[Clips] How Patriot Act Helped Convict Man In Baby-Food Ring

[R. A. Hettinga]

--- begin forwarded text


  Delivered-To: clips at philodox.com
  Date: Tue, 4 Apr 2006 09:12:15 -0500
  To: Philodox Clips List <clips at philodox.com>
  From: "R. A. Hettinga" <rah at shipwright.com>
  Subject: [Clips] How Patriot Act Helped Convict Man In Baby-Food Ring
  Reply-To: rah at philodox.com
  Sender: clips-bounces at philodox.com

  <http://online.wsj.com/article_print/SB114411067761115987.html>

  The Wall Street Journal

  April 4, 2006


  PAGE ONE



  Volatile Formula
  How Patriot Act
  Helped Convict Man
  In Baby-Food Ring
  Mr. Jammal Faces 10 Years
  After Terror-Probe Tapes
  Are Used in Criminal Trial
  A 14-Minute Rant Against U.S.

  By JOHN D. MCKINNON

  April 4, 2006; Page A1

  Three months before the Sept. 11, 2001, attacks, police in Tempe, Ariz.,
  began investigating information from Wal-Mart Stores Inc. suggesting that a
  local grocery wholesaler named Samih Jammal was part of an organized ring
  stealing baby formula from Wal-Mart stores and trucks.

  The investigation proceeded uneventfully until shortly after 9/11 when it
  was turned over to a joint local and federal terrorism task force. Phoenix
  police, in a written report later provided to Mr. Jammal as part of his
  prosecution, said they had "confirmed" that he "had significant connections
  to terrorist organizations, including al Qaeda." At some point after that
  -- prosecutors won't say precisely when -- authorities got a warrant to tap
  Mr. Jammal's phone and bug his office.

  It wasn't an ordinary warrant, the sort routinely authorized by judges in
  response to applications from police and prosecutors who want to eavesdrop
  to catch crooks. It was a national-security warrant authorized by the 1978
  Foreign Intelligence Surveillance Act, giving authorities much more leeway,
  and giving wiretap targets fewer rights.

  Mr. Jammal, a 36-year-old U.S. citizen born in Lebanon, was never charged
  with any offense related to terrorism. Yet evidence collected in the FISA
  eavesdropping played a role in his conviction last April on federal charges
  focused on fencing stolen baby formula, for which he was sentenced to 10
  years in prison.

  His case sits on the fine line between the government's responsibility to
  go all-out to prevent terrorism and its duty to protect the constitutional
  rights of American citizens accused of crimes. It's a line that has blurred
  considerably since 9/11 and the 2001 passage of the Patriot Act. It allows
  authorities to use FISA wiretaps authorized by special courts not only to
  gather foreign intelligence but to investigate domestic crimes.

  Mr. Jammal is appealing, contending that FISA evidence used against him was
  illegally obtained and crippled his defense. He says the charges against
  him were trumped up by a government determined to show progress in the war
  against terror. "It's baby formula of mass destruction here," he said at
  one pretrial hearing.

  With an ordinary warrant for electronic surveillance, authorities must show
  probable cause that the target committed a crime and limit eavesdropping to
  conversations about crimes. They must also eventually notify those who were
  bugged (even if they aren't accused of a crime) and must give defendants
  complete access to the warrant application, court orders and any actual
  recordings.

  To get a FISA warrant, in contrast, authorities need to persuade a federal
  judge that there is probable cause that the target is an agent of a foreign
  power such as a terrorist organization. For U.S. citizens, prosecutors also
  must show that some crime might be involved. Armed with such a warrant,
  authorities can eavesdrop on any conversation, regardless of whether it
  involves a crime. They can withhold from defendants the basis for issuing
  the warrant, hindering legal challenges to the FISA evidence. And they can
  restrict defendants' access to the classified transcripts and tapes, which
  makes it harder for the defense to parry the government's charges or mount
  its own case.

  The FISA warrant in the Jammal case distinguishes it from the controversial
  warrantless wiretaps that President Bush authorized the National Security
  Agency to conduct in pursuit of terrorism.

  Constitutional Question

  Even with warrants, critics fear defendants' rights to a fair trial will be
  eroded, as authorities use intelligence-gathering techniques to pursue
  criminal cases. "If evidence is procured by methods that wouldn't stand up
  to the Fourth Amendment, the courts are going to have to stop it," said
  Rep. Jerrold Nadler of New York, top Democrat on the House Judiciary
  subcommittee on the Constitution. Cases like Mr. Jammal's "should be
  challenged in court," he said. "That kind of thing shouldn't happen."

