Nakoula Basselley Nakoula Sentenced For Supervised Release Violations

Law, Politics & Current Events

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.

Also:

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

34 Comments

34 Comments

  1. Matthew Cline  •  Nov 8, 2012 @11:38 am

    I remember coming across one person who said that Nakoula should be given a blanket pardon for any crimes he committed prior to releasing the video, just to avoid the appearance of appeasement. I'm sure I can guess your reaction to that notion.

  2. NM  •  Nov 8, 2012 @11:42 am

    "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'm not sure that is correct. If they said "violence in Libya," maybe. If they said attack on the diplomatic mission in Benghazi, yes. However, many of the less publicized protests were not violence free, and had an instant cause being the movie (long standing tensions not withstanding, the movie was more of the match in a room full of gas).

    Note that this is different than saying he should be held legally liable for these protests.

  3. Trebuchet  •  Nov 8, 2012 @11:57 am

    Would it be accurate to say that:
    A) He probably couldn't have been prosecuted over the film if he didn't have the criminal background, and
    B) Probably wouldn't have been prosecuted for the probation violations if not for the film,
    C) Drew attention to himself with the film, thus bringing the law down upon himself?

  4. Ken  •  Nov 8, 2012 @12:09 pm

    Trebuchet:

    (A) He probably couldn't be lawfully prosecuted over the film — that is, based on the content of the film — whether or not he had a criminal record. Perhaps he could be lawfully prosecuted over transactions he did in the course of making the film (say, fraud) whether or not he had a criminal record.

    (B) In my opinion, based on my experience in this district, with this probation office, with these judges, had a probation officer discovered these violations, he would have been subject to revocation proceedings no matter what the content of the film. In my opinion, based on my experience, it's not even a close call.
    (C) Yes, to the extent the film drew attention to him, it made it more likely that his supervised release violations would be detected and subjected to violation proceedings.

  5. Chris R.  •  Nov 8, 2012 @12:17 pm

    Guy was a scam artist who on supervised release scammed more people, had fake ids, and was using computers against the stipulation of his terms. I've seen people call him a political prisoner, a fall guy, etc. I for one am a bit reluctant to call him anything but a felon.

  6. En Passant  •  Nov 8, 2012 @12:58 pm

    Chris R. wrote Nov 8, 2012 @12:17 pm:

    I've seen people call him a political prisoner, a fall guy, etc. I for one am a bit reluctant to call him anything but a felon.

    I agree, and that includes not calling him the cause of the murders in Benghazi.

  7. Matt B  •  Nov 8, 2012 @1:02 pm

    Regarding Mr. Dugdale being in charge of the probation hearing, a third option could have been that the office wanted to make sure there were no screw-ups… it's fine to make the occasional error on routine cases, but if some sort of error resulted in being unable to proceed here, the political fallout could be a problem. Rampant speculation of course. There certainly are perfectly innocent reasons they might have made that choice that have nothing to do with improper political pressure.

  8. Trebuchet  •  Nov 8, 2012 @2:03 pm

    Ken, thanks for the response, I think we're in agreement. I phrased the first question badly.

  9. Chris R.  •  Nov 8, 2012 @2:09 pm

    En Passant, I agree he didn't murder anyone. People murder people, not bad youtube videos or racist jokes. There is nothing you can say that would drive me to violence other than a direct reasonable threat to my family.

  10. Ghost  •  Nov 8, 2012 @2:23 pm

    If you pair this with the arrest of Brandon Raub, then can we make the case that this administration is intolerant of free speech?

  11. Pierce Nichols  •  Nov 8, 2012 @2:32 pm

    A question about selective prosecution — would he have to prove the similarly situated non-speaker was detected and not prosecuted? It seems pretty clear the primary reason his violations were detected largely because of their political fallout.

  12. Nicholas Weaver  •  Nov 8, 2012 @3:11 pm

    The criteria for selective prosecution is not whether he was detected because of his speech (its clear he was, how could he not be?), but whether, if detected, someone else committing the same violation would be prosecuted.

    And ken has made it clear in his experience: hell yah. Probably by an underling rather than the boss, but prosecuted still enough.

  13. Chris R.  •  Nov 8, 2012 @5:19 pm

    Ghost, Raub didn't actually commit a crime nor was he ever convicted of a felony. Nakoula was a convicted criminal, and blatantly was using one of the tools he was prohibited from using. On top of that they found with fake IDs etc. If I were a probation officer or prosecutor and a person on supervised release for check fraud, who was prohibited from using computers, was in the media for posting videos to youtube, I'd go after him to. I doubt they both share the same government motive.

