Full opinion text
OPINION BATTS, District Judge. TABLE OF CONTENTS I. FACTUAL BACKGROUND.259 A. The Government’s Case.259 B. Defendant’s Case.273 C. Other Reliable Evidence.288 II. FINDINGS OF FACT.290 A. The Government’s Theory.290 1. Existence of a Hostage Taking Plan.290 2. Conduct Consistent with GX 75-79 .291 3. Inconsistencies Between the Government’s Theory and Defendant’s Actions.293 a. The Role of Khalfan Khamis Mohamed .294 b. Other 98-CR-1023 Co-defendants.297 4. Other Deficiencies in the Government’s Case.299 B. Defendant’s Theory.301 III. CONCLUSIONS OF LAW.304 A. Burden of Proof.305 B. Permanent Bodily Injury — U.S.S.G. § 2A2.1(b)(l)(A).306 C. “Official Victim” Enhancemen1&wkey;U.S.S.G. § 3A1.2 D. Restraint of Officer — U.S.S.G. § 3A1.3. E. Recruitment and Supervision — U.S.S.G' § 3Bl.l(c) F. Obstruction of Justice — U.S.S.G. § 3C1.1. 1. Materiality. 2. Willfulness. G. Acceptance of Responsibility — U.S.S.G. § 3E1.1 .. H. Upward Departure: U.S.S.G. § 2A2.1. I. Terrorism Enhancement — U.S.S.G. § 3A1.4. 1. Sentencing Commission’s Authority to Promulgate U.S.S.G. § 3A1.4 Hearing Requirement. 3. Standard of Proof for U.S.S.G. § 3A1.4. 4. Factual Determinations Under U.S.S.G. § 3A1.4 in light of Apprendi and McMillan. 03 CO Bias. 03 CO Lenity. 03 OO 7. Definition of “Terrorism” . CO CO IV. APPLICATION OF U.S.S.G. § 3A1.4 TO SOLELY DOMESTIC CONDUCT . Legislative History. 1. Legislative History of Section 730 of AEDPA and 18 U.S.C. § 2332b a. 3A1.4. b. House Bill H.R. 104-896 and Senate Bill S.104-390 . 104-1710. . 104-1710 . . g. Bill. Analysis of Legislative History . provisions eventually became 18 U.S.C. § 2332b and U.S.S.G. § 3A1.4 CO CD sentencing enhancement provisions that would have swept in solely domestic acts of terrorism. CO cb c. Placement of “Federal crime of terrorism” within § 2332b CO üi Conference Committee Report. CO oí e. USA PATRIOT Act. CO ui . CO cn 2332b. CO cn V. CONCLUSION. .354 The Court writes at this juncture to inform counsel and Defendant of the Court’s ruling on certain sentencing issues, including the Guidelines calculation in this matter. On April 3, 2002, pursuant to a plea agreement with the Government, Defendant pleaded guilty to Counts Three and Four of a ten-count, superseding indietment (Indictment SI 01-CR-002 (DAB)) relating to the stabbing of Corrections Officer Louis Pepe (“Officer Pepe”) at the Metropolitan Correctional Center (the “MCC”). (Plea Transcript of April 3, 2002, hereinafter “Plea Tr.”). Count Three of the Indictment charged that Defendant and others had conspired to murder federal officials at the MCC in violation of 18 U.S.C. § 1114; Count Four charged that Defendant had attempted to kill Officer Pepe, in violation of 18 U.S.C. § 1117. (Indictment SI 01-CR-002 DAB). The plea agreement did not set forth stipulations by the parties with respect to the application of the Sentencing Guidelines. Instead, the Government’s position on the application of the Sentencing Guidelines to Defendant’s case was set forth in an attached letter, (hereinafter the “Pimentel letter”), sent to defense counsel pursuant to the Second Circuit Court of Appeals suggestion in United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir.1991). In the Pimentel letter, the Government notified Defendant that, pursuant to Section 3D1.2 of the United States Sentencing Guidelines (the “Guidelines” or “U.S.S.G.”), the Government would argue that the Court should “group” the two counts to which Defendant pleaded guilty. {Pimentel letter at 2). According to the Government, Section 2A2.1 of the Guidelines applied to the crime charged in Count Three, and because the “object of the attempted murder would have constituted first-degree murder,” Defendant’s Base Offense Level should be 28. Id. The Government further notified Defendant of its position that the following sentence enhancements were appropriate: (1) a four-level sentence enhancement because of the permanent bodily injury to Officer Pepe pursuant to U.S.S.G. § 2A2.1(b)(l)(A); (2) a three-level enhancement because Defendant attacked Officer Pepe while Pepe was performing his official duties as a corrections officer pursuant to § 3A1.2(a); (3) a two-level enhancement because Officer Pepe was physically restrained during the attack pursuant to U.S.S.G. § 3A1.3; (4) a 12-level enhancement and an increase in Defendant’s Criminal History Category from I to VI, because the attack on Officer Pepe was committed to promote a federal act of terrorism pursuant to U.S.S.G. § 3A1.4; and (5) a two-level downward adjustment, assuming Defendant allocuted to the satisfaction of the Court pursuant to § 3El.l(a). {Pimentel letter at 2-3). The Government concluded that the resulting applicable Guidelines Offense Level was 47, with a Criminal History Category of VI. Id. On July 11, 2002, the United States Probation Department sent to the parties a draft Pre-Sentence Report (“PSR”). In a letter dated July 29, 2002, (hereinafter “Def. July 29, 2002”), Defendant contested numerous factual statements contained in the draft PSR, and also challenged: (1) the three-point increase pursuant to U.S.S.G. § 3A1.2 for an attack on an official victim, (2) the three-point, victim restraint enhancement pursuant to U.S.S.G. § 3A1.3, and (3) the twelve-level upward adjustment and Criminal History increase under the “terrorism” enhancement pursuant to U.S.S.G. § 3A1.4. (Def. July 29, 2000.) The Government submitted a responsive Memorandum on August 16, 2002 (hereinafter “Gov. Aug 16, 2002”). Defendant submitted a reply on August 26, 2002 (hereinafter “Def. Aug 26, 2002”). On August 15, 2002, the United States Probation Department sent to the Court and the parties a revised PSR that recommended a total Offense Level of 47 and a Criminal History Category of VI, and a sentence of life imprisonment. (PSR at 23.) This Court held a pre-sentence Fatico hearing, United States v. Fatico, 603 F.2d 1053 (2d Cir.1979), at which the parties presented evidence and arguments on the challenged sections of the PSR. The transcript of the hearing, spanning ten days of testimony and argument, is hereby incorporated into this Opinion; in addition, relevant sections are set forth below. Defendant’s testimony and arguments at the Fatico hearing differed in substance from statements in his July 29, 2002 objections to the PSR. In a letter submitted September 12, 2002, (hereinafter, “Gov. September 12, 2002”), the Government informed the Court of additional arguments it intended to make, including additional sentence enhancements and new arguments, based on Defendant’s testimony. In a letter dated September 17, 2002, (hereinafter, “Def. September 17, 2002”), Defendant submitted revisions to his letter of July 14, 2002, in response to the Court’s inquiry into the status of arguments that were made in Defendant’s July 29, 2002 letter, but were contradicted by Defendant at the Fatico hearing. Also on September 17, 2002, the Government submitted to the Court and defense counsel copies of expert reports from FBI laboratories, detailing blood, fingerprint, and chemical analysis (hereinafter, “Gov. September 17, 2002”). On December 19, 2002, this Court ordered the parties to brief a question pertaining to the application of U.S.S.G. § 3A1.4. Pursuant to the Court’s Order, the Government submitted a Memorandum of Law on January 31, 2003, (hereinafter “Gov. January 31, 2003”); Defendant responded on February 21, 2003, (hereinafter “Def. February 21, 