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Eye On Boise

Archive for June 2004

Time served a factor

U.S. Attorney Tom Moss said his decision not to retry Sami Al-Hussayen on immigration charges came in part because the possible penalty likely wouldn’t have exceeded the 16 months the student already has spent in jail. Even with a conviction and new jail sentence, with credit for time served, Al-Hussayen would be freed and sent home.

“No matter what the verdict, the end result would likely be the same – he would be deported,” Moss said. “I therefore determined that retrying him would be an unreasonable expenditure of time and resources for very little return.”

Moss added that he still thought the case was handled appropriately by prosecutors and investigators. “It’s a case that should’ve been tried,” he said. “It was a tough decision going in, but it was the right decision, given the facts we had to deal with.”

Sami’s going home

Federal prosecutors have struck a deal with attorneys for Sami Al-Hussayen: They’ll drop the remaining immigration charges against the University of Idaho graduate student, and he’ll drop his appeal of a deportation order and agree to be deported back home to Saudi Arabia.

“I think he wanted to see the immigration case through as well, and at the end of the day be able to say that he had been completely vindicated,” said David Nevin, Al-Hussayen’s attorney. “It was very clear, however, that this was going to mean waiting around for 6 to 9 months. … It was really time for Sami to be reunited with his family and get on with the rest of his life.”

Al-Hussayen’s wife and three young sons returned to Saudi Arabia earlier, rather than face deportation.

The 34-year-old computer science student was cleared of three terrorism charges and three immigration charges after an eight-week trial, but jurors deadlocked on eight remaining immigration charges, leading to a mistrial on those charges. Prosecutors had charged that Al-Hussayen’s work to maintain Web sites for Islamic groups amounted to aid to terrorists, but jurors disagreed.

Al-Hussayen could head home to Saudi Arabia within two weeks.

He Otter know

Congressman Butch Otter said today that he voted against this year’s transportation bill because it didn’t streamline the environmental permitting process for road projects. “It’s still taking us 15 years in order to build a bridge in New Jersey,” he told the Boise Metro Chamber of Commerce. “I personally volunteered to negotiate some mitigation with the Army Corps of Engineers and EPA, because I told them I had some experience.”

In 2001, Otter paid $50,000 in fines for his third violation of the federal Clean Water Act, for work he did without a permit to convert marshy areas on his property into park-like ponds.

Otter made frequent references to the incident in his remarks. “I also told them I sold my backhoe – it cost me $50,000 every time I got on it,” he said to laughter.

Later, when asked about his opposition to amnesty for illegal immigrants, Otter said, “If they’re gonna forgive and forget … I got some stuff I want EPA to do.”

Overall, the two-term Republican, who is running for re-election and faces Democratic challenger Naomi Preston, said Congress won’t do much between now and the election. “What’s gonna happen in Washington between now and November? Nothin’,” he said to laughter. “I should say very little. The Senate is really bogged down.”

He described the U.S. Senate as “one of the only institutions in the world that can successfully talk for 72 hours without doing anything.”

Preston back in race against Otter

Democrat Naomi Preston, who earlier had dropped out of her election challenge to GOP Rep. Butch Otter, says she’s back in the race.

Democrats had planned to choose a new challenger for the two-term congressman at their state convention over the weekend, but a few days before that, Preston, an Eagle, Idaho businesswoman, jumped back in. A campaign spokesman said she originally dropped out because of concerns about her mother’s health, but changed plans when her mother recovered.

“She’s definitely back in,” said campaign spokesman Delmar Stone. “If her mother passes away during this race, she’s going to run the race for her mother.”

No decision yet on charges

The U.S. Attorney’s office in Boise hasn’t reached a decision yet on whether to retry Sami Al-Hussayen on eight remaining immigration charges, and announced this morning that a decision likely will take “a little more time, a few more days.”

Al-Hussayen, a University of Idaho graduate student, was acquitted of three terrorism charges and three immigration charges after an eight-week trial that drew national attention. The jury deadlocked on eight more immigration charges, all of which are similar to the three the jurors cleared him on, and a mistrial was declared on those charges.