  14. AlphaCentauri  •  Nov 8, 2012 @5:25 pm

    If someone were violating the terms of his supervised release and making a highly public demonstration of that violation, if the probation officer didn't act, people would rightly question whether he was showing him favoritism for some reason.

  15. C. S. P. Schofield  •  Nov 8, 2012 @9:19 pm

    Would it be fair to suggest that what we have here is a prat who grossly violated the terms of his supervised release, and furthermore did so in a manner likely to cause trouble for the State? That this amounts to handing the State a large stick and saying "beat me!", and that, therefore, the question is not whether he is being persecuted unfairly, but whether he is a masochist on an idiot?

  16. Jack Marshall  •  Nov 8, 2012 @10:59 pm

    I was one of the fools that made the argument that Nakoula should not have been prosecuted in the wake of the video controversy despite legitimate parole violations because of the appearance that he was being punished for free speech. I know Ken vociferously and authoritatively disagrees. But I work with companies on sexual harassment and compliance issues. When an employee uses the ethics hot line or makes a serious complaint about management wrongdoing—even if it may be bogus, that employee will not and functionally cannot be fired or disciplined for cause in an unrelated incident matter it is incredibly egregious and incontrovertible—and probably not even then. Why? Because it will look like retaliation, and encouraging employees to feel they can report misconduct without fear of reprisals is vital to improving corporate conduct. I was just talking to a Fortune 500 GC about this two days ago, because it drives companies nuts, and some borderline employees make complaints explicitly to protect their job.

    My point about Nakoula was and is that the importance of free speech and the public's confidence that the government will not retaliate against them for speech it doesn't like is much like the corporation's interest in not discouraging internal whistleblowers, and that similar forbearance has to apply. I think many Americans saw the arrest and prosecution as punishment for the film, and an attempt to mollify anger on the Arab street. I don't disagree with Ken's position that the rule of law should be paramount, just as I think companies should be able to fire employees who deserve it whether they have made a complaint or not—but in both cases, I think the shoulds lose in the utilitarian trade-offs.

  17. vms  •  Nov 8, 2012 @11:08 pm

    Thanks for the perspective of a veteran prosecutor and criminal defendant attorney. I do have to take issue, however, with one statement that I believe is plainly incorrect. You state:

    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 your statement is correct if it's limited to the attack on the US Libyan consulate and deaths of four Americans. However, that's not what the prosecutor is reported as saying. He's attributed as saying that "Deadly violence related to the film broke out Sept. 11 and spread to many parts of the Middle East." That seems to be an entirely accurate and fair statement. Wikipedia describes the reaction to the film:

    blockquote> As a reaction to the film, a series of worldwide demonstrations against the film began outside diplomatic facilities of the United States and other Western countries. However, other underlying issues of discontent have fueled the protests in some countries. The protests that continued in the ensuing weeks also expanded to other Western-related locations, some of which turned violent, resulting in dozens of deaths and hundreds of injuries.

    On September 13, protests occurred at the U.S. embassy in Sana'a, Yemen, resulting in the deaths of four protesters and injuries to thirty-five protesters and guards. On September 14, the U.S. consulate in Chennai was attacked, resulting in injuries to twenty-five protesters.[15] Protesters in Tunis, Tunisia, climbed the U.S. embassy walls and set trees on fire. At least four people were killed and forty-six injured during protests in Tunis on September 15.[7] Further protests were held at U.S. diplomatic missions and other locations in the days following the initial attacks. Related protests and attacks resulted in numerous deaths and injuries across the Middle East, Africa, Pakistan and Afghanistan.

  18. James Pollock  •  Nov 8, 2012 @11:56 pm

    I'm with you as far as "the guy got what he deserved, and what he deserved is not because of what he said but because of other actions which were prohibited to him by the terms of his release".

    I'm not sure I'd complain if the executive branch pressured the probation guys to do something. (This would not be the case if we had a case of someone who had not really obviously violated terms of the probation, and it would not be the case if pressure was leveled on the judge rather than on the probation office.)
    I'm assuming that pressure, if any, was somewhere between a phone call along the lines of "Hey, did you know that the guy behind the film causing the ruckus in the Middle East is one of your probationers? How did he finance that thing, anyway? Isn't there a restitution order hanging over his head?" and one that went along the lines of "Hey, could you put this guy at the front of the line for a violation hearing? He's really stirring up a hornet's nest for the State department."

