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Judge the Sherman Austin Case yourself

by KRISTIN M. RUSIN, court approved transcriber Tuesday, Aug. 12, 2003 at 11:37 AM

Was Sherman a victim of a harsh system, seeking to quash any and all dissent; or did he pose a genuine danger to the public? Read the statements by prosecuting and defense lawyers, and judge for yourself.

[Poster's introduction: You can read both sides of this issue here. The prosecution accuses Sherman Austin of possessing dangerous bomb making materials, and making threats to use them, and encouraging others to use the. The Defense says Sherman Austin has no history of violence, no record of convictions for any crime of violence, that he made no demonstrable attempt to use bombs, and that free speech issues are involved.

Here are some links, and a transcript of the full hearing for bail in New York, where the accusations were first put on the table.

Mr. HOU speaks for the prosecution. Ms. TIPOGRAPH speaks for the defense.}

6 August 2003

Sherman Austin was arrested with other protesters at the World Economic Forum in New York in February 2002 on charges of disorderly conduct and unlawful assembly. While in New York, federal charges were handed down in California. Austin said he took a plea bargain because he feared his case was eligible for a terrorism enhancement, which could have added 20 years to his sentence. The plea deal had called for him to serve four months.

-- CNN, Man jailed for linking to bomb sites, August 5, 2003

Sherman Austin files of first indictment and dismissal: [this file]

Sherman Austin files for second indictment:

What the FBI Doesn't Want You to See at

The free speech contents of

13 February 2002

Source: Hardcopy from Susan Tipograph, attorney for Sherman Austin in New York.

See related documents:

Search warrant and affidavit:

Affidavit in support of complaint and arrest warrant:

Dockets from Central District of California and Southern District of New York:

[38 pages.]


















DOCKET NO.: M-02-253

New York, New York

February 7, 2002




A P E A R A N C E S:

For the Government: VICTOR HOU, ESQ.

U.S. Attorney's Office

One St. Andrew's Plaza

New York, NY 10007

For the Defendant: SUSAN TIPOGRAPH, ESQ.

351 Broadway, 3rd Floor

New York, NY 10013

Audio Operator:

Proceedings Recorded by Electronic Sound Recording

Transcript Produced by Transcription Service



328 Flatbush Avenue, Suite 251

Brooklyn, New York 11238


THE CLERK: United States against Sherman Mark [sic: Martin] Austin. Counsel, please state your names for the record.

MR. HOU: Victor Hou for the Government. With me at Counsel table is Special Agent Kuhn of the FBI. Good afternoon, Your Honor.

THE COURT: Okay. Good afternoon

MS. TIPOGRAPH: For Mr. Austin, Susan Tipograph. Good afternoon, Judge.

THE COURT: Okay. Good afternoon. All right. This matter is on for a detention hearing today. I'll hear from the Government first. Then I'll hear from Ms. Tipograph, okay? Mr. Hou?

MR. HOU: Thank you, Your Honor. The Government in this case seeks a temporary order of detention, only for the interval of time that the defendant can be expeditiously removed from the Southern District of New York to face the charges currently pending in the Central District of California in Los Angeles where the defendant resides.

The Government seeks a temporary order of detention based on two grounds Your Honor. One, on danger to the community, and two, that the defendant represents a risk of flight. The Government makes this applicatin before Your Honor based on proffer and also on the extensive materials which Your Honor has now received as a result of the Rule 40 affidavit and the underlying complaint, which was issued out of the Central District of California, and a search warrant affidavit which is an exhibit to that complaint.

The Pretrial Services Agency which prepared the report in this case did not have the benefit of this extensive material when they made their recommendation to Your Honor. 6 Therefore, the Government would like to list the factors in that evidence which is now before Your Honor as it relates to those two grounds I've just articulated.

With regard to danger to the community, Your Honor, one, there's no question this is a case about a crime of violence. This is a case about the defendant's possession of destructive devices and the posting of instructions about how to make bombs, very specific types of bombs, fuel bombs, fertilizer bombs, pipe bombs, and Molotov cocktails, on the defendant's web site, which he has admitted to operating from his home.

There's no question under the Bail Reform Act, Your Honor, that those crimes constitute crimes of violence, and therefore the Government's obviously entitled to a bail hearing on that determination.

A The Second Circuit has long held that items, destructive devices such as Molotov cocktails, simply have no legitimate purpose. They are, by definition, tools of violence. In this case, the defendant possessed Molotov cocktails. Pursuant to a search warrant which was authorized in the Central District of California on or about January 24th, the FBI searched the defendant's home. What did they find there? They found explosives. They found M-80s. They found remote control detonating devices. Again, these are items that have no legitimate purpose. They found bottles, over sixty bottles. They found the Molotov cocktails I mentioned.

They also saw in plain view the defendant's silver Toyota 1981 car.

THE COURT: Were there completed Molotov cocktails found?

12 MR. HOU: There were two Molotov cocktails that were in various states of finality. There was one which actually had the wick in it, I understand, from the FBI agent, and it was tested. The materials were tested to determine what was inside, and it was later determined -- the FBI determined that it did contain etroleum products.

The FBI agents asked the defendant at that time whether it contained petroleum products, whether it was, in fact, a Molotov cocktail, and he denied it.

