The Men Who Cried Entrapment: The Newburgh 4’s Shaky Legal Case

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It’s late 2008 in Newburgh, a small, poverty-stricken town in New York State that most have never heard of. James Cromitie, a Muslim man with a penchant for exaggerating facts, is standing in the parking lot of the local mosque, Masjid al-Ikhlas. Cromitie is angry, he’s angry at the state of his co-religionists in Iraq and Afghanistan. He’s angry at Jews for the way they treat him and look at him and what they do in Palestine. He’s angry at America for oppressing his brethren. Cromitie is approached by a new-comer to the community, a wealthy Pakistani named Maqsood. Maqsood understands Cromitie’s anger and resentment; he understands Cromitie’s desire to avenge his Muslim Brethren. Maqsood is a member of the Pakistani Jaish-e-Muhammad terrorist organization and can supply Cromitie with the means to carry out that revenge – bombs and stinger missiles. He can also pay the destitute Cromitie handsomely for his troubles. Cromitie and Maqsood become good friends over the course of the next 11 months, all the while Cromitie and Maqsood planned carrying out attacks against targets in the United States.

Unbeknownst to Cromitie, “Maqsood” is actually Shahed Hussain, an informant for the FBI whose duty is to ferret out dangerous extremists planning to carry out terrorist attacks in the United States. He supplied Cromitie with what he thought were Stinger missiles – to be launched at Stewart Air National Guard base – and two “bombs” to be detonated at the Riverdale Temple and the Riverdale Jewish Center. Cromitie, “Maqsood” and three accomplices drove to the synagogues and placed the bombs in three separate cars outside of the houses of worship. As they walked back to their car, they were arrested by law enforcement officials.

Cromitie’s defense attorneys claim he and his accomplices – Onta Williams, David Williams, and Laguerre Payen – were entrapped, meaning that the government induced them to commit a crime that they otherwise would not have done absent the government agent’s pressure. In short, the defense’s argument is clutching at straws. The readiness with which these four individuals accepted the opportunity to commit terrorist attacks against American targets, and their predisposition to commit these acts – as evidenced by their statements on record – negate the possibility of entrapment by the government.

Black’s law dictionary defines entrapment as, “A law-enforcement officer’s or government agent’s inducement of a person to commit a crime, by means of fraud or undue persuasion, in an attempt to later bring a criminal prosecution against that person.”[1] There are two methods, or tests, of determining whether a defendant was entrapped. The first is the objective method of finding entrapment, which focuses on governmental conduct and whether such conduct was “outrageous” without regard to the defendant’s actions. New York follows this approach. The second method is the subjective method, which focuses on the defendant’s predisposition to commit the particular type of crime to determine whether the individual was entrapped by the government’s actions.

New York Statutory law defines entrapment as being, “induced or encouraged to [commit a crime] by a public servant, or by a person acting in cooperation with a public servant…when the methods used…were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it. Inducement or encouragement means…active inducement or encouragement. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”[2]

Multiple Supreme Court and Second Circuit cases have elucidated what constitutes inducement or encouragement, and set forth the elements of entrapment. The United States Supreme Court has indicated that the governmental action leading to the commission of the offense must be “outrageous” to violate the defendant’s due process rights and constitute entrapment.[3]

The Second Circuit has held that, “[whether] the investigative conduct violates a defendant’s right to due process cannot depend on the degree to which the government action was responsible for inducing the defendant to break the law. Rather, the existence of a due process violation must turn on whether the government conduct, standing alone, is so offensive that it ‘shocks the conscience’ regardless of the extent to which it led the defendant to commit the crime,” i.e. regardless of the defendant’s criminal disposition. [4]

New York follows the objective test to determine if entrapment occurred, i.e. where the analysis focuses on the government’s conduct and not the defendant’s predisposition to commit the crime.[5] Courts have said little about what conduct would be considered constitutionally “outrageous.” The defense stressed that the offer by Hussain of $250,000, in addition to a barbershop, a new BMW and a two-week vacation was “outrageous” given Cromitie’s poverty. No man so poor could have refused such an offer.

However, what has been stated is that such conduct “must involve either coercion or a violation of the defendant’s person,”[6] and that the limits of due process are only reached where the government’s misconduct includes “coercion, violence or brutality to the person.”[7]

The Court of Appeals rejected the argument that the government’s conduct rose to the level of being “outrageous” and “shocked the conscience.” The Court considered multiple factors in determining whether the government’s conduct arose to a level to where it would have constituted entrapment under the objective test, including the government’s role in planning the crimes, exploitation of the defendants’ religious views, exploitation of professed love between Cromitie and Hussain, as well as the monetary and other material benefits offered to induce the defendants.