2003”); the Government replied on February 28, 2003, (hereinafter “Gov. February 28, 2003”). In addition, on March 3, 2003, (hereinafter “Def. March 3, 2003”) Defendant submitted a two-paragraph “sur-reply” to address issues that the Defendant claims were raised for the first time by the Government on February 28, 2003. On April 11, 2003, pursuant to its authority under 18 U.S.C. § 3664(d)(6), the Court appointed Conrad Berenson, Ph.D., M.B.A., and Professor Emeritus, to act as Special Master to assist the Court in determining the appropriate amount of restitution in this case, and ordered the Government to provide to the Special Master all information necessary for determination of a recommended restitution amount. (Order, April 11, 2003 at 2-3.) By letter dated May 9, 2003, the Court requested from the Government materials, admitted into evidence or referred to at the Fatico hearing, which had not been received during the hearing. Specifically, the Court requested and received from the Government: 1.) Copies of two videotapes of 10-South of the MCC, referred to and admitted into evidence as GX 222 and GX 223 during testimony by Agent Foelsch at the Fatico hearing, (Tr. at 323-28); 2.) A copy of all 10-South visitor log pages containing entries for the period from September 1 through the entirety of November 1, 2000 — portions of which were admitted into evidence as GX 251A and 251B (Id. at 509), and 251A-1 and 251A-2, (Id. at 536); 3.) Photographs depicting various views of the recreation rooms on 10-South of the MCC. I. FACTUAL BACKGROUND In January 1999, Defendant and others were indicted on numerous charges alleging a global terrorist conspiracy to murder United States citizens, including charges relating to the August 7,1998, bombings of United States embassies in Nairobi, Kenya and Dar es Salaam, Tanzania. The case, United States v. Bin Ladin, et al, 98 Cr. 1023(LBS) (hereinafter “98-CR-1023”), was assigned to United States District Judge Leonard B. Sand. During those proceedings, Defendant was housed with the other 98-CR-1023 defendants in the maximum security wing of the MCC. On November 1, 2000, Defendant stabbed corrections officer Louis Pepe in the left eye with a sharpened comb. (Plea Tr. at 32.) The Indictment in 98-CR-1023 was superseded to include the charges related to the MCC attack. These charges were severed by Judge Sand and subsequently returned as a multi-count Indictment before this Court on January 3, 2001. On April 3, 2002, Defendant pleaded guilty to conspiring to murder Officer Pepe in violation of 18 U.S.C. § 1117 and attempting to kill Officer Pepe in violation of 18 U.S.C. § 1114. (Id. at 36.) A. The Government’s Case In its pre-hearing submissions and at the Fatico hearing, the Government argued Mr. Salim and unspecified others had developed and acted on an elaborate plan to secure the release of himself and others through the taking of hostages. (Gov. August 16, 2002 at 40; Tr. at 1008.) According to the Government, Defendant’s attack on Officer Pepe on November 1, 2000 was only one step in this plan, which was ultimately frustrated by Officer Pepe’s resistance and the response of other corrections officers at the MCC. (Tr. at 1008.) At the Fatico hearing the Government presented the testimony of seven witnesses, numerous pieces of forensic evidence, and crime scene photographs. The Government’s first witness, Christine Dynan, an administrator at the Metropolitan Correctional Center, testified that, while on duty there, Officer Pepe was equipped with a walkie-talkie that automatically alerted the MCC Control Center whenever the walkie-talkie was in a horizontal position for longer than 10 seconds. (Id. at 11.) Dynan also testified about the layout and general policies and procedures of the MCC. (Id. at 7-62.) Specifically, Dynan testified that inmates at the MCC were rotated between cells every 21 days. (Id. at 32.) Reviewing the MCC’s recorded logs of inmate rotations, (GX 250A, GX 250B), Dynan testified that on October 25, 2000 — six days before the attack on Officer Pepe — Defendant had been moved from Cell One to Cell Six, where he was joined by inmate Khalfan Khamis Mohamed. (Tr. at 34.) Ms. Dynan also testified about the Commissary policies at the MCC. She identified several government exhibits that were received into evidence by the Court (Id. at 61): purchase receipts from the MCC Commissary that had been provided to Defendant (GX 83, 85-89, 90, 95-99) and to Khalfan Khamis Mohamed (GX 84, 91, 92, 94), one of Defendant’s co-defendants in 98-CR-1023. (Tr. at 62-65.) Dynan also testified that keys to doors not controlled by electronic locks were held by staff members at the MCC. (Id. at 15.) The Court received into evidence GX 10, a floor plan of Unit 10-South of the MCC (hereinafter, “10-South”.) (Id. at 21.) Referring to GX 10, Dynan testified that there were two attorney-inmate visit rooms on the North side of 10-South that were set up for non-contact visiting. (Id. at 25.) Ms. Dynan testified that the attorneys would be locked in one room; then the inmate would be locked in the inmate room. (Id.) According to Dynan, the two rooms were separated by a screen, through which the attorneys and inmate could communicate but not touch or pass objects. (Id.) Two of the Government’s other witnesses, Specialist Jenkins and Lieutenant Carrino, are Federal Bureau of Prisons officers. On November 1, 2000, both responded to an alarm on 10-South. (Id. at 76.) Jenkins, Carrino, and other responding corrections officers passed through the outer door to 10-South, but were prevented from entering 10-South because the inner door to the unit was locked. (Id. at 77.) Specialist Jenkins testified that, during this time, officers attempted unsuccessfully to reach Officer Pepe by banging on the door, and by calling on the radio and the telephone. (Id. at 78.) Eventually, corrections officers secured a key and gained access to 10-South through the inner door. (Id. at 126.) Specialist Jenkins testified that he and the other officers waited 15 minutes before emergency keys were available to allow him to enter 10-South. (Id. at 99-100.) Specialist Jenkins testified that, while waiting to enter the unit, he looked through a window and saw Defendant peek out from behind a pillar within 10-South. (Id. at 81.) After Jenkins gained entry to 10-South, he saw Defendant running away from him, toward the south end of the unit. (Id. at 85.) Jenkins testified that, as he proceeded toward Cell Six in pursuit of Defendant, he visually confirmed that each of the cell doors was closed and locked. (Id. at 106-07.) Jenkins testified he picked up a Plexiglass shield that was usually used to soundproof the recreation rooms, and proceeded to the South end of the unit. (Id. at 86.) As Jenkins approached Defendant’s cell, he saw Defendant fumbling with keys, trying to get into Cell Six of 10-South; Defendant then entered Cell Six. (Id. at 87.) Specialist Jenkins testified that at this point, Defendant’s cellmate, Khalfan Khamis Mohamed, lunged out of a corner of the corridor, with a plastic, bear-shaped honey jar, filled with red liquid, in his hand. (Id. at 88.) Jenkins testified that Mohamed tried to spray the liquid at his face, but that Jenkins used the plastic shield for protection and pinned Mohamed against the wall with it. (Id. at 89.) Jenkins testified he glanced over at Cell Six and saw Defendant beginning to come out of the cell to attack him, and that Jenkins