Beruflich Dokumente
Kultur Dokumente
Ahmed Dhakane was born in Mogadishu, Somalia, in December 1985. By the time he was
six years old, Somalia had ceased to exist as a functioning country. In place of a government, there
was brutal fighting between groups of clan-based warlords. The United Nations and the United
States intervened. The fighting, killing, and disorder continued. The United States left. From 1991
to 2004, the time that Dhakane was growing from a boy to a young man, Somalia lacked any
semblance of a functioning government. Since 2004, there has been a nominal national government,
a government aided for the last four years by peacekeeping forces belonging to the African Union
Mission in Somalia, but the government’s hold on the country remains tenuous and the situation for
According to the United Nations High Commissioner for Refugees “[t]he violence in south
and central Somalia and the ensuing humanitarian crisis there show no signs of abating. In
Mogadishu, fighting, terrorist attacks and indiscriminate shelling are causing death and destruction,
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 2 of 23
forcing hundreds of thousands of people to flee the city.” 1 According to Refugees International,
“Somalia is the world’s worst humanitarian disaster.” 2 Nearly 700,000 Somalis have become
refugees. Another 1.5 million Somalis have been uprooted and are classified as internally displaced
persons.3 At the end of 2009, Somalis constituted the third largest refugee group in the world, behind
This is the world Ahmed Dhakane grew up in and eventually fled from. He and his family
did what people in war-torn regions have always done—they tried to survive. Dhakane's father did
not fare well. He had been an officer in the Somali military before the collapse and, deprived of rank
and purpose, he sank into despair and drug abuse. He stayed steadfast, however, in his belief in
secular rule for Somalia. For that, an Islamic court ordered him executed in 2006. (P.R. 25.)
Dhakane's mother did what she could to make money. She sold Khat, a mild stimulant
derived from a plant, and eventually fled Mogadishu. Dhakane believes that she is living in the
Afgooye region, (P.R. 25), where several hundred thousand Somalis constitute the world’s largest
4. See ^ “2009 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and
Stateless Persons.” UNHCR. 15 June 2010. http://www.unhcr.org/4c11f0be9.html. Retrieved 5
August 2010.
2
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 3 of 23
Dhakane, as a teenager and young man, did what was necessary to survive Somalia’s fraught
fragments. He found an entry level job with one of the country’s largest employers, al-Barakaat. The
collapse of the Somali government had left the country without a central bank. That banks had
disappeared did not mean that people’s need for money and foreign exchange had. Nor did it mean
that refugees and expatriates fortunate enough to have reached safety in other countries had forgotten
their families or ceased to send remittances home to try to keep them alive. It meant only that people
had to improvise, and rely on another system. The system they turned to was al-Barakaat, an honor-
system-based money remittance business founded in 1986 and run on centuries-old principles
derived from Islamic law.6 The United Nations used al-Barakaat to transmit money in support of its
relief operations there.7 As the 9/11 commission found, al-Barakaat provided necessary services, and
although in the early fervor of the post-9/11 period it had been denounced as a terrorist organization,
Dhakane began his employment with al-Barakaat in 1998, pushing a broom. The young man
was an honest and diligent employee, whose hard work and trustworthiness earned him promotions.
Dhakane eventually became a Hawalandar, one of the persons in the company who handled
7. Terrorist Financing Monograph, Chapter 5, al-Barakaat Case Study, the Somali Community
a n d a l - B a r a k a a t , a v a i l a b l e a t
http://www.9-11commission.gov/staff_statements/911_TerrFin_Ch5.pdf.
8. The 9/11 Commission’s staff report is particularly significant. The Commission was a neutral,
high-level effort to look at the events leading up to and of September 11, 2001. The Commission was
not “engaged in the often competitive enterprise of ferretting out crime.” Johnson v. United States,
333 U.S. 10, 14 (1948)
3
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 4 of 23
remittances and transactions for the business.9 The young man also began to study and, in 2002, he
Dhakane’s conversion deeply affected his life. Somalia's dissolution had many elements.
