Bail Request
Below is the bail motion filed on December 22, 2003. It shows how malevolently the prosecution has treated the defense. There has been a continual effort to mislead and deceive the defense into spending time and effort, and legal expenses, in a fruitless effort to win Rafil bail. It was mean spirited to have Rafil ride a roller coast of hope knowing all along that the ride would never go anywhere. Clearly the prosecution is trying to break Rafil.
As the bail motion indicates the crusade against our Muslim community begun the day Rafil was arrested and 150 predominantly 150 Muslim families were interrogated continues. Several Muslims involved with the legal team were denied access to visit Rafil, a clear infraction of the sixth amendment. It also sends a message to our Muslim community, still shocked by the events of February 26, 2003--help Rafil and you might be next.
They say a fish rots from the head first. The actions described below show that federal prosecutors are following in lock step with their boss Attorney General John Ashcroft. The patriot act has intoxicated them with the power to intimidate and defy the principles of our country. While the self proclaimed righteous Ashcroft has given them almost a religious fervor in the way the approach Rafil and those close to him, particularly Muslims.
madis senner
PS--My comments to help put things in perspective appear in the text boxes and are not part of the bail motion.
NORTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
laintiff,
BAIL APPLICATION
- against -
DR. RAFIL DHAFIR,2003-CR-64
Defendant.
Inasmuch as it is our belief that there has been a substantial change in circumstances as well as the information which was relied upon by the Court in denying Dr. Dhafir's bail, we submit the annexed bail package for Your Honor's consideration. We note that the new bail package is secured by over $2 million in equity. It also calls for Dr. Dhafir to check in with authorities at least six times per day. Upon information and belief, the Government has investigated the properties as well as the law enforcement personnel that we have proferred.
Dr. Rafil Dhafir's background, his roots in the community as well as the charges leveled against him have been laid out in great detail before this Court. We will not restate them here. As the Court knows, our firm substituted for prior counsel earlier this year. Since that time, we have not only tried to get up to speed regarding the facts and circumstances of the charges but also spent a tremendous amount of time exploring the possibility of working out a bail package with the Government. To that end, we focused much of our energy on those items that were raised by the Court in its decision at the detention hearing.
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MISLEAD--Of course Rafil could not repatriate the money if the Fed's had beat him to the punch. This wild goose chase involved among other things the meticulous translation of Arabic bank statements |
Repatriation of funds from Jordan appears to be a key concern of the Court and the Government. The Government has consistently maintained that those funds were under the control of Dr. Dhafir and could be used by him to sustain himself were he to flee. It was also their contention that Dr. Dhafir has demonstrated that he would not adhere to the mandates of the Court in that he was ordered to have those funds repatriated and has failed to do so. We think that it is significant that while the Government argued that position at the detention hearing held on April 23, 2003, the funds which were in the accounts in question had already been seized by the Jordanian authorities. In fact, the funds were seized in late February and early March, 2003, at least one month prior to the detention hearing. It is reasonable to conclude that this seizure was directed by the United States Government. It is our contention that the Government enlisted the assistance of the Jordanian Government in their attempt to bring the funds under its control. How else would the Jordanian Government have knowledge of the accounts or the individual who owned them? If our premise is correct, then we believe that in the interest of fair play and complete disclosure, the Government was duty bound to inform the Court of this information. It is also significant to note that the amounts in the accounts were significantly less than what the Government had proffered.
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HOMELAND SECURITY:"Peebles, however, noted that the St. Lawrence River had frozen over, permitting illegal immigrants to drive across the waterway from Canada - and possibly giving Dhafir an avenue out of the country."('JUDGE CONSIDERS DHAFIR A FLIGHT RISK';March 1, 2003, The Syracuse Post Standard, John Mariani and Teri Weaver). You would think that someone involved with Homeland Security would know that the St. Lawrence river is not allowed to freeze over in the winter. Or is this just an outrageous example of the prosecution's bravado when it comes to making claims about Rafil as a flight risk? |
In its ruling, the Court also expressed concern about how easy it would be for Dr. Dhafir to travel 75 miles to the Canadian border, leave the country, never to be heard from again. Aside from agreeing to electronic monitoring and reporting via telephone to pre-trial services three times per day, our bail package also has a provision for Dr. Dhafir to be monitored from 5:00 p.m. to 8:00 a.m. by off-duty law enforcement personnel. More significantly, the Government has recently undertaken extreme measures to drastically secure the Canadian border. (See Exhibit).
