528 F.3d 210 (4th Cir. 2008), 06-4334, United States v. Abu Ali

Docket Nº:06-4334, 06-4521.
Citation:528 F.3d 210
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ahmed Omar ABU ALI, a/k/a Reda, a/k/a Hani, a/k/a Abi Umar, a/k/a Ashraf, a/k/a Abu Abdullah, Defendant-Appellant. United States of America, Plaintiff-Appellant, v. Ahmed Omar Abu Ali, a/k/a Reda, a/k/a Hani, a/k/a Abi Umar, a/k/a Ashraf, a/k/a Abu Abdullah, Defendant-Appellee.
Case Date:June 06, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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528 F.3d 210 (4th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ahmed Omar ABU ALI, a/k/a Reda, a/k/a Hani, a/k/a Abi Umar, a/k/a Ashraf, a/k/a Abu Abdullah, Defendant-Appellant.

United States of America, Plaintiff-Appellant,

v.

Ahmed Omar Abu Ali, a/k/a Reda, a/k/a Hani, a/k/a Abi Umar, a/k/a Ashraf, a/k/a Abu Abdullah, Defendant-Appellee.

Nos. 06-4334, 06-4521.

United States Court of Appeals, Fourth Circuit.

June 6, 2008

Argued: June 21, 2007.

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ARGUED:

Joshua Lewis Dratel, New York, New York, for Ahmed Omar Abu Ali, Appellant/Cross-Appellee. David Howard Laufman , Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for the United States, Appellee/Cross-Appellant.

ON BRIEF:

Joseph Margulies , University of Chicago Law School, Chicago, Illinois, for Ahmed Omar Abu Ali, Appellant/Cross-Appellee. Chuck Rosenberg, United States Attorney, Stephen M. Campbell , Assistant United States Attorney, Marla B. Tusk, Trial Attorney, Department of Justice, Office of the United States Attorney, Alexandria, Virginia, for the United States, Appellee/Cross-Appellant.

Before WILKINSON , MOTZ , and TRAXLER , Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge WILKINSON , Judge MOTZ , and Judge

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TRAXLER wrote a joint opinion in this case. Judge WILKINSON and Judge TRAXLER join the opinion in its entirety. Judge MOTZ joins the opinion with the exception of footnote 5 and Section VII, as to which she has written a dissenting statement and opinion.

OPINION

WILKINSON , MOTZ , and TRAXLER , Circuit Judges:

Ahmed Omar Abu Ali was convicted by a jury of nine criminal counts arising from his affiliation with an al-Qaeda terrorist cell located in Medina, Saudi Arabia, and its plans to carry out a number of terrorist acts in this country. He was sentenced by the district court to 360 months imprisonment and 360 months of supervised release following imprisonment. Abu Ali appeals his convictions and the government cross-appeals his sentence. For the following reasons, we affirm the conviction, but we vacate and remand for purposes of resentencing.

Unlike some others suspected of terrorist acts and designs upon the United States, Abu Ali was formally charged and tried according to the customary processes of the criminal justice system. Persons of good will may disagree over the precise extent to which the formal criminal justice process must be utilized when those suspected of participation in terrorist cells and networks are involved. There should be no disagreement, however, that the criminal justice system does retain an important place in the ongoing effort to deter and punish terrorist acts without the sacrifice of American constitutional norms and bedrock values. As will be apparent herein, the criminal justice system is not without those attributes of adaptation that will permit it to function in the post-9/11 world. These adaptations, however, need not and must not come at the expense of the requirement that an accused receive a fundamentally fair trial. In this case, we are satisfied that Abu Ali received a fair trial, though not a perfect one, and that the criminal justice system performed those functions which the Constitution envisioned for it. The three of us unanimously express our conviction that this is so in this opinion, which we have jointly authored.

Some differences do exist, however, among the panel members. Judge Wilkinson and Judge Traxler join in the opinion in its entirety. Judge Motz dissents (in footnote 6) from the majority's holding that the interrogation of Abu Ali on June 15, 2003, did not constitute a joint venture between law enforcement officers of Saudi Arabia and those of the United States. Judge Motz likewise dissents from Section VII of the panel's opinion, which directs that the case be remanded to the district court for the purposes of resentencing.

I.

A.

Abu Ali is an American citizen. He was born in Texas and raised in Falls Church, Virginia by his mother and father, the latter of whom was employed at the Royal Embassy of Saudi Arabia in Washington, D.C. After graduating from the Saudi Islamic Academy in Virginia, Abu Ali studied for one semester at the University of Maryland and then enrolled in the Institute in Virginia to study Islamic Sciences.

