Appeals Court Lets Ali Asad Conviction Stand

But Sends 15-Year Sentence Back to Trial Judge

By Zahirah Eppard, Muslim Link Staff Writer

On January 23, the 4^th Circuit Court of Appeals issued an opinion in the case of Ali Asad Chandia, a third-grade teacher at the Al-Huda School in College Park, Maryland, who was convicted in 2006 on charges of conspiracy to aid a terrorist organization.  The unanimous decision, which upheld the conviction but overturned the 15-year sentence imposed, offers those who have followed the case closely both promise and frustration. 

In remanding or sending the case back to District Court Judge Claude Hilton, the appeals court agreed that the both the presentence report and the court proceedings did not provide an explanation for the application of the terrorism enhancement to the sentence but instead seemed to erroneously assume that the enhancement automatically applied.  

To fully understand what this means, it is important to have a firm understanding of what the  terrorism enhancement actually is.  When an individual is convicted of a felony crime, their  sentence that is imposed is calculated based on a standard federal sentencing guideline.  For the most part, the worse the crime, the greater the sentence imposed.  After 9/11, with the country in a frenzy and with the advent of the "War on Terrorism," the standard sentencing guidelines were amended with the possibility of a new "federal crime of terrorism."   The enhancement is a 12-level scale which, when applied, can add significant time to a conviction (albeit with much leeway for the judges discretion).  In Ali Asad's case, what would have been a maximum charge for the conspiracy conviction of 6½ years was expanded to a possible 30 years to life sentence for each charge when the terrorism enhancement was applied. 

To determine whether the terrorism enhancement is applicable, the crime in question must satisfy two conditions.  First, the crime must be one of a specific list of felonies.  In this instance, the crime of conspiracy to provide material support for which Ali Asad was convicted satisfies this first requirement.  Second, there is a specific intent requirement that the underlying felony was "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct."  The defense argued and the appellate court agreed that there was not any explanation of this aspect of the application of the enhancement and "remanded" or sent back the sentencing decision to Judge Hilton.

In the words of Circuit Court Judge M. Blane Michael who wrote the opinion on behalf of the three-judge panel, "the court must determine whether Chandia had the intent required.  To make this determination, the court must resolve any factual disputes that it deems relevant to application of the enhancement.  If the court finds that Chandia had the requisite intent, it should identify the evidence in the record that supports its determination." 

What Comes Next?

Though the 15-year sentence has technically been overturned, the matter goes back to the original trial judge, Judge Hilton, for a decision on the matter and he has a few options:

1. The judge can hold a hearing and allow both the defense and the prosecution to present their respective positions on the application of the terrorism enhancement.  From there he would then make a decision regarding the arguments and impose a new sentence. 
2. The judge could bypass the hearing option and revisit the issue himself.  In this instance he could impose a new sentence, but must provide an explanation to support his decision if that decision includes application of the terrorism enhancement.

The actions above could result in the same sentence or a reduced sentence.  To make it a bit more complicated, the matter of the evidencary standard for the application of the terrorism enhancement has never been tested before the Supreme Court.   There is currently no case law that establishes whether there is a need for a "preponderance" (established at 51%) of the evidence in favor of application of the enhancement or a need for the more stringent "clear and convincing evidence" standard.  In any event, Ali Asad has the right to be present for the sentencing decision and will be brought back to Alexandria, Virginia, for it.  Insha Allah, we have to wait to get some direction from the judge as to the timing of it all.

Denial of Defense Arguments

While the sentencing matter is on the front burner, the upholding of the conviction is a major setback for the defense.  At issue in the appeal, which was formally argued on Ali Asad's behalf by attorney Marvin Miller on October 30, 2007, were several key questions that challenged the validity of the court proceedings, the information provided by the prosecution and the conduct of Judge Hilton himself.   The following is a summary of the questions raised by the defense and the appellate court's response.

Are the counts for which Ali Asad was charged and convicted unconstitutional?

The defense argued that the statue that was used to convict Ali Asad is unconstitutional.  The statute, 18 U.S.C. Section 2339B, allows the president of the United States to designate an organization as a "foreign terrorist organization" (FTO) and thus forbids anyone from providing material support to that designated organization.  According to attorney Miller, this section of the law violates the First Amendment right of association.  According to the Circuit Court Judge M. Blane Michael who authored the opinion for the three-judge panel, prior case law has rejected similar arguments because the statute "does not prohibit mere association; it prohibits the conduct (emphasis included) of providing material support to a designated FTO."  Furthermore, Michael states that the defense is not allowed to challenge the designation of the organization as an FTO because what is at issue is the "mere fact of designation and not the validity of it."  The question of the right to challenge the validity of the designation by an accused was also rejected on appeal.

Is it permissible to convict a person on multiple counts when the allegation of wrongdoing involves the same course of conduct?

In the appeal, the defense argued that the three counts for which Ali Asad was convicted were unconstitutional because they were "multiplicitous" and violated the double jeopardy clause (i.e., a person cannot be punished for one single course of conduct multiple times).  In this matter, the court sided with the prosecution in agreeing that it was permissible to both charge and convict on all three counts because the "commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses" allowable under the law. 

Was the initial search of Ali Asad's residence and car permissible given the false and misleading allegations contained in the search warrant?

On May 8, 2003, the FBI conducted a search of six residences, including the home of Ali Asad and his family.  The warrant alleged that the men whose homes were targeted were involved in para-military training exercises (i.e, paintball) as a means to prepare for violent jihad.  Upon visually inspecting Ali Asad's car which was parked outside of the residence, a second warrant to search the vehicle was obtained. 

Search of the home and car resulted in the seizure of several damaging pieces of evidence which were used in the trial to wrongly portray Ali Asad as a terrorist sympathizer.  The defense argued that these materials – video clips of the 9/11 bombing of the World Trade Center and Osama Bin Laden – colored the jury's impression of Ali Asad and were included as a means of striking fear and hatred toward him.  The defense attempted to deal with this matter even before the trial started but Judge Hilton flatly denied the motion to suppress the evidence and did not conduct a hearing on the matter.

The appeals court, after a lengthy and detailed discussion in the opinion of the affidavit provided by FBI  Special Agent John Wyman, testimony provided by informant Yong Kwon, and Ali Asad's trip to Pakistan, determined that the basis for the warrant was substantially accurate (give or take a few false points) and that the items seized were well within the general scope of the it.  Furthermore, they dismissed the assertion by the defense that the video clips were prejudicial in instilling fear and hatred in the jury because "they were shown only once . . .  and they took up only three minutes during the nearly five days" of the government presentation.

The entire opinion can be downloaded from the circuit court website at http://pacer.ca4.uscourts.gov.  Look for the January 23, 2008 date listings.