  Andrew McCarthy, who prosecuted Sheik Omar Abdel Rahman on terror charges
  in New York, says the old dividing wall between foreign intelligence
  operations and domestic criminal investigations doesn't make sense in the
  fight against terrorism. "They usually commit an array of garden-variety
  crime in the course of trying to conduct terrorism operations," says Mr.
  McCarthy, now a senior fellow at the Foundation for the Defense of
  Democracies, a Washington-based group that studies national security
  issues. That means investigating crimes and gathering intelligence through
  plea bargains and other techniques can be an important tool.

  Paul Charlton, the U.S. attorney for Arizona whose office brought the case
  against Mr. Jammal, says in an interview that existing procedures properly
  balance the rights of defendants with the government's need to maintain
  secrecy to protect national security. He notes that, as in all FISA cases,
  a federal judge approved the initial application for the Jammal warrant
  privately. Prosecutors were "scrupulous" about avoiding suggestions at
  trial that Mr. Jammal was linked to terrorism, he adds, trying to ensure he
  got a fair trial.

  Prior to passage of the Patriot Act, court interpretations required that
  the "primary" purpose of a FISA warrant had to be gathering foreign
  intelligence. The Patriot Act, passed in October 2001, broadened the rules
  so that intelligence gathering need only be a "significant" purpose of
  wiretapping. Evidence obtained under FISA warrants has been used in a
  handful of cases involving charges not directly related to terrorism,
  including at least one immigration proceeding.

  Mr. Jammal's case shows how much the legal environment changes when FISA
  wiretaps enter the picture in criminal cases. His first two court-appointed
  lawyers stepped down in part because the secret tapes required them to get
  security clearance. Even with such clearance, however, they wouldn't be
  able to discuss the tapes with their client. His third lawyer, who did get
  clearance, was able to review only translated summaries, not transcripts,
  of selected wiretapped conversations. At trial, the government played the
  jury a recording made under the FISA warrant that proved damaging to Mr.
  Jammal: a rambling 14-minute diatribe in which he rails against the U.S.
  government in Arabic, and talks about fleeing to Lebanon if officials came
  after him for unpaid taxes.

  The case against Mr. Jammal began in June 2001 when Wal-Mart investigators,
  frustrated by a rash of baby-formula thefts, gave Tempe police detective
  Tom O'Brien information about a recent attempted theft in Midland, Texas.
  For reasons that aren't clear, that led to a police stakeout outside Mr.
  Jammal's business, located in a warehouse complex in the Phoenix suburb of
  Tempe. Checks of license plates revealed people with shoplifting records
  showing up to do business with Mr. Jammal.

  Sent to U.S. for College

  Mr. Jammal grew up in Lebanon and Kuwait. His father owned fruit and
  vegetable export firms, a farm, a small phone company and a school,
  according to Mr. Jammal. The family was prosperous enough to send Mr.
  Jammal to the U.S. in 1988 to study at West Virginia's Marshall University,
  named after the nation's first chief justice, John Marshall. Wiry and
  athletic, Mr. Jammal played for a while on the school's soccer team. The
  family businesses suffered in the early 1990s, and Mr. Jammal began working
  odd jobs to put himself through school, according to Mr. Jammal's wife,
  Gretchen, who grew up in Ohio and whom he met while attending Marshall.
  After college, Mr. Jammal gravitated toward the business of selling
  baby-formula on the advice of a friend, and moved to Arizona starting in
  1994 to live near a cousin and savor the warmer weather.

  Mr. Jammal joined a number of other entrepreneurs -- some of Middle Eastern
  origin -- who were buying up large quantities of formula at big chain
  stores, which often sold it as a loss leader. The brokers then sold to
  wholesalers who, in turn, resold to smaller retailers, who often served
  low-income families participating in federal food-aid programs. None of
  this is illegal, although some manufacturers raised concerns about the
  practice. Taking baby formula out of the original packages and repackaging
  for resale can be a crime, however. In 1998, Mr. Jammal pleaded guilty to a
  single charge of improper repackaging of baby formula. He got three years'
  probation and a $1,000 fine.

