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Jose Padilla’s sentence too lenient according to court of appeals, which also upheld all terrorist conspiracy convictions

In U.S. v. Jose Padilla, the court of appeals upheld the conviction of Padilla, commonly known as the “dirty bomber” who was held in solitary confinement for 3 years as an enemy combatant before he was indicted in Miami. Padilla along with Adham Hassoun and Kifah Jayyousi were charged with conspiracy to commit murder overseas and with providing material support intended to be uses in carrying out a conspiracy to murder overseas. The charges stem from activities in support of Islamic violence overseas. The case presented by the government showed the defendants formed a support cell linked to radical Islamists outside the United States and conspired to send money recruits and equipment overseas to groups the defendants knew use violence in efforts to establish Islamic states. This case had its roots in the South Florida area but extended across the globe to Egypt, Afghanistan, and Kosovo.

The evidence against Padilla consisted of a mujahideen identification form recovered from Afghanistan. Fingerprints on the form were linked to Padilla as well as his date of birth and country of origin. The form sated that the applicant had traveled to Egypt for study, Saudi Arabia for hajj, and Yemen for jihad.

The government’s case against the defendants consisted mainly English translations of secretly recorded phone conversations in Arabic. The case agent for the government testified as a lay witness giving his opinions about code words which he interpreted as code words for jihad or violent jihad related activities. He was questioned about each of the calls giving his opinion throughout the calls about the jihadist related groups and activities the defendants were involved with throughout the time period of the calls. He said that people involved in terrorism related cases use code in their communications. He then after reviewing the call transcripts gave his meaning or a long list of code works.

The main issued in the case is the admission of Kavanaugh’s testimony about his interpretation of the alleged code words used by the defendants. The defendant’s argued he could not give lay opinions about the conversations because he was not present during the conversations and did not have a rationally based perception of what the individuals meant. The court majority concluded that Kavanaugh testimony was rationally based on hid perceptions and his perceptions were he having read through the wiretap summaries plus hundreds of verbatim transcripts and listening to calls in English. The court concluded that lay witness FBI agents have been allowed to base opinion testimony on the examination of documents even when the witness was not involved in the activity about which he testified, relying primarily on U.S. v. Hamaker and U. S. v. Gold. Below are a few comments by the panel majority about Kavanaugh’s opinions:
1. “Kavanaugh could testify about the meaning of code words that he learned through his examination of voluminous documents during a five year investigation.”
2. “Kavanaugh’s knowledge of the investigation enabled him to draw inferences about the meanings of code words that the jury could not have readily drawn.”
3. “He limited his testimony to what he learned during this particular investigation and he testified that he interpreted code words based on their context.”

The panel found the evidence was sufficient against Padilla for a reasonable jury to find that he trained with al-Qaeda and shared the co-conspirators intent to support violent jihad overseas. The evidence was sufficient for a reasonable jury to find that both Padilla and Jayyousi were supporting mujahideen overseas engaged in murder maiming and kidnapping. The evidence supported the jury’s reasonable inference that Padilla and Jayyousi knew the training camps trained recruits in war tactics and they shared a common purpose to support violent jihad to regain lands that were once under Islamic control.

The district court did not abuse its discretion in allowing government to call Dr. Rohan Gunaratna as an expert witness in the area of al-Qaeda and its associated groups.

The district court did not err in admitting a 1997 CNN interview with Osama bin Laden. In admitting the tape, court only allowed a 7 minute portion, explained to the jury there was no indication the defendants were connected to 9/11, and instructed the jury not to consider the evidence for its truth but for the state of mind evidence against Hassoun and Jayyousi.

Other rulings Padilla’s motion to dismiss indictment for outrageous conduct by the government for his treatment while in custody at the Naval Brig in South Carolina due to his designation as an enemy combatant.
The panel upheld the exclusion of the “Uways” statement that was offered by Hassoun as his defense that he was not the person who recruited Padilla to travel to Afghanistan al-Qaeda training camp.

Padilla’s motion to suppress statements made during his interview by FBI agents at the Chicago O’Hare Airport was denied by the district court. The majority panel upheld portions of the district court order but did not agree entirely with the district court about the point in time that Padilla was in custodial status. In any event the statements made were not admitted
The court upheld the district court’s application of the terrorism sentencing enhancement. The enhancement applies if the offense is a felony that was involved or intended to promote a federal crime of terrorism.

The government cross appealed Padilla’s sentence which argued the court committed various sentencing errors. The majority of the panel found the sentence was substantially unreasonable because it did not adequately reflect his criminal past, his risk of recidivism, impermissible comparison to sentences imposed in other terrorist cases and based in part on inappropriate factors. The majority panel admonished the district court “to avoid imposition of a sentence inconsistent with those of similarly situate defendants.”

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