400 F.Supp.2d 1084 United States District
Court, N.D. Illinois, Eastern Division. UNITED STATES of
America, v. Gale NETTLES,
Defendant. No. 04 CR. 699(JFK). Nov. 28, 2005. RELATED REFERENCES: U.S. v. Nettles, 349 F.Supp.2d 1085
(N.D.Ill. Nov. 23, 2004) (NO. 04 CR 699) Mandamus Granted by: In re Nettles, 394 F.3d 1001 (7th
Cir.(Ill.) Jan. 21, 2005) (NO. 04-4104) [*1085] COUNSEL: Patrick J. Fitzgerald, United States Attorney,
Northern District of Illinois, Chicago, IL (Victoria J. Peters, Brandon Fox,
Assistant United States Attorneys, of counsel), for U.S. [*1086] John T. Theis, Chicago, IL, for
Defendant. OPINION and ORDER JUDGE: KEENAN, District Judge. BACKGROUND Defendant was charged in a nine-count indictment with two counts
of attempting to damage and destroy the Dirksen Federal Building by a fire or
explosion (18 U.S.C. §§ 844(f)(1) and 844(i))(Counts
1 and 2); one count of attempting to provide material support to terrorism (18
U.S.C. § 2339A) (Count 3); one count of fraudulently making,
forging and counterfeiting U.S. Federal Reserve Notes (18 U.S.C.
§ 471)(Count 4); and five (5) counts of selling, exchanging,
transferring and delivering false, forged, counterfeited and altered U.S.
Federal Reserve Notes, with the intent that the same be passed, published and
used as true and genuine (18 U.S.C. § 473) (Counts 5 through
9). Defendant pleaded not guilty. This case originally was assigned to a judge in the Northern
District of Illinois. Defendant moved to recuse the presiding judge and all
judges in the district on the ground that the judges impartiality was
in question because the charged conduct involved a plot that threatened their
lives. See 28 U.S.C. § 455(a). The presiding judge denied the
motion. United States v. Nettles, 349 F.Supp.2d 1085 (N.D.Ill.2004). On
mandamus, the Court of Appeals for the Seventh Circuit ordered the recusal of
all Northern District of Illinois judges. In re Nettles, 394 F.3d 1001, 1003
(7th Cir.2005). The Circuit also recused itself from hearing any appellate
proceedings because it too sits in the Dirksen Building. Id. The case was then
assigned to me, a district judge sitting on the United States District Court
for the Southern District of New York. Trial began on September 6, 2005 before me and a jury. On
September 15, 2005, the jury convicted defendant of Counts 1, 2 and 4 through
9. Defendant was acquitted on Count 3. Defendant now moves for acquittal or a
new trial under Federal Rule of Criminal Procedure 29(c). He seeks acquittal on
the following three grounds: (a) The Government failed to prove each and every
element of the offense on the two remaining counts alleging attempts to violate
the law. The Government failed to prove that the Defendant ever had the
specific intent to commit the underlying offense and that he took a substantial
step toward its conclusion as required in this circuit. [The Court understands
this to be addressed to Counts 1 and 2.] (b) The Government never proved that the Defendant ever had any
intent to defraud when he provided the allegedly counterfeit currency in this
case. [The Court takes this to be addressed to Counts 4-9.] (c) The Governments evidence established as a matter of
law that the Defendant was entrapped. The numerous attempts established in this
case to persuade the Defendant to commit an act to which he was not predisposed
clearly established that the Defendant was entrapped as a matter of
law. [The Court assumes this relates to all eight counts of
conviction.] The grounds urged for a new trial are as follows: (a) The Court erred in denying Defendants
Motion to Transfer the Proceedings pursuant to Rule 21 of the Federal Rules of
Criminal Procedure. (b) The Court erred in denying Defendants Pre-trial
Motion for Severance of Counts in this cause. [*1087] (c) The Court erred in denying Defendants Motion for
Judgment of Acquittal at the end of the Governments case and at the
end of all of the evidence in this case. (d) The Court erred in instructing the jury on the role of the
jury in the Governments proposed instruction number 40, which is not
a Seventh Circuit Pattern Instruction, and to which the defense objected. (e) The Court erred in overruling the Defense objections to
certain elements of the testimony of the witness Michael Leone, in which he was
allowed to testify to speculative matters which were highly prejudicial and
which were not relevant to the charge. (Pages 2 and 3 of Defense
Motion of October 14, 2005). THE FACTS AS DEVELOPED AT TRIAL The events here really began on September 5, 2002 when defendant
was sentenced to a term of imprisonment of 24 months after pleading guilty in
the Northern District of Illinois to manufacturing counterfeit U.S. Currency.
