WASHINGTON (CN) – A trial judge’s decision to allow prejudicial testimony and evidence at a terrorism trial deprived a Yemeni cleric and his assistant of a fair trial, the 2nd Circuit concluded, overturning their convictions for conspiring to provide material support to al-Qaida and Hamas.
Mohammed Ali Al-Moayad, a Yemeni bakery owner and imam, and his assistant, Mohammed Mohsen Zayed were convicted of conspiring to provide material support to the terrorist organizations al-Qaida and Hamas. Al-Moayad was also convicted of trying to provide material support to al-Qaida and providing material support to Hamas. Al-Moayad was sentenced to 75 years in prison, while Zayed received 45 years in jail.
The government built its case around information supplied by an FBI informant named Mohammed Al-Anssi, also a Yemeni national. Unemployed and heavily in debt, Al-Anssi approached the FBI seeking money in exchange for terrorism information. He gave Special Agent Brian Murphy a list of potential suspects, including Al-Moayad.
The FBI paid Al-Anssi $100,000 and flew him to Yemen three times to meet with Al-Moayad and record their conversations. The compensation disappointed Al-Anssi, who said he expected to receive millions of dollars for his assistance. He later admitted to setting himself on fire in front of the White House in an attempt to get more money from the FBI
The defendants say Al-Anssi entrapped them by arranging a meeting under the guise of raising money for their charity projects, including aiding the families of people who have been jailed or martyred, or whose houses have been destroyed by sectarian violence.
Al-Anssi told them he could secure funds through a wealthy American investor named “Saeed,” who was also an FBI informant.
Al-Anssi arranged to have the defendants meet Saeed in Frankfurt, Germany. The videotapes of their conversations in a hotel room depict Saeed invoking verses of the Qu’ran that refer to jihad and expressing his desire to fund mujahidin, or armed fighters.
The informants also pressed Al-Moayad to talk about the $20 million he allegedly donated to Osama bin Laden and the $3.5 million he purportedly gave Hamas. Al-Moayad admitted to having supported bin Laden in the past, but said it was back in the 1980s, “before all these crises happened.” He repeatedly distanced himself from bin Laden whenever the topic arose, explaining that their relationship ended after the conflict with Soviets in Afghanistan. He told law enforcement officers that bin Laden has since issued a fatwah, or religious ruling, calling for his death.
“Contrary to the government’s contention,” Judge Barrington Parker wrote, “the record fails to demonstrate Al-Moayad’s ‘longstanding participation in a conspiracy to provide material support to al-Qaida,’ other than some indication that Al-Moayad had a relationship with bin Laden in the past.”
In addition to entrapment, the defense team pushed the court to overturn the convictions based on the improper admission of testimony from Gideon Black, a Scottish student who was a passenger on a bus in Tel Aviv that had been targeted by a suicide bomber on Sept. 12, 2002.
Prosecutors linked the bombing to statements made by a Hamas representative at a wedding hosted by Al-Moayad the day before the bombing. The Hamas agent referred to “Hamas’ operation in Tel Aviv,” adding, “God willing, you will hear about it, you will read about it tomorrow in the newspapers and hear about it in the media. It brought down many of the invading occupiers, and thanks be to God, Lord of the universe.”
Prosecutors claimed he was referring to the bus bombing. They asked Black to take the stand and describe the bombing in detail, including how it killed his cousin.
Judge Barrington D. Parker agreed with the defense’s objection that the testimony was unrelated and “enormously prejudicial.”
The judge found other instances where the district court erred. When considered “in the aggregate,” Parker said, these errors “deprived defendants of a fair trial.”