The defendant operates a web site, or used to operate a web site, which advocated direct action, violent action, to stop different events; most specifically, the World Economic Forum which just happened in New York. He also advocated direct action, violent action, to stop the 2002 Olympics held now in Salt Lake City -- I believe the opening ceremonies are about to begin -- by all means necessary, is what the web site said.

In fact, his web site, before it was dismantled by the FBI, indicated he wanted to burn the Olympics. And I ask the Court's indulgence. I'm going to have to use strong language which was inside the web site, but this is the language of the defendant. He indicated he wanted to burn the Olympics, and he wanted to fuck the corporate playground.

Your Honor, the web site indicates -- the defendant indicated to others that were going to visit this web site that it was essential, essential reading, for anyone who was associated with the groups that advocate or utilize sabotage, theft, arson, and more militant tactics.

The web site encouraged demonstrators to assault police, even encouraged them to use different-tactics, how to lure police so they could be more vulnerable to rioters and to more militant tactics; to use weapons of mass destruction; to use bombs, to explode bombs; to injure police and to blow up their cars, just like in the movies, the web site cautioned.

The web site taught users and visitors how to make different types of bombs, as I mentioned before, including Molotov cocktails and fuel fertilizer bombs. Therefore, the FBI was quite alarmed, obviously, when bags of fertilizer in the defendant's car, the silver Toyota I mentioned earlier, were found in the back of his car, along with fuel canisters. Again, these are the key ingredients to the fuel fertilizer bombs the defendant instructed others how to make.

That same car, that 1981 Toyota silver station wagon, made its way three thousand miles from California to New York, the same car, driven by the defendant, and he was arrested subsequently by the New York Police Department as he was demonstrating, as -- according to police reports, he was -- the defendant was part of a group of protestors that were about to attack what appeared to be the Plaza Hotel on 59th Street and Fifth Avenue, and he was arrested.

I believe the police received some leads that that was going to happen, and they intercepted. They stopped the plan before it happened. He was there with his car. Inside the car which was later uncovered by the police department after a diligent search was found an empty gas container, electrical wire, a shield which he had described -- the defendant described how to make to protect himself from riot police and whatnot, and other implements, the same implements which the Government contends are bomb-making equipment.

He brought his equipment three thousand miles from Los Angeles. Despite the fact that his house had been searched by FBI, he still came all the way to New York to disrupt the World Economic Forum, just as he had predicted and advocated in his web site, by all means necessary.

In fact, Your Honor, the defendant was also -- when he was arrested by the NYPD had no identification on him. What he had was a lighter, a black mask, and a gas mask. He came prepared, Your Honor, to do exactly what he said he was going to do. When officers saw that he had keys to a car, they asked him where the car was located. He indicated to the police officers that he did not know where that car was located.

He said then -- later during questioning he said it might be in Brooklyn. As I mentioned before, it was only after a diligent search did the police locate the vehicle. They obtained the defendant's consent to search the car, and they found those aforementioned items. The defendant is not just the passive purveyor of information about bomb making. He has fielded inquiries pursuant to the internet by other inquisitive would-be rioters: how do I make bombs? The defendant had the answers.

The defendant's own words on the web site, Your 18 Honor, I believe speak for themselves:

Yeah, motherfucker, I'm a terrorist to the United States Government. I'm a terrorist to capitalism.

In another segment, he said: We don't gather weapons, plan extreme operation, and risk our lives for nothing. This is real.

The Government takes this threat very, very seriously, Your Honor.

With regard to flight risk, there's no guarantee that the defendant will go straight from New York to California and report, as he must, to face the charges now pending in the Central District of California. We have obvious concerns that the defendant will stop on his way to Salt Lake City to disrupt the Winter Olympics, as he promised.

The Bail Reform Act requires Your Honor to look at several factors, including the weight of the evidence. Your Honor, given the Government's proffer here today, given the extensive affidavits already submitted in connection with the Rule 40 affidavit, there is overwhelming evidence against the defendant. He has made admissions. He has admitted that he operated the web site.

The results of a search of his residence by the FBI in L.A., at his residence in California, the Molotov cocktails, the remote control bomb detonating device, the search of his automobile here in New York -- all of these factors inexorably lead to the conclusion that this defendant will be convicted, or at least there's a strong potentiality of that occurrence.

In addition, Your Honor he does face a substantial sentence. He faces a statutory maximum of twenty years under the 18 United States Code section 842(p)(2)(A) offense. That maximum sentence is governed by section 844. In addition, Your Honor, his conduct is escalating. The defendant was arrested some time in May 2001 for conspiracy and for disruptive conduct. This happened in Long Beach. That case is -- my understanding is it's still pending, and he's released on bail. Even though he was on bail, Your Honor, for disruptive activities, and even though the FBI came to his home and searched his home and found all those bomb-making implements, and anarchist literature, and all these other items, he still drove his car three thousand miles from California to New York, determined to carry out his plan. This wasn't a misguided youth, Your Honor. This was a man on a mission.

Your Honor, the Bail Reform Act asks you to consider whether the defendant is currently on release pending trial, asks you to consider that as a factor. He was. He was pending trial. That's my understanding. He was out, and he came, and he committed these acts.

