Government prosecutors were accused of introducing unauthorized evidence, and Attorney General John Ashcroft was accused of violating a court-issued gag order during the trial of four men charged with aiding terrorists and possessing false documents.
Attorneys for the four Arab defendants have complained repeatedly since the trial began in U.S. District Court last month in downtown Detroit that government prosecutors have withheld evidence and blindsided them with last-minute witnesses.
Most recently, defense attorneys said that they were not told until Monday morning that a witness would provide key testimony that afternoon, giving them little time to prepare their cross-examination.
Carolyn Sadowski, a former manager of the Farmington Hills Sam’s Club testified that two men purchased more than $3,000 worth of cigarettes in January 2001. She asked to see identification for both of the men and wrote their names on the check.
One of the names appearing on the check was Ali Mohammed Ahmed, who signed it. Ahmed was a mentally ill Yemeni immigrant who killed himself in March 2001. His day planner, which allegedly contains sketches of a U.S. Air Force base in Turkey and a military hospital in Jordan, was found in the Detroit apartment where three of the defendants were arrested.
The other name appearing on the check was Thamir George Zaia. Zaia was convicted in another unrelated cigarette case in U.S. District Court last year, according to his attorney Mark Kriger. He was not charged in the Sam’s Club incident, and prosecutors contend he wasn’t really there at all.
Asked to identify the man who was with Ahmed when the cigarettes were purchased, Sadowski pointed at defendant Karim Koubriti. Sadowski said that Sam’s Club was unable to collect on the check because the bank account was closed about five days after the check was written. The bad check incident was reported to the Farmington Hills police, where Sadowski said she identified Ahmed in a lineup. She later identified Koubriti in a photo lineup conducted by an FBI agent, she said. In a meeting with federal prosecutor Richard Convertino, Sadowski said that Convertino confirmed that she had identified “the right person.”
Prosecutors are attempting to show that the defendants manipulated Ahmed to sign his name to the Sam’s Club check, just as they allegedly had him sign his name to the day planner containing the sketches. Defense attorneys say that the day planner sketches are Ahmed’s, who had delusions of being a general.
When the jury was not in the courtroom, defense attorney Leroy Soles complained that the photo lineup was tainted by Convertino’s comment that Sadowski identified “the right person.” U.S. District Court Judge Gerald E. Rosen disagreed, stating that Sadowski had picked out Koubriti before meeting with Convertino and did so again in court.
But before Sadowski took the stand, defense attorney Richard Helfrick cited the February 2001 Farmington Hills police report, which stated that the actual Thamir George Zaia told police that he was with Ali Ahmed when Ahmed passed the bad check to Sam’s Club. Zaia’s attorney Kriger, who was contacted by phone, said that he read the police report, but has not confirmed with his client that he was with Ahmed.
Defense attorneys are not the only ones complaining about government tactics in the trial.
Rosen was visibly angry when federal prosecutors presented surprise evidence last week.
“I was shocked,” said Rosen of a photo that was shown to jurors without advance notice to the judge. “The government is playing this awfully close to the vest, not only with the defense, but with the court.”
After jurors left the courtroom, Rosen reprimanded prosecutors and demanded to know why they had not told him that they intended to present a photo of Nabil Almarabh and to connect him to the four defendants: Farouk Ali-Haimoud, 22, and Koubriti, 24, Ahmed Hannan, 34 and Abdela-Ilah Elmardoudi, 36.
After the Sept. 11 attacks, the FBI attempted to track down Almarabh, whom they suspected of being a terrorist. Agents went to a house on Norman Street in Detroit, believing Almarabh lived there. Instead, they found three of the four defendants, who were arrested on Sept. 17, 2001, and accused of having false identification documents and the day planner containing the alleged military sketches.
Days later, Almarabh was arrested in Chicago, where he has since served an eight-month sentence for entering the country illegally. Originally, Almarabh was considered a close associate of Osama bin Laden and a member of al Qaeda, but the government no longer alleges these things because it has no evidence, said Kriger, who also represents Almarabh. Almarabh currently is in the custody of the Immigration and Naturalization Service and is to be deported either to his native country, Kuwait, or to Syria, where he is a citizen.