The Saudi student, who had nearly earned his doctorate in computer science when he was arrested last year, was the first person charged with providing material support to terrorists by operating Web sites. He also was the first person charged with visa fraud for engaging in out-of-class activities after certifying that he was coming to this country “solely” to study.

Al-Hussayen, former president of the UI’s Muslim Students Association, maintained his innocence, and his attorneys argued successfully that the Islamic web sites he helped maintain were merely religious and analytical sites, and not terrorist tools.

Al-Hussayen, 34, has been jailed since his February 2003 arrest. He remains in jail now, awaiting the prosecutors’ decision on whether to try him again on the remaining visa fraud and false statement charges, or drop them. Once that’s decided, the graduate student faces a deportation order, which he’s appealed.

They’ll decide on Friday

Federal prosecutors plan to meet on Friday, and decide whether to retry Sami Al-Hussayen on the eight remaining immigration charges. Al-Hussayen was acquitted of three similar immigration charges and three terrorism charges by a unanimous jury after an eight-week trial, but the jury deadlocked on the remaining immigration charges and a mistrial was declared on those.

The bigger picture

An article over the weekend by reporter Rick Schmitt in the Los Angeles Times includes this insight about Sami Al-Hussayen’s acquittal on terrorism charges:

“The verdicts point up a little-known reality of the Justice Department’s war on terror since the attacks of Sept. 11, 2001: While it has won scores of highly publicized guilty pleas in terror-related cases, often by dropping the most serious charges, its courtroom record is mixed.”

The Times article goes on to point out, “The Justice Department has taken only two other major terror-related cases to trial since the 9/11 attacks, and at least some defendants have been acquitted in each.”

Moss praises jurors

U.S. Attorney for Idaho Tom Moss said he was surprised and disappointed by Sami Al-Hussayen’s acquittal on terrorism charges, “but we accept it.”

“I think the ladies and gentlemen on the jury did a good job,” Moss said. “They were very attentive throughout the trial. I think they studied everything very thoroughly.”

Moss said the verdict “doesn’t diminish the good work that’s happened in this case.” He said, “I think our trial team did a good job, they worked long and hard, they went far above and beyond the call of duty working weekends and late into the night for many, many weeks putting this very difficult and complicated case together, and I’m just proud of every one of ‘em.”

He added, “I don’t think it’ll affect in any degree the way the war on terror proceeds. The Department of Justice is still committed, as is our office, to vigorously pursuing and prosecuting anyone who supports terrorism, and this case is not going to deter those efforts.”

First Amendment message

David Nevin, lead defense attorney for Sami Al-Hussayen, said as he left the courthouse that he thinks Al-Hussayen’s acquittal on terrorism charges sends a message.

“I hope the message is that the First Amendment is important and meaningful in this country, and actions protected by the First Amendment really shouldn’t be subject to prosecution,” he said. “I think (the prosecution of) this case represented a pushing of the envelope for what will be permissible in the future. I think this case suggests they won’t do that in the future - which I think is good for the First Amendment.”

There’s a verdict

The jury has just announced it’s reached a verdict. It’ll be announced in court shortly.

Just speculation

Here’s some speculation, since there’s no way to really know. The Sami Al-Hussayen jury has had only three questions for the court that interrupted its deliberations thus far. Could the questions provide a clue to which charges they’ve decided, and which they’re still debating? It’s a big question, now that the jury has announced it’s reached a unanimous verdict on some of the charges, but was at impasse on the rest.

One the first day of its deliberations, the jury stopped to ask a question just 15 minutes into its session. The question: What’s the definition of an “overt act,” of which there must be proof to find a conspiracy? Then, at 3:15 that afternoon, the jury had another question: “Does false statement or fraudulent statement include omission by definition?”

There have been no questions since – until today. This morning, jurors asked for a copy of the Code of Federal Regulations relating to student certifications on immigration forms. The basis for the immigration charges against Al-Hussayen – seven charges of visa fraud and four of false statements – is that he certified repeatedly that he was entering the country “solely” to study, but actually engaged in other activities outside class, including volunteer work to operate and maintain Web sites.