Although many, if not most, of the warlords, were clan leaders interested in resources and power for
their groups,10 some of the groups contending in the broken nation were Islamists. One of those
groups was AIAI,11 which sought in the 1990 s to bring an Islamic state to Somalia, and agitated for
the return of the Ogaden region of Ethiopia to Somali control. AIAI also provided educational and
social services, such as orphanages.12 AIAI’s influence peaked in late 1990 s; after that, different
members of the group focused on different agendas. Id. (citing U.S. Department of State report that
by 2005, evidence that AIAI was a coherent entity was sparse and there was “no information”
indicating the group supported attacks against the U.S. or its interests).
Through his job at al-Barakaat , Dhakane knew people who were associated with AIAI. They
struck him as strong individuals. (P.R. 29.) In fact, Dhakane learned the power of the Islamists first
hand—he was arrested in late 2002, imprisoned, and mistreated because of his Christian religion.
See (P.R. 27). Dhakane obtained his release by pretending to abjure his religion, but he knew that
his safety was increasingly tenuous. Young, hard-working, and tired of dodging dangers and trying
9. In his sentencing memorandum, the prosecutor writes that Dhakane “served as a hawaladar,
or transferor of funds outside the normal banking system” for al-Barakaat. Gov’t Memo at 3. There
was no normal banking system in Somalia. The Somalia central bank failed in 1991 and was not
reestablished until 2009. http://en.wikipedia.org/wiki/Economy_of_Somalia#Finance;
http://www.mareeg.com/fidsan.php?sid=14925&tirsan=3.
10. http://en.wikipedia.org/wiki/Somalia#Somali_Civil_War,
4
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 5 of 23
to placate those who held temporary, but fierce, sway over the lives of persons like him, he wanted
out of Somalia. In 2003, Dhakane left Somalia and never returned. He went first to study in
studied and worked for a time in Maylasia. (P.R. 28.) By March 2006, Dhakane had made his way
to Brazil.
In June 2006, the Islamic Courts Union (ICU) gained control of Mogadishu. While some
AIAI members had made their way into the ICU this was an indication of “leadership regrouping”
rather than “a continuation of the Ittihad organization,” which, by that time, had become “largely
defunct.” 14 The ICU’s rule was short-lived; Ethiopian forces entered Somalia and drove it from
power in December 2006.15 After the Ethiopian incursion, a strong anti-Ethiopian resistence
movement emerged led by Al-Shabaab. Id.. While “[m]any Somalis joined [Al-Shabaab] in the fight
against the Ethiopian forces . . . . [s]ome of these volunteers did not know or had only limited
knowledge of the intent and objectives of Al-Shabaab.” Id. “Al-Shabaab was not active and did not
By the time that the ICU gained and lost control of Mogadishu, and Al-Shabaab emerged as
a resistance force in Somalia, Dhakane had already been long gone from Somalia. After making his
way to South America in March of 2006, he eventually traveled through Central America to the
13. By the end of 2003, the year Dhakane left for college, 402,000 people had left Somalia as
refugees. See 2003 UNCHR 2003 Statistical Yearbook—Somalia,
http://www.unhcr.org/41d2c19cc.html2.
14. See Somalia’s al-Ittihad al-Islami (AIAI; Islamic Union), at 3, available at http://www.ctc.
usma.edu/aq/pdf/AIAI.pdf.
15. See Ted Dagne, Somalia: Current Conditions and Prospects for a Lasting Peace, December
16, 2010, available at http://www.fas.org/sgp/crs/row/RL33911.pdf.
5
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 6 of 23
United States border at Brownsville, Texas. There, on March 28, 2008, he and his companion,
L.O.A., presented themselves to U.S. Border Patrol agents and requested asylum, explaining that
untruthfully. That was wrong, and for that wrong he stands before the Court for sentencing. Dhakane
also, in the course of his detention, made statements and claims that he hoped would keep him in the
United States and out of Somalia. A desire to stay in the United States and away from Somalia, the
country that had introduced him figuratively and literally to persons associated with Islamic factions
and their vision for his home country—a vision incompatible with his Christianity—is what led
Dhakane to make false declarations and later to claim to have important knowledge of Islamic
groups. Contrary to the Government's speculations and its unsupported guideline calculations, false
declarations, not puffery and speculation, are what Dhakane should be sentenced for.
II. The Law and the Evidence Support Sentencing Dhakane for His False Statement
Offenses, Not for Speculative “Terrorism” Offenses.
Dhakane pleaded guilty to two counts of making a false statement on an asylum application.
