After 9th Circuit reversal, judge shows change of heart at fellow Marine's terrorism sentencing
A judge jailed Jason Fong without bail after his arrest in 2021, but the 9th Circuit intervened. Now the same judge is allowing him to stay out of prison for the holidays.
A former U.S. Marine Corps reservist recently sentenced to nearly four years in prison in a criminal terrorism case will stay out of custody for another month so he can celebrate the holidays with his family.
Jason Fong was already out of jail on bond when he was sentenced Nov. 27 in Santa Ana, California, so U.S. District Judge David O. Carter’s gesture wasn’t uncommon. But it was a reversal from how the judge, himself a former Marine, reacted after Fong was arrested nearly three years ago.
Back then, Carter ordered Fong jailed pending trial, deeming him “an extraordinary risk” to public safety and reversing a magistrate judge’s decision to grant him bail. The move sparked a 9th Circuit appeal and, eventually, an attempt to recuse the judge that he himself rejected.
The recusal motion detailed comments Carter made to Fong that Fong’s lawyer Karren Kenney described as “hostile” and said “revealed his personal bias against the defendant and his lack of impartiality due to his military background.” Carter’s statements included telling Fong that “you planned on leaving the military, which you’re entitled to do --- because the U.S. Army are terrorists, and so are the Marines.”
“These comments by Judge Carter were not due to reading from an exhibit presented before the court, but rather from the Judge looking at the defendant during the hearing, and mocking the defendant’s opinion as stated in chats contained in the Government’s discovery,” Kenney wrote in her July 2021 motion. “Judge Carter’s attitude towards the defendant belies a hostility that a ‘fair-minded person could not entirely set aside,’” quoting a 1980 U.S. Supreme Court case.
Kenney appealed Carter’s rejection of the motion to the 9th Circuit, but the court said it didn’t have jurisdiction because the case wasn’t adjudicated. Fong then decided to take his charges to a jury, but, a few days into the January 2023 trial, Carter called a mistrial after a bizarre interruption involving a billionaire CEO who unwittingly entered the courtroom during sealed testimony.
Fong then copped a plea, and the judge showed a change of heart at the Nov. 27 sentencing that will keep Fong out of prison through the end of 2023.
During the 39-minute hearing, Fong told 79-year-old Carter, who earned a Purple Heart and Bronze Star in the Vietnam War, that he’d been driven by “grandiose thinking,” according to the Orange County Register. Fong also apologized to his family and for breaking his Marine oath, and Carter complimented him for his comments, his post-arrest conduct and his “efforts to better yourself through education.”
“On the other hand, I just don’t understand how you could betray your oath to the Marine Corps and the country,” said Carter, who drew national attention last year in a series of rulings criminally implicating former President Donald Trump and his lawyer John Eastman for their role in the 2020 election false fraud claims and the attempted Jan. 6 insurrection. “I want you to know that. I don’t know how you can support a terrorist organization. I want you to know that.”
Carter rejected Fong’s request that he be sentenced only to credit for the approximately 27 months he already served in jail and on home confinement, instead imposing the 46-month sentence requested by prosecutors.
He gave Fong until Jan. 10 to surrender to the Bureau of Prisons.
‘An extraordinary risk…beyond a reasonable doubt’
Nearly 2 1/2 years ago, Carter wanted Fong locked up without bail pending trial. It was March 2021, and U.S. Magistrate Judge Karen E. Scott had granted Fong’s request for bail after nearly five months in jail, authorizing his release on $300,000 and an ankle monitor. Federal prosecutors asked Carter to stay Scott’s order, and he did so on March 9, 2021, then ordered Fong permanently jailed without bail after a hearing nearly a month later.
At the time, Fong was charged with a federal crime that accused him of hiding his efforts to provide resources and funds to a foreign terrorist organization, which prosecutors identified as Hamas, the militant group based in Gaza. Investigators found weapons in Fong’s home in Irvine, California, according to a prosecution exhibit list, including an AR-15 style assault rifle, two handguns, a bolt-action rifle with a scope, several thousand rounds of ammunition, a gas mask and body armor. His lawyers said early on that he’s “on the Autism spectrum,” which hindered his ability to understand that he was coordinating with terrorists.
As detailed in the recusal motion, Carter had a lot to say to Fong during the April 2, 2021, bail hearing.