    Again, had he NOT been in violation of his release terms, and they wanted him violated anyway, that would be different. But he was.

    (Meanwhile, the State department has a year to figure out what they're going to do when he's out again, since it's a fair bet he'll be using the time to find a legal way to stir up the Muslims again.)

  19. kmc  •  Nov 9, 2012 @7:34 am

    Matt B, I was wondering the same thing as you. Ken, do you think that Robert Dugdale handled the case because, with all the attention on it, he didn't want to chance a less experienced attorney? For instance, if a relative rookie went in there, with or without strong feelings about the movie, and let his opinions about Mr. Nakoula's character based on irrelevant details start to slip out, it could color the whole proceeding, it seems to me. Perhaps–here comes unbridled optimism–he handled it himself in order to protect the free speech issues that are involved?

  20. Ken  •  Nov 9, 2012 @7:41 am

    kmc, I suspect it was a mixture of factors.

    For what it is worth, the Chief of Criminal need not go himself or herself to assure the case is done right — a senior and experienced lawyer could be sent. Respecting Bob Dugdale as I do, I suspect he kept a personal hand on it because the message (as opposed to the law) is so delicate.

  21. Peter H  •  Nov 9, 2012 @7:43 am

    Ken, given that obtaining a DL under a false name is a crime (I would guess felony but not sure), is it possible or likely that California will bring charges against him, or would the local DA generally be satisfied that he's in a federal lockup and not bother?

  22. Ken  •  Nov 9, 2012 @7:54 am

    Peter H: I think it's very unlikely that the locals would charge the same thing he was violated for. Whether they COULD or not has a long, dreary answer.

  23. Tarrou  •  Nov 10, 2012 @5:01 pm

    Too bad our free-speech fights can't all be over the rights of clean and upstanding citizens with spotless records and a total lack of dental cavities. As it is, yes, the guy is a criminal and seemingly a scumbag. But the optics of this both for us as Americans and for the "arab street" are the same. The nutbags now think they can demand we jail anyone who "offends" them (and there are plenty of folks who do nothing but search the web all day looking for something to be offended about, then publicize it to their communities). And for us here, the simple fact is that every single one of us is some sort of felon, we just aren't caught yet. So when someone disagrees with our speech, any sufficiently motivated bureaucrat will be able to find some obscure crime that we've committed and free speech is at an end. The simple fact is that any time the government wants to punish any given person for anything they want, they can, because we are all already criminals. The only protection we have is the laziness and intransigence of the bureaucracy.

    TL:DR – There is no bright dividing line between "criminals" and "non-criminals". Claiming that retaliation for free speech is fine if it happens to a "criminal" is not logically sustainable (and no, I know that's not what Ken said, just putting it out there).

  24. oldnumberseven  •  Nov 12, 2012 @3:36 am

    Claiming a parolee is being violated for his speech and not for violating his parole is idiotic. Claiming that the government is locking up innocent people for insulting muslims is idiotic and reckless.

  25. Babs  •  Nov 12, 2012 @9:31 pm

    What bothered me the most about this was the dragging of this man out of his house in the middle of the night in front of every camera in the western hemisphere.
    If this was a simple non violent parole violation by a felon it could have waited for daylight. Instead, a three ring circus was made of this man. IIMO that this was done for the politicians in D.C. and the Muslim world.
    I understand, after reading the comments, that this man deserved to go back to jail. It is the way his arrest was conducted that bothers me. Also, putting him in solitary confinement for almost 2 months before his "parole hearing" was excessive incarceration as far as I am concerned.

  26. Lin  •  Nov 13, 2012 @6:19 am

    " . . . Claiming that the government is locking up innocent people for insulting muslims is idiotic and reckless."

    Well, all is know is, I am seriously considering making a video criticizing Mohammad and maybe drawing a short, illustrative, and wholly blasphemous cartoon as an accompaniment.

    Based on the facts of this case, I anticipate that the President and several official organs of the state (generals, Secretary of State, etc.), may well denounce me and my "vid" on several international stages, promise that parents of dead soldiers that they'll "have me arrested" (ala Clinton and Wood's dad), assure those who hate me that I "won't have a future" because I defamed Mohammad, agree to "shame me" in order to implement the blasphemy goals of the OIC in resolution 16/18, and take a reeeal close look at my affairs to see if there's anyway they can arrest me. . . . Now, pardon me for imaging that NONE of this would have happened if I'd chosen to post a lol cat video.