U.S. assistant attorney Richard Convertino told Rosen that he presented the photo of Almarabh at trial because the government believes that he and the defendants know each other and that the Norman Street home is a “safe house” for a terrorist sleeper cell.
“I understand the government’s theory and allegations,” said Rosen. What the judge did not understand is why federal prosecutors presented the photo after telling Rosen — well before the trial got under way — that they had no evidence connecting Almarabh to the defendants.
“I asked that question I don’t know how many times,” said Rosen.
Convertino insisted that he had told the judge that he intended to connect Almarabh to the defendants.
“I was never told that a witness was going on the stand that would connect Mr. Almarabh to the defendants,” said the judge.
A prosecution witness testified that he had seen Almarabh in 2001 with one of the defendants at a Dearborn apartment.
Rosen ruled that the prosecution would not be allowed to link Almarabh to the defendants since there is no evidence that the Kuwaiti is a terrorist.
“The government has had one-and-a-half years to develop a case on Mr. Almarabh and it has not done that,” said Rosen.
The judge suggested that the prosecution is using the Detroit trial to pursue Almarabh.
“The government is trying to try Mr. Almarabh through the back door,” he said.
Rosen also cited Almarabh’s deposition testimony in which he said that he does not know the defendants.
Kriger said that the witness who testified last week that he saw Almarabh with one of the defendants, “was mistaken. It was a misidentification.”
Defense attorneys raised concerns that the photo may have prejudiced jurors despite the fact that Almarabh’s name was never mentioned when the photo was shown to them. When the 16-member jury was brought back into the courtroom, Rosen asked them to raise their hands if they recognized the man in the photo. No hands were raised.
The judge instructed the jury to disregard the photo, which had appeared in the media around the time of Almarabh’s arrest.
Almarabh’s photo is not all that has concerned defense attorneys or the judge. U.S. Attorney General John Ashcroft violated a gag order which prohibits the government, defense attorneys and their witnesses from talking to the media. At a press conference last week in Washington, D.C., Ashcroft mentioned several terrorist-related cases, including the trial in Detroit. Ashcroft specifically spoke about the government’s star witness, Youssef Hmimssa, who briefly lived with three of the defendants and testified earlier this month that they are terrorists. Hmimssa said the defendants spoke of buying Stinger missiles and other weapons and that they wanted to attack Las Vegas and Disneyland. Shortly before Hmimssa took the stand, he entered into a plea agreement with the government. He testified that he met with the government represenatives at least three times in six months before he accused the other defendants of being terrorists.
The government initially was investigating Hmimssa along with the other defendants as a suspected terrorist supporter.
Hmimssa pleaded guilty in Detroit to credit card fraud and document fraud in Illinois, Iowa and Michigan. But his plea agreement consolidated those charges into one case in Detroit, allowing him to serve a single prison term of 37-46 months, rather than consecutive sentences in each jurisdiction. Depending on Hmimssa’s testimony, Convertino could recommend a reduced sentence that is subject to Rosen’s approval.
“Such cooperation is a critical tool in our war against terrorism,” Ashcroft said of Hmimssa’s testimony during his speech.
Before the jurors entered the courtroom last week, defense attorney Jim Thomas raised concerns about Ashcroft’s comments.
“If the jurors saw this, we are in the position of the attorney general bolstering the case,” said Thomas.
Rosen also was disturbed by Ashcroft’s comments.
“I am distressed to see the attorney general comment about the credibility of a witness who just got off the stand,” he said.
The judge also said that he was surprised that Ashcroft violated the gag order since it “was created at the request of the parties, all parties, including the Justice Department.”
Although Rosen has repeatedly instructed the jury to avoid media coverage of the trial, he asked them if they had heard any “government official commenting about any issues, people or witnesses in the case.” No hands were raised.
Defense attorneys asked for a mistrial based on Ashcroft’s comments and the unauthorized Almarabh photo, but the judge denied it. The defense also asked that the government be held in contempt and sanctioned for violating the gag order; the judge said he would reserve his ruling on this until the trial concludes.
If convicted, the four defendants face up to 25 years in prison.Ann Mullen is a Metro Times staff writer. E-mail [email protected]