kicked the door closed with his foot, while still holding Mohamed pinned to the wall with the Plexiglass shield. (Id.) Jenkins testified that through the window of Cell Six he saw Officer Pepe standing inside the cell, and so he released the door, allowing it to open. (Id.) When Defendant tried to lunge out at Jenkins again, Jenkins punched him in the face. (Id. at 91-92.) According to Specialist Jenkins, additional correctional staff became involved at this point — after Jenkins had singlehandedly: 1.) pinned Mohamed to the wall using the Plexiglass shield, 2.) seen Mr. Salim attempting to leave Cell Six and kicked the unlocked door of Cell Six closed, trapping Mr. Salim inside the cell, 3.) observed Officer Pepe injured in Cell Six and allowed the door to Cell Six to reopen, and 4.) knocked down the attacking Defendant with a punch to the face. (Id. at 89-92.) Specialist Jenkins testified that after MCC personnel restrained Defendant and Mohamed, he saw Officer Pepe being escorted from 10-South. (Id. at 93.) Jenkins said he saw that Officer Pepe’s face and clothing were bloody, and that he had a handcuff on his right arm. (Id.) Lieutenant Glenn Carrino, a Bureau of Prisons Lieutenant on 10 South of the MCC on November 1, 2000, testified that at approximately ten o’clock in the morning on that day, while he was on the third floor of the MCC, a body alarm went off on 10-South. (Id. at 122.) Carrino testified that he and others responded to the tenth floor, but could not get through the second door to 10-South. (Id. at 123.) He testified that, while he was waiting to enter 10-South, the telephones were ringing incessantly on the floor. (Id. at 149.) Carrino testified that “approximately 5 minutes or more” elapsed between the time he responded to the alarm and the point at which the officers entered Unit 10-South. (Mat 126.) Lieutenant Carrino testified that, after gaining entry to 10-South he proceeded toward Cell Six, that along the way he picked up one side of a plexiglass shield, and that Specialist Jenkins had picked up the other side. (Id. at 143-44.) Lieutenant Carrino testified that “[a]s we were going down the hall, we saw in the end of the hall, an inmate come out in front of us. At that point in time Jenkins said let’s pick up the shield, there is a plexiglass shield against the wall.” (Id. at 127.) However, Lieutenant Carrino also acknowledged that, in a post-incident report, he had written that Jenkins had handed him a plexiglass grill cover, and that at sentencing proceedings held for Khalfan Khamis Mohamed, he had testified that his written statement in the report had been correct. (Id. at 147.) Ultimately, Carrino testified that he couldn’t remember whether Jenkins had handed him the shield, or whether Jenkins had shared it with him. (Id.) Lieutenant Carrino testified that as he approached Cell Six after gaining entry to 10-South, Khalfan Khamis Mohamed “lunged forward in a crouch position” toward him and “started squirting a substance out of a honey jar, a honey bottle.” (Id. at 127.) Carrino testified that “we took the shield; Jenkins had one end, I had the other. We went straightforward against the wall and pinned Inmate Mohammad against the wall, and the plexiglass shattered, and then we took him down to the ground.” (Id. at 129.) Lieutenant Carrino also testified that any time an inmate on 10-South was moved from a cell, the MCC’s policies and practices required that the inmate be handcuffed and that three correction officers be present on the floor. (Id. at 119, 153-4.) Lieutenant Carrino testified that this policy was not followed on the morning of November 1, 2000. (Id. at 152-53.) The Government offered into evidence a crime scene photo showing an electrical junction box with its cover partially pried open. (GX 20.) Carrino testified that on the morning of November 1, 2000, before the attack on Officer Pepe, he had conducted a routine inspection of Unit 10-South, including an inspection to ensure that the electrical wires and junction boxes were intact. (Tr. 121-22.) During this inspection, Carrino saw that the electrical junction box pictured in GX 20, outside Defendant’s cell, was intact and undamaged. (Id. at 140.). Lieutenant Carrino further testified that, in routine inspections of 10-South, he would ensure that nothing had been damaged or tampered with. {Id. at 137.) Carrino testified that the night after the attack on Officer Pepe, he conducted another routine inspection and saw that the cover on the junction box outside Defendant’s cell had been pried down and that a screw was missing. {Id. at 140.) A crime scene photo taken shortly after Officer Pepe’s stabbing showed an up-ended blue plastic storage bin beneath the junction box. (GX 18.) Lieutenant Carrino testified that the blue bin was a commissary bucket, and was sturdy enough to support a person. (Tr. 183.) However, Lieutenant Carrino testified that he did not recall seeing the blue bucket beneath the junction box when he was struggling with Khalfan Khamis Mohamed. (Id. at 186.) Lieutenant Carrino also testified that there were three videotape recorders at the guard’s station on 10-South but that, although the recorders were used to record the images from the video monitors on the floor, no videotapes were made the morning of November 1, 2000. {Id. at 140-42.) Furthermore, there were no policies or procedures for making video recordings of the monitors on 10-South, and he knew the video machines were not working for months prior to November 1, 2000. {Id. at 142.) Lieutenant Carrino also testified that immediately after Defendant was subdued, Carrino saw Officer Pepe, his face covered with blood, in the doorway of Cell Six. {Id. at 133.) Carrino said he saw Officer Pepe had a black object protruding from his left eye, and also had a handcuff attached to one of his arms. {Id. at 134-35.) Lieutenant Carrino testified that he and others led Officer Pepe out of Cell Six and out of 10-South, to the MCC hospital on the second floor. (Id. at 135.) Gautam Patel is a physician’s assistant, who was working at the medical facility at the MCC on November 1, 2000. (Id. at 199-201.) Mr. Patel testified that he responded to the body alarm on 10-South, (Id. at 201), and that he arrived at 10-South about 7 to 10 minutes later. (Id. at 228.) Mr. Patel testified that he and other MCC staff members waited for 10 to 15 minutes in the corridor outside the inner door to 10-South, while someone got a key. (Id.) Paul McAllister was Defendant’s attorney in 98-CR-1023, until he was replaced in November 2000. (Id. at 474.) McAllis-ter testified that in the fall of 2000, Defendant had expressed dissatisfaction directly to McAllister and Charles Adler, co-counsel representing Defendant, about the representation Defendant was receiving from Adler and McAllister. (Id. at 476.) McAl-lister testified that Defendant had communicated his dissatisfaction with counsel on the record to Judge Sand three times. (Id.) In addition, McAllister testified that Defendant had sent a number of letters, (GX 4-9), to Judge Sand, with copies sent to McAllister and Defendant’s other attorneys, requesting that Judge Sand replace Defendant’s attorneys. (Tr. at 476-77.) McAllister testified that he, Defendant and Charles Adler had also appeared at a conference before Magistrate Judge Eaton in late October 2000, at which Defendant repeated his complaints, expressed dissatisfaction about his attorneys, and requested substitute