Fifth Circuit Removes Judge From Terrorism Case for Anti-Government Bias

(CN) — Finding a Houston federal judge who called Justice Department prosecutors “blue-suited thugs” and compared the government to the Islamic State in refusing to impose a longer sentence on a man convicted of supporting the terrorist group, a Fifth Circuit panel on Thursday scrapped the sentence and ordered the case be reassigned to another judge.

U.S. District Judge Lynn Hughes, a 79-year-old Ronald Reagan appointee, has developed a reputation as a feisty contrarian over his 35 years on the federal bench, prone to didactic tangents and rants about governments from the city to the federal level trampling on individual and corporate rights.

Federal prosecutors appealed after Hughes sentenced Asher Abid Khan to 18 months in prison in June 2018, after Khan pleaded guilty to providing material support to the Islamic State group, also known as ISIS.

Khan admitted he had encouraged Sixto Ramiro Garcia, who he knew from their Houston mosque, to travel to Turkey and meet up with him there. The men planned to meet an ISIS recruiter with whom Khan had been in contact at a town near the Syrian border, then pass into Syria to join the terrorist organization.

Khan got cold feet in Turkey due to a ploy from his family. They called him and lied that his mother was gravely ill after suffering a heart attack and he needed to return to Houston to see her before she died. Khan gave Garcia cash for his trip to Syria and the ISIS recruiter’s phone number and flew to Houston.

Garcia and Khan stayed in contact over the following months with Garcia giving updates on his immersion into jihadism. Garcia recounted his training in a terrorist boot camp where he was equipped with an AK-47 and his involvement in a firefight, while Khan offered several times to give him money.

Because Garcia appeared to be fighting for a different militia, Khan encouraged him in July 2014 to try to join ISIS. Weeks later, Garcia said he had joined the group. But Garcia stopped communicating and his mother got word in December 2014 he had died fighting with ISIS in Iraq.

A federal grand jury indicted Khan in May 2015, leading to Hughes handing him an 18-month sentence for providing support to a designated terrorist organization, over the objections of prosecutors who had argued he deserved a 15-year sentence.

The leniency came as a surprise given Hughes had just six months earlier sentenced another Houston man charged with attempting to join ISIS to 16 years in prison.

Hughes had sympathy for Khan, whose defense attorney, in asking for a 12-month sentence, argued Khan was young and naïve and noted he was attending college and volunteering to educate others about the dangers of radical jihadism.

But a Fifth Circuit panel agreed with prosecutors that the sentence was procedurally unreasonable because Hughes had concluded a terrorism enhancement did not apply and remanded for Khan to be resentenced.

With prosecutors again pressing Hughes to sentence Khan to 15 years, the judge refused to budge.

Despite appeasing the Fifth Circuit by finding the terrorism enhancement applicable to Khan, Hughes found Khan’s lack of criminal history, studies, volunteering, steps toward rehabilitation, and age called for leniency and imposed the same 18-month sentence.

Hughes said Khan did not “need a lot of retribution because what he did do was so miniscule,” according to court documents.

The government appealed a second time and a Fifth Circuit panel ruled late Thursday that Khan’s sentence was substantively unreasonable, reversed it, remanded for a new sentencing and ordered the case be reassigned to a new judge.

“The judge characterized and discounted Khan’s conduct effectively so as to contradict the facts Khan admitted in his plea agreement. Furthermore, he failed to acknowledge that Khan had facilitated and fully supported the purposes and atrocities of ISIS,” Senior U.S. Circuit Judge E. Grady Jolly, a Reagan appointee, wrote for a three-judge panel of the New Orleans-based court.

Jolly noted the reassignment is regrettable as Hughes has been presiding over the complex case for more than four years, but said the district judge's comments had revealed a “level of prejudice—not just skepticism” against the government.

“The judge packed the record with hostile remarks against the government and its attorneys,” Jolly wrote. “He repeatedly indicated that government attorneys, especially those from Washington, are lazy, useless, unintelligent, or arrogant.”

He continued, “At times, these same sorts of comments were directed at the particular government attorneys appearing before him. What’s more, he compared the government with ISIS, referred to its attorneys as ‘thugs,’ and alluded to the Department of Justice as unethical.”

The 12-page order includes some of Hughes’ admonishments of the federal government taken from transcripts in the case. They include:

“I could write a whole book with nothing but governmental abuse. Not all of it is the Justice Department. EPA and the Securities and Exchange Commission have their blue-suited thugs, too.”

“You work for the government whose principal product is press releases, so don’t be talking about [ISIS’s] extravagant media. . . . One must be careful about pointing fingers.”

“Ordinary routine stuff does not get done because we’re spending all our resources with people like Eric Holder at a podium holding press conferences on people he’s going to crush. . . . Those people ought to go get a shovel or a hoe and report to the nearest national park and start cleaning up paths.”

Eric Holder was attorney general under former President Barack Obama.

Khan, now 26, has already served his sentence. His attorney declined a request from local media to comment on the ruling.

The case has been reassigned to U.S. District Judge David Hittner, another Reagan appointee.

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