Mr. Nettles was incarcerated at the Federal Correctional Institute
(FCI) in Yazoo City, Mississippi. Another inmate, Cecil
Brown, was also serving time at the FCI in the summer of 2003. Mr. Brown
testified that the defendant asked him about ammonium nitrate. Brown stated
that defendant, who in prison was known as Ben Laden,
claimed to be familiar with the Chicago federal courthouse (the Dirksen
Building). Nettles told Brown that defendant could easily load a truck with
ammonium nitrate and put it in the loading dock area of the courthouse. Brown
testified that defendant sketched the courthouse in sand in the exercise yard
while describing it and his desire to blow up the building. After Brown told law enforcement about defendants
statements, the F.B.I. provided Brown with a piece of paper which had the
telephone number of an undercover F.B.I. telephone in Shreveport, Louisiana.
Brown gave this paper to the defendant and told him that it was the number of
someone who could get ammonium nitrate. Nettles was released from prison in
October, 2003 and he went to the Salvation Army work release center in Chicago
to complete his term of imprisonment. In November, 2003, defendants
cell telephone number appeared on a Caller ID device hooked-up to the F.B.I.
undercover phone. On November 25, 2003, Larry Reichardt, an undercover F.B.I.
Agent, called defendant and told him that he saw his number on his Caller ID.
Reichardt offered to have his bossman call defendant.
Defendant told the agent that he was using the nickname Ben
Laden. On November 25, 2003 Mr. Nettles, while under surveillance by the
F.B.I., traveled by bus in Chicago to Washington and State Streets. He then
walked down State Street to the site of the Federal Courthouse (the Dirksen
Building). He went to the south or Jackson Boulevard side of the courthouse and
was seen looking at and observing the loading dock of the Dirksen Building. On December 1, 2003, Gary Beasley, another undercover law
enforcement officer, called defendant. Through early 2004, Beasley recorded
several telephone calls and face-to-face meetings with the defendant. Beasley
agreed to supply defendant with a ton of ammonium nitrate fertilizer. In the recordings with Beasley, defendant discussed what he was
going to do with a portion of the ammonium nitrate. Defendant said that the
federal courthouse downtown (the Dirksen Building) is blocking the
view of the lake. Defendant stated that he wanted to
collapse the building *1088 and he had a problem with the
whole federal system, including the judge on his counterfeiting case. He
further told Beasley that he wanted to take out a couple of city
blocks and talked about using ammonium nitrate in a truck bomb. Nettles also told Beasley that he counterfeited money and asked if
Beasley would be interested in purchasing some counterfeit. On December 3, 2003, the defendant was again observed by the
F.B.I. going to the Dirksen Building. He took a bus to LaSalle and Washington
Streets and walked from there to Adams Street, the northerly side of the
courthouse. Mr. Nettles entered the courthouse, got on an elevator and 15
minutes or so later returned to the first floor and left the building. The F.B.I. utilized the services of a paid informant, Sylvia
Anicua. In late April, 2004, Ms. Anicua first met the defendant and began
speaking with him frequently. She told defendant her name was Maria. Defendant,
without any prompting, told Ms. Anicua that he counterfeited money and she said
she had a friend who was interested in counterfeit currency. On May 22, 2004, defendant delivered $560 in counterfeit bills to
Anicua in exchange for $100 in legitimate U.S. Currency. All bills were counterfeit
twenty dollar bills with the same serial number. On May 27, defendant gave $1,500 in counterfeit bills to Anicua in
exchange for $300 in U.S. Currency. Again, the counterfeit bills were all
twenties with the same serial number. On May 28, defendant brought Anicua $3,680 in counterfeit bills in
exchange for $700 in U.S. Currency. The counterfeits were all twenty dollar
bills with the same serial number. On July 7, defendant exchanged $52,300 in counterfeit bills for
$10,000 in U.S. Currency. The counterfeits were all one-hundred dollar bills
and had the same serial number. At the July 7 meeting, defendant returned
$5,000 of the genuine U.S. Currency to Anicua as payment for brokering the
deal. Defendant sent Beasley priority mail which was received on July
21, 2004. It contained $9,000 in counterfeit currency, in one-hundred dollar
denominations. Beasley called Nettles and told him he received the package and
that he was not going to have access to the fertilizer much longer because
Beasley was getting out of the farming business. He further told defendant that
the amount of counterfeit currency that defendant sent was more than enough to
pay for the fertilizer and asked how much fertilizer Nettles wanted.
