSA Welle concluded, stating “At this point, your Honor, I’d like

to ask Mr. Kogan to come up and talk a little bit about the individual characteristics of the

defendants.” (Transcript at 116, lines 21-23). After a short recess, AUSA Kogan proceeded.

AUSA Kogan stated that he would talk about the characteristics of the Defendants. He

commenced by arguing that Mr. Alessa’s contentions evidenced a failure to accept responsibility

and a denial of the conspiracy and the overt acts to which he had pled guilty and admitted.

AUSA Kogan then turned to the mental condition of the two Defendants and the fact that theexperts found them to he liars and manipulators. He noted that both the Government experts

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occurred at the finish line ofthe Boston Marathon and that initial reports indicated multiple

fatalities. AUSA Welle silently read the note, rose from the counsel table, and placed the note on

the podium from which AUSA Kogan was addressing the Court. After silently reading the note

himself, AUSA Kogan resumed his argument related to the history and characteristics ofthe

Defendants.’

AUSA Kogan’ s argument proceeded to the violent nature of the Defendants as evidenced

by their past record and by their actions during the course of the conspiracy. He concluded with

the contention that a variance from the Guidelines should not be granted. At no point did he

address the dangers that terrorists pose to the people and facilities in the New York metropolitan

area, a subject that AUSA Welle had already covered before the note about the Boston bombings

had been received.

After Mr. Kogan’s presentation and before imposition of sentence, the Court recessed

briefly, considered again whether the Statement of Reasons and a Summary of the Statement ofReasons required any changes in light of the hearing arguments. Both, of course, had been

prepared prior to April 15. As the undersigned judge waited in his robe outside the courtroom

for the court reporter and deputy clerk to assemble, a law clerk mentioned to him that two

‘The Court relies upon the Government’s memorandum for the facts set forth here that

are not reflected in the transcript.
the Statement. Both derived from the material that the parties had provided the Court long

before April 15, 2013 as incorporated in their arguments at the sentencing hearing.

Even though the indictment charged Defendants with a conspiracy to engage in killings in

Somalia, the Presentence Report is full of conversations in which one or the other or both

Defendants looked forward to killing in the United States non-Muslims or Muslims who

disagreed with them. For example, “64. The next day, Alessa stated to the U.C. that he would

love to attack the United States homeland on orders of foreign extremists,” Further: “80. Later

that same day, in a conversation with the UC, and Almonte, Alessa listed the type of people he

desired to kill pursuant to his violent extremist ideology. . . I want to kill the ICPC people

(referring to the congregants of the Islam Center of Passaic County, located in Paterson, New

Jersey. .

Thus, there was a potential for terroristic attacks in the United States by Defendants. One

purpose of sentencing was to deter these attacks as well as foreign killings. There was no reasonwhy AUSA Welle and AUSA Kogan should not have referred to that objective when arguing for

a 30 year sentence and opposing a variance. As it happened, the Court was of the opinion that 22

and 20 ears. respectively. served that purpose. That was its conclusion before the Bostonbombing and befOre the Government argued at the sentencing hearing for a more severe sentence

and against a variance.

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Defendants’ factual basis for their motion is inaccurate. Upon receipt of the note from the

Special Agent, AUSA Kogan did not, as Defense counsel allege, “abruptly shift” his argument

away from the characteristics of the defendants to the need to deter violent attacks by homegrown

extremists and the vulnerability of the region to such attacks. The Defense Memorandum (at p.

3) is incorrect when it states that AUSA Kogan:

began to describe in specific terms the vulnerability of the

American urban environment to terroristic attack - the Government

cited the streets, bridges, tunnels and public spaces of Americans’

cities; it made an appeal in dramatic, inflammatory terms to the

necessity of safeguarding the domestic, public environment fromthe Defendants; and it argued that any sentence to be imposed must

deter others from carrying out domestic attacks against citizens in

Newark and elsewhere.

This general topic was the subject of AUSA Welle’s, not AUSA Kogan’s, argument and was

covered before the note was received.

Apart from the fact that in their Plea Agreement Defendants waived the right to challenge

any sentence ifthe sentences were for 30 years or less, their motion is barred by 18 U.S.C. §

3582(c)which provides that “[tjhe court may not modify a term of imprisonment once it has been

imposed [except under specified circumstances).” None of these circumstances has been shown

to exist here.

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C

I L’L/ 14,

DICKINSON R. DEBEVOISE

U.S. Senior District Judge

DATED: May2l,2013

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