Could it be that the jurors disposed of the three terrorism charges – which include the conspiracy question - that first morning, and have been deliberating all this time just on the immigration charges? That’s one possibility suggested by the questions. Another is that the first day was simply devoted to trying to read and understand the 58 pages of jury instructions, and that process raised questions. Since the judge’s response to both those questions was simply to refer the jurors back to their instructions, they may have decided to stop asking.

What could it mean?

Scott McKay, left, Chuck Peterson and David Nevin, defense attorneys for Sami Omar Al-Hussayen, discuss the latest developments in the case just after the jury announced that it’s reached a unanimous verdict on some of the counts, but is at an impasse on the rest. Nevin said, “It’s always interesting to try to imagine what the process is, and my experience over the years is you can try all you want. … We really just have to wait and see.”

U.S. Attorney for Idaho Tom Moss, whose office is handling the prosecution in the case, had a similar reaction as he left the courtroom. “I don’t think it tells us anything,” Moss said.

The judge sent the jurors back to deliberate further, and ordered them not to disclose to anyone – including the court – which counts they’ve resolved and which are still pending. But a question jurors submitted to the court this morning, asking about federal regulations regarding student certification on immigration forms, suggests the jury is debating about the immigration charges, which consist of seven charges of visa fraud and four of false statements. They may already have reached a verdict on the three terrorism charges.

Cheerful again

Jurors in the Al-Hussayen trial pushed past 4:45 this afternoon with their deliberations, going about 45 minutes longer than usual, and appeared mostly relaxed and cheerful as they left the courthouse today in several groups. That was a contrast to yesterday, when they reportedly were uncharacteristically morose as they departed from their day of deliberations.

The jury begins deliberating again in the morning. They must reach unanimous agreement on Sami Omar Al-Hussayen’s guilt or innocence on 14 charges – two of conspiracy to provide material support to terrorists, one of providing that support, seven of visa fraud and four of false statements.

Looking for an end

As jury deliberations began their second week today, an attorney for one material witness was looking for an end. Abdullah Al-Kidd, a former University of Idaho football player, has been waiting to be called as a witness in the Sami Al-Hussayen case since March of 2003, when federal authorities stopped him from boarding a flight to Saudi Arabia.

Al-Kidd, formerly known as Lavoni T. Kidd before his conversion to Islam, has been under tight restrictions since then, requiring him to live with his wife and her family in Las Vegas, and restricting his travel to a four-state area including Nevada, California, Idaho and Washington – all so he could be available to testify at the trial. But the trial’s over now – and Al-Kidd never was called to testify.

His attorney, federal public defender Dick Rubin, has filed a motion to drop the restrictions on Al-Kidd, who was never charged with any crime. “I think they went too far, for too long a period of time,” he said.

Federal authorities initially thought Al-Kidd was leaving with a $5,000, one-way, first-class ticket to Saudi Arabia, but it turned out to be a $1,700, round-trip coach ticket with an open return date. Al-Kidd said he was traveling to the kingdom on a scholarship to study Islamic law for a year.

Rubin said, “Certainly the end of the case ought to bring about the end of the conditions.”

No verdict yet, it looks like

Here’s the scene outside the federal courthouse this afternoon where the media and its live trucks gathered in anticipation of a verdict in the Sami Al-Hussayen case. But at 3:30 p.m. the judge announced he was calling the jury in at 4 p.m. to dismiss them for the weekend. They will begin their deliberations again Tuesday.

They’re rolling now

Jurors in the Sami Al-Hussayen case deliberated from 9 to 4:30 today, and didn’t stop to ask the court any questions. They’ve adjourned for the day now, but will start up again at 9 in the morning.

Questions on false statements

In the Sami Al-Hussayen jury’s first day of deliberations yesterday, it ran into questions right away about its complex instructions. One of the questions was this: “Does false statement or fraudulent statement include omission by definition?”

In answer, Judge Edward Lodge just referred the jurors back to sections 45 and 46 of their instructions, which define “false statement,” “fraudulent statement” and “knowingly.”