Defendants answer was that he needed enough to set off a two-thousand
pound bomb. In July, 2004, defendant asked Anicua if she knew anyone connected
with al Qaeda or Hamas. Anicua later told Nettles that she knew a member of al
Qaeda. On July 25, 2004, Ali was introduced to the defendant
by Anicua. Ali was really an undercover F.B.I. Special
Agent posing as a Chicago cab driver. Defendant told Ali
that he had half a ton of ammonium nitrate.
Ali asked defendant if he had the ammonium nitrate ready
and he said that it was in New Orleans, but that he could make one phone call
and have it in Chicago in two days. Defendant added that he has a target in
mind: the U.S. courthouse downtown. Ali asked defendant how much he would sell the
fertilizer for. Defendant said half a ton would be $15,000 and
Ali told defendant that $10,000 was acceptable. Defendant
agreed to this. Later, defendant asked Ali if the U.S.
courthouse was an acceptable target. Defendant met Ali again on July 31, 2004 and
said that his target would be the [*1089] U.S. courthouse. He also stated that
there was another courthouse that handles civil matters across the street and
that if there was something placed between the two buildings, it would take
both courthouses down. At this same meeting, defendant spoke about bringing down the
building around 10:00 or 11:00 in the morning, when the judges would be there.
Defendant observed that people pay more attention when people are injured, as
opposed to when there is only physical damage to property.
Ali asked defendant about the prospect of persons not
connected with judges being killed, and defendant explained that he viewed this
as a combat strike in which there are always
friendly casualties. Defendant then went on to observe that more
people should have been killed at the World Trade Center and that the American
casualties in Iraq did not trouble him. He commented that the government
is what should be hit and to change [sic]. You know people
wont change it until they start, start feeling it on this soil
. The soldiers dying in Iraq ah, it has an impact. But
theres not enough body bags coming back to make them really pay
attention. Defendant described how to make an explosive device. He named the
ingredients he would use in addition to fertilizer and how the explosives
should be wired for detonation. Defendant explained that the person who placed
the bomb could get away quickly because of an expressways proximity
to the building. On August 4, 2004, at defendants request, Beasley drove
to a storage facility Nettles had rented in Chicago. Beasley delivered what
purported to be ammonium nitrate fertilizer. It was actually another fertilizer
that had different qualities than ammonium nitrate and therefore could not be
made into the bomb defendant was planning to construct. Defendant received ten
boxes containing fertilizer. They weighed about five-hundred pounds and were
put in the rental storage facility. Defendant had Beasley hold the remaining
ammonium nitrate for delivery to Ali the next day. He told
Beasley that Ali would buy the fertilizer for $5,000,
rather than the true $10,000 figure. Defendant said he would pay Beasley $3,000
of the $5,000. On August 5, 2004, Nettles and Anicua went to a park in Chicago in
the early morning. At defendants instruction, Beasley went to the
same park at around 6:00 a.m. with a pickup truck containing the remainder of
the fertilizer. Ali and two other law enforcement employees
acting undercover arrived separately at the park. Ali and
his two associates transferred the fertilizer from Beasleys pickup
truck to another vehicle. Defendant from a distance monitored the transfer with
binoculars. Defendant and Anicua then met with Ali, who
paid defendant $10,000 for the fertilizer. Defendant was then arrested. Defendants apartment at 1124 West Wilson Avenue, Room