The Bail Reform Act also asks Your Honor to consider the character of the defendant. We ask you to consider the character of the defendant by his own words, but not only words alone, but his deeds as well. His deeds, in coming to New York, I think speak volumes. He's lied to the police. Your Honor, he lied to the police about possessing Molotov cocktails. He said no, I just -- I put it on my web site, I don't actually make them. Of course he had over sixty bottles in his room, and he had gasoline in his car, tanks of gasoline in his car.

He had fertilizer in his car. He instructed others how to make fuel fertilizer bombs and encouraged people to make more devastating Molotov cocktails on his web site. He instructed them. The most high explosive and lethal mixture is ammonium nitrate-based fertilizer mixed with gasoline. Just stuff the bottle with this mixture and light the fucker -- this is what the defendant's own words dictate. And he had all the materials. He had all those materials, Your Honor. And it's just because the NYPD stopped him, we believe, that more serious consequences didn't result.

Finally, Your Honor, his web site encourages deception -- how rioters can use different techniques to evade the police, how not to -- be careful not to leave DNA evidence when you use bombs, because sometimes not all bombs explode where you want them to, encourage rioters to use these destructive devices against law enforcement officers. There simply is no constitutional right to injure law enforcement officers doing their jobs.

Finally, Your Honor, the defendant lives at home with his mother, yet his mother has exercised little to no moral suasion over his actions. She did not stop him after her house was searched by the FBI. And in fact, in the days preceding the search I am told by the FBI agent in charge of the case out in Los Angeles the mother did not even know where his whereabouts were. He was disappeared. He didn't leave a forwarding number, didn't say where he could be reached.

This is an individual who is not controlled by his family, and to the extent that there is any moral suasion that they could exercise, begging him to come home and face these charges, I would submit, Your Honor, that that is insufficient. For those reasons, Your Honor, the Government seeks a very, very narrow order of temporary detention in this case to permit the defendant to be brought by the United States Marshals from the Southern District of New York to L.A. to face those charges.

At that time, the district which knows him best, where the evidence is located, and where the defendant's family is located, should make the ultimate determination about whether or not the defendant should be held on detention pending trial. Thank you, Your Honor.

THE COURT: Thank you. Okay. Ms. Tipograph?

MS. TIPOGRAPH: Thank you very much, Judge. First, Judge, I just want to, obviously, make it clear for the record: pretrial services, who certainly understood the seriousness of the charges, found that Mr. Austin, who is eighteen years old, has lifelong family ties to California. He lives with his mother and his sister. There is no known instance of failing to report. He voluntarily gave a urine sample, and it tested negative for drugs .

And pretrial services found that conditions do exist that will reasonably assure Mr. Austin's appearance in court and that he was not -- while the charges were serious, they did not believe he was a danger to the community.

And I would like to sort of give perhaps a more realistic version of the facts in this case. On January 16th of this year, the FBI applied for a search warrant in the Central District of California, and according to the application for the warrant, the investigation into Mr. Austin and/or web sites attributed to him began in, I believe, May of the year 2001.

That investigation, according to the search warrant application, was looking into both computer fraud and one of the charges that he's facing now, distribution of information relating to explosive destruction devices and weapons of mass destruction. That investigation started, according to the affidavit, in May of the year 2001. After eight months of investigation, from May of 2001 to January of 2002, Mr. Austin was not charged with any crime, and nor did he participate in any acts of violence.

What is his criminal history? It's noteworthy because the assistant raised it, and also the agent raises it in her Rule 40 removal affidavit. On May 1st of the year 2001, approximately the same time that Mr. Austin and his web site was the subject of an investigation, he was arrested in Long Beach, California. According to the agent's complaint, he was charged with two counts of riot, unlawful assembly, and conspiracy to commit a crime, although the rap sheet which was provided by pretrial services has him charged with two minor offenses, both of them, I believe, misdemeanors. One of them was to conspiracy to'commit a crime, and the underlying crime which was a refusal to disperse.

It was at a demonstration, there's no question about it. Mr. Austin asserted his innocence of those charges and is fighting them, has made every court appearance he was required. He was arrested under his own name. His rap sheet lists him in that offense as eighteen years old, five foot seven, and a hundred and twenty five pounds. There's no charge of the use of any weapons in that offense. There's no charge of any use or violence. It's a refusal to disperse and conspiracy to commit a refusal to disperse.

The agent in California also indicates that on June 24th of the year 2001, in San Diego, California, Mr. Austin was ticketed for a traffic violation, that violation being a pedestrian crossing against a 'don't walk' or 'wait' signal. And that was at a demonstration against biotechnology and genetic engineering. There were twelve people who were similarly ticketed along with Mr. Austin. All of those tickets were dismissed. Obviously, I can't address why; I wasn't present when they were dismissed.

He was cited in his own name. He didn't give a false name or false address. He gave all the accurate information. There were no allegations of the use of any weapons, no allegation of any violence, and that he appeared in court when he was required.

And in New York City on February 2nd of the year 2002, Mr. Austin was arrested by the New York City police along with twenty-seven other people, and I won't say charged, because he was, in fact, never charged. He was booked by the New York City police for unlawful assembly, which is a B misdemeanor, and disorderly conduct for blocking pedestrian traffic, which is a violation.

