MANHATTAN (CN) — A Bangladeshi immigrant who attempted five years ago to detonate pipe bombs strapped to his chest in a busy pedestrian tunnel between Times Square and Port Authority went before a federal appeals court Wednesday to challenge three of his convictions that resulted in his life sentence for the botched attack.
The theory of placing a bomb on or near a mass-transit system made for an aggravating element at sentencing, statutorily raised the maximum sentence on one of the counts against Akayed Ullah to life in prison instead of 20 years.
Federal defenders argued at the Second Circuit on Wednesday that the government’s evidence failed to establish that Ullah had “placed” the bomb on the subway, within the meaning of the statute of count five, under the theory that he knowingly placed a destructive device “in, upon, or near railroad on-track equipment or a mass transportation vehicle” with “intent to endanger the safety of any person or with reckless disregard for the safety of human life.”
Ullah may have carried or transported the suicide-bomb rig, but he did not "place it" on or near the subway system, federal defender Colleen Cassidy said.
U.S. Circuit Judge Rosemary Pooler made swift work of the argument.
“How could you ever have placement without carrying? It doesn’t come from the heavens. In order to have a placement, you have to have a carry,” the Clinton-appointed veteran judge said. “Placement implies getting it to place — getting it, which means carrying or transporting.”
Pooler also noted that Ullah was convicted on other counts carrying life sentences, so this particular challenge may still not reduce his incarceration.
In the government's brief, Justice Department lawyers wrote that Ullah's placement argument "defies common sense and seeks to narrow subsection (a)(2) in a way that finds no support in the statute."
During the 30-minute hearing, U.S. Circuit Judge Myrna Perez was similarly skeptical of Ullah's position.
“Is this a question of statutory interpretation or rather one of fact, given what the bomb in question was, whether or not he had actually placed it,” the Biden-appointed circuit judge asked. “It’s a specific type of bomb, right? At that point does it become a fact question? There’s no definition of what placement means.”
U.S. Circuit Judges Pooler and Perez were joined on Wednesday by U.S. District Judge Jed Rakoff, who sat by designation on the three-judge panel.
The Second Circuit panel did not immediately rule on Ullah’s appeal.
Ullah, now 32, was arrested in December 2017 after his homemade bomb — packed with metal screws and rigged with Christmas tree lights — failed to fully explode, leaving him with serious burns. The detonation spread panic but caused only minor injuries to those near him in a pedestrian tunnel beneath Times Square and the Port Authority bus terminal.
At trial, Ullah’s defense counsel insisted that the then-27-year-old was suicidal and had only intended to kill himself when he boarded a Manhattan-bound A train from Brooklyn with plastic zip ties attaching homemade explosives to his torso.
The defense has argued more recently in their appeals brief that Ullah was an electrician, so he knew how to connect or disconnect the device, which was not a functioning bomb during his subway ride from South Brooklyn to the subway station near the New York Port Authority Bus Terminal in Midtown Manhattan.
“He traveled with it disconnected and had the device strapped to his chest with the battery in his pocket,” the filing states. “He neither intended to endanger nor risked endangering others on the subway.”
A New York jury convicted Ullah on all six counts in 2018. He faced concurrent life sentences on three counts, with a mandatory prison sentence of at least 35 years.
The fact that the homemade suicide bomb strapped to Ullah’s chest malfunctioned did not render his “intent any less sinister,” U.S. District Richard Sullivan said his sentencing last year.
Federal prosecutors argued he should spend the rest of his life behind bars for a “premeditated and vicious” terror attack committed on behalf of the Islamic State group.
Prosecutors alleged Ullah, who lived in Bangladeshi enclave in the Kensington neighborhood of South Brooklyn, began his radicalization by extremist Islamic terrorist ideology in 2014.
While in custody at the Metropolitan Correctional Center later in December 2017 after his arrest, Ullah reportedly began chanting “more is coming” at a correctional officer, and then told the officer: “You started this war, we will finish it. More is coming, you’ll see.”
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