118, was searched by the F.B.I. pursuant to a warrant and in it several
incriminating items were seized. Among the items seized from
defendants room were a lease for the locker where the ammonium
nitrate was stored, Cecil Browns phone number, a certified copy of
defendants 2002 counterfeiting conviction, a receipt from a paper
store, paper (for the counterfeit money), a paper cutter and computer which was
probably used in creating the counterfeit currency. DISCUSSION Defendant seeks judgment of acquittal under Fed.R.Crim.P. 29. A
judgment of acquittal is proper only when there is insufficient evidence to
sustain the jurys findings. [*1090] United States v. OHara, 301 F.3d 563, 569
(7th Cir.2002). The question is whether the record contains evidence on which a
rational jury could have returned a guilty verdict. Under Rule 29, the trial
judge does not become the thirteenth juror. United
States v. Genova, 333 F.3d 750, 757 (7th Cir.2003), but if I were, I would have
voted the same way the jury did on the counts of conviction. As to the first two counts of the indictment, the defendant seeks
a judgment of acquittal claiming that the government failed to prove that he
had the specific intent to damage or destroy the Dirksen
Federal Building and that the government did not prove that he took a
substantial step toward committing the offenses. Defendants
argument on each contention is that the evidence only showed that he had a
general intent to purchase and resell certain chemicals. (Defense
Motion, October 14, 2005, page 2). Defendants statements to Cecil Brown, Beasley, Anicua
and Ali, as outlined above, defeat this argument as to
intent. They, plus his actions, evinced a clear intent to blow up the Dirksen
Building. The actions, taken together, included substantial steps to accomplish
the destruction of the Dirksen Building. The defendant accepted 500 pounds of ammonium
nitrate at his rented storage space. He took this with the specific
intent to combine that fertilizer with a fuel to create an explosive device
that he would use to damage or destroy the Dirksen Federal Building. What
defendant intended on doing with this fertilizerdestroying the
Dirksen Federal Buildingwas indisputably proven based on the tapes
that the government introduced and the other proof in the case. Acceptance of
the fertilizer in the context of the proof here was a substantial step towards blowing-up
the Federal Courthouse. Viewing the evidence in the light most favorable to the
government, as I must, see OHara, 301 F.3d at 569-70, I find that the
record contains more than sufficient evidence to approve the jurys
findings that defendant took a substantial step and that he had the specific
intent to damage or destroy the Dirksen Federal Building. Defendant seeks a judgment of acquittal on Counts 4 through 9
because he claims that there was insufficient evidence to show that he had the intent
to defraud when he sold the counterfeit currency. Defendant contends that he
is heard on tape recorded conversation[s] telling the purchasers of
the allegedly counterfeit bills that they are unlikely to be successfully
passed as true United States currency. (Defense Motion at
¶ 4(b), page 2). Such is not the case. The tapes played at trial showed that defendant believed that the
counterfeit bills he supplied to Anicua would be sent to Mexico. They were to
be exchanged there for pesos and shipped back into the United States. There was
a clear intent to defraud with respect to that counterfeit money. As to the
counterfeit sent to Beasley, defendant told Anicua that Beasley was
wholesaling this currency. This shows that defendant
believed that Beasley was selling the counterfeit currency to others. Defendant
took great efforts to make sure that the counterfeit was of high quality. He
sold the counterfeit at a price of about twenty percent of its face value.
