FIRST STEP Act sentence reduction used to address “FBI invented” conspiracy in which feds were “the real lead conspirator”

The FIRST STEP Act’s procedural changes to sentencing reduction motions pursuant to 18 USC § 3582(c)(1)(A) continue to provide not only a critical mechanism to address excessive federal prison sentences, but also a fascinating window on a wide array of problematic aspects of the federal criminal justice system.  Many so-called “compassionate release” motions are often efforts to reduce injustices as much they are efforts to increase compassion in our federal sentencing system.  The latest example of this dynamic story comes from New York federal courts as reported in this AP piece headlined “Judge orders release of 3 of ‘Newburgh Four’ and assails FBI’s role in a post-9/11 terror sting.”  Here are the basics:

Three men convicted in a post-9/11 terrorism sting have been ordered freed from prison by a judge who deemed their lengthy sentences “unduly harsh and unjust” and decried the FBI’s role in radicalizing them in a plot to blow up New York synagogues and shoot down National Guard planes.

Onta Williams, David Williams and Laguerre Payen — three of the men known as the “Newburgh Four” — were “hapless, easily manipulated and penurious petty criminals” caught up more than a decade ago in a scheme driven by overzealous FBI agents and a dodgy informant, U.S. District Judge Colleen McMahon said in her ruling Thursday.

“The real lead conspirator was the United States,” McMahon wrote in granting the men’s request for compassionate release, effective in three months. She said that it was “heinous” of the men to agree to participate in what she called the government’s “made for TV movie.” But, the judge added, “the sentence was the product of a fictitious plot to do things that these men had never remotely contemplated, and that were never going to happen.”

She excoriated the government for sending “a villain” of an informant “to troll among the poorest and weakest of men for ‘terrorists’ who might prove susceptible to an offer of much-needed cash in exchange for committing a faux crime.” The U.S. attorney’s office declined to comment on the judge’s decision. A message seeking comment was sent to the FBI.

Citing concerns for the men’s health and her own qualms about the case, McMahon cut the 25-year mandatory minimum sentences she imposed on them in 2011 to time served plus 90 days. She said that would allow time for probation officials to prepare and for Payen’s lawyer to line up supportive housing for the man, who has a severe mental illness.

Judge McMahon’s full opinion in US v. Williams, N. 09 CR 558 (CM) (SDNY July 27, 2023), is available at this link.  Here is just one notable passage in an opinion filled with notable passages:

For our purposes, suffice it to say the following: non-moving defendant Cromitie, the lead defendant in this case, was the object of a lengthy sting operation conducted by the FBI with the aid of a most unsavory “confidential informant,” Shaheed Hussain….  Over the course of the next few weeks, at Hussain’s direction, he recruited David and Onta Williams and Laguerre Payen, to serve as “lookouts” while Cromitie planted “bombs” manufactured by the FBI at a synagogue and community center in Riverdale.  None of these three defendants had any history as terrorists; like Cromitie, they were impoverished small time grifters and drug users/street level dealers who could use some money. Payen in particular was of questionable mental acuity.  The three men were recruited so that Cromitie could conspire with someone; the real lead conspirator was the United States, but Cromitie could not conspire with the Government.

Nothing about the crimes of conviction was defendants’ own doing.  The FBI invented the conspiracy; identified the targets; manufactured the ordnance; federalized what would otherwise have been a state crime (the Bronx “bomb” plot) by driving three of the four men (Onta Williams was not available) into Connecticut to view the “bombs” and “stinger missile launchers” that would be used in the operation; and picked the day for the “mission” (which was filmed in real time so it could be shown on television news the night the men were arrested). On May 20, Hussain drove the four men to Riverdale (they had no way to drive themselves); “armed” the “bomb” (because the hapless Cromitie, despite his “training,” could not figure out how to do it); and told Cromitie how to place the device while David Williams, Onta Williams and Payen performed lookout duty. As soon as the fake device was left by the community center door, law enforcement arrested the four men.