He admitted that he had falsely stated his route of travel to the United States and that he had falsely
stated that he was married to L.O.A. The correctly calculated guideline range for those offenses is
The Government, in its sentencing memorandum, seeks to have Dhakane sentenced not for
the proved false statements on the asylum application, but for unsubstantiated claims of terrorism
and rape it lodges against Dhakane. The Government’s memorandum, filed before the presentence
report appears to have heavily influenced the report. The report recommends the adjustments the
Government urges in its memorandum, in terms very similar to those used in the Government’s
6
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 7 of 23
memorandum. Compare Gov’t Memo. 8–16 with Presentence Report 22–24.16 The problem is that
The application of the terrorism adjustment, alone, propels Mr. Dhakane’s guideline range
from a sentence within the time he has already served to a range in excess of the statutory maximum.
See P.R. at 30 (proposing guideline sentence range of 324 to 405 months’ imprisonment). The
adjustment does not, however, fit the facts of the case—neither of the two circumstances in which
the adjustment is triggered exists in this case. Nor is a sentence of the length sought by the
Government warranted on suppositions about what may have occurred in other countries at other
times. The Government’s assertions are based on speculation and on questionable sources, persons
who had a strong motive to tell the government what they believed the government wanted to hear,
in order to improve their chances of getting asylum. The desire to remain in this country is
understandable; sentencing a defendant on the basis of questionable and unreliable evidence is not.
It is within this context that the credibility of the Government’s allegations must be assessed, and
it is against this backdrop that Dhakane’s culpability for making false declarations must be
evaluated.
The Court should reject this request. In order for the terrorism adjustment to apply the Government
must show either that Dhakane’s offense “involved” a federal crime of terrorism or that the offense
16. Because the presentence report makes the adjustment in the order in which they appear in the
manual, the terrorism adjustment subsumes the victim-related adjustments and the report
recommends a total offense level of 36. The Government erroneously added the victim-related
adjustments on top of the terrorism adjustment, and thus ran the total offense level to 41.
7
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 8 of 23
was “intended to promote” such a crime. U.S.S.G §3A1.4(a); see also United States v. Awan, 607
F.3d 306, 313 (2d Cir. 2010) (noting requirements of guideline). It can show neither. Nor can the
terrorism as defined in 18 U.S.C. § 2332b(g)(5),” or if its relevant conduct includes such a crime.
Awan, 607 F.3d at 313–14; see also United States v. Stewart, 590 F.3d 93, 138 (2d Cir. 2009)
(enhancement applicable under “involved” prong only if defendant himself had committed a federal
crime of terrorism). The Government does not attempt to argue that Dhakane’s false-statement
offenses involved or their relevant conduct involved the commission of a federal crime of
17. A “federal crime of terrorism” is defined in 18 U.S.C. § 2332b, as “an offense that—
8
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 9 of 23
The Government bears the burden of proving that the terrorism adjustment is warranted.
United States v. Rabanal, 508 F.3d 741 (5th Cir. 2007) (party seeking adjustment to sentence level
bears burden). To justify the application of the “intended to promote” prong of §3A1.4, the
17. (...continued)
of computers), 1030(a)(5)(A)(I) resulting in damage as defined in
1030(a)(5)(B)(ii) through (v) (relating to protection of computers), 1114
(relating to killing or attempted killing of officers and employees of the
United States), 1116 (relating to murder or manslaughter of foreign officials,
official guests, or internationally protected persons), 1203 (relating to hostage
taking), 1362 (relating to destruction of communication lines, stations, or
systems), 1363 (relating to injury to buildings or property within special
maritime and territorial jurisdiction of the United States), 1366(a) (relating
to destruction of an energy facility), 1751(a), (b), (c), or (d) (relating to
Presidential and Presidential staff assassination and kidnaping), 1992
(relating to wrecking trains), 1993 (relating to terrorist attacks and other acts
of violence against mass transportation systems), 2155 (relating to destruction
of national defense materials, premises, or utilities), 2280 (relating to
violence against maritime navigation), 2281 (relating to violence against
maritime fixed platforms), 2332 (relating to certain homicides and other
violence against United States nationals occurring outside of the United
