"I am not sure, at this point," a defense lawyer replied. "I'm working on it."

During Malik's time on the witness stand, federal prosecutors questioned him using only 17 pages of the transcripts, an indication that they wanted only limited testimony from the informant.

Defense lawyers, on the other hand, cross-examined him by referring to more than 100 transcript pages.

"What they're presenting to you was manipulative and deceptive," Hossain's lawyer, Kevin Luibrand, told the jury in his closing statement. "Malik essentially persuaded my client to take part in the scheme.

"Hossain was just a hardworking businessman before Malik arrived," Luibrand argued. "If Malik had not come into his life, Hossain would be making pizzas, tending to his family, and practicing his religion," he said.

Despite whether either Hossain or Aref would have had anything to do with terror organizations without the constant prodding of Malik, the receipts that Aref made out for the $50,000 loan proved to be powerful evidence for the Albany jury.

The two men were found guilty of money laundering, conspiracy to engage in money laundering, conspiracy to provide material support in connection with an attack with a weapon of mass destruction, and conspiracy to provide material support to a terrorist organization. Aref was also convicted for lying to an FBI agent about whether he knew the founder of a radical Islamic group.

Aref, now in special lockup at the Marion, Illinois, federal penitentiary, is among other prisoners caught up in similar stings, says Kathy Manley, one of Aref's lawyers—men who weren't planning on attacking the United States until informants recruited them, who were convicted for laundering money, violating federal rules for reporting financial transactions, or sending money overseas to questionable groups.

A report by the Center on Law and Security at New York University found that of 619 terror cases brought by federal prosecutors, only 10 percent actually resulted in convictions for terrorist charges.


In the Newburgh case, because the four accused men actually did plant what they thought were bombs, the government will have to rely less on statements made on tape. But once again, Malik's role, and what he told his FBI handlers, will be at the center of the case.

There is no publicly disclosed FBI rule about confidential informants giving gifts to the targets of the investigation, but the issue will certainly come up if the defendants don't plead guilty and a trial is scheduled. Defense attorneys will argue that Cromitie and the others did what Malik asked because he was handing out gifts and promising much more.

"One is essentially buying one's way into the confidences of the targets," says Scott Greenfield, a criminal defense attorney not involved in either the Albany or Newburgh cases. "The problem is that as a prosecutor, you want to show that the targets wanted to commit a crime, and the informant simply facilitated that. Now, you have an entirely different motivation."

"Someone up high in the Justice Department has to take a look at this policy of doing cases where it looks like and feels like entrapment," says Terence Kindlon, the lawyer who represented Aref. "You're taking advantage of gullible people in Newburgh. In Albany, you're taking advantage of Hossain's financial needs and Aref's naïveté.

"They manufactured a crime and found four dolts to be defendants," he adds. "If Malik had gone to Newburgh and wanted to have a conspiracy that distributed guns, drugs, did prostitution, he could have found the same four people. I'd be willing to bet my car that not one of these guys could even find Afghanistan on a map."

If convicted, the Newburgh plotters face long sentences. The men convicted of plotting a similarly far-fetched plot to make a military assault on Fort Dix, New Jersey, for example, were sentenced to life in federal prison.

As for Malik, he has now been used in four different stings: the driver's license scam, the Afghanistan drug case, the Albany case, and now the Newburgh case. Will the FBI use him again? A spokesman declined to discuss details of the case.

grayman@villagevoice.com
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