At the detention hearing, the Government argued that Dr. Dhafir did not disclose all of his assets to Pre-Trial Services, specifically, $154,000 in cash found in a safe deposit box. Upon information and belief, Mrs. Dhafir informed the Government early on that those monies belonged to her and she has made a claim for the return of same. Given the foregoing, it is misleading for the Government to maintain this position. The Court also noted at the hearing that the Dhafir's' did not pledge any of their assets to support Dr. Dhafir's bail package. It should be noted that since the issue of seizure and ownership has been somewhat settled, Mrs. Dhafir has pledged three properties to support the bail package.The Government has also argued that Dr. Dhafir has access to gold in Canada that he could use to flee. The simple fact of the matter is that there is no gold. The Government knows this. Although Dr. Dhafir had tried to purchase gold years ago, the purchase never materialized. Again, the Government knows this. It appears that the Government persists in putting forth arguments or allegations that they were informed were not accurate or true. They persist in relying upon documents or information that is quite stale.
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CRUSADE/INTIMIDATION: It should also be noted that both of these individuals were Muslims. We were concerned that if the government became too aggressive in its treatment of these two brothers of faith that it would reverberate fear within the Muslim community. The message being that if you are a Muslim and you help Rafil the government is going to get you. |
The continued detention of Dr. Dhafir has brought to the front clear violations of his Sixth Amendment right to counsel. Recently, we were advised by the authorities at the Justice Center Jail that certain individuals that were listed as being a part of the defense team would no longer be allowed to visit Dr. Dhafir in that capacity. It is our understanding that these individuals were listed with the jail as members of the defense team by prior counsel. They have been invaluable to me. They have assisted us in not only appreciating religious and cultural matters but they have also interpreted items and facilitated communications between us and Dr. Dhafir. We find it extremely significant that the prison officials told us that the decision to bar these individuals came from the Government. We do not think that it is proper for the Government to unilaterally decide who should or should not assist us with Dr. Dhafir's defense. When we were advised of this decision, we asked the authorities why our letters to them were shared with the Government. We were not given a response. These actions/decisions are clear Sixth Amendment violations.
Recently, Dr. Dhafir was moved from the Justice Center Jail to the Onondaga County Correctional Facility, (hereinafter referred to as OCCF). At the OCCF, if he and I were to have a contact visit, he would be subjected to a strip search. This would be a clear violation of Dr. Dhafir's religion. Therefore, when we visit with him at the OCCF, he and I are in a booth. He and I were separated by a glass partition. We must communicate over a telephone. In order to show him documents, I have to hold them up to the glass partition. This is no way for one to prepare for or assist in his defense. Given the amount of documents that must be reviewed, it is absolutely paramount that the Doctor and I be able to review them together.
In addition, holding the documents to the partition for Dr. Dhafir to review was made considerably more difficult because he needs new glasses. Back in July 2003, he was taken from the Justice Center Jail to the Harrison Center for an eye exam. It was determined that he needed a new prescription. To date, he is yet to receive the new glasses. There seems to be a question as to who will bear the cost; the Federal Government or the local officials. His wife offered to pay for the glasses but the facility has not permitted her to do so.
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MEAN SPIRITED OR STOP THE ATTENTION: For people of faith certain holy days, such as Christmas for Christians, take on special meaning. The end of Ramadan and the Eid prayer to commerate it the next day was a special day for Dr. Dhafir--he was moved to Jamesville Correctional Facility (OCCF) the last day of Ramadan. We did not promote the rally scheduled for the Everson Plaza to follow the ending Eid prayer at the OnCenter. 2,500 participants attended the Eid Payer and Everson Plaza is two blocks from the ON-Center--we would have a good chunk of those folks.) fearing further retribution and hardship for Rafil. Given that the denial of access to the Muslim brothers came after we had a large rally for Rafil at the Justice Center we were wondering whether the prosecution was trying to squelch dissent. |
It is our considered opinion that the move of Dr. Dhafir from the Justice Center Jail to the OCCF was malicious and designed for malevolent purposes. We do not think it was shear coincidence or chance that the move came on the eve of EID, the last day of Ramadan and while Dr. Dhafir was in the process of fasting and prayer. When Dr. Dhafir was moved from the Justice Center Jail, a total of 30 individuals were moved to the OCCF and 30 individuals were brought back to the Justice Center. It is our contention that this move was for no other purpose but to move Dr. Dhafir from the Justice Center. It should be noted that the move came on the heels of disrupting his legal team.