States), 2332a (relating to use of weapons of mass destruction), 2332b
(relating to acts of terrorism transcending national boundaries), 2339 (relating
to harboring terrorists), 2339A (relating to providing material support to
terrorists), 2339B (relating to providing material support to terrorist
organizations), or 2340A (relating to torture) of this title;
9
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 10 of 23
Government must show that the Dhakane had “as one purpose of his substantive count of conviction
or his relevant conduct the intent to promote a federal crime of terrorism.” United States v. Graham,
275 F.3d 490, 516 (6th Cir. 2001); see also United States v. Mandhai, 375 F.3d 1243, 1248 (11th
Cir. 2004) (the “promote” language in §3A1.4 enhancement applies “if [the defendant's] purpose is
to promote a terrorism crime”); United States v. Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005)
(“[T]errorism enhancement is applicable . . . where the district court finds that the purpose or intent
of the defendant's substantive offense of conviction or relevant conduct was to promote a federal
The Government acknowledges, as it must, that Dhakane committed his false statement
offenses in an effort to obtain asylum in this country. Gov’t Memo. 10. It nonetheless asks the Court
to conclude that Dhakane committed his offenses with the requisite intent to promote a crime of
terrorism. However, the Government not only fails to identify a specific crime of terrorism that
Dhakane’s offense was intended to promote, it appears to agree that Dhakane knew of no particular
plans on the part of any individual to commit such crime: it offers only the speculation that if a series
of ifs happened, then something else might happen. Gov’t Memo. 10–11. This cannot satisfy its
burden of showing an actual crime that the false statements were intended to promote or an actual
investigation that was affected. Indeed, the Government admitted when this case was brought that
“there was no apparent terrorist plot identified” found during the two-year (2008 to 2010)
investigation of Dhakane’s case. See San Antonio Express News, Somali Man Accused of Smuggling
http://www.mysanantonio.com/default/article/Somali-man-accused-of-smuggling-East-Africans-
793518.php. Nothing in its sentencing memorandum shows that any terrorism crime to promote has
10
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 11 of 23
been found since the indictment was returned. The failure to identify a particular crime of terrorism
that the false statements were intended to promote renders the Government’s position legally
untenable. See See Graham, 275 F.3d at 517 (in applying terrorism adjustment, the district court is
required to “identify which enumerated ‘Federal crime of terrorism’ the defendant intended to
promote, and ensure that the elements of § 2332b(g)(5)(A) are satisfied) 18; also see United States
v. Benkahla, 530 F.3d 300, 305 (4th Cir. 2008) (applying §3A1.4 where defendant’s false statements
In lieu of identifying a specific crime of terrorism that Dhakane’s false statement offenses
were intended to promote, the Government suggests that the terrorism adjustment might be justified
on a theory that “law enforcement authorities are constantly trying to investigate, detect, and prevent
the infiltration of potentially violent jihadists, [thus] the Defendant’s lies hid critical information
from the United States authorities regarding his successful smuggling activities[.]” Gov’t Memo. 11.
The most critical problem with this theory is that the Government fails to identify an actual
investigation that Dhakane’s false statements might have intended to obstruct. Applying a huge
guideline increase on a theory that the Government is always looking even when it doesn’t know it
is looking or for what it is looking, offends notions of fairness and allows sentencing based on post-
18. The Government appears to believe that Graham is helpful to it, though it does not explain
why. Gov’t Memo. 9–10. In Graham, the court found the adjustment applicable to defendant’s § 371
conspiracy offense based on the conclusion that Graham and his co-conspirators had conspired to
obtain machine guns, to murder federal officers, to influence and intimidate federal officers in the
performance of their duties, and to attack property in interstate commerce. Dhakane was not charged
with conspiracy. Nor has the Government shown any uncharged conspiracy. The Government merely
offers a speculative chain of what ifs that have nothing to do with the object of Dhakane’s
substantive false-statement offenses.
11
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 12 of 23
A second problem with the Government’s theory is that it simply does not make sense. Why
would Dhakane have walked up to the port of entry and turned himself in as an asylum seeker if his
goal were to conceal the presence in the United States of the men he supposedly helped get here?