The judge finished his comments by telling Fong, “I find you an extraordinary risk beyond clear and convincing, in fact, beyond a reasonable doubt, and that there are no combinations at this time or conditions that would reasonably address the danger you present.”
But that wasn’t the final word. Kenney appealed Carter’s order to the 9th Circuit, which ordered the judge to explain why he believed release conditions, including those authorized by Judge Scott, “would be inadequate to reasonably address the risk of danger posed by the appellant.”
Carter issued a “reason and finding” on June 21, 2021, that said his order was based on Fong’s “military background,” his “statements indicating propensity for martyrdom,” his “attempts to affiliate with terrorist groups” and statements he made “indicating a desire to kill others and use bombs.”
“Defendant poses an extraordinary risk to society that transcends the magistrate’s restrictions,” Carter wrote.
A three-judge 9th Circuit panel called Carter’s reasoning “inadequate” because his order “simply reiterated its earlier findings regarding the danger appellant posed to the community and concluded that this danger ‘transcends the magistrate’s restrictions.’”
The panel ordered Fong released from jail, and he’s been out of custody on home confinement ever since. Kenney filed her recusal motion after Fong was released, which the judge rejected in a three-page order issued Aug. 10, 2021, saying his determination that Fong is an unmitigated danger to the community “was based solely on the overwhelming evidence” and not a personal bias against Fong.
Kenney then filed a writ petition with the 9th Circuit that repeated some of Carter’s comments and said, “The entire hearing is inured with exchanges like this.”
“These are simply not pieces of knowledge an objective and unbiased observer would bring to the case. Furthermore, this information is not information the district court learned over the course of Petitioner’s case, either,” Kenney wrote. “All of this editorializing comes from extrajudicial sources – and all at the beginning of the case, rather than at the end, after the district court has heard all of the facts and evidence in the case.”
The U.S. Attorney’s Office opposed the writ, aruging the 9th Circuit didn’t have jurisdiction. The 9th agreed, saying Carter’s “denial of appellant’s motion to recuse is not a final judgment or an immediately appealable collateral order.”
Five months later, prosecutors charged Fong with more crimes.
The most most recent indictment, filed in April 2022, alleged four counts of attempting to provide material support to a foreign terrorist organization. It says he used the names asian_ghazi, Jason Asian Ghazi and Mustafa Ahmed Al_Hakim while trying to provide tactical, combat and weapons training materials to Hay’at Tahrir al-Sham, a Sunni Islamist militant group active in Syria, as well as information on how to make chemical weapons and improvised explosive devices. He also was accused of trying to raise cryptocurrency for Hamas. Both Hamas and Hay’at Tahrir al-Sham are considered to be foreign terrorist organizations by the U.S. Secretary of State.
Fong went to trial in January 2023 with an agreement in place between between the U.S. Department of Justice and Fong’s attorneys that allowed three prosecution witnesses — two undercover FBI agents and a confidential informant — to testify wearing disguises, under pseudonyms and without members of the public in the courtroom beyond Fong’s family. Their testimony was to be broadcast via audio in another courtroom where the public could listen, but no one locked the courtroom door or posted a sign warning of the closed courtroom.
So when Isaac Larian, CEO of MGA Entertainment, was on a break in his own trial down the hall, he went to Carter’s courtroom to say hello to a judge he’s admired since the 2011 trial in MGA’s epic intellectual property battle with Mattel over the Bratz and Barbie dolls. Carter declared a mistrial at the request of Fong’s lawyers, who along with Kenney included Charles D. Swift of the Texas-based Constitutional Law Center for Muslims in America.
“Isaac greatly admires Judge Carter and was just hoping to say hello,” Larian’s lawyer at the time, Jennifer Keller, told me in a text message. “Anyone could have wandered in.”
Two months after the mistrial, Fong struck a plea agreement in which he pleaded guilty to a single felony charge of making false statements involving international terrorism.
The charge carries a maximum eight years in prison, but Assistant U.S. Attorneys Christine Ro and Solomon Kim agreed to calculate Fong’s offense level at 26 under the U.S. Sentencing Guidelines, which brings a standard range of 63 months to 78 months in prison for someone with no prior criminal history.
They went lower in their formal sentencing recommendation, reducing the offense level to 23 to credit Fong’s acceptance of responsibility, then agreeing he was due another two-point reduction to 21 under a change in sentencing guidelines. That gave Fong a standard range of 37 months to 46 months, and prosecutors recommended Carter impose the high end.
