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Mohamad Mustapha Ali Masfaka Evidence Proffer
Mohamad Mustapha Ali Masfaka Evidence Proffer
Defendant.
_________________________________________/
The United States of America, by Mark Jebson, Special Assistant United States
Attorney, hereby proffers the following information, pursuant to 18 U.S.C. § 3142 (f),1 in
indicted by a federal grand jury for False Statements to a Federal Agency (the FBI), in
1
Although the government plans to submit a government witness at defendant’s
detention hearing, it will also present some evidence by proffer. Submitting evidence by
proffer is permitted by 18 U.S.C. §3142(f). It is also recognized by the courts as a
common way to present evidence in the pre-trial context. See e.g., United States v.
Winsor, 785 F.2d 755, 756 (6th Cir. 1986) (holding that the government may proceed in a
detention hearing by proffer or hearsay); United States v. Abuhamra, 389 F.3d 309, 321
n. 7 (2nd Cir. 2004) (“[F]ew detention hearings involve live testimony or cross
examination. Most proceed on proffers.”).
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U.S.C. § 1015(a).2 The indictment was under seal until the time of arrest on January 22,
1001(a), 3571(b)(3).
the government his involvement with the Holy Land Foundation for Relief and
Development (HLF) while the FBI was investigating the HLF for providing material
(b)(1)(C) on the basis that his false statements to the FBI concerned a matter that related
months imprisonment. In a similar case in the United States District Court, District of
Arizona, the defendant, Akram Musa Abdallah, who, like Masfaka, lied to the FBI about
his involvement with the HLF during the FBI’s investigation of that organization,
recently stipulated in a plea agreement that U.S.S.G. § 2J1.2(a) and (b)(1)(C) was the
applicable guideline section for his offense conduct (case no. 08-0947) (Exhibit 1).
4. HAMAS is a terrorist organization based in the West Bank and Gaza Strip
(Gaza), that has engaged in dozens of suicide bombings resulting in the deaths of
2
The indictment referred to in this Proffer is the First Superseding Indictment.
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hundreds of human beings. On January 25, 1995, HAMAS was designated as a Specially
Designated Terrorist by the President in the Annex to Executive Order 12947 (Exhibit 2).
Foreign Terrorist Organization under section 219 of the Act. Designation of Foreign
5. The HLF was created in 1988 and represented itself to be a non-profit, tax
exempt, charitable organization designed primarily to assist needy individuals in the West
Bank and Gaza. In addition to its main office in Richardson, Texas, the HLF maintained
offices in other cities in the United States, including Detroit, Michigan. The HLF also
maintained offices outside the United States, including Jerusalem, the West Bank, and
Gaza. On December 4, 2001, the HLF was designated as a Specially Designated Global
under Executive Order 12947, because it provided millions of dollars of material and
logistical support to HAMAS (Exhibits 2 and 4). The HLF’s designation was
of the United States. Masfaka has been outside of the United States since July 9, 2008.
He applied for readmission to the United States on January 21, 2010. United States
immigration officials denied Masfaka entry into the United States because his lawful
permanent resident card (also known as a “green card”) expired due to his prolonged
absence from the United States. See 8 C.F.R. § 211.3 (Exhibit 5). Further, immigration
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determine if he should be deported from the United States (Exhibit 6). ICE detained him
without bond (Exhibit 7). The NTA charges that Masfaka abandoned his legal permanent
residence in the United States and that he committed fraud while attempting to become a
7. On January 22, 2010, the United States District Court for the Eastern District
of Michigan unsealed the superseding indictment against Masfaka and the United States
Immigration and Customs Enforcement (ICE) arrested Masfaka on the criminal arrest
warrant to appear before this Court (Exhibit 8). ICE has filed a detainer (hold) with the
U.S. Marshals Service (Exhibit 9). Accordingly, if Masfaka is released from U.S.
taken back into ICE custody the immigration court will not have jurisdiction to release
him because he is considered an “arriving alien” and therefore has not been legally
22 I&N Dec. 19 (BIA 1998) (Exhibit 10). Masfaka could also be subject to
administrative terrorism charges as a result of his participation with the HLF (as
8. Masfaka was employed by the HLF in 1997 and 1998 and served as the
Detroit HLF representative. In that capacity, he ran the HLF operations in the Detroit
area, to include organizing fund-raising events for the HLF. Masfaka was also a member
of a band named Al-Noujm, which played at numerous fund-raising events for the HLF.