Surely, that goal would have been best accomplished if Dhakane had remained in Central or South
America. And it would have been better accomplished if Dhakane, rather than walking up to
immigration officials, had himself sneaked into the United States at a place other than a checkpoint,
something many other people do. The Government’s theory is illogical; illogical theories cannot
A third second problem with the Government’s theory is that the questions that Dhakane
answered falsely had nothing to do with his alleged smuggling activities and thus could not have
been intended to obstruct discovery of the activities—even if the Government could show, which
it cannot, that the smuggling was intended to promote a crime of terrorism.20 A fourth problem with
the Government’s theory is that it has simply found no terrorism-related activity to prosecute: the
case agent’s report recommended an indictment for false statements with no mention of even a
possible terrorism prosecution. Three years after Dhakane turned himself in, the Government can
point to no terrorism-related plot. There isn’t one, and there never was. The Government can only
speculate that maybe the Somalis whom Dhakane supposedly helped get to the United States might
still be AIAI members who, if called upon, might answer, and who, if they answered, might be
19. It makes far more sense that Dhakane walked up to the immigration agents to seek asylum
and respite from the hardships he had known for most of his life, hardships that had increased when
he decided to become a Christian in 2002.
20. It seems more likely that, like the nearly 700,000 Somalians who have become refugees, the
men who have supposedly come to the United States came to get away from the horror and constant
fear of the twenty-year conflict in their homeland.
12
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 13 of 23
persuaded to do some unspecified something. Gov’t Memo. 10–11. This speculation does not show
a crime of terrorism—an offense calculated to influence, affect, or retaliate against the government
by specific acts listed in 2332b. It shows the adjustment the Government seeks is not warranted.
The Court should therefore reject the Government’s attempt to use the guidelines to accuse
Dhakane of something that neither investigators nor prosecutors were willing to ask the grand jury
to do, even under the minimal probable cause standard that applies to Government requests to the
grand jury.21
Because of these distortions, the Government’s arguments lack force. The Court should therefore
reject not only the Government’s request to apply the terrorism adjustment, but its request for an
upward variance on “terrorism” grounds under the sentencing factors in 18 U.S.C. § 3553(a). Gov’t
Memo. 11–12.
21. If the Government’s assertions as to Dhakane’s purported smuggling of the men were
accurate, they would, at most, support a finding that Dhakane may have acted recklessly or
negligently about whether his conduct contributed to an inchoate, or more accurately theoretical,
threat. This would be insufficient to support a finding that Dhakane intended to promote such a crime
by his actions. It is instructive that the sentencing guideline that applies in an alien smuggling case,
§2L1.1, does not contain a cross-reference to the terrorism adjustment even when the defendant
knowingly smuggles in an individual who would be deemed inadmissible due to his association with
terrorist groups. Instead, there is a specific adjustment that calls for a base offense level of 25 when
the smuggled alien has terrorist ties. See U.S.S.G. §2L1.1(a)(1). With a base offense level of 25,
Dhakane’s calculated range would be 57 to 71 months imprisonment, below the sentence requested
by the Government.
13
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 14 of 23
Government has attempted to build a damning case against Dhakane based, in part, on his connection
to that enterprise. It claims that al-Barakaat was outside “normal” channels. Gov’t Memo. 3. This
claim is simply wrong. After Somalia’s banking system collapsed, al-Barakaat was the normal
channel. It was an economic engine and a large employer of Somalis. It was the channel used by the
United Nations. See nn. 6–9, supra. The idea that working for al-Barakaat was evidence of terrorism
is insupportable. There is no reason to believe that a person, by virtue of his mere employment at al-
employee of al-Barakaat would be like concluding that an employee of the Bank of America was a
drug dealer because someone later found to be a drug dealer had opened and used an account at the
bank.
The weakness of the Government’s al-Barakaat claims is further shown by its statement that
“[a]fter 9/11, the Defendant stated that the Somalis structured their money transfers to be $3,500 or
less to avoid detection by the US government.” Gov’t Memo. 3. That Dhakane noted a change after
the U.S. came out against al-Barakaat shows that he, as an employee, made an observation, not that
he was a terrorist. His observation suggests only that the United States’s suspicions made the Somali
In a “Terrorist Financing Staff Monograph” put out by the National Commission on Terrorist
[Al-Barakaat was set up because] Somalia simply had no other banking system and
no central bank by which foreign exchange of funds could be made. . . . At the time
of the terrorist attacks [of September 11, 2001], al-Barakaat was considered the
largest money remittance system operating in Somalia; in addition to being used by
a significant number of Somalis who had fled the anarchy in their home country, it
was the primary means that the United Nations used to transmit money in support of
its relief operations there[.]
