Posted on Tue, Aug. 22, 2006
WAR ON TERRORISM
Government suffers setback as Padilla terror count tossed
The U.S. government's terrorism case against former 'enemy combatant' Jose Padilla and two other Muslim
codefendants suffered a major setback in federal court in Miami.
BY JAY WEAVER
When Jose Padilla was charged in a South Florida terror-cell indictment in November, U.S. authorities boasted
their case was rock solid.
But in a stunning decision, a federal judge in Miami has lopped a big chunk off of the indictment, saying the
government wrongly overcharged the notorious former ''enemy combatant'' and two other Muslim men.
In a written order released Monday, U.S. District Judge Marcia Cooke threw out the first count of the
indictment -- that Padilla and the others ''conspired to murder, kidnap and maim persons in a foreign country . . . to
advance violent jihad'' abroad -- saying it repeated charges from two other counts.
The ruling also could wipe out possible life sentences if Padilla, Adham Amin Hassoun and Kifah Wael Jayyousi are
convicted at trial, scheduled for late January.
''There can be no question that the government has charged a single conspiracy offense multiple times, in separate
counts, when in law and in fact only one [alleged] crime has been committed,'' Cooke wrote in an eight-page ruling.
''The danger'' in the indictment, she wrote, is that it violates the double-jeopardy clause of the Fifth
Amendment, which prohibits the prosecution or punishment of a defendant twice for the same offense.
The dismissal of a first count in an indictment is unusual, but does not mean the government's case can't be won
on the remaining terror-conspiracy charge. Prosecutors and defense lawyers routinely spar over charges before trial,
striving to gain a tactical edge before presenting their cases to a jury.
The decision -- a major pretrial victory for defense attorneys Jeanne Baker, Kenneth Swartz, William Swor, Michael
Caruso, Orlando do Campo, Anthony Natale and Andrew Patel -- was the latest blow to the government's high-profile case.
''From the outset, the government has overcharged our client,'' Baker and Swartz, who represent Hassoun, said in a
joint statement. ``This decision helps to narrow the indictment and to improve our client's chances of receiving a fair
trial.''
The U.S. attorney's office is likely to appeal, which could delay the Jan. 22 start of the trial.
''We stand by the charges in this indictment and will respond after a full review of the court's order,'' U.S.
Attorney R. Alexander Acosta said.
In the same opinion, Cooke also ruled that prosecutors must choose between charging Padilla and the other two
defendants as being part of a five-year or a 15-year conspiracy that provided money, recruits and other resources for
terrorist activity overseas.
Depending on how they are charged, the defendants -- if convicted -- could face up to five years or 15 years in
prison.
The trio could still face life imprisonment, but prosecutors would have the difficult task of proving the three
Muslims directly contributed to terror-related deaths abroad.
THE TIME FRAME
Before Cooke's order, the time frame of the indictment, built largely on government wiretaps of phone
conversations, dated from October 1993 to November 2001.
The indictment was originally filed in 2004, but Padilla, a former Broward County resident, wasn't added until
November 2005 because the military had been holding him in a South Carolina brig for more than three years as an ''enemy
combatant.'' He was accused -- but never charged -- of being a ''dirty bomber'' who hoped to set off a radioactive
device on U.S. soil.
That allegation, which fueled Padilla's notoriety, is not even part of the Miami indictment.
In January, federal authorities brought Padilla, a U.S. citizen, to Miami to face trial. But earlier this summer,
the case started to lose momentum. As both sides prepared for trial, Cooke said the government's evidence appeared
``very light on facts.''
Last month, Cooke ordered prosecutors -- for the second time -- to provide more details of the evidence they plan
to use against Padilla, Hassoun and Jayyousi.
The indictment, for instance, claimed the suspected cell sent Padilla to the Middle East to train with other
militant Islamic extremists. But the indictment only suggested he was training with al Qaeda in the year before that
terrorist group led the Sept. 11, 2001, attacks.
DETAILS `INSUFFICIENT'
Cooke said prosecutors' initial response to her order for more details was ''insufficient.'' She ordered them to
supply evidence of about 230 transcripts of phone wiretaps that show the ''manner and means'' of the trio's terrorism
conspiracy -- including ''descriptions of the time, place, circumstances, causes, etc.'' of their activities.
In a July 7 letter, Assistant U.S. Attorney Russell Killinger restated some of the charges in the indictment and
added a few more details.
''As it pertains to this case, these defendants supported violence, including murder, maiming and kidnappings,
committed by mujahedin groups operating in various jihad theaters around the world,'' Killinger wrote. ``Specifically,
the violent Islamist groups in Egypt, Algeria, Tunisia, Libya, Somalia, Afghanistan, Tajikistan, Chechnya, Bosnia and
Lebanon.''
After Cooke rejected that response, Killinger urged her to reconsider.
''It is apparent, through repeated hearings on this subject, that defense counsel simply do not see a crime
here,'' he wrote in a Aug. 4 motion. ``If so, then so be it. That is the purpose of a trial.''
http://www.miami.com/mld/miamiherald/15329061.htm
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