Too, during the move, prison officials exposed Dr. Dhafir to extreme danger. As he was being moved, Dr. Dhafir was given certain directions. He asked for clarification of the directions and the prison official started yelling at him. Dr. Dhafir's response was to ask for the respect he shows to them. The prison official responded by saying - "Why should I respect you - I'm not going to give you any respect, you brought bombs into our country to kill us." This was said in the presence of all the other inmates. This was a potentially violent and explosive situation. If these statements were believed by the other inmates, they could have easily turned on Dr. Dhafir and inflicted serious injury upon him. Dr. Dhafir reported this incident to a higher ranking official, a lieutenant, who did nothing more than laugh. It was only when he spoke to Sgt. Barksdale about the incident and that he was assured by Sgt. Barksdale that the matter would be followed up, that someone appreciated that the comments could have had grave consequences.
At the Justice Center, Dr. Dhafir could have legal visits twenty-four hours of the day. In addition, he was allowed to have contact visits with his legal team and not be subjected to strip searches. While at the OCCF, his legal visits are limited to a couple of hours in the afternoon and in the evening, five days per week. As noted earlier, he is subjected to strip searches if he were to have contact visits. By contrasting the two facilities, we do not intend to suggest that the Justice Center is the answer. It too is woeful in terms of affording Dr. Dhafir the accommodations to properly prepare for trial. Its library and as well as the one at the OCCF does not have a place for him to sit and review documents and neither of the facilities have desks or chairs. Also, neither facility affords him storage space for all of his paperwork. We don't believe that we have to convince the Court that this is a document intensive case. We think that both sides have conceded as much. Given the restrictions, time limitations and circumstances under which he is allowed visits at the OCCF, Dr. Dhafir cannot meaningfully participate in his defense. The Government has contended that if a computer is provided to Dr. Dhafir, it will greatly enhance his ability to review documents and assist in his defense. This might be true if Dr. Dhafir was computer literate. He is not. Certainly, the Government will agree with me that sending and receiving e-mails does not make one computer literate. Also, it should be noted that the computer which was provided initially was generally locked up and, therefore, was of no practice use. Moreover, when he was afforded the opportunity to use it, there was no private area for him to do so. Those areas that were private lacked electrical outlets. Most recently when Dr. Dhafir was moved from the Justice Center to the OCCF, the officials at the OCCF confiscated the computer. When they were shown the Court Order, they told Dr. Dhafir that the Order pertained to the Justice Center and not them. The current circumstances and the aforementioned time limitation will severely impact our ability to be ready to go to trial on April 19th, 2003.
Given the number of individuals who have pledged their homes to secure the bail package on Dr. Dhafir's behalf, it is preposterous to suggest that he would not stay and fight these charges. It is our view that were he to flee, he would only be assisting the Government in putting forth a successful case. The Government has also argued that Dr. Dhafir has contacts abroad that can and will sustain him should he flee. This argument is based wholly on speculation and conjecture and has absolutely no basis, certainly none that the Government can fight in this Court. All of the support that Dr. Dhafir has received in connection with the charges have been from his community right here in the Syracuse region. The bail package that we have proffered here is extremely substantial. We believe that it not only addresses the issue of risk of flight, but it also speaks directly to those items of concern raised by the Court and the Government. Given the nature of the charges here, it is our considered opinion that Dr. Rafil Dhafir is worthy of and deserves a bail. Although this case has been haunted by the spectre of "Terrorism," there is absolutely nothing about the charges or the theory of the Government's case that would suggest or support such a notion. There is no claim that Dr. Dhafir in any way poses a threat to the security of America. The allegations here are basically so-called garden variety "white collar" offenses. Recently, there has been a flood of corporate executives charged with so-called white collar offenses. The monies involved in those cases are substantially more than what has been alleged here. All of the individuals charged in those cases were given a bail. The only difference between them and Dr. Dhafir is the money involved and the fact that Dr. Dhafir was not born in the United States. We submit that the bail package being proferred details conditions that would certainly ensure that Dr. Dhafir would return to fight these charges. We believe the package being proffered is relatively straight forward. However, we do request the opportunity to amplify certain matters or conditions to the Court by oral presentation. We thank you in advance for your consideration.
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to read Devereaux's remarks at the Bail Hearing |
Respectfully submitted,
AIELLO & CANNICK
By:___________________________
Deveraux L. Cannick
Federal Bar Roll Number 1507
Attorneys for Defendant
69-06 Grand Avenue
Maspeth, New York 11378
Proposed Bail Package
Re: United States v. Dr. Rafil Dhafir
I would like to propose the following bail package on behalf of Dr. Rafil Dhafir:
Attached please find executed Confessions of Judgment (in favor of the Government) by all of the property owners as well as current appraisals for each property.