14
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 15 of 23
Terrorist Financing Monograph, Chapter 5, al-Barakaat Case Study, the Somali Community and
The staff monograph goes on to detail an extensive, multi-year, multi-agency investigation of al-
Barakaat and concludes “notwithstanding the unprecedented cooperation by the UAE, significant
FBI interviews of the principal players involved in al-Barakaat (including its founder), and complete
and unfettered access to al-Barakaat’s financial records, the FBI could not substantiate any links
between al-Barakaat and terrorism.” 22 As the foregoing makes clear, it is unfounded to conclude that
Dhakane’s work with al-Barakaat implicates him in any terrorist plots or other criminal wrongdoing.
Supporters. The Government asserts that Dhakane was a member or associated with AIAI. In fact,
Dhakane did not tell the Government that he was a member of AIAI or that he was associated with
that group. Dhakane told the Government that he had knowledge of and involvement with people
associated with AIAI. Dhakane offered to help the Government by providing information about AIAI
and related organizations, as well as people associated, or at least associated at one time, with AIAI
both in Somalia and in the United States. The Government now attempts to use this information to
In order to avoid the constitutional infirmity of sentencing Dhakane based on speculation and
prejudice, it is important to place in context any implications that may properly be drawn from
22. It is true, as the Government says, that al-Barakaat was placed on a terrorist group list after
the tragic events of September 11, 2001. Being placed on a list may denominate a group as terrorist-
related, but it cannot in fact make a group terrorist-related, as the 9/11 Commission’s staff report
demonstrates. A court in sentencing must act carefully and on reliable evidence, unlike law
enforcement groups which may issue warnings or form suspicions on considerably less information
than is expected in a court of law.
15
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 16 of 23
Dhakane’s involvement with individual’s connected to AIAI or the related Islamic Courts Union
(ICU) in Somalia. The reality is far more ambiguous than the Government would have the Court
believe.
In a series of Congressional reports made between 2001, when AIAI was placed on the
terrorist list, and 2010, Ted Dagne, an expert with the Congressional Research Service, warned
against oversimplification of the AIAI presence in Somalia, calling the reality of the situation
“complex,” and noting that AIAI is “a genuine social movement and has different factions” which
In his 2006 report to Congress, Dagne explained that a Somali’s “support” of AIAI and the
ICU may be more of a reflection of the realities in Somalia than an indication that the individual
The recent fighting in Mogadishu between Islamic Courts Union (ICU) forces and
the now defunct Alliance for the Restoration of Peace and Counter-Terrorism
(ARPCT), reportedly formed in February 2006, . . . represents an important shift in
the balance of power in Mogadishu. The so-called Alliance was the creation of
well-known warlords in Mogadishu who have been the main source of instability and
violence in Somalia. . . . . The forces of the Islamic Courts Union expanded areas
under their control after the defeat of the warlords in Mogadishu. . . , for the first
time in years, Mogadishu appears relatively peaceful and the Islamic Courts
Union seems to have the support of the population in areas it controls. . . . The
label of some Somali groups as terrorists or extremists may have led some in Somalia
to reach the conclusion that they are being labeled because of their religion. Somalis
are Muslims and secular. No Somali extremist or fundamentalist group has succeeded
in dominating the political scene since independence. The desperation and anger
23. News Analysis, U.S. Returning to nightmare Called Somailia, Simon Reeves, Dec. 16, 2001,
available at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2001/12/16/MN115486.DTL&ao=2.
16
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 17 of 23
in Somalia may be so entrenched that many Somalis are likely to support and
fight for any group that aims or claims to fight for peace and stability.24
Finally, in Dagne’s 2010 update of the Somali situation, he advised Congress that “Somalia
remains in a state of anarchy, despite a peace agreement reached in 2004 that led to the formation
install the TFG in power by ousting the Islamic Courts Union (ICU), a group that took power
in Mogadishu in June2006, made Somalia more unstable than it was during the six months the
ICU was in power. More than 22,000 people were reportedly killed during the Ethiopian
occupation.” 25
While AIAI and the Islamic Courts Union undoubtedly contain extremist elements, it also
appears that a Somali may have been supportive of the ICU not because of an alignment with the
Jihadist or extremist ideals of the ICU, but because of the practical realities of the political situation,
and the relative calm and stability in Mogadishu when the ICU was in power as compared to the
violence and instability experienced when rival warlords were vying for control.