counsel. (Id. at 478-79.) In addition, McAllister testified that Defendant had declined to meet with Adler and McAllister three times in October of 2000. McAllister testified that on November 1, 2000, he went to meet Defendant on 10-South at the MCC: THE COURT: ... Mr. McAllister, how did it come about that you decided to go to the MCC on November 1st? THE WITNESS: Well, it was an ongoing thing. I had either met with or attempted to meet with Mr. Salim periodically and there wasn’t anything exceptional about that date. It was just one of a number of dates that I was seeking to meet with him to prepare for trial. THE COURT: All right. Was there any indication from Mr. Salim that he would be interested in meeting with you that day? THE WITNESS: No, No. There wasn’t any indication that he would be interested, but my colleague, Mr. Adler, and I had decided that in Mr. Salim’s interest we should certainly at least attempt to prepare for trial rather than just ignoring the fact that the trial was about to commence fairly soon. (Id. at 481.) McAllister testified that he arrived at the MCC at approximately 8 a.m. (Id. at 480.) McAllister testified that, after making his way through security, he was led to the recreation room on 10-South by Officer Pepe. (Id. at 485.) McAllister said that he had “small talk” with Officer Pepe, and then that Pepe indicated he would go to Defendant’s cell to see if Defendant was willing to visit with McAllister. (Id. at 486.) Officer Pepe returned “shortly thereafter” and told McAllister he had “good news” for McAllister, that Defendant was “considering or probably willing” to meet with McAllister and Adler. (Id. at 486-87.) Officer Pepe went back to Defendant’s cell a second time, then returned to say that Defendant was praying and that Officer Pepe didn’t want to interrupt him at that time. (Id. at 487.) McAllister testified that “somewhere around that time,” Charles Adler, Defendant’s co-counsel in 98-CR-1023, arrived. (Id.) McAllis-ter testified that Officer Pepe went a third time to Defendant’s cell, and when he returned, Officer Pepe said that Mr. Salim did wish to meet with us but that he wanted to do something on the computer first. And Officer Pepe said that he had asked Mr. Salim whether or not Mr. Salim would be willing to meet with us with Mr. Salim being on the side of the cell with the computer and Mr. Adler and myself being locked on the other side of the mesh in order to save time so that Mr. Salim wouldn’t be doing whatever he was going to do on the computer and keep us waiting. I guess Officer Pepe asked us whether it was all right with us because it’s rather cramped and uncomfortable and we said it was all right to meet under those conditions. (Id. at 488.) McAllister testified that meetings he participated in with Defendant were rarely held in the attorney-inmate meeting rooms; instead they were usually held in one of two recreation rooms on 10-South. (Id. at 485, 489.) Moreover, Mr. McAllis-ter testified that November 1, 2000 was the first and only time that he had a “non-contact” meeting with Defendant; in the approximately three times he met with Defendant in the attorney-inmate meeting rooms, he was placed on the same side of the mesh divider as Defendant. (Id. at 489.) McAllister testified that he and Charles Adler agreed to meet Defendant in the attorney-inmate rooms, and Officer Pepe locked them in one side of the room. (Id. at 490.) McAllister testified that, from the attorney-inmate room wherein he and Adler were locked, he could see into a recreation room on 10-South. (Id. at 491.) McAllister testified that at some point while he was waiting in the attorney-inmate room, he saw Wadih El-Hage, another defendant in 98-CR-1023, meeting in the recreation room with his attorneys, Mr. Schmidt and Mr. Dratel. (Id. at 492.) From the attorney-inmate room, McAllis-ter testified he could also see the guard station, (Id. at 490), as well as video monitors above the guard station. (Id. at 493.) McAllister testified that eventually, Officer Pepe brought Defendant into the other side of the attorney-inmate room, and then locked Defendant into the room. (Id. at 495.) McAllister testified that, as Pepe and Defendant approached, Defendant was wearing an orange jumpsuit, and was carrying materials, including a legal folder and a dictionary. (Id. at 494.) McAllister could not recall specifically whether Officer Pepe or Defendant had carried the materials in. (Id.) McAllister described the meeting with Defendant in the attorney-inmate room: There was very little conversation. Mr. Salim appeared to be upset and frustrated. And he had placed the disk in the computer, and then he gestured physically something like this, like look at this, indicating that the disk was not performing. It wasn’t launching. And, as I said, he appeared to be upset over there. And he was sort of displaying for us the nature of his complaint or one of his complaints which involved the computer and the disks and the way they functioned. Q: And how much did Salim actually say to you during this period when he was trying to use the computer? A: Very little. In fact, I think Charles Adler had asked what the number was on the disk, and Mr. Salim initially displayed it to him. But it was impossible to read the numbers through the mesh. So then Mr. Salim told Mr. Adler so he could write it down what the numbers on the disk — what they were so that Mr. Adler could then lodge a complaint with your office concerning this. (Id. at 497-98.) McAllister further testified that the meeting was largely nonverbal, and that Defendant did not sit down throughout the meeting: Q: Is it fair to say that [Defendant] did not talk to you throughout that entire meeting? A: That’s fair to say. He really didn’t communicate verbally throughout that meeting. Q: In fact, throughout that meeting, he stood throughout that entire 15 or 20 minutes? A: Yes, he did. I think he did. Q: Was there a chair in that room? A: There was a chair in that room. He sat on it when he removed his jumpsuit before leaving the cell, if I recall correctly, although I’m not certain of that. But the fair answer to your question is, he certainly stood, if not all the time, most of the time, and very possibly all the time. Certainly when we were having whatever communication we were having, he certainly wasn’t seated then. Q: The only communication you had with him was regarding the CD-ROM? A: Nonverbal. Q: That wasn’t verbal? A: No. Q: He didn’t say the CD-ROM is not working or anything like that? A: Not that I recall. Q: He basically tried to push the CD-ROM in and it wouldn’t work, correct? A: Exactly. And he gestured as if to say nonverbally, as if to say, look at this. (Id. at 538-39.) McAllister testified that within ten or fifteen minutes, Defendant told Officer Pepe that he wished to leave his half of the attorney-inmate visit room. Officer Pepe asked whether the visit was over, and Defendant answered that it was not, that Defendant needed to return to his cell to get another disk to work with the computer. (Id. at 498.) After Defendant indicated he needed to go back to his cell: I noticed that [Defendant] slipped off his jumpsuit and balled it up and had it in his hands. At some point he passed his material through the slot, and I believe that Officer Pepe placed that on the desk at the officers’ station ... (Id. at 499.) McAllister testified that, after Officer Pepe let Defendant out of the cell, Pepe “busied