Sentencing Hearing for Ali Asad Chandia

Revisits Application of Terrorism Enhancement

By Zahirah Eppard, Muslim Link Staff Writer

Ali Asad Chandia will be back in District Court on April 25 in his continued quest for justice following his conviction in 2006 on charges of conspiracy to provide material support to a foreign terrorist organization. The popular third-grade teacher from the Al-Huda School in College Park, Maryland, will appear before Judge Claude Hilton, this time to more fully challenge the application of the terrorism enhancement to his sentence. The original 15-year sentence was challenged by Ali Asad in a formal appeal argued before the 4^th Circuit Court of Appeals in Richmond on October 30, 2007. At issue at the hearing will be whether the evidence provided by the government warrants the application of the terrorism enhancement to the sentence.

Background

During the sentencing phase of Ali Asad’s case, Defense Counsel Marvin Miller argued vehemently that the presentence report, prepared by the probation officer for the judge’s use in determining an appropriate sentence, actually contained a false representation of the facts of the case and subsequently suggested an inappropriate sentence for the defendant. At that time, Judge Hilton casually dismissed a defense motion for a Rule 32 hearing on the disputed facts.

The Court of Appeals agreed with the defense argument that the sentence proceedings were flawed and stated that, unlike in some cases where the enhancement has been applied, the acts underlying Ali Asad’s conviction were not violent terrorist acts and these acts cannot, standing alone, support application of the terrorism enhancement. In the decision written by Circuit Court Judge M. Blane Michael for the three-judge panel, the court also stated that both the presentence report and the district court judge are wrong to assume “erroneously” that the enhancement automatically applied to a material support conviction. Neither the presentence report nor the district court judge made any factual findings related to the intent element to show that Ali Asad had a specific intent and had calculated his conduct to influence, affect, or retaliate against the conduct of a government by intimidation or coercion.

The appeals court further directed the district court to:

1. resolve any factual disputes found in the presentence report and
2. determine whether Ali Asad had intent and has calculated his conduct to influence, affect or retaliate against the conduct of a government by intimidation or coercion and
3. reconsider whether the enhancement should apply in this case it must not only determine the intent element, but it must identify the evidence in the record that supports its determination.

One particular exchange in the courtroom demonstrates the dimension of the challenge. In the October appeal hearing, Judge Robert B. King asked the government, “Well, what government was it that he (Ali Asad) was supposed to have been intimidating?” The government responded, “the Indian government.” Judge King said, “You think a few boxes of paintballs are going to intimidate the Indian government?”

Miller further elaborated in the hearing that even the government’s own indictment of the case “did not accuse Ali Asad with possession or use of a dangerous device, nor did the indictment charge him with inflicting or conspiring to inflict substantial damage. So there was no basis for the terrorism enhancement. And the mere fact that he sent the paintballs, does not cut it.”

Some cases have both individual and collective merit. This is one of them. The opportunity for Ali Asad to have his sentence effectively reduced in half is a very big deal for this young teacher from College Park. But the case also has broader significance to the government’s “War on Terrorism,” most particularly in the use of preemptive prosecutions that are aimed at the Muslim community. To make the stakes a bit higher, 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.