Dhakane, like most expatriate Somalis, has a perspective on the political crisis in Somalia,
including the factions vying for power and the threats that may be posed by these various factions.
His offer to work with the Government should be viewed as an attempt on his part to offer assistance
in parsing through some of these ambiguities, and his statements made to the authorities about the
2 5 .
Http://allafrica.com/download/resource/main/main/idatcs/00010916:4b224706565c9efbf7340cb3
2c3c7b66.pdf. (Emphasis added).
17
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 18 of 23
people he encountered on his journey to America should be viewed in this context as well. While
Dhakane may have had a unique understanding of the desperation of those people he met as he made
his way to this country, he knew of no terrorist plots or any people who came to this country with
any calculation “to influence or affect the conduct of [our] government by intimidation or coercion,
or to retaliate against government conduct.” See 18 U.S.C. § 2332b. He knew only people who, at
one point or another in Somalia had been connected with AIAI.26 He attempted to use that
knowledge, as a means of getting to stay in the United States after it was clear his asylum application
III. Dhakane’s Sentence Should Not Be Increased Based on Speculations About the Nature
of the Relationship Between L.O.A. and Dhakane.
Dhakane has objected to the Government’s suggestion, which was incorporated into the PSR,
that a 5-level increase under guideline §3A1.1 be given based on the assertion that L.O.A. qualifies
as a “hate-crime” victim and a vulnerable victim of the offense. (See Gov. Memo 13). Section
3A1.1(a) provides for a 3-level increase when “the court at sentencing determines beyond a
reasonable doubt that the defendant intentionally selected any victim . . . as the object of the offense
of conviction because of the actual or perceived race, color, religion, national origin, ethnicity,
gender, gender identity, disability, or sexual orientation.” Section 3A1.1(b) provides for a 2-level
increase and when the chosen victim is a "vulnerable victim." The application of these adjustments
which Dhakane pleaded guilty. By its terms, the hate-crime adjustment in §3A1.1(a) applies only if
26. Dhakane may also have exaggerated his own status to fellow detainees, a not uncommon
event in jails, where status can confer protection.
18
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 19 of 23
the victim is a direct victim of the offense of conviction. See §3A1.1(a) (applies if defendant
“selected any victim . . . as the object of the offense of conviction”) (emphasis added)). The United
States and its Immigration agency are the victims of the false statement offense. L.O.A. was not even
an indirect victim of the false statement offense; she certainly was not a direct victim of the false
statement offense.
guideline §3A1.1(a). In none of Dhakane's dealings with L.O.A. did he target her based on her
national origin, ethnicity, gender, or any of the other listed conditions. The adjustment is intended
to be applied in a "hate-crime" where the crime victim was chosen and the crime was, itself,
motivated by racial, ethnic, or gender hatred. Such was not the case in this false-statement
prosecution. The Court cannot find beyond a reasonable doubt that L.O.A. was selected by Dhakane
based on these factors so that he could make a false statement on an immigration form months after
The §3A1.1 "vulnerable victim" adjustment is also inappropriate. The conduct to which
L.O.A. was allegedly subjected may not properly be considered relevant conduct to the false
statement offenses. This conduct purportedly occurred outside the United States, and it was remote
in time to when the false statements were made. In fact, Dhakane remained in immigration detention
for 6 months prior to completing the asylum application in which he falsely claimed to be married
to L.O.A. Any alleged mistreatment of L.O.A.—even if it is found to be “factually related to” the
offenses of conviction—is still not relevant conduct because it did not “occur[ ] during the
commission of the offense of conviction,” “in preparation for the offense,” or in an attempt to avoid
detection for the offense of conviction. U.S.S.G. §1.B1.3(a)(1); also see, e.g., United States v. Tai,
19
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 20 of 23
994 F.2d 1204, 1213 (7th Cir. 1993) (actions taken in preparation for offense of conviction must be
distinguished from actions that are merely factually related to offense of conviction); also see United
States v. Ritsema, 31 F.3d 559, 567 (7th Cir. 1994) (temporal dimension of relevant conduct could
not reasonably have been intended as sweeping tool to gather in all of otherwise unrelated criminality
Because, L.O.A. was not a victim of the offense conduct or any relevant conduct, it is
improper to assess the victim-related adjustment. See Ritsema, 31 F.3d at 567 (where district court
may not count obstruction of justice conduct as relevant conduct to offense of conviction, it is
victim).