“Defendant’s lies not only minimized his own conduct in the ‘Mujahideen in America’ chat group that he created and controlled, but they were also aimed to divert attention away from other potential FBI subjects who were engaged in online hate speech,” according to the 21-page sentencing memorandum.
Prosecutors also said they don’t believe Fong has autism based on his evaluation by a forensic psychiatrist who said he didn’t speak in simple sentences or show “markedly odd, nonverbal communication.”
“Defendant’s alleged deficits appears to have gone mostly unnoticed in his educational and military experiences,” according to the Nov. 20 memo. “Even if defendant had a mild form of ASD at the time of the offense, it is not a mitigating fact.”
The memo continued, “Surprisingly, defendant argues that his condition makes him susceptible to exploitation despite his successful career in the Marine Corps where defendant achieved the rank of Sergeant. But there is no question that defendant knew he was committing a crime when he lied to the FBI and that he understood the seriousness of lying to the FBI in a terrorism investigation.”
Meanwhile, Fong’s lawyers, argued autism “explains much of Mr. Fong’s seemingly contradictory behavior.”
“Autism explains Mr. Fong’s initial attraction to the structure of the Marine Corps and his difficulty with advancing into leadership positions among his fellow Marines, the lack of meaningful romantic relationships and the struggles in school,” according to their Nov. 20 sentencing memorandum. “It also explains Mr. Fong’s intense interest in Islam which at least in part a driving factor in why the FBI focused on Mr. Fong as opposed to others and his subsequent abandonment in favor of Catholicism and currently Lutheranism.”
The memo was filed with Fong’s transcript from Catholic Distance University, an online Catholic school based in Charles Town, West Virginia, and his Nov. 10, 2023 acceptance letter from Geneva College, a Christian school in Beaver Falls, Pennsylvania. It also was filed with
The 23-page memo was filed with four letters from Fong’s family members, including one from his father that said he and his wife y wife “were shocked when the FBI and the police SWAT team busted our front door and pointed automatic weapons at us on May 20th, 2020.”
“I really did not have any clue how what Jason was doing would lead to this,” Charlie Fong wrote.
The letter continued, “Mr. Carter, we know that you are a fair and just person after seeing you delivered sentences to other convicted.”
“Jason is not a criminal by nature; he is a patient with a mental disability, who needs guidance and symptom management,” Charlie Fong concluded. “Therefore, we pled to you to make this period of home arrest counted as time served so we can continue helping him finishing the college education.”
In addition to 46 months in prison, Carter ordered Fong to serve three years on supervised release after he’s out. He’s to seek mental health treatment, and he’s barred from associating “with anyone known to him to be a member of Hay’at Tahrir alSham (“HTS”), Malhama Tactical, or Al-Qassam Brigades organization and others known to him to be participants in said organizations’ criminal activities.”
He has until noon on Jan. 10 to surrender.
Coming this week
I’m continuing to watch Young Thug’s racketeering trial in Fulton County Superior Court in Atlanta, Georgia. I’m streaming the trial on my YouTube channel. Day 10 is to begin by 10 a.m. ET / 7 a.m. PT on Monday.
I’ve got the previous trial days saved and time-stamp indexed for each witness and all examinations. Check out the playlist here.
Did I get my first rap song diss?
That’s the speculation in this piece on Nicki Minaj’s new album.
One of her songs includes the line, “Stay in your Tory lane, b**ch, I’m not Iggy.” Many say the lyric is about Megan Thee Stallion, but some also wonder if it’s about me.
“There’s another person this particular lyric could be about. Fans took to Genius.com, the popular lyric site, to add a citation to the lyric.
“Nicki could also be coming for Meghann Cuniff, a legal journalist often referred to as ‘MeghannTheeReporter,’ who reported heavily on the Megan and Tory case,” they offered.
Cuniff reportedly shared an Iggy Azalea letter—in which Azalea wrote about Tory Lanez’s character during the Megan Thee Stallion shooting case. Cuniff also reported on the Kenneth Petty (Minaj’s husband) rape case from 1995. “Stay in your Tory lane,” might just be a reference to both cases here.”
I have no idea if the line is about me, but it’s surreal that I’m even mentioned as being a possibility.
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