Masfaka was at that time, and remains today, a famous signer who regularly travels
forms that from 1999 to 2002 he traveled to Morocco, Saudi Arabia, Qatar, Jordan,
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Swaziland, France, Germany, Holland and Bahrain (Exhibit 11). Furthermore, after
Masfaka left the United States in July 2008, he traveled to (according to his Syrian
passport) Jordan, the United Arab Emirates, Turkey, Qatar, Saudi Arabia, Lebanon,
Algeria, Kingdom of Bahrain, Kuwait, the United Kingdom, Egypt, Germany, Italy,
Australia and Canada (Exhibit 12). As mentioned above, Masfaka is a citizen and
D.C. Thus, even if the Court were to seize Masfaka’s Syrian passport, U.S. immigration
officials believe he could obtain a new Syrian passport (or other suitable travel
document) within a few weeks. Further, according to U.S. immigration officials, some
foreign countries issue its nationals travel document on-the-spot to permit them to return
to their home country immediately. The United States does not currently have an
extradition treaty with Syria. Accordingly, Masfaka’s flight to Syria would completely
9. The FBI began its criminal investigation of the HLF on December 10, 2001,
shortly after the federal government designated the HLF as a terrorist organization by
executive order. On September 27, 2002, Masfaka filed an application with U.S.
immigration officials to afford him the status of a United States citizen (Exhibit 11). As
alleged in the indictment, Masfaka omitted and failed to affirmatively disclose in his
naturalization application that he was employed by the HLF in 1997 and 1998 as its
Detroit representative, and that he sang at numerous fund-raising events for the HLF.
10. The FBI has video evidence of Masfaka praising HAMAS in songs he and
his band sang at HLF fundraisers. For instance, in one song Masfaka and a child sing a
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Child: “O Father, do not advice me; what do I care what people say? Oh
Father, do not advise me; what do I care what people say? Give me a
knife and wait for the ceremonies. I am leaving; pray for me; HAMAS is
calling me. I am leaving; pray for me; HAMAS is calling me. I am
leaving; pray for me; HAMAS is calling me. I am leaving; pray for me;
HAMAS is calling me.” (Exhibit 13.)
In another video (the date, location and context currently unknown), which was
displayed on YouTube, Masfaka and a chorus of individuals praise HAMAS no less than
“One thousand salutes, one thousand salutes to Palestine and the recruits
of HAMAS . . . For the disabled Sheikh, for the hero, the symbol of
strength and freedom, who ignited it, despite paralysis, a Koranic glory
revolution? One thousand salutes, one thousand salutes, one thousand
salutes, one thousand salutes for the recruits of HAMAS. . . . And the
outcry of your tears, the free sacrifice for you as well as our blood and
heart, one thousand salutes, one thousand salutes, one thousand salutes for
the recruits of HAMAS.” (Exhibit 14.)
connection to HAMAS, the FBI interviewed Masfaka about his relationship with the
HLF. As alleged in the indictment, although Masfaka admitted that he was previously
employed by the HLF, he lied and attempted to mislead the FBI by stating that his
employment was solely as a singer in a band that performed in fundraising events for the
HLF. Masfaka also falsely told FBI agents that he never received payment directly from
the HLF.
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(obtained from search warrants in the main HLF case that was prosecuted in the Northern
District of Texas) that reveal the true nature of Masfaka’s relationship with the HLF.
This evidence includes: (1) numerous HLF payroll checks issued to Masfaka in 1997 and
1998, which he cashed, establishing he was an employee of the HLF, (2) HLF satellite
office list stating that Masfaka is the Detroit representative, (3) Minutes from a HLF
representative, (4) IRS Form 1099 for 1997 and 1998 issued to Masfaka for his work for
the HLF, (5) HLF cash disbursement journals for 1997 and 1998 stating that the HLF
paid Masfaka as an employee during that time period, and (6) a document prepared by the
HLF setting forth the potential liability for hiring Masfaka without immigration work
authorization.
13. On January 30, 2004, Masfaka continued his lies and deception about his
relationship with the HLF when immigration officials interviewed him while processing
interview, Masfaka once again omitted and failed to affirmatively disclose his
employment with the HLF. Masfaka also falsely stated that his only association (not
employment) with the HLF was limited to playing in a band that performed for the HLF.
The government has a videotape recording of this interview. U.S. immigration officials
other things, he lied about his relationship with the HLF (Exhibit 15).
14. On July 26, 2004, a federal grand jury in Dallas, Texas, indicted the HLF
and seven of its employees charging the defendants with, among other things, conspiracy
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provide funds, goods and services to a Specially Designated Terrorist (HAMAS), and
providing funds, goods and services to a Specially Designated Terrorist (HAMAS). One
of the HLF defendants was Mufid Abdulqader, an individual who played at HLF
fundraising events with Masfaka. Musfaka admitted to the FBI that he knew that
15. On July 9, 2008, before the HLF criminal trial, the FBI approached
Masfaka and advised him that the FBI wanted to once again discuss with him his
activities with the HLF and requested that he participate in an interview. The FBI
explained to him that he had criminal exposure given his past lies to them about his
relationship to the HLF. Masfaka told the FBI that he was traveling to the Middle East,
but would return for an interview with the FBI, immigration officials and federal
Arrival Departure Information System (ADIS), Masfaka left the United States on
business or pleasure on July 9, 2008. Despite Masfaka’s promise to the FBI, he did not
return in August 2008. Rather, he remained outside the United States until January 21,
2010, allowing his legal permanent residence card (“green card”) to expire, subjecting
arrested him at the border on January 21, 2010, he told them that he remained outside the
United States since July 2008 because he was “threatened by the FBI” (Exhibit 16). In
other words, he remained outside the United States to avoid criminal prosecution. He
presumably only returned when he thought enough time had passed and the criminal
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prosecution was not likely. U.S. immigration officials denied his naturalization
application on December 23, 2009 (Exhibit 15). Masfaka likely thought that denying his
naturalization application was the chosen enforcement tool of the U.S. government
(rather than charging him with a crime) because it was only after the immigration
this country.