The requested victim-related adjustments are inappropriate not just for the legal bases stated,
but more importantly because they grossly distort the relationship between Dhakane and L.O.A.
L.O.A., since coming to the United States and requesting asylum has made allegations against
Dhakane. The Government thinks the allegations warrant an upward departure. They do not. The
allegations are serious, but unsupported by anything except themselves. Such allegations do not
become true and inherently credible merely by being included in a presentence report.
Dhakane has forcefully and sadly denied allegations. Dhakane was not legally married to
L.O.A., and he lied when he stated otherwise on his asylum application. Nonetheless, Dhakane, a
Christian Somali, and L.O.A., a Muslim woman, had a genuine relationship; he loved her and he
loves their son, and he, at one time, did consider L.O.A. to be his spouse. It is anticipated that the
evidence adduced at the sentencing hearing will bear this out. For instance, the Government’s
assertion that L.O.A. was extremely fearful of Dhakane and that “[b]ecause her child is a product
20
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 21 of 23
of rape, she is constantly reminded of both the defendant’s crimes against her” are called into
question by the fact that, even after Dhakane was locked away in a detention facility, months after
the couple ceased to have direct contact, L.O.A. maintained a relationship with Dhakane through
telephonic communication. She gave him updates on their son, with photographs bearing captions
reading “I love you daddy.” 27 At the very least, it is anticipated that the evidence will show that there
is another side to the story than the one presented in the PSR. In the gestures and communications
of parents about their son, there may be more truth than in broken affairs or in asylum applications
of people seeking to remain in a long-dreamed of peaceful country and avoiding a return to a ravaged
and violent country.28 For these reasons, Dhakane asks that the Court reject the Government’s
IV. The Two Counts to which Dhakane Pleaded Guilty Are Not Subject to Multiple
Punishments.
The Government had suggested that a ten-year sentence was available on each count of
conviction, for a total of twenty years maximum possible sentence.29 Dhakane had argued that the
maximum possible sentence is ten years’s imprisonment. The false statements that Dhakane pleaded
guilty to making were made on a single immigration document. The fourth paragraph of Title 18
U.S.C. § 1546 penalizes “knowingly subscribing as true any false statement with respect to a
material fact in any application [etc]” required by the immigration laws. Dhakane, as he admitted,
27. A copy of excerpts from these recorded phone conversations and the referenced photograph
are attached to this memorandum.
28. P.R. 17 (L.O.A. says “everyone thinks America is the best place to be”); P.R. 22 (L.O.A. says
“I don’t want my son to go to Somalia).
29. Paragraph 69 of the PSR also suggested that a ten-year sentence is available on each count
of conviction.
21
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 22 of 23
made two false statements on the asylum form that he submitted. He can be convicted of two counts,
but, because Congress did not make it clear that multiple false statements on a single submitted
immigration form may be multiply punished, he can be punished only once. United States v. Sahley,
526 F.2d 913, 918 (5th Cir. 1976) (vacating two sentences because only a single sentence was
permitted for three false statements on single loan application); See Dhakane Objections to
Presentence Report. In the addendum to the presentence report, received today, April 20, 2011, the
Government and the probation officer agreed that the maximum sentence was ten years’
imprisonment. P.R. Add. Although Dhakane agrees that a sentence of ten years’ imprisonment is the
most that can be imposed for the reasons set out in his objection, he believes, that, for the reasons
given in this memorandum, a sentence of ten years’s imprisonment is not warranted by the facts of
CONCLUSION
For the reasons stated above, and in the objections to the presentence report, counsel requests
Respectfully submitted.
HENRY J. BEMPORAD
Federal Public Defender
22
Case 5:10-cr-00194-XR Document 65 Filed 04/21/11 Page 23 of 23
CERTIFICATE OF SERVICE
I hereby certify that on the 21st day of April, 2011, I electronically filed the foregoing
Sentencing Memorandum using the CM/ECF system which will send notification of such filing to
the following:
Mark Roomberg
Assistant United States Attorney
Western District of Texas
601 N.W. Loop 410, Suite 600
San Antonio, Texas 78216
23