By Austin Nolen
On Friday, in quick succession, federal authorities obtained and executed an arrest warrant for 30 year-old Keonna Thomas for allegedly attempting to join the Islamic State and brought her before a judge before the work day ended. The formal charge in the complaint is that Thomas, a Philadelphia resident, attempted to provide material support to the group, which is designated as a terrorist organization, in violation of 18 U.S.C. § 2339B.
This arrest comes shortly after two similar sets of charges were filed, one against three Brooklyn men in February, another against two men in Illinois just weeks ago. In both of those cases, court records show that undercover government agents or informants were involved in the investigations, leading to criticism that the government is fabricating cases instead of pursuing real targets.
Court records do not provide information on whether the investigation into Thomas included undercover investigators or informants, but even if they were involved, this doesn’t necessarily mean that she was entrapped. As the Supreme Court ruled in the 1958 case of Sherman v. United States, citing an older case:
“…the fact that government agents ‘merely afford opportunities or facilities for the commission of the offense does not’ constitute entrapment. Entrapment occurs only when the criminal conduct was ‘the product of the creative activity’ of law-enforcement officials…To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.”
In other words, it is perfectly legal (and some would argue, desirable) for the government to pose as IS recruiters to catch someone who was already predisposed to commit a crime for the group; it would be illegal for an agent or informant to engage in conduct which gives someone the very idea to commit a crime and helps them toward that goal. In most jurisdictions, the defendant must provide evidence that he or she was not already disposed to commit the crime.
On the same day as her arrest, Thomas was ordered detained for three days pending her full bail hearing, under 18 U.S.C. § 3142(f), which permits such three day continuances when requested by the government. The defense may also request a continuance, which can last for five days.
Thomas will be in court again this coming Wednesday at 1:30 for a full bail hearing and a preliminary hearing, or a review of whether prosecutors have a plausible case. After that, Thomas will likely either be indicted for the crime or may choose to waive her right to an indictment. The Declaration will continue covering this case as it goes forward.
Correction: A previous version of this story stated that Thomas had been temporarily detained under 18 U.S.C. § 3142(d), which permits temporary detention of a defendant when they are accused of a new crime and are already out on bail, probation or parole for another offense or are not citizens or permanent residents. This was inaccurate.