Case: 1:09-cr-00830 Document #: 358 Filed: 01/22/13 Page 1 of 20 PageID #:2892 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA ) ) No. 09 CR 830 v. ) ) Judge Harry D. Leinenweber DAVID COLEMAN HEADLEY ) GOVERNMENT’S POSITION PAPER AS TO SENTENCING FACTORS The United States of America, by and through its attorney, Gary S. Shapiro, Acting United States Attorney for the Northern District of Illinois, respectfully submits the following as its position paper as to sentencing factors and objections to the Presentence Report: I. Introduction Determining the appropriate sentence for David Headley requires consideration of uniquely aggravating and uniquely mitigating factors. Headley played an essential role in the planning of a horrific terrorist attack. His advance surveillance in India contributed to the deaths of approximately 164 men, women, and children, and injuries to hundreds more. Undeterred by the shocking images of death and destruction that came out of Mumbai in November 2008, Headley traveled to Denmark less than two months later to advance a plan to commit another terrorist attack. Headley not only worked at the direction of Lashkar e Tayyiba for years, but also with members of al Qaeda. There is little question that life imprisonment would be an appropriate punishment for Headley’s incredibly serious crimes but for the significant value provided by his immediate and extensive cooperation. Case: 1:09-cr-00830 Document #: 358 Filed: 01/22/13 Page 2 of 20 PageID #:2893 As discussed in this and other filings, the information that Headley provided following his arrest and in subsequent proffer sessions was of substantial value to the Government and its allies in its efforts to combat international terrorism. In addition to providing insight into the personnel, structure, methods, abilities and plans of Lashkar, Headley took active steps to further the investigation into other terrorists. Headley’s cooperation assisted the Government in filing criminal charges against at least seven other individuals, and his testimony helped to secure the conviction of one co-defendant. Headley cooperated with foreign law enforcement, answering questions without restriction from Indian law enforcement over the course of seven full days, and the government expects his cooperation to extend well into the future. Pursuant to Guideline § 5K1.1, the government will move the Court to sentence Headley at a point below the life imprisonment that the Guidelines recommend. The government submits that imposing a sentence of 30 to 35 years’ imprisonment strikes a fair and just balance between the despicable nature of his crimes and the significant value of his cooperation. II. Background A. Headley’s Criminal Conduct Headley pleaded guilty to twelve separate charges stemming from three separate episodes of criminal conduct. First, he pleaded guilty to charges arising from the November 2008 terrorist attacks in Mumbai: conspiracy to bomb places of public use and commit murder in India (Counts One and Two), aiding and abetting the murder of United States nationals (Counts Three through Eight), and conspiracy to 2 Case: 1:09-cr-00830 Document #: 358 Filed: 01/22/13 Page 3 of 20 PageID #:2894 provide material support to the Mumbai attacks (Count Nine). Second, he pleaded guilty to charges arising from the plot to attack the Jyllands-Posten newspaper facility in Copenhagen, Denmark: conspiracy to commit murder in Denmark (Count Ten) and conspiracy to provide material support to the Denmark plot (Count Eleven). Third, he pleaded guilty to providing material support to a foreign terrorist organization (Count Twelve), having trained with and worked at the direction of Lashkar e Tayyiba for years. As the Court has heard much about the defendant’s offense conduct during his testimony at trial as well as during his change of plea, the government will not reiterate the extensive details of Headley’s criminal conduct.1 In sum, after serving two separate sentences for federal narcotics trafficking offenses, Headley returned to live in Pakistan. Subsequently, starting in 2002 and continuing to 2005, Headley attended five separate Lashkar training camps where he was indoctrinated on the merits of waging jihad and trained in combat skills. When Lashkar leaders decided that Headley would better serve them by conducting advance surveillance, he changed his name and enlisted the assistance of his friend, Rana, to travel to and stay in Mumbai without detection starting in 2006 and continuing to 2008. Headley provided video of and intelligence about the locations that later were targeted during the Mumbai attacks. Headley also assisted in plotting out a portion 1 A more thorough review of the nature and circumstances of defendant’s criminal is detailed in the Government’s Version provided to Probation