  27. Ken  •  Nov 13, 2012 @9:31 am

    @Babs: I'm not going to rehash the circumstances of the televised incident you refer to; I've written about it before.

    As to his detention: the magistrate judge detained him at his initial appearance. Given his record and his use of false identities, I could see that call going either way. But it's fairly routine for people getting their supervised release revoked to wind up being detained pending their hearing. As for the "solitary confinement" — as I recall they attempted to put him in protective custody because of the threats against him. At MDC there are limited options for confinement anyway.

  28. oldnumberseven  •  Nov 14, 2012 @2:53 am

    Lin,
    Yes, all of that has happened to Trey Parker and Matt Stone. All of that has happened to Ken due to his vegetable that he called Mo.

    The fact of the matter is the guy violated his parole.

    Babs,
    If I were ever to be arrested I would prefer it be in front of every camera in the western hemisphere. I would rather that, than be arrested secretly.

  29. Lin  •  Nov 14, 2012 @5:58 am

    "Yes, all of that has happened to Trey Parker and Matt Stone. All of that has happened to Ken due to his vegetable that he called Mo."

    If your point is that others have "blasphemed" without experiencing the dire affects I described (though, honestly, I'm not sure what your point is, especially since Parker and Stone were actually censored by their employers), my answer is this:

    1). those blasphemers were not chosen by the instigators to be the (pretextual) cause of the "spontaneous riots" (which in this case just happened to erupt, quite coincidentally, on the anniversary of 9/11.

    2). Bassely, being less famous/rich/sympathetic, is an easier target.

    I submit that if these two additional ingredients are mixed with the original blasphemy, this administration will go out of its way to make things very, very hard for you – and that one of their purposes in doing so would be to publicy demonstrate their commitment to "shaming those who defame islam" to satisfy promises made to their new best buds in the Brotherhood.

  30. Lin  •  Nov 14, 2012 @6:00 am

    "Yes, all of that has happened to Trey Parker and Matt Stone. All of that has happened to Ken due to his vegetable that he called Mo."

    If your point is that others have "blasphemed" without experiencing the dire affects I described (though, honestly, I'm not sure what your point is, especially since Parker and Stone were actually censored by their employers), my answer is this:

    1). those blasphemers were not chosen by instigators to be the (pretextual) cause of "spontaneous riots" (which in this case just happened to erupt, quite coincidentally, on the anniversary of 9/11).

    2). Bassely, being less famous/rich/sympathetic, is an easier target.

    I submit that if these two additional ingredients are mixed with the original blasphemy, this administration will go out of its way to make things very, very hard for you – and that one of their purposes in doing so would be to publicy demonstrate their commitment to "shaming those who defame islam" to satisfy promises made to their new best buds in the Brotherhood.

  31. James Pollock  •  Nov 14, 2012 @8:40 am

    I suppose that if you're the type to see conspiracy and/or government oppression in things, this IS the sort of thing in which you'd see conspiracy and/or government oppression.

    Keep in mind that if you make a video that insults your lolcat, you're insulting the religion of the ancient Egyptians, who revered cats as holy.)

  32. Lin  •  Nov 14, 2012 @11:33 am

    " . . . . I suppose that if you're the type to see conspiracy and/or government oppression in things . . . "

    Well, the guy WAS denounced by every organ of the government on several international stages, the Secretary of state actually DID promise Wood 's father that she would have the filmmaker arrested, and the state Dept. really did reach an accommodation with the OIC to officially "shame" those who defame Mohammad as a means of implementing UN resolution 16/18. . . . It's not paranoia when they really are trying to kill you – or, as in this case, apply the organs of the state to shut you up (as well as seriously "chill" the speech of anyone else who might be similarly minded).

  33. James Pollock  •  Nov 14, 2012 @3:49 pm

    Right.

  34. oldnumberseven  •  Nov 15, 2012 @1:24 am

    Trey Parker and Matt Stone have put Mohammed in every episode of South Park. Their depiction is right there in the opening credits. If the government were censoring, I am sure they could sic the IRS on South Park Studios and see where it went, and yet they have not. I guess first they must fry this small fish as an appetizer first, never mind the fact the guy blatantly violated his parole.