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Appeals Court Overturns 2 Terrorism Convictions

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    Yemeni sheik s terror conviction thrown out Thu October 2, 2008 http://www.cnn.com/2008/CRIME/10/02/ny.terrorism.convictions/index.htm l NEW YORK (CNN) -- A
    Message 1 of 1 , Oct 4, 2008
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      Yemeni sheik's terror conviction thrown out
      Thu October 2, 2008
      http://www.cnn.com/2008/CRIME/10/02/ny.terrorism.convictions/index.htm
      l


      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
      dismiss.

      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
      http://www.nytimes.com/2008/10/03/nyregion/03cleric.html?
      _r=2&ref=nyregion&oref=slogin&oref=slogin


      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"
      <http://topics.nytimes.com/top/reference/timestopics/organizations/a/a
      l_qaeda/index.html?inline=nyt-org>.

      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
      <http://topics.nytimes.com/top/reference/timestopics/organizations/h/h
      amas/index.html?inline=nyt-org>, and were sentenced to long prison
      terms.

      Even before the trial, the case received wide attention when the
      government's chief witness, a Yemeni informer, set himself on fire
      <http://www.nytimes.com/2004/11/17/nyregion/17terror.html?
      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
      <http://www.nytimes.com/2005/02/15/nyregion/15sheik.html?scp=1&sq=tel%
      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.
      <http://topics.nytimes.com/top/reference/timestopics/people/p/barringt
      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
      unfair prejudice."

      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'
      testimony.

      "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
      each witness.

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