himself for a few moments at the officers’ station,” during which time Defendant stopped briefly to speak with El-Hage and his lawyers. (Id.) Within a few moments, Officer Pepe approached Defendant and indicated they would go back to Defendant’s cell. (Id. at 500.) During this time, Defendant was not handcuffed. (Id.) McAllister testified that, after Defendant left with Officer Pepe, he and Charles Adler waited for Defendant and Officer Pepe to return for “a significant amount of time.” (Id. at 501.) McAllister testified: And then ultimately the phone on the officers’ station desk began to ring and ring and ring, and Officer Pepe was not returning to answer it. So we were somewhat concerned about what was going on. And then ultimately we looked at the monitors that I’ve described and we saw a great deal of activity, assembling of the guards, apparently, down in the common area of 9 South. And we witnessed a lot of activity down there. (Id. at 501-02.) McAllister testified that after approximately 15 minutes, he saw corrections officers enter 10-South. (Id. at 502.) McAl-lister testified that, when the corrections officers entered, they “rattled each door, and that all of which appeared to be locked.” (Id. at 503.) The corrections officers then left McAllister’s line of sight. (Id. at 504.) McAllister testified that eventually he saw two officers dragging a person he believed to be Defendant, with a “very significant amount of blood that was being traded.” (Id. at 505.) McAllister testified that, after this, he saw Officer Pepe being escorted out of the unit by four people. (Id. at 506.) McAllister testified that he met frequently with Defendant at the MCC, and that in approximately 40 of the 100 times he had visited the 10-South Unit at the MCC, he had seen Defendant walking around the Unit unrestrained and accompanied only by Officer Pepe. (Id. at 514-515.) McAllister testified that he could not remember a time when he saw an inmate on 10-South moved by more than one officer (Id. at 516), and that in none of the roughly ten meetings he participated in with all five 98-CR-102B co-defendants (hereinafter, the “co-defendants”) and their attorneys were the co-defendants restrained. (Id.) McAllister also testified that on one day, he observed three inmates in the hallway, unrestrained, while they were changing cells. (Id. at 517.) Special Agent Joseph Foelsch of the Federal Bureau of Investigation was the Case Agent on the investigation of the attack. (Id. at 248.) He arrived at 10-South on November 1, 2000, after conducting some interviews at Bellevue Hospital, where Officer Pepe was taken after the attack. (Id.) Agent Foelsch testified that while he was at Bellevue Hospital he received from doctors a plastic comb, modified and sharpened into a knife, that had been recovered from Officer Pepe’s skull. (GX 100.) Foelsch said he also received from the doctors a small piece of plastic that appeared to have broken off the comb inside Officer Pepe’s head. (Tr. at 380.) A photograph, (GX 100P), depicted the knife soon after it was removed from Officer Pepe’s skull. (Tr. at 330.) Another photograph, (GX 22), showed a white hairbrush on a brown linoleum floor, covered with blood. Analysis of the blood found on the hairbrush showed that the DNA in the blood corresponded to Officer Pepe’s blood. (Gov. September 17, 2002, Exhibit B at 4.) Agent Foelsch testified that the brush, (GX 125) was sharpened and had been photographed at the crime scene. (Tr. at 265-66.) Agent Foelsch testified that crime scene evidence that was in plain view in Cell Six shortly after the attack was seized by investigators, and that later in the evening of November 1, 2000, a search warrant was issued, pursuant to which hundreds of documents and other items in Cell Six were seized, (Id. at 250), then placed into approximately ten blue plastic bins. (Id. at 286-90.) The documents and seized items were stored in an evidence room at 26 Federal Plaza. (Id. at 286.) Agent Foelsch testified that a third search was conducted on November 2, 2000 pursuant to a search warrant, and that during this search he and other investigators seized some 35 cardboard file boxes of documents relating to the Defendant’s legal case in 98-CR-1023, which had been kept in a storage and supply space on 10-South of the MCC. (Id. at 293.) These documents were also transported to the FBI Evidence Room at 26 Federal Plaza. (Id. at 294.) Agent Foelsch testified that on November 5, 2000, as he and an Arabic translator began to review the contents of a blue bin containing materials seized from Cell Six, he discovered handwritten notes, (GX 75-82), near the top of the bin. (Tr. 298.) One note, (GX 75), hand-written in English, reads: We are the Muslims who were accused falsely of bombing the embassy in Africa. We have captured the tenth fir. in MCC and we hav several lawyers and officals. They are undr our full control. We were forced to resort to the solution after we were deprived of our legal rights. We request the immediat release of (_) and send them outside the (U.S.). If the goverment worry about the safty of its citizines it has to comply with all our demands, otherwise it -will be responsible for any consequences. (GX 75, errors and omissions in original.) The Court received into evidence several photos of paper with notes and checklists written in Arabic, (GX 76-82), which were discovered by Agent Foelsch in his review of evidence on November 5, 2000. (Id. at 801.) One of the exhibits, (GX 76P-1), was a photograph of a piece of paper with handwritten Arabic text and numbers including the following: the work spoils for the others the work after the sentence is better somewhere the relief is coming for the [U/I] to be patient for the benefit in the future not to be drifted after the zealous work is allowed not a duty 180 storages a woman more than one guard cooling is the basis at the confrontation ounce [U/I] thickness (GX 76T-1.) Government Exhibit 76P-2, a photograph of the back of GX 76P-1, showed handwritten Arabic text and numbers including the following: Winning the War Against Azthma & Allergy Dr. Allan Cutler [preceding written in English] * * # * residences-door 89 Kazman al-thafri = as said Notes=the hunt [U/I] everything except opening cans/boxes 1293, 1292=placing things on the counter [U/I]:-Fortification after being exposed Impractical:-table, door [U/I], brooms and similar items, fire extinguisher — The room of the lieutenant — custodial room The hunt [U/I]:-Placing boxes near the door -Tying one hand to the door of the [U/I] [U/I]Untying the knot [U/I] leaving a note on the door stating it is open, and he is in the bathroom [U/I] [written in pen] in an official trip to prove my innocence of the charges unjustly and unfairly framed upon me by the Americans. And he needs to listen to defense witnesses. Please facilitate his mission and cooperate with him. . [Arabic numerals] 9753232 9822290 [written on the left side of the document] Dividing the work of hunting: Preparation Attack Questioning Cooling *Having a sufficient number It is possible to spare the guard for the purpose of hunting. Since the present is sufficient whereas the absent is on credit *Scenario [U/I] *[U/I] scenario after [U/I] roof *Not to rely on the hunt because it’s hypothetical First to work when [U/I] presence of a sufficient number The employees are better than the lawyers and the prisoners. (GX 76T-2.) Government Exhibit 77P-1, a photograph of another piece of paper, depicted handwritten Arabic text and numbers including the following: In the name of God 1) correctness/safety of action/work (before [crossed out], during video, camera, eyewitnesses, destroying [U/I] — after talk) 2) Informing all of the plan and its steps. 