He was arrested under his own name, despite the fact that the assistant claims that he came three thousand miles to commit crimes of violence, and to disrupt, and use weapons, and bombs, and weapons of mass destruction. Mr. Austin was arrested under his own name. He didn't commit, any acts of violence. He didn't have a weapon.

Agent Kuhn, in her affidavit, and the assistant in his presentation to the Court, talks about the significance of what is in Mr. Austin's car when he voluntarily gave them the keys to the car and consent to search that car. And what was found in the car, they claim, was a gas mask, and a shield, and, I believe, a -- an empty gas container, a shield, and other implements.

Now, let's talk about what those -- first, --

THE COURT: There was also an open bag of fertilizer, as I recall.

MS. TIPOGRAPH: Well, no, no, that's a different that's a different time than this allegation took place, Judge. I'll get to that in a few moments, if you'll let me.

THE COURT: No, I will, but let me just make sure I'm understanding you correctly. Are you saying that there was no fertilizer in his car in New York?

MS. TIPOGRAPH: Judge, the alleged fertilizer -- I'll explain to you about the alleged fertilizer.

THE COURT: All right, go ahead.

MS. TIPOGRAPH: On January 24th, the FBI executed the search warrant that they had obtained eight days earlier. obviously this investigation was significant, and they were worried about Mr. Austin having violence and bombs and making equipment. But yet despite the seriousness, the FBI waited eight days in order to execute the search warrant. When they executed it, they executed it in the house, and they claim that they saw through the window of Mr. Austin's car a bag of fertilizer. They did not search the car, Judge. They did not go back to a magistrate to ask for permission to search the car. All it is is an allegation that there was a bag of fertilizer. Judge, it was approximately a half empty bag of potting soil that was disposed of. So that's the alleged fertilizer, Judge.

A claim that the -- the FBI would have you believe that when -- as they executed this search warrant on January 24th they were investigating a man who was making bombs and Molotov cocktails, and yet they claimed to see gasoline container and a bag of fertilizer in his car, and they take no steps to seize those materials, nor do they take steps to go back to the magistrate to ask for permission to seize them, Judge.

I would contend, Your Honor, that you can view their claims of the dangerousness of this kind of materials that they claim to have seen by the fact that they took no action to seize or to take that property. So the fertilizer -- the so-called fertilizer, which -- let's refer to it as the potting soil -- doesn't allegedly go to New York with Mr. Austin.

He drives to New York in a 1981 Toyota with a hundred and seventy thousand miles on it, with a gas container, electrical wire, and duct tape. Frankly, Judge, if I was driving across the country with a 1981 Toyota with a hundred and seventy thousand miles, I may have that equipment in it also. But the significance of the fact that that was in the car was that when Mr. Austin was arrested, the empty a container, and the wire, and the tape were in -- were locked in his car in Brooklyn while he was demonstrating in Manhattan, Judge.

There's no allegation that he used those materials. In fact, there's no allegations of any relationship to those materials to any weapons or bombs, Judge, because when you come right down to it, Judge, on January 24th the FBI searches Mr. Austin's house for hours, with machine gun-toting agents standing in the street. He speaks to them. They question him. He answers their questions.

And despite the fact that they claim to have found two Molotov cocktails in his house, they don't arrest him on January 24th. They don't arrest him on January 25th. They don't arrest him on January 26th, 27th, 28th, 29th, 30th, or 31st. They don't arrest him on February 1st, but on February 2nd he's arrested with twenty-seven other people for unlawful assembly and disorderly conduct in New York. He's released. He's released by the New York City Police Department, and in fact is arrested by FBI agents inside the building at the Manhattan Criminal Court.

And in fact, when is the complaint from the Central District of California brought? It certainly wasn't brought before he was arrested, because the affidavit by the FBI agent in California that serves as the basis for the complaint that you are now being asked to remove Mr. Austin back to California wasn't brought until -- wasn't signed until February 4th. It wasn't signed on January 24th when they allegedly find a Molotov cocktail in his house. It's not signed on the 25th, the 26th, the 27th, the 28th, the 29th, the 30th, the 31st, the 1st, 2nd, 3rd.

It's not until ten days later, when all of a sudden Mr. Austin, who drives across the country, and eighteen year[s] old, to legally demonstrate against -- for issues that he thinks are of some significance and some importance -- the FBI arrests him three thousand miles away from his home. They certainly could have arrested him on January 24th. They could have arrested him on any date thereafter.

They have no evidence that in practice he's ever done anything of any violence, that he's ever used another name, that he's ever tried to avoid the police. And in fact, on every occasion when he's been given the opportunity -- he had two prior cases, a crossing against a traffic light in San Diego, and a refusal to disperse in Long Beach.

He appears every time he's required. He gives his correct name. He gives his correct date of birth. He tells them where he lives. He appears in court when he is required to appear in court. When the FBI comes and searches his house on January 24th, he answers their questions. When the FBI arrests him in New York on February 4th and they ask him for permission to search his car, he gives them the keys to his car and tells them -- presumably they found the car so he obviously must have told them enough information about how to find the car. And in fact, they found it.

I want to just go through -- Mr. Hou claims that the FBI found explosives in his house when they searched it on January 24th. Again, they claim they found two Molotov cocktails. Obviously, those charges will be constested in the appropriate jurisdiction. Mr. Austin absolutely and unequivocally denies that he had Molotov cocktails in his house.