  Big retailers and formula manufacturers sought to choke off the gray market
  in baby formula -- for instance, by limiting the amount of formula that
  could be purchased off-the-shelf at one time. Still, Mr. Jammal's business,
  Jamal Trading Co., thrived. He says he took advantage of loss leaders at
  big-box stores and also distributed cereals, juices, diapers and other
  grocery items. He opened several small retail stores in Arizona. In May
  2003, unaware that he had been secretly indicted, he moved his family into
  a $550,000 suburban home in Mesa, Ariz., where he kept a dozen sheep and
  goats.

  Meanwhile, federal authorities say they got interested in Mr. Jammal in
  October 2001 when they happened to overhear him on a Drug Enforcement
  Agency wiretap of Osamah Yacoub, an immigrant from Jerusalem who was living
  in Houston. The two were talking about the baby-formula business, Mr.
  Charlton, the U.S. attorney said. Mr. Yacoub later pleaded guilty to a
  charge related to methamphetamine trafficking and cooperated with the
  government in its prosecution of Mr. Jammal.

  Around the same time, according to a Phoenix police affidavit, a
  confidential informant told authorities that Mr. Jammal was trying to
  "facilitate the release of a non-U.S. citizen who was in federal custody"
  -- Malek Seif -- and smuggle him to Mexico. Mr. Seif later pleaded guilty
  to falsifying immigration and Social Security records. Through one of his
  appeal lawyers, Mr. Jammal said the story is not true. "Someone made it
  up," said the lawyer, Scott MacPherson.

  A 9/11 Hijacker at Mosque

  Federal authorities won't say exactly what led to Mr. Jammal's case being
  turned over to the terrorism task force. Mr. Jammal suspects one factor was
  that he and Mr. Seif attended a Tempe mosque where one of the 9/11
  hijackers worshipped briefly -- Hani Hanjour, a Saudi Arabian who was
  aboard the American Airlines jet that crashed into the Pentagon. Mr.
  Jammal, who says he has no sympathies with terrorism, says he expressed
  skepticism about Mr. Hanjour's culpability when Federal Bureau of
  Investigation agents came to the mosque shortly after 9/11.

  Beginning in December 2001, authorities devised a sting aimed at Mr. Jammal
  and his associates. Mead Johnson, a unit of Bristol-Myers Squibb Co. and
  maker of the Enfamil brand, gave police posing as middlemen baby formula to
  sell to Jamal Trading Co., representing it as stolen. Mr. Jammal didn't buy
  formula directly in the sting, and typically insisted that associates get
  signed statements attesting that any formula they bought wasn't stolen.

  But police did sell 1,400 cases from the back of a Wal-Mart truck to Mr.
  Jammal's partner in several businesses, an Egyptian-born businessman named
  Tamer Swailem, in May 2002. Testifying against Mr. Jammal, Mr. Swailem said
  he expressed misgivings to Mr. Jammal about buying the formula in a
  cellphone conversation. "It didn't feel right....[but] finally we decided
  just to go ahead and have him [the agent] sign the paper," Mr. Swailem
  said. Mr. Jammal, who didn't testify at this trial, says in an interview
  that he told Mr. Swailem to "get the hell out" if he believed the formula
  in the truck was stolen.

  In March 2003, Mr. Jammal was indicted secretly. Although the government
  refuses to say when it tapped Mr. Jammal's phones and bugged his office
  under the FISA warrant, summaries of about 20 conversations introduced in
  criminal proceedings against Mr. Jammal date from May and June 2003.

  Clifford Fishman, a Catholic University law professor who has studied
  wiretap laws, says using FISA-authorized wiretaps to bolster an already
  pending criminal case "would be a clear misuse of the law." A spokeswoman
  for Mr. Charlton, the prosecutor, said that the "basis for the FISA
  intercept was unrelated to [Mr. Jammal's] involvement in organized retail
  theft," adding that it was conducted by a separate investigative team. She
  said officials can't reveal reasons for seeking the FISA warrant.

  Mr. Jammal was arrested in July 2003, and charged with eight felony counts
  including interstate transportation of stolen property. The government now
  says that of the 27 defendants in the case, 22 were arrested; 18 pleaded
  guilty and four of them so far have been deported, while others are pending
  deportation; and four others including Mr. Jammal were convicted at trial.

  Federal prosecutors used declassified conversations recorded under the FISA
  warrants to argue successfully that he should be jailed awaiting trial.
  They said his expressed interest in running for the Lebanese parliament
  proved that he had no strong ties to the U.S.