and attached to the PSR. 3 Case: 1:09-cr-00830 Document #: 358 Filed: 01/22/13 Page 4 of 20 PageID #:2895 of the nautical route that the attackers would take, and recommended the landing point that they later used to enter Mumbai without being detected. Headley played a supporting role to the attacks, but an essential one that unquestionably contributed to the mass murder that took place. Before the Mumbai attacks took place, Headley was instructed by his Lashkar handler to travel to Denmark to perform surveillance for yet another attack. After seeing what took place in Mumbai in November 2008, Headley traveled to Denmark in January 2009. There, he gained entry to two separate facilities for the newspaper, using the same cover story provided to him by Rana that he used in Mumbai. In February and May 2009, he met with Ilyas Kashmiri, who encouraged Headley to break away from Lashkar and plan the attacks in Denmark with his group. Kashmiri directed Headley to meet with associates in the United Kingdom, and inform them that the plan was to take over the newspaper building and fight to the death with responding Danish forces. Specifically, Kashmiri told Headley that he wanted the attackers to behead hostages and throw the heads on the street in order to heighten the response from Danish authorities. Headley traveled to the United Kingdom to meet with those associates in July 2009, and thereafter visited Copenhagen a second time, where he took more video of the intended target. In early October 2009, Headley was arrested at O’Hare Airport, where he was set to travel to Pakistan to again meet with Kashmiri, as well as Sajid. In sum, Headley worked to advance the violent goals of terrorist organizations and terrorist attacks for approximately seven years. 4 Case: 1:09-cr-00830 Document #: 358 Filed: 01/22/13 Page 5 of 20 PageID #:2896 B. The Victims The death toll from the Mumbai attacks was staggering. More than 164 men, women and children from around the world were killed by Lashkar terrorists during the three-day siege on Mumbai.2 Hundreds more were seriously injured. The far- reaching and devastating impact of those attacks may never subside. Among those killed were six Americans: Sandeep Jeswani, Aryeh Teitelbaum, Ben Zion Chroman, Gavriel Holtzberg, Alan Scherr, and Naomi Scherr. Sandeep (“Sam”) Jeswani was a Chicagoan, who worked for a company that provided radiation therapy for cancer patients and was traveling to Mumbai on business when he was killed at the Oberoi hotel. Mr. Jeswani is survived by his wife and his parents. Mr. Jeswani was the sole source of support – both financial and emotional – for his parents, who are devastated by his loss, as set forth in their letter to the Court. Attackers at the Oberoi Hotel also gunned down Alan Scherr and his 13-year-old daughter, Naomi. Mr. Scherr was a university professor and worked with the Synchronicity Foundation, a spiritual organization. Mr. Scherr and Naomi lived in Virginia, where Naomi was a high-achieving student who was home-schooled. Mr. Scherr and Naomi are survived by Kia Scherr, Mr. Scherr’s widow and Naomi’s mother. The Scherrs traveled to India on a spiritual pilgrimage in November 2008 with approximately 20 other people. They were killed while eating in the first-floor 2 Attached hereto is a list of the victims who lost their lives during the Mumbai attacks. The information concerning particular victims was obtained from open source reporting. 5 Case: 1:09-cr-00830 Document #: 358 Filed: 01/22/13 Page 6 of 20 PageID #:2897 café of the Oberoi Hotel and four other members of their group were injured. Andreina Varagona, who was dining with the Scherrs, described what took place: [T]wo gunmen came running into the packed restaurant, bullets flying. I remember hearing screams and saw all of us sitting there, frozen with fear. “Everyone get under the table now,” I shouted on instinct. I had no idea who the gunmen were or why we under attack. All six of us dived down but Naomi was so scared – she just kept screaming and screaming. Her dad, Alan, was desperately trying to calm her. Shots were ringing out as the gunmen peppered the restaurant with fire. “We have to play dead,” I said. But as I reached up to grab Alan’s neck, I suddenly felt the warm spray of blood on my face and in my hair . Naomi’s screams had stopped too and I saw her lying lifeless besides him. They’d both been shot dead. Three United States nationals were killed in gruesome fashion by the attackers in the Chabad Nariman House in Mumbai. When the attackers killed Rabbi Aryeh Teitelbaum, they stole a father from eight children and a husband from Teitelbaum’s wife. Rabbi Teitelbaum was born in New York and made a home in Israel, where he was well-known intellectual and assisted his father as a supervisor for a kosher certifying agency.