And in fact, the conduct of the FBI confirms in some degree, Judge, that they didn't believe he knowingly had Molotov cocktails in his house, because I can't believe that after an eight month investigation, with ten or twelve FBI agents searching his house with machine guns in the street, that they would have found Molotov cocktails in his house and walked away, and said thanks for your cooperation, we'll get back to you whenever we have to, and they don't do anything for ten days until he's arrested in New York.

His web site -- Judge, I haven't seen all the papers on the web site. Frankly, I would assume that there are significant First Amendment issues about the arrest and investigation of Mr. Austin based on his web site. Those will be litigated in another jurisdiction, and I'm not going to do that here. But obviously there is a significant amount of litigation that's going to go on about this. This is not these are First Amendment issues which will either get upheld or not upheld by an appropriate court.

Again, the claim that he had a bag of fertilizer in the back of his car -- absolutely, unequivocally deny it. the fact that the FBI didn't attempt to seize that so-called bag of fertilizer confirms that they didn't believe there was any fertilizer in his car.

A group of protestors about to attack the Plaza Hotel, allegedly -- again, he's charged with disorderly conduct and unlawful assembly. No charges are ever brought. He's released. Again, inside the car: an empty gas container, shield, and other implements. He brought his equipment three thousand miles away. He brought his, quote, equipment three thousand miles, but his so-called equipment sits in his car while Mr. Austin is demonstrating in Manhattan.

Whether you or I or anybody else agrees with what he believes in or doesn't believe in, or what he was demonstrating for and against, his so-called implements of destruction -- a metal shield, an empty gas container, electrical wire -- which he tells me were stereo wires for his car -- and duct tape those, the implements of mass destruction, were left in his car while he was demonstrating in Manhattan.

He came three thousand miles to disrupt the World Economic Forum. Judge, he came three thousand miles to exercise his First Amendment rights to protest. And what implements of terror and violence did Mr. Austin have on him when he was arrested? A black mask, a gas mask, and a lighter.

No guarantee that defendant will go straight to California and that will stop in Salt take city there's not the slightest bit of belief that that will happen. Nothing that Mr. Austin has done in his eighteen years of practice in the world is consistent with that, and in fact everything he's done is quite consistent with just the opposite. He has openly protested and demonstrated for issues of importance to him.

He's never engaged in an act of violence. He's never possessed implements of violence. He's never been charged with violence. He's never been charged with trying to hide his identity or anything else. And I think it's noteworthy, Judge, that while you don't presumably have jurisdiction over this, Mr. Austin, who is eighteen years old, who was not arrested or charged with committing any acts of violence, is being held on Unit South of the MCC. I believe his closest neighbor is the people charged with the bombing of the U.S. embassies in Africa.

In the four days or so since he's been in custody, he has not been permitted to make a phone call. He has not gotten a shower. The only clothes he has are the clothes that he's wearing. I would note for the record, Judge, that Mr. -- every time I've seen Mr. Austin, he's been shaking because he's cold. It's cold in the back. He doesn't have a sweatshirt. He doesn't have a jacket.

And you deciding that if -- you making a decision that he's going to be detained and essentially sent back to California in the custody of the marshals, while I'm certainly not pointing fingers at the United States Marshals, who I have no doubt will deal with Mr. Austin in the most professional manner, but based on my experience he will take the slow boat to California. He will stop in county jails across the country, and I am very concerned for his safety, given that already guards at the MCC have called him a terrorist.

And what's that going to mean? One of the stopping points for federal prisoners who are transported across the country is the Oklahoma City jail, Judge. I am very concerned for Mr. Austin's safety, given that he has been labeled a terrorist, in terms of what will happen to him in county jails in places like Oklahoma City where the people there have very ood reason to be concerned about terrorists.

Austin is not a terrorist, Judge. Nothing he has done would indicate anything to that extent, and he has a very close and loving family, Judge. Perha s when his mother said she didn't know where he was, perhaps she was less than -- perhaps she was exercising the love and concern of a mother for an eighteen year old child and wanted to protect her child. She was present when the house was searched. Mr. Austin was present when the house was searched. They answered the FBI's questions.

Mr. Austin has lifelong family ties to California. He's lived there for eighteen years. He was born there. He was raised there. He has a twin sister. He's a high school graduate, Judge. He does independent freelance computer programming. I am certain that the Court can issue an order releasing him that includes in it a provision for him to take a direct flight from New York to California. If the Court wants somebody to accompany him, a family member, I'm sure that can be arranged, Judge.

While I don't agree with the concerns of the raised by the Government, certainly this Court has the power and authority to fashion conditions that would ensure that Mr. Austin gets to California quickly and safely. And those are two factors, quick and safely back to California, that frankly think would be more assured if he was traveling on his own than if he was traveling in custody, Judge.

I'm going to ask you to release him. There's nothing about this case which requires you to hold him. And in fact, everything about Mr. Austin his conduct in his past dealings with the criminal justice system, and the FBI's dealing with this case -- they waited eight days to execute the warrant, and then they waited another ten days to arrest Mr. Austin, despite the fact that they claim that they saw in plain sight two fully fashioned Molotov cocktails.