Accepting the evidence in the light most favorable to the government, I
conclude that the record contains more than sufficient proof to support the
jurys finding that defendant had the intent to defraud with respect
to Counts 4 through 9. Defendant argues that he is entitled to an acquittal because the
governments evidence established as a matter of law that he was
entrapped. This is simply not so. [*1091] There was ample evidence to support the
jurys finding that there was no entrapment. The proof demonstrated that defendant was predisposed to
committing the crimes for which he was convicted. In deciding if a defendant
was (or was not) predisposed to commit a crime, the following are relevant: (1)
the defendants character or reputation; (2) whether law enforcement
officers initially suggested the criminal activity; (3) whether the defendant
engaged in the criminal activity for profit; (4) whether defendant showed a
reluctance to commit the offense that was overcome by government persuasion; and
(5) the nature of the inducement or persuasion offered by the government. United
States v. Higham, 98 F.3d 285, 291 (7th Cir.1996). As to Counts 1 and 2, defendants character and
reputation show that he was predisposed to committing the offenses. Mr. Nettles
had knowledge regarding explosives. He also has a deep hatred for the federal
government in general and federal judges in particular. He articulated his
desire to have a high number of casualties when the bomb was detonated. He
believed that the number of people killed during 9/11 terrorist attacks was
low. He used the nickname Ben Laden
both in and out of prison. Clearly, there was a predisposition to commit the
crimes charged in Counts 1 and 2. He raised the whole subject with Cecil Brown
in the first place. With respect to Counts 1 and 2, defendant told Cecil Brown about
his plan to bomb the Dirksen Federal Building while they were inmates at Yazoo
City FCI. This was before any federal agent came into contact with Mr. Nettles.
Defendant drew a diagram of the Dirksen Federal Building in the sand while
describing the plan (page 5, supra). On November 13 and 14, 2003, defendant
placed telephone calls to the undercover F.B.I. number that Brown had given
him. Defendant asked Anicua if she knew any associates of Hamas or al Qaeda
without any provocation, urging or leading on her part. Concerning the counterfeiting charges in Counts 4 through 9,
defendant was charged on October 24, 2000 in this District with manufacturing
counterfeit currency and was convicted of this crime. He was on supervised
release when he committed the offenses charged in this indictment. The earlier
counterfeiting conviction shows his predisposition to counterfeit money. So,
too, do his statements to Beasley that he is into graphic
art that he makes money the old fashioned way by
printing it. At their first meeting, defendant asked
Beasley whether he could use some bogus money. Mr. Nettles
devoted considerable time and effort to be able to print the counterfeit money.
In her dealings with defendant, Anicua did not raise the subject of
counterfeiting defendant did. Defendant sought to make sure that his acquisition and sale of the
fertilizer was profitable. He bought two tons of it from Beasley for $9,000 in
counterfeit. He sold a portion of the fertilizer to Ali for
$10,000 in legitimate currency. He tried to short change Beasley by telling him
that Ali was to purchase the fertilizer for $5,000 (instead
of $10,000) and offering him $3,000 for providing defendant with the
fertilizer. Defendants exchange with Beasley would allow him to keep
half a ton of the fertilizer for himself and make a $7,000 profit from his deal
with Ali. What he provided in return was $9,000 in
counterfeit bills to Beasley. Defendants intended use of the
fertilizer would have avenged his counterfeiting conviction in his mind. The manufacture and sale of the counterfeit money was profitable
to defendant. [*1092] He provided Anicua with a total of $58,040 of counterfeit
bills in exchange for $11,100 in real U.S. Currency. He netted $6,100 for this
counterfeiting work. The jury listened to many hours of conversations in which
defendant participated. Except for some hesitancy expressed because at first he
did not trust Ali, defendant did not show a reluctance to
commit any of the crimes for which he was convicted. It was the defendant who first mentioned his criminal conduct. The
civilians and federal agents listened to defendant. They assisted him when he
needed help, and purchased the counterfeit and fertilizer from defendant when
he offered them. The evidence showed that defendant was the genesis of the
criminal activity and the one making the decisive calls. He had no reluctance
to commit the crimes charged. Profits that defendant made were a result of his dealings. He was
the one who tried to get a member of al Qaeda or Hamas to purchase the
fertilizer from him. Defendant initially suggested $15,000 for the half-ton. He
later agreed to $10,000. On his counterfeiting, defendant set the price of
twenty to thirty percent of the total face value of the counterfeit money. He
took less than twenty percent on the bills that he sold to the purported friend
of Anicua. Including the money he gave to Anicua as her share of the
transaction, defendant received less than ten percent of the face value of the
counterfeit bills. The Government did not entrap or entice him by offering large
sums of money. There was no inducement or persuasion by Government authorities. There was more than sufficient evidence for the jury to find that
the defendant was not entrapped into committing the offenses.