3) Division of labor and role sharing 4) Time calculation for all stages 5) Cooling methods 6) Fortification methods 7) Arming in the beginning of the action then in its progress 8) subversion (after causing the utmost injury to human lives) [utmost utilization of cutting off electricity] 9) Describing the zero hour and who determines that [crossed out] 10) [crossed out] 11) Informing prior to being exposed and after executing the utmost damage 12) Demands to the media as a whole, however with the administration they would be through certain stages. 13) [crossed out] Specifying the demands and their time arrangements 14) 3) All [U/I] 2) All cameras and lamps and the windows’ glass 1) Erasing all computers 5) Burning all counters 3) All instruments/appliances and the refrigerator and like 4) All alarm, fire and [U/I] sets 6) All TV and telephone lines (GX 77T-1.) Government Exhibit 77P-2, a photograph of handwriting on the back of 77P-1, showed Arabic text and numbers including the following: Duty of the guard 1. Handling and identifying the keys, and that we want to get out. 2. Keeping an eye on the back 3; The video and stopping it (it may not exist) 4. Exits and whether there are keys to them. 5. Electricity and its distribution 6. Calling upon others 7. Opening 46 and answering the telephone (it should be known whether to dial 111 or 333) 8. Luring the hunt and opening the door for it. 9. Informing the bottom/lower that the path is “clear” before going down. 10. [crossed out ] Informing the inquiring people that whom they inquire about came in the morning and left. (I said that until the matter gets revealed) 11. [crossed out ] he should say he is under [U/I] and that a gun is pointed at his head and he doesn’t know how he got hold of the gun [U/I] and they have all hostages [1. and 2. crossed out] 3. Bringing chains and fire extinguishers and locking the bathroom door 10) Civilian hunt [circled] lured not attacked 8) The party [U/I] for negotiations 8) Relying on God is very important and I think we will test [U/I] Getting rid of some prisoners 7) [crossed out] with Odeh 2=6 in fact [U/I] 1) [crossed out] working with Abu Dhahr is better and easier than Somo [U/I] [2. — 4. crossed out] 5) [crossed out] There is no bathroom in 9 and it is possible to use [U/I] 6) [crossed out] Inquiring from al-Saleh about Mamdouh on Saturday and Sunday and to confirm [U/I] (GX 77T-2.) Government Exhibit 78P-1, another photograph of a piece of paper discovered by Agent Foelsch, contained handwritten Arabic text and numbers including the following: After the completion: 1. Media (before going down) 2. Fortification 3. Negotiations 4. Sabotage — 1 5. (GX 78T-1.) Government Exhibit 78P-2, a photograph of the back of GX 78P-1, depicted a note written in Arabic that said merely, “In the name of.” (GX 78T-2.) Government Exhibit 79P-1, a photograph of another piece of paper, depicted notes written in Arabic: In the name of God — The guard — The lieutenant — Opening for the brothers/closing window 3, 2 — Quick arming (fire extinguisher, brooms) — One rick [U/I] then the rest — Arming (table, fire extinguisher, pipe 1, the counter, lieutenant (fire extinguisher), safe deposits, electricity room, brooms, the door of [U/I] — Keeping an eye — Hunt [civilian lured] — The mirror = The guard = Taking things from the room (the luggage, the knives, the paper for the window) = Quick arming from electricity = [crossed out] (GX 79T-1.) Government Exhibit 79P-2, a photograph of the back of GX-79, depicted notes written in Arabic: In the name of God [crossed out] 1935, 6822, 5149 [crossed out] 6541, 4687, 9444, 4322 — Triangle — the neighbors, [crossed out] the priest, I am Dabdouba — Control — Taking the boxes — Covering the windows — Arming (electricity, the counter, the lieutenant, the green, the table, the big and the small fire extinguishers) — Rick the Imam — The Completion — Preparing the hunting boxes — Keeping the eye = Warning against [U/I] = Making eyeglasses 1) Odeh (1) 1 2) Owhali (2) (3) Dabdoub (GX 79T-2.) The Court received into evidence Government Exhibit 80P, (Tr. at 309), a photograph of a scrap of a newspaper weath-ermap of the New York-Connecticut-New Jersey area, also containing a hand-drawn map with the following notations, written in Arabic: names or numbers a bridge street 2 tunnel 7 kilometers Avenue 3 bridges United Nations the Garden (GX 80T.) The Court received into evidence GX 81, a photograph of a sheet of paper with a table printed thereupon, with entries in one column headed “Video# or Title” and entries in an adjacent column headed “Search Location or General Summary.” (Tr. at 309.) The Court also received into evidence GX 81-P2, a photograph of the back of the paper depicted in GX 81, which contained a note handwritten in English, “deprive (of our legal rights).” (Id. at 309.) Agent Foelsch testified that the handwriting on GX 75 and 76 was analyzed by an expert. (Id. at 456.) Agent Foelsch testified that the handwriting analysis of GX 75 showed that 98-CR-1023 co-defendant Odeh had written the portions that were printed, while analysis of the parts written in “script” came back inconclusive. (Id.) The handwriting in English on the top of GX 76 was also analyzed, but came back inconclusive. (Id.) Agent Foelsch testified that the documents written in Arabic were not submitted for analysis because there was no one in the United States who could analyze Arabic handwriting. (Id. at 459.) Agent Foelsch testified that a fingerprint analysis performed by the FBI on GX 75-81 showed that Defendant’s fingerprints were the only ones on GX 75-81 that were identified. (Id. at 319.) Agent Foelsch testified that he had been at the crime scene when photographs were taken by investigating officers of bloodied lengths of plastic wrap that had been twisted into “ropes,” (GX 164), and that in photos appeared on Defendant’s bed in Cell Six, (GX 33), on the bed of Defendant’s roommate, (GX 32), and wrapped around the leg of one bed in Cell Six, (GX 40). (Tr. at 272-73.) Agent Foelsch also testified that, at the crime scene he had seen approximately five or six bear-shaped honey containers in Cell Six of the type sold at the MCC Commissary, (GX 152), and testified that crime scene photos (GX 39, 42, 48) showed a honey bear lying in Cell Six, and two honey bears, received into evidence as GX 130, lying outside of Cell Six. (Tr. at 280-83.) Agent Foelsch also testified that a red-capped bottle, like one filled with Keefe’s Louisiana Hot Sauce and moved into evidence by the Government, (GX 167), appeared in a crime scene photo taken in Cell Six. (GX 42, Tr. at 279.) Agent Foelsch further testified that the hot sauce bottles contained a chemical called capsai-cin, which was also found in honey bears found at the crime scene, (Tr. at 280), as well as in samples taken from brownish-red stains that were found on the walls of 10-South and in Cell Six. (Id. at 268, 281.) Agent Foelsch further testified about crime scene photos showing pieces of plexiglass on the floor of 10-South near Cell Six: Q: Can you tell or show the judge where on [GX] 18 and 19 there are hot sauce smears on the Plexiglas shield. A: I