A Milwaukee man will have to wait another six months for his chance to convince a federal jury that FBI informants entrapped him into buying a machine gun and that his talk of a mass shooting downtown was only braggadocio.
Samy Hamzeh’s arrest more than two years ago generated sensational headlines: The FBI said it had thwarted his plot to kill at least 30 people at a Masonic center to “defend Islam.”
But as the case has unspooled, Hamzeh’s lawyers concluded he was merely a “Palestinian Walter Mitty,” aggressively led on by the informants with their own agendas. Now his trial, originally set to begin Monday, has been put off until June, as the defense argues for access to a mountain of information it suspects will help show Hamzeh, 25, was set up at great cost.
The informants had been recording talks with Hamzeh for months at the end of 2015. Then in January 2016, they toured the Humphrey Scottish Rite Masonic Center, 790 N. Van Buren St., and discussed detailed plans to return there and kill as many as 30 people.
From YouTube videos presented by the informants, Hamzeh had come to believe that Masons secretly support the Islamic State, which through its terrorism was discrediting all Muslims.
Hamzeh was arrested after he accepted two machine guns and a silencer sold to him and one of the informants by undercover agents for $570.
His attorneys sought to have him released on bond in June so he could help prepare for his trial. But despite his local ties and lack of a criminal record, a federal judge continued his detention. Hamzeh’s attorneys say even if he is convicted, his likely sentence would be less than the time he’ll have been in jail awaiting trial.
In January, the defense filed its fourth request for information from the government. It suggests that in conversation, prosecutors have indicated many reports, notes, memos, texts and other relevant material exists that has not been disclosed as required prior to trial.
Hamzeh’s attorneys argue the information could be very helpful to the defense. They suspect that much of the investigation revealed Hamzeh behaving perfectly legally and resisting the informants’ pressure to commit or plan a crime, and “not associating with criminals, radicals, or extremists.”
For instance, it says, Hamzeh was apparently surveilled 64 days by agents, but only reports of four of those days were turned over to the defense.
“The government asserts that the remaining 60 surveillance reports are insignificant,” the motion states. “Yet their insignificance is the very reason they are likely to be exculpatory to Hamzeh as they presumably show him engaged in law-abiding activities.”
“And they also demonstrate the enormous investment of time and money into this investigation, which was strong motive for the agents not to come up empty-handed,” the motion further reads.
The defense also wants texts between agents and the informants, the agents’ directions to the informants, evidence of all efforts to link Hamzeh to terrorist or extremist groups, any violations by the informants of their rules of engagement with Hamzeh and any sanctions the agents imposed on the informants.
Prosecutors say many of the records requested by the defense don’t exist.
The first informant, identified only as Mike, was a longtime friend of Hamzeh’s who brought up and pushed the idea that he should get a machine gun. Shortly after Hamzeh’s arrest, one of the informants was hospitalized for mental health issues, which might affect his memory.
“There is also the potential that the informant’s guilt over betraying Hamzeh and entrapping him into criminal conduct caused the breakdown,” the defense notes.
And because the two informants didn’t know the other was also an informant until just a few days prior to Hamzeh’s arrest, the defense wants reports they may have made about each other to the agents.
The defense has analyzed phone records and claims that from September 2015 up until Hamzeh’s arrest, he had an average of six contacts a day with the informants. But from Dec. 14 to Jan. 19, when Hamzeh reportedly first showed an interest in an attack at the Masonic center, there were 224 contacts.
Yet during that same key period, the informants were not recording their conversations with Hamzeh, like they had been since September.
According to the government’s response, Mike was in the U.S. illegally when he went to the FBI in September 2015. Agents kept him in the country until March 2016, when he returned to Jordan. His $600 hotel bill was paid by agents, and he refused a $599 payment.
The second informant, Steve, who has worked for the FBI before and since, was paid $7,300 and given about $900 for a new phone and number after Hamzeh’s arrest.
The defense also moved to dismiss one of the two counts of having a machine gun. They note that the undercover FBI agents sold one gun to Hamzeh and one to the informant identified as “Steve.” They argue that merely carrying Steve’s gun to a car trunk doesn’t trigger a legal obligation for Hamzeh to register the transfer and pay a tax.
“If Hamzeh were a felon, then carrying Steve’s gun to the car would be enough to support a felon-in-possession charge, but he’s not.
U.S. Magistrate Judge William Duffin last week recommended that motion be denied.
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