In September 2002, at the age of 21, Abu Ali left his home in Falls Church, Virginia and traveled to Saudi Arabia to study at the Islamic University in Medina. Within a few months of his arrival in Medina, Abu Ali contacted Moeith al-Qahtani (“al-Qahtani" ). Abu Ali and al-Qahtani had become friends two years earlier when Abu Ali attended an Islamic summer study

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session in Saudi Arabia and, upon his return to Saudi Arabia, Abu Ali renewed the friendship. The two “often talked about jihad" and, in November 2002, al-Qahtani introduced Abu Ali to Sultan Jubran Sultan al-Qahtani (“Sultan Jubran" ), who was also known by the name of “Ali." 1 Sultan Jubran had been a mujahid soldier during the United States bombing of Tora Bora in Afghanistan (a major battle between al-Qaeda/Taliban forces and United States forces during the Afghanistan invasion) and, when introduced to Abu Ali, was second-in-command of an al-Qaeda cell in Medina. Abu Ali “accepted and liked the idea" of meeting the “mujahid brother." After their introduction, he and Sultan Jubran also talked “about the virtues of jihad" and exchanged cell phone numbers to keep in touch.

In the ensuing months, Abu Ali and Sultan Jubran continued their discussions. During one such meeting, Sultan Jubran questioned Abu Ali “about gathering and crowded places" in the United States. Abu Ali, who “understood the implication of his question," informed Sultan Jubran that these “would be amusement parks ... and stadiums." At one point, when Abu Ali was unsuccessful in contacting Sultan Jubran by cell phone, he obtained the latter's email address from al-Qahtani and sent Sultan Jubran a message asking that he be contacted. Shortly thereafter, Sultan Jubran did contact Abu Ali and the two men met again in Jiddah, Saudi Arabia, which is just to the south of Medina. At this meeting, Sultan Jubran urged Abu Ali to engage in jihad against America. According to Abu Ali, Sultan Jubran “told me that they had something to do" and “asked [me] to be ready to join them in working against America." Abu Ali “immediately accepted, because of my hatred of the [United States] for what I felt was its support of Israel against the Palestinian people, and because I was originally from Jerusalem."

Later, Sultan Jubran advised Abu Ali that Abu Ali would soon be meeting “the person in charge of the organization." According to Abu Ali, Sultan Jubran “explained to me that I was one of them now, and that I could speak in the name of al-Qaeda." A few days later, Sultan Jubran arranged a meeting between himself, Abu Ali, and Ali Abd alRahman al-Faq'asi al-Ghamdi (“al-Faq'asi" ), the leader or “brother in charge" of the al-Qaeda terrorist cell in Medina, who was also known by the name of “Adil."

Abu Ali and al-Faq'asi met a number of times thereafter to discuss the Medina cell's plans for jihad. More specifically, al-Faq'asi advised Abu Ali that an assignment was planned inside the United States and the two men discussed and considered a number of alternatives for terrorist attacks within the United States. According to Abu Ali, al-Faq'asi “presented me with two ideas, based on the fact that I was a [United States] citizen and that I had not engaged in jihad before." “The first idea was to carry out a major operation that he would arrange." The second was “that I would go to the [United States], settle down, find work, lead a normal life, blend into American society and marry a Christian," which would allow him to “plan successive operations inside the [United States] for which ... al-Faq'asi would send individuals to carry out." In other words, Abu Ali, who was a United States citizen able to return at will and move freely about in the country, would marry a Christian woman, live an overtly normal

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life to deflect attention, establish a sleeper cell within this country, and prepare for operation instructions and additional operatives to assist.

After this introduction to al-Faq'asi, Abu Ali “became directly connected" to the leader of the cell and “stopped seeing or hearing from Sultan" Jubran. However, he “continued to meet ... al-Faq'asi in various places" and “discuss [ed] how to carry out the assignment in the [United States]." According to Abu Ali, he met with al-Faq'asi on six separate occasions to plan such terrorist operations within the United States. In the course of these meetings, Abu Ali suggested assassinations or kidnappings of members of the United States Senate, the United States Army, and the Bush Administration, a plan to rescue the prisoners at Guantanamo Bay, and plans to blow up American warplanes on United States bases and at United States ports, similar to the USS Cole operation. Al-Faq'asi suggested an operation similar to the 9/11 bombings, but which would originate in planes departing from Britain or Australia for Canada in order to circumvent the requirements of a United States visa to enter the country, and plans to assassinate President Bush....

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