16. On November 24, 2008, the jury in the HLF trial convicted the HLF and
five of its employees on all counts (two charged employees remain international
terrorist organization, namely HAMAS. On May 27, 2009, the U.S. District Judge, in
sentences on the HLF defendants ranging from 15 to 65 years imprisonment (Exhibit 17).
Mufid Abdelqader, who played with Masfaka at HLF fundraising events, was sentenced
to 20 years imprisonment .
17. After the HLF defendants were convicted, Masfaka’s attorney telephoned
the federal prosecutor assigned to his case and requested an assurance that the federal
government was no longer interested in Masfaka given the HLF defendants were
convicted in the HLF trial. The assigned prosecutor refused to give such assurance.
After this, Masfaka absented himself from the United States for approximately another
year despite the fact that his wife and five children reside in Farmington Hills, Michigan.
Windsor, Canada, just across the river from Detroit to avoid criminal prosecution. In
Windsor, he rented an apartment and was given a job offer by an Islamic School in
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Windsor. Moreover, Masfaka’s wife Batoul Qaweqji and their children frequently
traveled from the family home in Farmington Hills to Winsdor to visit Masfaka.
occasions since he departed the United States on July 9, 2008: (1) entered Canada via
Montreal on June 19, 2009; (2) entered Canada via Toronto on July 18, 2009; and (3)
entered Canada via Toronto on October 1, 2009. U.S. immigration officials have
determined that Masfaka’s wife crossed from Windsor, Canada into the United States
(presumably after visiting Masfaka) on at least 16 occasions since Masfaka first entered
4. August 1, 2009
5. October 4, 2009
9. November 1, 2009
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immigration officials asked her about Masfaka. Masfaka’s wife became avoidant and
told the immigration officials that her husband (Masfaka) does not allow her to tell
people where he is. She then lied to Canadian immigration officials and told them that
Masfaka was in the United States. Canadian immigration officials denied Masfaka’s wife
entry into Canada and returned her to the United States. Masfaka’s wife told Canadian
immigration officials the same lie on December 19, 2009 (that her husband was at home
in Farmington Hills, Michigan) when she entered Canada at Windsor with her five
children.
18. Further evidence that Masfaka has stayed outside of the United States to
avoid prosecution is the fact that he applied with U.S. Immigration officials on three
separate occasions to obtain a replacement legal permanent residence card through a third
party in Windsor, Canada and failed to appear to process the application in the United
States. On each occasion, U.S. immigration officials made an appointment for Masfaka
to appear in Detroit and process his application (November 6, 2009, December 1, 2009,
and December 24, 2009), which he failed to appear for. The government believes that
Masfaka may have made these appointments in an attempt to determine if the United
States had charged him with a crime. It was only after the U.S. immigration officials
denied his naturalization application on December 23, 2009 (and mailed him a copy of
the decision the same day) that he attempted to return to this country. Presumably, he
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believed he avoided criminal prosecution because he was under the mistaken belief that
United States law enforcement officials decided to refuse him citizenship instead of
Relief Requested
Based upon Masfaka’s substantial and extended travel abroad, his willingness and
desire to stay abroad for the admitted purpose of avoiding criminal prosecution (even to
the point of allowing his U.S. lawful permanent resident card to expire), his ability to
live and work abroad, the substantial amount of prison time he faces given the possible
12 level sentencing terrorism enhancement (63 – 78 months imprisonment), and his likely
ability to obtain a replacement Syrian passport or other travel document to travel abroad,
order the detention of Masfaka pending trial pursuant to the Bail Reform Act.
Respectfully submitted,
BARBARA L. McQUADE
United States Attorney
________________________________
MARK JEBSON (P53457)
Special Assistant United States Attorney
211 W. Fort St., Ste. 2001
Detroit, MI 48226
(313) 568-6033
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CERTIFICATE OF SERVICE
I hereby certify that on January 28, 2010, I electronically filed the foregoing document
with the Clerk of the Court using ECF System which will cause a copy of this filing to be
automatically e-mailed to:
s/Mark J. Jebson___________
MARK J. JEBSON (P53457)
Special Assistant U.S. Attorney
211 W. Fort, Suite 2001
Detroit, MI 48226
(313) 568-6033
[email protected]
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