The instructions say, “A ‘false statement’ requires the government to prove that the defendant knew the statement was untrue. A ‘fraudulent statement’ requires the government to prove that the statement was known by the defendant to be untrue and that the defendant made the statement with the intent to deceive.”

There’s no mention in the instructions about omissions.

The issue matters because, in addition to three terrorism-related charges, Al-Hussayen faces seven charges of visa fraud and four of false statements, all for entering the country while certifying that he was coming here “solely” to study. The government charges that his computer work for an Islamic group contradicts that.

Two of the charges relate specifically to a supplemental form that foreign students have been required to fill out since the 2001 terrorist attacks that asks them to list the charitable, fraternal or professional organizations they’re involved with. Al-Hussayen listed just two engineering societies, and didn’t mention the Islamic Assembly of North America.

Defense attorneys, in their closing arguments, noted that the supplemental form, unlike other official forms, requires no signature or certification. It also doesn’t mention religious organizations, though that fact wasn’t highlighted in the arguments.

Prosecutor Kim Lindquist, in his closing comments, said, “Could it be more clear of what it’s requiring of the defendant, to fill this out? … What a lame explanation for this, what a miserably lame excuse for this – because he didn’t sign it.”

Attorneys bow out, jurors take over

As the attorneys on both sides, Al-Hussayen supporters from Moscow, various witnesses and onlookers filtered out of the courthouse after the eight-week trial today, many seemed glad the long trial was finally over.

Both David Nevin, lead defense attorney, and U.S. Attorney for Idaho Tom Moss said it’s all up to the jury now.

Nevin, corralled by reporters as he left the building, said, “It’s good to have it submitted to the jury.”

Case goes to jury

Sami Al-Hussayen’s case was handed over to the jury just now, after hours of closing arguments and rebuttal. In the final comment, lead prosecutor Kim Lindquist told the court it had been “proven without any doubt that he was involved in business, and what kind of business, what was the nature of that business? A web site network whose purpose was to recruit and fund for terrorism, and that’s not protected speech.”

Jurors will begin their deliberations at 9 a.m. tomorrow.

‘That’s not the law’

Right at the culmination of the prosecution’s closing arguments, prosecutor Kim Lindquist offered the jury some thoughts about the First Amendment. “The First Amendment is an issue in this case only as it relates to the knowledge or intent of the defendant and his associates,” he said.

While acknowledging that the judge’s instructions to the jury note that speech is protected under the First Amendment unless it prompts imminent lawbreaking, Lindquist referred to a question he had asked repeatedly throughout his argument - whether inflammatory materials posted on web sites were just news or scholarly analysis, or whether they were something more sinister, such as support for terrorism and attempts to raise funds and recruits.

“The only way his speech could be protected in this context are if those materials had the purpose of scholarly analysis and just news,” Lindquist told the jury, prompting lead defense attorney David Nevin to rise to his feet.

“I’ll object,” Nevin interrupted. “That’s not the law.”

Judge Edward Lodge told the jury to go by the instructions, and make its own decisions.

Reading material

When Assistant U.S. Attorney Kim Lindquist waved a thick transcript of “The Intifada and the New Tartars,” a hate-filled, anti-Jewish, anti-Israel and anti-America lecture that a prosecution witness had read in part to jurors earlier in the trial, jurors flinched.

“Just holding up the transcript makes you gasp, because it took so long for us to get through it,” Lindquist said, not missing a beat.

He then urged the jurors to read the three-hour lecture during their deliberations.

They’re confident

On the eve of today’s closing arguments, defense attorneys filed a motion to acquit Sami Al-Hussayen on all the charges. The motion states that based on the testimony of the sole defense witness, even if all the government’s evidence is viewed in the most favorable light, “no reasonable jury could find guilt beyond a reasonable doubt.”

However, there’s been no action on that motion. Jury instructions and closing arguments begin in half an hour; then, the case is scheduled to be turned over to the jury for deliberations.

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About this blog

Betsy Z. Russell covers Idaho news from The Spokesman-Review's bureau in Boise.

Named best state-based political blog in Idaho for 2013 by The Fix

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