Defendants motion for a judgment of acquittal on that ground is
denied. Defendant also claims that the Court committed several errors that
now require him to receive a new trial. First, defendant claims that this court erred in denying his
motion to transfer the proceedings. Fed.R.Crim.P. 21 provides that venue of a
trial shall be transferred to another district if there exists in the original
district so great a prejudice against the defendant such
that the defendant cannot obtain a fair and impartial trial
in that district. Jury selection demonstrated beyond any doubt that it was
unnecessary to transfer the proceedings. Few, if any, potential jurors had
heard of defendant or the case. There simply was not the type of pre-trial
publicity that would cause a need for this case to be transferred, nor was
there that much media coverage during trial. Nothing indicated that defendant
could not and did not receive a fair and impartial trial here.
Defendants concerns regarding the potential impartiality of jurors
were adequately addressed during the voir dire process. Defendant further claims error because he was denied a severance
of counts. The counts alleged in the indictment were properly joined and the
trial was appropriately held on the nine counts together (see my decision of
August 16, 2005 at pages 4-5). Fed.R.Crim.P. 8(a) permits the joinder of
multiple offenses if the offenses charged, whether felonies or
misdemeanors or both, are of the same or similar character or are based on the
same act or transaction or on two more actions or transactions connected
together or constituting parts of a common scheme or plan. Rule 8(a)
leaves the determination of risk of prejudice and any remedy that may
be necessary to the sound discretion of the district courts. United
States v. Moore, 115 F.3d 1348, 1362 (7th Cir.1997) (quoting Zafiro v. United
States,
506 U.S. 534, 541, 113
S.Ct. 933, 122 L.Ed.2d 317 (1993)). [*1093] There was no need to sever because
defendants counterfeiting efforts were part of the common scheme and
plan to destroy the Dirksen Federal Building with a truck bomb. The proof at
trial was that the counterfeiting would finance the bomb plot. It was during
his dealings with Sylvia Anicua, who was purchasing counterfeit money from
defendant, that he asked her if she knew anyone affiliated with al Qaeda or
Hamas. Defendant sold ammonium nitrate fertilizer to a purported al Qaeda
terrorist to whom he was introduced by Ms. Anicua. The plot to destroy the
Dirksen Building and to counterfeit were intimately connected. They were joined
at the hip. There are no circumstances here which justify the inefficiencies of
conducting more than one trial. Mr. Nettles also seeks a new trial because the Court allegedly
erred in denying his motion for judgment of acquittal before the jury returned
its verdict. For the same reasons that judgment of acquittal is not
appropriate, a new trial is equally inappropriate. Defendant argues that there was error because the jury was
instructed not to consider punishment (Instruction Number 40) in reaching a
verdict. [FN*] FN* The Courts clear recollection is
that defense counsel withdrew this objection to this part of the charge. But,
if my recollection is wrong, I am ruling on this argument on the merits. Defendant does not argue that the instruction about punishment was
an inappropriate statement of the law or that the jury should in any way
consider punishment. Defendants objection is only that it is not a
pattern jury instruction. Judges routinely provide juries with instructions
that are not pattern jury instructions. Judges routinely provide the same or a
similar jury instruction, both in the Seventh Circuit and throughout the
nation, as the one about which defendant now complains. Defendant has not
pointed to any prejudice suffered as a result of this instruction. This does
not create grounds for a new trial. Finally, defendant argues that the Court erred in overruling the
defense objections to certain portions of the testimony of the witness, Michael
Leone. Defendant does not specifically point to which objections were overruled
and which portions of Mr. Leones testimony he claims were
speculative, prejudicial, and not relevant. In any event, all of the Leone
testimony was appropriate and no error was committed with respect to
Leones testimony. Defendants motions are denied in all respects. Sentence
will be imposed on January 12, 2006 at 10:00 A.M. SO ORDERED. |