Their conclusion was that, despite the unusual aggregation of methods, “None of the techniques Hussain used to persuade Cromitie or the other defendants to participate in the government-devised plan, whether considered in isolation or cumulatively, violated the Due Process Clause,” or constituted entrapment.[8] Specifically addressing the monetary incentive, the court stated:

Even if we were to accept the premise that an offer of money might…be so large as to constitute outrageous government conduct, we do not believe a line should be drawn at a fixed dollar amount [as this] would be inconsistent with the flexible standards usually informing due process limitations. [The monetary amount] should be measured in relation to the inducement available for a particular criminal act from nongovernmental sources and the nature of the act itself. A large sum reflecting the going rate for a murder-for-hire might exceed due process limits of offered to induce the sale of a small quantity of marijuana. [The defendants] presented no evidence to indicate that $250,000…was more than might plausibly be required to purchase the services of a person willing to recruit and lead a team to launch Stinger missiles at an air force base and bomb synagogues. Whatever the going rate for such terrorist activities, only an offer significantly higher would require us to consider whether due process limits had been exceeded.[9]

Based on judicial precedent, the record clearly shows that the government did not employ any violent or physically coercive means against the defendants. The inducement was admittedly high, but the defendants were not forced – at the threat of physical harm – to commit the crimes. They willingly acceded to the government’s plan. Therefore, the “objective” test for entrapment cannot be satisfied.

Even though New York only considers the “objective” entrapment test, it is worth considering whether the defendants’ conduct satisfies the “subjective” entrapment test, since most federal and state courts follow this method and not the objective method. The subjective test looks at the defendant’s state of mind, and entrapment can only be claimed if the defendant had no “predisposition” to commit the crime.

The principal question is whether the individual in question was disposed to commit the crime before the involvement by the government. There are two prongs to be satisfied: “government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in criminal conduct.”[10] This analysis focuses on whether the individual was “an unwary innocent or…an unwary criminal who readily availed himself of the opportunity to commit the crime.”[11] The government merely affording the opportunity or means to commit the offense does not rise to the level of entrapment.[12]

The Court of Appeals for the Second Circuit also considered this prong in reaching its decision United States v. Cromitie, and emphatically rejected it. The Court’s reasoning – quite sound – is that the government need not wait until an actual terrorist element induces a radicalized individual to commit the crime, and there is no Constitutional obligation to do so. “A person who has a pre-existing design to commit terrorist acts against the United States interests or who promptly agrees to play a part in such activity should not escape punishment just because he was not in a position to obtain Stinger missiles and launch them at United States airplanes. The Government need not leave him at large until a real terrorist suggests such action and supplies real missiles.”[13]

And Cromitie did indeed show his predisposition. On two separate occasions, he emphatically stated that the idea to attack the United States was his and not “Maqsood’s.”

You already seen I had some issues with this world over here. So…I would do something to get back at them…So you already knew I was like that. It wasn’t you who was talking to me, I talked to you about it. When we first met in the parking lot, I talked to you about it…And you knew I wanted to get back. You knew I did. And I would. I will.[14]

On another occasion, Cromitie told “Maqsood”,

…you didn’t cause anything. When on the day of judgment Allah wanna say, ‘Ah, yes Maqsood, you enticed Abdul Rahman [i.e. Cromitie] to do that.’ No! I would be the truth on that day: No! you gave me my won will. You gave me my own mind setting, Allah. I did that on my own…I did that on my own…He just helped me when I asked for it.[15]

Countless other parts of the record can be produced to demonstrate Cromitie’s readiness, predisposition and willingness to commit terrorist attacks against the United States. These two statements, however, state his predisposition and his intent most clearly. They leave no doubt that Cromitie was not induced by Hussain, only that Hussain was the one who afforded the opportunity. Fortunately, for the innocent potential victims who otherwise would have been murdered, this turned out to be a fake opportunity.

Despite the mountain of evidence clearly indicating that Cromitie had a predisposition to commit the crimes in question – given his explicitly stated hatred of, and desire to harm, Americans and Jews – and despite failing to prove his client was entrapped on appeal, defense attorney Sam Braverman is taking this case to the Supreme Court. Given the evidence available, it is unclear how the entrapment argument would convince the Supreme Court when it failed to convince two lower courts. While an attorney does have a duty to competently and zealously represent his client, Braverman might be well-advised to exercise some intellectual honesty, or at least to sit down with his law books for a refresher course.



[1] Garner, Bryan A (Ed.), Black’s Law Dictionary, Ninth Edition. p. 612. Thomson Reuters. 2009.

[2] New York Penal Code. §40.05 Entrapment.

[3] United States v. Russel, 411 U.S. 423, 431-32 (1973)

[4] United States v. Chin, 934 F.2d 393,398 (2d Cir. 1991)

[5], see footnote 4.

[6] United States v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011)

[7] United States v. Kelly, 707 F.2d 1460, 1467 (D.C. Cir. 1983).

[8] United States v. Cromitie, 11-2763(L). (2d Cir. 2011)

[9] United States v. Cromitie, 11-2763, 11-12 (2d Cir. 2011).

[10] Mattews v. United States, 485 U.S. 58 (1988)

[11] Matthews, 485 at 63.

[12] Jacobson v. United States, 503 U.S. 540, 548 (1992).

[13] United States v. Cromitie, 11-2763(L), p. 12. (2d Cir. 2011)

[14] United States v. Cromitie. Government Exhibit. Recording of speech between Hussain and Cromitie dated Saturday, November 29, 2008. P. 16. JA 3285-86.

[15] United States v. Cromitie. Government Exhibit. Recording of conversation between Hussain and Cromitie, dated Monday, February 23, 2009.

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