I would allege, Judge, that their conduct in this case underlies the strength of their claims.

MR. HOU: Your Honor, very, very briefly.

THE COURT: Just one thing. Ms. Tipograph, are you suggesting -- I keep an open mind till I hear all the arguments, but are you suggesting that he be released on his own recognizance?

MS. TIPOGRAPH: Judge, I'M -- I -- ultimately, Judge, you're going to make the decision. I think that, frankly --


MS. TIPOGRAPH: If you want to release him, I think you can release him on his own recognizance, and part of the order being that somebody, a family member or some person, someone in authority -- a family member, an attorney -- accompany him back to California.

He has a grandmother who lives in New Jersey, Judge. I'm sure that he can stay there until arrangements could be made to get him out of here. If you release him today, Judge, he'll be on a plane first thing tomorrow morning.

THE COURT: All right. Okay. Thank you. All right. Mr. Hou?

MR. HOU: Your Honor, if I may, the defendant's counsel has now attacked the FBI's conduct in this case to somehow indicate that there is a weakness in this case, or that they failed to act. Let me be very, very clear what the Government has done in this case and what the FBI has done in this case.

Upon obtaining probable cause to obtain a search warrant from the relevant authorities, they executed that search warrant within the relevant time period. They searched. They obtained items of interest that deserved extra testing. They tested, as I indicated, and they determined that despite the fact that defendant told them that the two bottles that they secured did not contain petroleum products and were not in fact, Molotov cocktails, they determined later that it were -- that those items were, in fact, Molotov cocktails.

There's a lot been made of the fact that somehow the defendant wasn't -- since the defendant wasn't arrested at that exact time, somehow the FBI fears that its case is somehow weak. That is simply not the case. There has never been anything wrong with the Government making sure that it has all its facts before it proceeds against very, very serious criminal charges against the defendant.

What did the FBI do after it presumably let Mr. Austin go? They put a watch out, and they notified officials in New York City, indicating -- warning agents of the secret service. Why did they warn agents of the secret service? Because the defendant made threats against the president inside a web site. He had a picture of the president of the United States with a target symbol on his head, and said wanted, dead or alive.

Again, this is a sample of speech, but violent speech, certainly. But we look and we judge the defendant by what he says and by what he does. The president of the United States was just here yesterday. The secret service had a legitimate right to know. The FBI notified the secret service and said we did a search of this guy's house, he has indicated that he wants to come to the World Economic Forum. And he did, and he showed three thousand miles away, and when the NYPD arrested him, the secret service and the FBI were immediately notified.

And that is how that course of events went. The FBI acted responsibly, and we arrested him with probable cause, not only -- in addition to all these charges that we have now, we do also know that there is an additional charge of hacking and different computer fraud, which defense counsel listed, but that's not at issue here, and that's something that we're going to litigate in the Central District of California.

But let me be clear, Your Honor. In addition, as I mentioned before, the pretrial services report did not have the benefit of the Rule 40 affidavit materials, and I notice now that the pretrial services report reflects and recommends that the defendant be detained on the basis of danger. Unless Your Honor has any further questions, --


MR. HOU: -- I'm not going to retread any more ground. We do believe that there are no set of conditions or combination of conditions. Certainly, the defense hasn't given you any option, no proposal of co-signers, no proposal of monitoring or any specific proposal other than the release of the defendant and the promise -- the promise -- that the defendant will return forthwith to face the charges in the Central District of California.

As I mentioned before, Your Honor, what we have is the fact that the defendant was arrested before. He was on bail pending trial for this destruction, this conspiracy, Long Beach, California, and while he's out pending bail on that case, he comes three thousand miles here. This is after his house has been searched by the FBI, after his house has been searched by agents who found all these different implements. He comes out here.

I think actions speak louder than words, Your Honor, and what the Government seeks here is only a temporary order of detention so that the defendant may be expeditiously removed forthwith to the Central District of California. And let me just address defense counsel's final supposition, that somehow the defendant is going to be bounced around between county jails everywhere from here to California.

We did speak about this before this hearing today. I did address that concern with defense counsel. I told her that I would do everything in the Government -- and certainly Your Honor culd order that the marshals remove him expeditiously, within a suitable time frame.

The conjecture that somehow this defendant will end up in Oklahoma City in a county jail where those folks there have obviously suffered great harm is ridiculous, quite frankly.

What Your Honor can and should in this case order is that the defendant be removed expeditiously and that the marshals bring Mr. Austin home to face the charges pending in the Central District of California, and permit that court, who knows him best, where the evidence is located, and where Mr. Sherman Austin's family is located, to make the ultimate determination about whether he should be detained pending trial. Thank you, Your Honor.

THE COURT: Mr. Hou, I believe that the practice used to be, when a -- that the marshals on Rule 40 cases and on removal cases, that inmates -- or that detainees were brought to a hub, that all of them throughout the country were brought to a hub, and then from that hub sent to their respective destinations. Is that still the case, do you know?

MR. HOU: That's my understanding, Your Honor.

THE COURT: And do you know where that hub is?

UNIDENTIFIED SPEAKER (m): It's El Reno, Your Honor.

MR. HOU: I have no information about that.