  As Mr. Jammal's trial approached, the FISA-authorized wiretaps also posed
  difficulties for his court-appointed lawyer, Michael Reeves. The government
  insisted that Mr. Reeves obtain security clearance to examine classified
  evidence in the case and agree not to talk about the evidence with anyone,
  even his client. Mr. Reeves's doubts deepened when he got a look at the
  security-clearance application. Under penalty of perjury, it asked detailed
  information "like 'Have you ever missed a mortgage payment?' " Mr. Reeves
  recalls. "It made me nervous."

  Ashcroft Weighed In

  While Mr. Reeves pondered the matter, he asked the court to order the
  government either to reveal the basis for issuing the FISA warrant so he
  could challenge its legality or bar the evidence altogether. The government
  countered with an affidavit from then-Attorney General John Ashcroft who
  said telling defense lawyers why the FISA warrant was issued "would harm
  the national security." The federal trial judge, Frederick J. Martone,
  sided with the government.

  Judge Martone allowed Mr. Reeves to withdraw and appointed Michael Smith of
  Mesa to take his place. But he, too, eventually pulled out, arguing that
  serving as an effective advocate for Mr. Jammal meant sharing the FISA
  evidence with his client -- something that would expose Mr. Smith to
  prosecution.

  In October 2004, Judge Martone named Robert Kavanagh, a former Phoenix
  police officer, to represent Mr. Jammal. Mr. Jammal says Mr. Kavanagh
  inherited from the previous lawyers only a few CD's -- apparently a small
  portion of the surveillance videos that were made outside his client's
  warehouse -- plus a largely inaudible tape recording of one of the FISA
  conversations. With time running out and no more delays possible before the
  trial, Mr. Kavanagh, who had obtained a security clearance, reviewed
  classified summaries of some wiretapped conversations, prepared by FBI
  translators and agents. But he says he was unable to review many
  conversations.

  The government was free to offer any declassified FISA-obtained evidence in
  its case against Mr. Jammal, and the defense also could use that material.
  Federal rules require prosecutors to turn over any evidence that might help
  the defense. Government lawyers didn't go through all the tapes, many of
  which recorded conversations in Arabic, but "reviewed all translated
  summaries of the FISA intercepts and found no exculpatory evidence," the
  U.S. attorney says.

  At one point during the trial, Judge Martone questioned how the government
  could fulfill its obligation to turn over material favorable to the
  defense. "There isn't any lawyer who's making this judgment," the judge
  complained during one conference with lawyers, a transcript shows. But he
  allowed the government to use FISA-gathered evidence anyhow.

  Seeking Help From Tapes

  Mr. Jammal insists a review of the voluminous, classified FISA evidence
  would show that he warned would-be sellers that he would not accept stolen
  property. He also says that the tapes could have helped undercut the
  testimony of former associates who agreed to plea bargains and testified
  against him. Mr. Charlton, the U.S. attorney, counters that seven witnesses
  testified to Mr. Jammal's guilt. The government introduced evidence, for
  example, that Mr. Jammal was told by an associate that at least one
  supplier was stealing. Prosecutors also argued that Mr. Jammal should have
  known from the prices he was paying that he was buying stolen goods.

  Over defense objections, the prosecution played for the jury a conversation
  recorded under the FISA warrant -- Mr. Jammal's 14-minute rant from June
  26, 2003, about his sense that the government was after him, even though he
  didn't know he'd already been indicted.

  "I'm trying to establish a business in Lebanon, because I know 80% to 90%
  that the day will come when the American government is going to come and
  ask me for taxes," he said, according to a translation presented in court.
  "OK, that's why, when that day comes, I'll tell them, 'F- you!' Then take
  everything, I'll pick up everything and go to Lebanon."

  Jurors took six hours to convict Mr. Jammal and other defendants on most of
  the charges. A few days before his sentencing hearing in October, Mr.
  Jammal fired off a 43-page letter to civil-rights groups, hoping to
  generate interest in his appeal, and copied Judge Martone. "I fail to see
  how my conversation concerning the baby formula business could qualify as
  'foreign intelligence,' " he wrote.


  --
  -----------------
  R. A. Hettinga <mailto: rah at ibuc.com>
  The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
  44 Farquhar Street, Boston, MA 02131 USA
  "... however it may deserve respect for its usefulness and antiquity,
  [predicting the end of the world] has not been found agreeable to
  experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
  _______________________________________________
  Clips mailing list
  Clips at philodox.com
  http://www.philodox.com/mailman/listinfo/clips

--- end forwarded text


-- 
-----------------
R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'