In a triumph of stupid hope over bitter experience, I am going to write again about Nakoula Basseley Nakoula aka Mark Bassely Youssef aka "Sam Bacile," one of the people behind the inflammatory "Innocence of Muslims" video.
Yesterday Nakoula admitted guilt on four of the eight supervised release allegations against him. He did so under the name Mark Bassely Youssef. In his underlying federal fraud conviction, Mr. Nakoula had repeatedly represented that his true name was Nakoula Bassely Youssef. Depending on how United States District Judge Christine Snyder handled his change of plea hearing, he might have said it under oath. (A federal change of plea colloquy is under oath. Some judges will ask you what your true name is before you're under oath, some after.) At any rate, though he answered to one name in his fraud case, Mr. Nakoula now now asserts that he changed his name to Mark Bassely Youssef before that case, and is now proceeding as Mr. Yousseff. For continuity I will continue to refer to him as Mr. Nakoula.
Though public court records reflect this result, as far as I can tell the Probation Office's petition specifying the eight supervised release violation charges has not been made public. Annoyingly vague media reports generally indicated that Nakoula admitted to lying to his probation officer, getting a driver's license in a fake name, and using aliases, and that the government agreed not to pursue violations related to alleged lies to law enforcement during his interview.
Judge Snyder sentenced Nakoula to one year in prison and four years follow-up supervised release. That's more than the home detention he asked for and less than the two years the government asked for. The sentence appears to be in the general range recommended in the non-binding United States Sentencing Guidelines for violations of this type, and is consistent with the sorts of sentences I've seen for such conduct by someone with such a record over the last 17 years. The sentence of exactly one year is notable: in federal confinement you don't get credit for good behavior (up to 15%) unless the sentence is at least a year and a day, which is why you often see sentences of a year and a day rather than a year. By sentencing Nakoula to a year Judge Snyder suggested she wanted him to do the full year. (Where he does it is in the discretion of the Bureau of Prisons.)
Nakoula's attorney claimed afterwards that the government proceeded against his client because of his exercise of his First Amendment rights. He didn't file any motion on that basis, and his client entered a guilty plea despite the claim. That's undoubtedly because under the relevant standard for selective prosecution, he'd have to prove not only that the government prosecuted him because of his protected speech, but also that similarly situated people who didn't speak like that were not prosecuted. Despite the sentiments of many internet lawyers who have never seen a supervised release revocation proceeding, all of whom are completely certain that convicted fraudsters never get revoked for using aliases and getting drivers licenses in bogus names, Nakoula would never be able to make that showing, because it's freaking ridiculous. That's why his attorney didn't try.
A few things about the plea and sentencing hearing are notable. First, I doubt anyone will take this at face value:
"I'm not going to say much about the movie because he's not here because of the content of the movie," Assistant U.S. Atty. Robert Dugdale said.
"Agreed," U.S. District Court Judge Christina Snyder said abruptly, interrupting the prosecutor.
Fair disclosure: I know and respect Bob Dugdale, though I haven't seem him in years. The fact that the Chief of the Criminal Division handled a supervised release revocation hearing — normally something a rookie would handle — will be taken by some as evidence of the sinister hand of the administration. However, I've seen top office officials handle high-profile hearings for as long as I've been in this business. Cynics would say it's for the publicity; politics wonks would say it's to control the message tightly in a closely-watched case.
However, Assistant U.S. Attorney Robert Dugdale argued Youssef's lies about his identity have caused harm to others, including the film's cast and crew. Deadly violence related to the film broke out Sept. 11 and spread to many parts of the Middle East.
"They had no idea he was a recently released felon," Dugdale said Wednesday. "Had they known that, they might have had second thoughts" about being part of the film.
He said they have had death threats and feel their careers have been ruined.
I'd like to see a transcript, instead of USA Today's summary, to see exactly what Dugdale said. It's true that there was violence related to the film, in the sense that the film was used as an excuse for violence and used by terrorists as a cover for violent attacks. I would hope that the government didn't assert that the film caused violence, which based on what we know now is plainly incorrect. I think Bob Dugdale's point that Nakoula screwed his cast and crew is perfectly fair, though. I'm firmly opposed to any obeisance to anti-blasphemy laws, but I think the actors and crew of a movie should be able to offer informed consent before appearing in a movie likely to make them the subject of fatwas.
Mr. Nakoula's revocation proceedings required a probation officer (an employee of the judicial branch) to file a revocation petition and Judge Snyder (also in the judicial branch) to approve it. If the Obama administration — the executive branch — contacted the United States Probation Office and pressured the probation office to file revocation proceedings because Nakoula made the film, I think there should be a Congressional inquiry. I'm aware of the statement by Charles Woods, the father of the Navy Seal Tyrone Woods who was killed by terrorists in Benghazi, who says that Secretary of State Hillary Clinton told him that the government would punish the filmmaker. Mr. Woods is justifiably furious with the administration and Ms. Clinton's words to him are not to be taken at face value, so this report is not conclusive evidence to me. But it's a piece of evidence, and Congress might think it sufficient to start an inquiry. Under existing selective prosecution law it might not be unconstitutional for the administration to suggest that Nakoula's supervised release be revoked for conduct that would get anyone else revoked. Nakoula's conduct is absolutely the sort that does, and should, routinely result in revocation of supervised release. But we should know whether or not the administration had a hand in it, and there should be consequences — even if they are only political — if they did.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016