Appeals Court Overturns 2 Terrorism Convictions
- Yemeni sheik's terror conviction thrown out
Thu October 2, 2008
NEW YORK (CNN) -- A New York appeals court Thursday overturned
terrorism convictions for a Yemeni cleric and his personal assistant,
saying they did not receive a fair trial. Sheik Mohammed Ali al-
Moayad and Mohammed Mohsen Zayed, were sentenced in 2005 to 75 and 45
years in prison, respectively, after being convicted of conspiring to
provide material support and resources to foreign terrorist
organizations. They now can have new trials under a different judge.
The lawyer for al-Moayad, Robert Boyle, said, "I'm extremely
gratified at the court's decision. I believe it is legally and
factually correct. I hope my client, who is elderly and not in good
health, will be given the opportunity to return to his family in
Yemen." The three-judge panel was unanimous in its decision, citing
evidentiary errors that likely influenced the outcome of the trial.
The judges found that certain pieces of evidence presented by
prosecutors were prejudicial and had the effect of denying al-Moayad
and Zayed a fair trial.
Zayed and al-Moayad were arrested in 2003 in a sting operation that
culminated in Germany. The government's case relied largely on
secretly videotaped conversations between the defendants and a pair
of undercover FBI informants at a Frankfurt hotel in 2003.
One of the informants, Mohamed Alanssi, testified that al-Moayad
boasted about giving money, weapons and recruits to al Qaeda leader
Osama bin Laden. The charges were brought in the Eastern District of
New York because al-Moayad allegedly collected terrorist funds at the
al-Farooq mosque in Brooklyn.
Now that the appeals court has vacated the convictions, prosecutors
have the option of appealing to the U.S. Supreme Court if they feel
there is a constitutional issue. They can retry the case or move to
Al-Moayad, who is in his 60s, is incarcerated at the Supermax prison
in Florence, Colorado, as is Zayed.
Boyle said he had called the prison and as of 4 p.m. Thursday was
still waiting to speak to his client.
CNN's Deborah Feyerick contributed to this report.
Appeals Court Overturns 2 Terrorism Convictions
October 2, 2008
The New York Times
Finding that a Yemeni cleric and his assistant had been deprived of a
fair trial because of errors by the presiding judge, a federal
appeals panel in New York on Thursday overturned their convictions in
a prominent terrorism case once hailed by the Bush administration
as "a significant blow to Al Qaeda"
The appeals court judges found that the defendants, Sheik Mohammed
Ali Hassan al-Moayad and his aide, Mohammed Mohsen Yahya Zayed, did
not receive a fair trial because the trial judge, Sterling Johnson
Jr. allowed the jury to hear inflammatory testimony and other
evidence that prejudiced the defendants' case.
The appeals panel sent the case back to the lower court, Federal
District Court in Brooklyn, but in a highly unusual step, directed
that it be assigned to a different judge.
Judge Johnson presided over the five-week trial in 2005. Both
defendants were convicted of charges including conspiracy to support
Al Qaeda and Hamas
amas/index.html?inline=nyt-org>, and were sentenced to long prison
Even before the trial, the case received wide attention when the
government's chief witness, a Yemeni informer, set himself on fire
scp=1&sq=yemeni%20fire%20white%20house&st=cse> outside the White
House. And in 2003, when John Ashcroft, then the attorney general,
announced the charges against Sheik Moayad, he said the sheik had
admitted to having given Osama bin Laden, $20 million before the
Sept. 11 terror attacks.
But in overturning the verdict, the three-judge panel of the United
States Court of Appeals for the Second Circuit, in Manhattan, ruled
that Judge Johnson erred in allowing the jury to hear evidence like
the graphic testimony
20aviv%20bus%20bomb%202002%20killed%20six&st=cse> of a survivor of a
fatal 2002 bus bombing in Tel Aviv, in which the defendants had not
been implicated. Prosecutors had said the testimony was necessary to
establish that the defendants knew that Hamas, which claimed
responsibility for the bombing, engaged in terrorist activity, a
point the defendants did not dispute.
Judge Barrington D. Parker Jr.
on_d_jr_parker/index.html?inline=nyt-per>, writing for the appellate
panel, said that the bombing, which killed six people, "was almost
entirely unrelated" to the charges.
He also wrote that Judge Johnson should not have allowed testimony
from another witness, Yahya Goba, who described spending time at a
Qaeda training camp in Afghanistan that Mr. bin Laden visited.
Prosecutors had called Mr. Goba, over defense objections, to explain
the significance of a training camp registration form found by
American forces in Afghanistan, on which a trainee had listed Sheik
Moayad as having recommended him.
But Judge Parker wrote that Mr. Goba's testimony ranged far beyond
that, as he described the camp's training in explosives and weapons
and the visits by Mr. bin Laden. He also summarized a speech Mr. bin
Laden gave in which he talked about the importance of "performing
jihad," Judge Parker noted.
Judge Parker wrote that the value of the testimony of both the Tel
Aviv bus bombing victim and Mr. Goba "was far outweighed by its
Robert J. Boyle, the lawyer for Sheik Moayad, who is 60, said he
was "extremely gratified" by the decision, "particularly its emphasis
on the cumulative effect of the trial errors."
"I hope this means that Sheik Moayad, who's elderly and not in good
health, will be able to go back to his country in the very near
future," Mr. Boyle said.
Mr. Zayed's lawyer, Steven A. Feldman, said: "Even in the war on
terror, justice knows no country. Justice was served."
Sheik Moayad, who was sentenced to 75 years in prison, and Mr. Zayed,
who is in his mid-30s and received 45 years, are both being held at
the federal "supermax" prison in Florence, Colo.
Robert Nardoza, a spokesman for the United States attorney's office
in Brooklyn, said, "We are reviewing the decision and will consider
the options available to the government before deciding our next
course of action."
If prosecutors choose to retry the case, they will have to go before
a new judge, as the panel directed in its 68-page opinion.
Stephen Gillers, a professor of legal ethics at the New York
University School of Law, said that typically appeals courts assume
that when there are trial errors, the lower-court judge will not
repeat the mistakes, and the case is returned to the same judge.
"It's extremely rare to send a case to a different judge simply for
errors," Professor Gillers said. "It shows a lack of confidence."
The panel, which also included Judges Joseph M. McLaughlin and
Richard C. Wesley, also said that the conduct of the prosecutors
probably increased the prejudicial effect of the two witnesses'
"During both examinations," Judge Parker wrote, "the government
continuously attempted (with a great deal of success) to elicit
testimony" that went well beyond the scope of its reasons for calling
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