MS. TIPOGRAPH: El Reno is in Oklahoma, Judge.

MR. HOU: I have no information.

MR. HOU: But, Your Honor, we could make special arrangements --

THE COURT: No, that's all right.

MR. HOU: -- for this defendant to be shipped forthwith to California. I don't believe -- I believe that there are direct flights, non-stop flights, between New York and California.

MS. TIPOGRAPH: Judge, could I just add for the record that I am aware now that Mr. Austin's aunt is in court? Given that there's press here, I would prefer not to put more personal information about her on the record, but she's a college professor.

THE COURT: Um hmm. All right. All right, Ms. Tipograph, do you want to offer a surreply?

MS. TIPOGRAPH: No, Judge. I think I addressed whatever issues were raised in my --

THE COURT: All right.

MS. TIPOGRAPH: -- usual comments.

THE COURT: All right. [Pause) All right. Based on the information set forth in the Rule 40 affidavit and the attachments thereto, the pretrial services report, and the arguments and proffers of counsel for both sides, I am going to order that I'm going to enter a temporary order of detention and order that Mr. Austin be detained pending his appearance before a magistrate or district judge in the Central District of California, on the grounds of both risk of flight and dangerousness.

With respect to risk of flight, admittedly I think Ms. Tipograph is correct that he has -- there is no -- well, there's no evidence that he has failed to appear to face the charges that are pending against him in California, but the charges that are pending against him in California are of a substantially different magnitude than the charges that are pending against him in this court.

In addition, the affidavit submitted in connection with the Rule 40 affidavit established probable cause to believe that the defendant operated a web site which shows if it pans out and is proven, which suggests that defendant does not -- let me rephrase that -- which gives me no confidence -- the statements in the web site give me no confidence that the defendant would comply with an order of his Court.

I'm looking at the February 4, 2002 affidavit Special Agent Pie or Pi, in which he says that defendant's web site contained, among other things, the following comment quote:

"Yeah, motherfucker, I'm a terrorist to the U.S. Government. I'm a terrorist to capitalism, not to innocent people. I'm a terrorist to the evil system that's terrorizing all of us. Fuck the Government.

I hope they burn in fucking hell right back where they came from, motherfuckers. You can't fool all the people. We know your fucking style."

Comments like that give me no confidence that Mr. Austin would abide by an order of the Court directing him to appear in California.

In addition, I think there is -- I think the Government has also shown by clear and convincing evidence that there is a very serious risk of danger to the community which cannot be met by any bail conditions. Again, the information and the statements that were contained in the web site teach and advocate the use of weapons of mass destruction against governmental bodies and against private bodies.

There is also evidence that -- there's also some evidence here that suggests the defendant's interest went beyond a mere academic interest. I mean, the possession of sixty bottles in his room in California, the possession of Molotov -- what either were or are Molotov cocktails, remote control detonating devices all suggest conduct that went beyond a mere academic interest in these devices and I think create a risk of dangerousness.

Ms. Tipograph, I understand your point about the delay in the arrest or the delay in the FBI taking action after February 24th -- excuse me, after January 24th, excuse me. And it seems -- to some extent it seems it does not lessen the significance of what was found during the course of the search.

So because I think the Government has found -- has established by a preponderance of the evidence that there is a risk of flight here that cannot be met by any bail conditions, and has established by clear and convincing evidence that there is a risk of danger to the community that cannot be met by bail conditions, I am going to enter a temporary order of detention directing that the defendant be detained until he is presented in California, and my order is intended to be without prejudice to a renewed application for bail in California.

MS. TIPOGRAPH: Judge -- I'm sorry, I didn't mean --

THE COURT: Go ahead.

MS. TIPOGRAPH: -- to cut you off.

THE COURT: Go ahead. Go ahead.

MS. TIPOGRAPH: I was going to raise just some practical concerns, Judge. First off, obviously, this Court -- we haven't had a probable cause hearing in this court for purposes of the underlying criminal complaint, and I don't want anything that's been said or done in this court to waive Mr. Austin's right to have a preliminary hearing --

THE COURT: No, one of the things I wanted to get to was --

MS. TIPOGRAPH: -- in the Central District of California.

THE COURT: I know there's a preliminary hearing issue and the identity hearing issue, and we need to address those, but go ahead.

MS. TIPOGRAPH: Correct. I just wanted to make sure that there's nothing -- I was addressing -- both I and the Government were addressing issues of dangerousness and risk of flight, and not -- I don't want it to be misinterpreted that I was challenging or having a -- seeking to have a probable cause hearing in this jurisdiction.

Judge, I'm going to ask you to issue some order which puts some expeditious time limitation on when Mr. Austin can be returned to California, and I'm not questioning the good or bad faith of any federal agencies in this. I know -- in past cases I've had clients that -- took them anywhere from three to six weeks to get from New York to California, Judge. And I'm concerned about this.

THE COURT: Well, the threshold question, though, before an order of removal can be entered, the issue of identity needs --

MS. TIPOGRAPH: Judge, --

THE COURT: -- to be resolved, and --

MS. TIPOGRAPH: we're not going to contest Mr. Austin' s identity.

THE COURT: All right.