cannot see any on Government Exhibits 18 and 19. Q: Is it fair to say that no hot sauce was discovered on 18 and 19, correct? A: Could you rephrase that question? Q: I’m sorry. No hot sauce was ever discovered on the Plexiglas shield, correct? A: I disagree with that. Q: When was that discovered? A: I’ve seen photographs that show droplets of the rust-colored liquid that was consistent with the hot sauce in the past. Q: But they are not on — can you show us where they are on Exhibits 18 and 19? A: No, sir, I cannot. Q: Also I will show you 21, which is also a shot of part of the Plexiglas shield. Does it appear anywhere in that photograph, by that I mean hot sauce smears or stains? A: I am going to Exhibit 21. On the right-hand side towards the center of the sound barriers, it looks like a piece of wood, the gray-colored piece of wood, right at the tip of it there seems to be some of the Plexiglas still attached. This is Government Exhibit 21. There appears to be some rust — I don’t know if that is rust-colored or blood-colored. Q: Okay. A: And on Government Exhibit — if you want me — on Government Exhibit 22? Q: Yes. A: There seems to be one probably very small splash. Right at the edge of the white-colored weapon that had been manufactured, there seems to be a white-colored splash or a rust-colored splash. Q: On the what? A: It’s on the wood. It is on the gray wood almost right even with the white weapon. Q: But it’s not on the glass, is that fair to say? You don’t see it on the glass. A: I do not see any on the Plexiglas, no. (Id. at 393-94.) Agent Foelsch testified that on November 1, 2000, MCC personnel provided to FBI Agent Wilfred Baptiste a surveillance videotape, (GX 223), of Unit 10-South. (Tr. at 323.) After reviewing the videotape at the FBI building, Agent Baptiste informed FBI agents investigating at the MCC that the tape did not show the incidents of November 1, 2000. (Id. at 323.) The videotape, (GX 223), was then returned to the MCC. (Tr. at 323.) A second surveillance videotape, (GX 222, the “Stone tape”), was picked up from the MCC by FBI Agent David Stone; however this videotape was found to be of a period of time that was not relevant to the investigation. (Tr. at 324.) On November 7, 2000, Agent Foelsch again retrieved the first tape, (GX 223, the “Baptiste tape”) from the MCC. (Tr. at 324.) The Stone tape depicted video footage shot by cameras on 10-South, with rotating views of different cells and areas on 10-South. {Id. at 327.) Agent Foelsch testified that the Stone tape had multiple date and time stamps at the bottom of the screen, with at least one stamp superimposed over another. (Id.) Agent Foelsch theorized that the date and time had been incorrectly programmed on the MCC video recording device, and that the recording device had superimposed a date and time over the top of the date and time stamp imprinted by the video camera. (Id. at 328.) The top stamp showed that the year was 1996, and although agents at the FBI laboratory had attempted to determine the date and time printed by the camera, they were unable to do so. (Id.) Agent Foelsch testified that the Baptiste tape showed rotating views of the 9-South floor of the MCC, and also views of the recreation rooms, attorney visiting rooms, and landings on 10-South. (Id. at 325.) Agent Foelsch further testified that the time and date stamp on GX 223 indicated that it had been made on October 31, 2000 at approximately ten o’clock. (Id. at 326.) Aside from the Stone tape and the Baptiste tape, Agent Foelsch testified that he knew of no other videotapes that had been made of the events concerning the attack on Officer Pepe. (Id. at 329.) Special Agent Peter Kohn was a member of an FBI team assigned to process the scene of the attack on Officer Pepe— including photographing and collecting physical evidence. (Id. at 585-86.) Agent Kohn testified that when he arrived at Cell Six, after the attack on Officer Pepe, the lights in Cell Six were not working; they could not be turned on with the light switch. (Id. at 591.) Agent Kohn testified that electricians from the Bureau of Prisons were called and worked inside and outside Cell Six to attempt to fix the lights. (Id.) When the light switch was turned on, “you could hear a fizzing electrical noise,” and the lights didn’t work. (Id. at 589.) Agent Kohn could not verify how the electrician was able to fix the lights. (Id. at 591.) On these facts and on additional evidence from the Fatico hearing, the Government proposes a Sentencing Guideline Offense Level of 53, a Criminal History Category of VI, and a Guidelines sentence of life imprisonment. (.Pimentel letter at 3; Gov. August 16, 2002 at 2.) B. Defendant’s Case Defendant’s explanation of the events of November 1, 2000 and the reasons for those events differ significantly from the theory offered by the Government. In a pre-hearing submission, defense counsel contested significant portions of the factual sections of the PSR, as well as the Government’s characterization of his intent at the time of his attack on Officer Pepe. Among other arguments, counsel argued that the evidence did not support the conclusion that, in attacking Officer Pepe, Defendant was acting upon a plan to take hostages, that the evidence showed instead that Defendant was attempting to escape from the MCC. (Def. July 29, 2002 at 16-17.) However, at the Fatico hearing, in lengthy testimony on direct examination, Defendant revealed that he attacked Officer Pepe to get Pepe’s keys, so that Defendant could attack his attorneys, who were on 10-South at the time. (Tr. at 833.) Defendant testified that on November 1, 2000, his motivation was to attack his attorneys to make them understand there was no way for them to continue representing him, so that they would withdraw from the case. (Id. at 630.) Ultimately Defendant withdrew completely the explanation contained in his July 29, 2002 letter (the “escape” theory), (Id. at 1083), and on September 17, 2002, submitted an Amended Letter in Opposition to the PSR, which was corrected to conform to his new theory (the “attorney attack” theory.) Defendant testified that as 98-CR-1023 developed, he became increasingly frustrated with what he perceived to be the poor quality of his legal representation, and that he was unable to obtain from Judge Sand an order appointing substitute counsel, or to convince his lawyers to quit the case. (Tr. at 645-793) According to the Defendant, a detailed outline of his legal defense strategy had been intercepted by the U.S. Government and turned over to the prosecution because his U.S. lawyers had failed to assert that the papers were privileged. (Id. at 657-60.) Defendant catalogued numerous other sources of his frustration, including two allegedly botched attempts at investigating and interviewing potential witnesses in London and Germany, and a filing deadline in 98-CR-1028 that his counsel had failed to meet. {Id. at 677-80.) Defendant testified that he wrote a letter, dated February 22, (GX 4), to Judge Sand, complaining about his representation by Paul McAllister, and requesting substitute counsel. (GX 4.) In the letter, Defendant stated: For the last 14 months my lawyer Mr. Paul J. McAllister failed to solve my sufferings & my problems with FBI, Pros., & Prison. The most important thing, he also failed to handle my case properly. I continued delaying writing this letter to your honour, hoping that he will improve his performance, yet, I didn’t see any progress It became almost impossible to work together. So, I decided to kindly request to substitute him as soon as possible since the time is becoming closer to trial. (GX 4, errors and omissions in original.) Defendant testified that Judge Sand held a hearing regarding this letter, but did not grant Defendant’s application for a new attorney. (Tr. at 676.) Defendant tes-tilled that Judge Sand advised him it was up to Defendant to solve his problems with his attorneys. {Id.) Defendant testified that GX 80, a map of Manhattan drawn in pencil on a scrap of a newspaper weather map, had been drawn by Defendant in the summer of 1999, and that at the time Defendant had considered escaping the MCC and going to the United Nations building in New York City to seek refugee status. {Id. at 665; 667.) Defendant testified that by November 1, 2000, he had abandoned this plan. (Id. at 667.) In late May to June of 2000, Defendant was housed with Mohamed Sadeek Odeh, a co-defendant in 98-CR-1023. (Id. at 684.) Defendant testified that at that time Odeh was, like Defendant, also unhappy with his own attorneys, and had allegedly written the block-letter portions of GX 75. (Id.) Defendant testified that he wrote the portions written in script. (Id.) Defendant said that the notes were “merely some thoughts,” that he thought the note had been destroyed, and that because the note was a draft — with misspellings and corrections — it would have been unsuitable for real hostage negotiations. (Id. at 690.) Defendant also testified that although he had planned to take lawyers hostage at one time, and that the ransom note, (GX 75), referred to lawyers, the “lawyers” referred to in GX 75 were any lawyers on 10-South who were not representing any co-defendants. (Tr. at 962.) Defendant said that, for religious reasons it was not possible for him to take hostage any of those lawyers, “[i]n Islam it is not permissible for me to attack any lawyer as long as he represents me or representing someone sitting with me in the same room. That would be infidelity in Islam.” (Id.) Defendant testified that he was rotated into a cell with Wadih El-Hage, another of the 98-CR-1023 co-defendants in August 2000. (Id. at 692.) However, shortly thereafter, he was sanctioned and was moved into Cell Four, an individual cell. (Id. at 693.) Defendant testified that while he was confined in Cell Four, he wrote the notes and lists, (GX 76-79), that were discovered by Agent Foelsch. (Tr. at 695-97.) Defendant provided explanations of and corrections to the meanings of numerous entries and list items: An entry on GX 76 referred to “woman” — Defendant explained that this meant if hostages were taken, none among them should be a woman. (Id. at 711-12); “Jabara” on GX 76 was a reference to a children’s story that Defendant had written to himself with reference to his own children, (Id. at 717), and said it also meant “bear”; “Abu Dhar” on GX 77 was a reference to a guard on 10-South who had a bad back, (Id. at 732); “closing window on 3/2” on GX 79 was a notation that Defendant would need to cover the windows of the cell doors where inmates not involved in 98-CR-1023 were held, so that they could not see what was going on. (Id. at 735-36.) Defendant also testified that during his confinement in Cell Four he began fashioning knives from a comb (GX 100), and a hairbrush, (GX 125), by scraping them on the bottom of a cement bed in Cell Four. (Tr. at 740.) Defendant explained that, while in Cell Four, he thought carefully and concluded that the only way a hostage-taking plan could take place would be if all five 98-CR-1023 defendants were outside of their cells. (Id. at 967.) Defendant testified that an entry on GX 76, that was translated as “Scenario [U/I]” was written in Arabic to mean “Scenario of the lawyers,” and that the next entry, translated to read “[crossed out] Scenario after [U/I] roof’ was written in Arabic as “second scenario after the return from the roof.” (Id. at 966.) Defendant testified he had written these two entries on finding that there were two situations in which all five co-defendants would be out of their cells. (Id. at 967.) First, once a week at five in the morniüg, the five co-defendants were taken to the roof of the MCC, and although handcuffed, might be able to overpower the one or two guard(s) that accompanied them. (Id.) Defendant said he crossed out “after the return” from the “roof scenario” entry because he realized that the five co-defendants could attack a guard either on the way to the roof, or on their return from the roof. (Id.) Defendant testified that the second possible situation in which all five co-defendants would be out of their cells was when they and their attorneys met together in one of the recreation rooms on 10-South. (Id. at 968.) Defendant testified that after the meetings concluded and the lawyers had left, all five defendants would be in the recreation room together, and a guard would come to take them back to their cells. (Id. at 968-69.) At that point, the co-defendants could overpower the guard. On September 12, 2000, Defendant was moved out of Cell Four and into Cell Six with Mohamed Sadeek Odeh. (Id. at 747.) Defendant testified that while confined with Odeh, he asked Odeh to assist with the plan to take over the MCC. (Id. at 748.) According to Defendant, the discussion with Odeh about his plan proceeded over two to four days. (Id. at 768.) Defendant testified that Odeh was unwilling to help him, unlike in May to June 2000, when Defendant said he and Odeh had drafted GX 75 (the ransom note.) (Id. at 748-55.) Defendant testified that this time Odeh was so forceful in his opposition to Defendant’s plan that Odeh convinced Defendant that the hostage-taking plan had no chance of success. (Id. at 755.) Defendant testified that when he first began to speak to Odeh about the hostage-taking plan, Odeh cautioned him that “you have to understand that now you are in America and not in the remote parts of Africa,” that the security in American prisons was “much stricter than you think,” and that even if Defendant were able to take hostages and lock all the doors in the MCC, “there will be forces that will surround this building with laser weapons” and “they would come and attack you with gas through the ventilation that is here so that everybody on the floor would be asleep because of it.” (Id. at 748-49.) Defendant testified that he told Odeh that he planned to get the help of the rest of the co-defendants, and that he was asking Odeh to join him in the plan. (Id. at 749.) According to Defendant, Odeh agreed to hypothesize that Defendant would be able to lock all the doors to the MCC and fully restrain all the hostages and then asked Defendant what the next step would be. (Id. at 751.) Defendant testified “I told him that is it. We have finished with what we wanted. We would call them, I said, and we will ask them to release us,” and if they didn’t respond, “we would threaten to harm the hostages.” (Id.) Defendant testified that Odeh then asked “who would be released, to which Defendant responded, “I.” (Id.) Defendant testified: And he said, No. Why not me? I said, Okay. You and I. He said, Then who would be restricting the hostages? I said, The rest of our brethren. Friends. He asked me, you think they will agree with that after all this trouble that they would agree that you and I would leave the prison and they would stay back? But anyway, he said, Let me suppose