MS. TIPOGRAPH: I appreciate that he is -- the person who's before you in court is the person who's named in the complaint in the Central District of California. And I'm concerned in getting him back to California expeditiously, because I'm quite confident that he can successfully fight these charges, and obviously I'm interested in getting him back there as quickly as possible so that he can contest them either in a probable cause hearing or whatever other forum is available to him.

Secondly, as I said, Judge, he has no clothes other than -- if he's going to be transported, the man -- the kid -- excuse me, Judge, I'm fifty one years old -- weighs a hundred and forty five pounds. Every time I've seen him, he's been sneezing, coughing, or shivering, Judge. This is not right. You know, he's been accused of a crime. He's not convicted of a crime. And frankly even if he was convicted of a crime, Judge, he has a right to be -- he's not been given a shower for four days.

I would want to make it clear for the record that obviously Mr. Austin is represented by counsel, and that he should not be questioned by any person from law enforcement under any circumstances or conditions. I'm asserting clearly his right to counsel under the Fifth and Sixth Amendments, and --

THE COURT: Well, let me suggest this with respect to the timing of his removal. I will enter a removal order today. Mr. Hou, have you had a chance to confer with the marshal about Mr. Austin's removal?

MR. HOU: No, Your Honor.

THE COURT: What I was going to suggest is -- look, we can put this on the calendar for control purposes for tomorrow. Mr. Hou can confer with the marshals in the interim, and we can come back tomorrow and find out when Mr. Austin can be removed.

MR. HOU: Your Honor, I would be more than happy to confer with the marshals to determine the most expeditious time that Mr. Austin can be removed to the Central District of California. That would be no problem.

THE COURT: All right.

MR. HOU: If tomorrow is acceptable to the Court, that would be fine with the Government.

MS. TIPOGRAPH: Judge, the only -- my only consideration is I put over a dentist appointment from today is until tomorrow. If we could possibly do this at around twelve noon tomorrow, --

THE COURT: Yes. What time is your appointment? We can --

MS. TIPOGRAPH: It's at two o'clock in New Jersey, Judge.


MS. TIPOGRAPH: This would give me a -- if we did it at twelve --

THE COURT: We can do it earlier than that, if you want to do it earlier.

MS. TIPOGRAPH: I have an appearance in state court in Brooklyn, though, in the morning, so I -- I suppose we could do it at eleven thirty. We could calendar it for eleven thirty, because hopefully I'll get out of Brooklyn --

THE COURT: All right.

MS. TIPOGRAPH: -- quickly. I'll make sure to be there at nine-thirty in the morning.

(Off the record discussion between the Court and Clerk)

THE COURT: All right, eleven-thirty tomorrow well have this back on.

MS. TIPOGRAPH: Judge -- I'm sorry, Your Honor. I didn't mean to --

THE COURT: No, go ahead.

MS. TIPOGRAPH: -- interrupt again.

THE COURT: Go ahead. Go ahead.

MS. TIPOGRAPH: I just wanted to add -- and I spoke to Mr. Hou about this informally -- the FBI has custody, or possession, or control in some manner of Mr. Austin's car, his 1981 Toyota with a hundred seventy thousand miles on it, which had in it his wallet, amongst other things. They also have the car keys. I don't know what the FBI's intentions are with the car, because obviously Mr. Austin is not going to drive his car to California, but if the FBI was going to release it or -- I want to try to make arrangements with his family to see if it could get transported to California.

THE COURT: Well, you should probably talk to Mr. Hou about that offline. I don't know -- sometimes the Government wants to retain some property as evidence. Sometimes they don't.

MS. TIPOGRAPH: I understand that. I'm --

THE COURT: I mean, that's why I think you should you should probably confer

MS. TIPOGRAPH: Very well, Judge.

THE COURT: with Mr. Hou offline in the first instance and see what can be done. I mean, look. I will enter a medical order indicating that Mr. Austin has felt cold and see if there's something that can be done.

MS. TIPOGRAPH: I mean, I visited him yesterday at MCC, Judge, and it was unbearably cold, and I had a sweater and a shirt on. He had on, you know, a cotton shirt and a cotton t-shirt and shivered the whole time we were -- I was interviewing him.

THE COURT: All right. All right. Well, I'll enter a medical order, and hopefully that will ameliorate the situation.

MS. TIPOGRAPH: Well, I appreciate that, Judge.

THE COURT: Okay. All right. Anything else from the Government at this time?

MR. HOU: Nothing f rom the Government. Thank you Your Honor.

THE COURT: Okay. Ms. Tipograph, anything else.

MS. TIPOGRAPH: Nothing further, Judge. Thank you very much.

THE COURT: Okay. So eleven thirty tomorrow. All right.

(tape off/tape on)

THE COURT: -- hung up in Brooklyn, Ms. Tipograph, just call eight oh five, four oh five one.

MS. TIPOGRAPH: Very well, Judge. I don't anticipate -- I think eleven thirty will give us --


MS. TIPOGRAPH: -- enough time, but I will call if there is --

THE COURT: Okay. If you get hung up, yes.

MS. TIPOGRAPH: -- a problem.


* * * * *

I, KRISTIN M. RUSIN, court approved transcriber, certify that the foregoing is a correct transcript from the official electronic sound recording of the proceedings in the above-entitled matter.

Transcript is certified original only if signed in green ink
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