Justice department seeks dismissal of terrorism case
Botched Detroit prosecution marred by infighting and ethics charges
By Chitra Ragavan
In one of the most significant setbacks for the Bush administration's war on terror, the Justice Department has asked a federal judge in Detroit to set aside guilty verdicts against three Middle Eastern men who were convicted last year on terrorism-related charges.
In a 60-page motion excoriating its own prosecutors' handling of the case, the department asked Judge Gerald Rosen of the U.S. District Court to dismiss the terrorism charges against two of the men "without prejudice"meaning that the government can re-file the same charges against the men. They also asked Rosen to set aside the jury verdict of document fraud against all three defendants, but said they supported a motion filed by defense attorneys for a new trial on the fraud charges.
Rosen, who ordered the internal Justice Department inquiry, is expected to set aside the verdicts and order a new trial on the document fraud charges this week.
The Justice Department decision came after a lengthy review of the Detroit prosecution, in the wake of repeated defense complaints that prosecutors withheld evidence that could have helped the defendants. In its filing, Justice officials acknowledged that prosecutors failed to disclose matters "material" to the defense, and "allowed an incomplete and, at times, misleading record to be presented" on key issues.
The department was harshly critical of the lead prosecutor, Richard Convertino. Officials said they have provided Convertino with documents from their internal review, and that he responded to their questions with "information that is at odds" with the evidence and testimony.
In its filing, the government said that Convertino and his supervisor and co-counsel, Keith Corbett, had assured Judge Rosen that they would abide by his order to notify him of evidence that might be exculpatory to the defense. But, time and again, the government said, they defied his order and withheld evidence.
At the same time, the department disclosed that Corbett now says he would not have participated in the case had he known of some of the exculpatory evidence. Corbett told government lawyers he did not know of disagreements between the military and intelligence communities over the prosecution's interpretation of key evidence, including documents and maps found in the defendants' apartment. The government said Convertino's failure to disclose photographs and discussions that reflected the disagreements would undermine any effort to challenge the defense attorneys' motion for a new trial on the terrorism charges.
In one damning passage, Justice officials said that continued hearings on the case would show that the prosecution "committed a pattern of mistakes and oversights that deprived the defendants of discoverable evidence (including impeachment material) and created a record filled with misleading inferences that such material did not exist." The government says it believes that the terrorism charges against two of the men should be dropped because "it has no reasonable prospect of winning."
The FBI also came in for sharp criticism. The Justice Department said that Paul George, a supervisory FBI agent who summarized the government's legal theories during the trial, provided an analysis that was flawed and unsubstantiated by the facts. "Our court-ordered file review raises serious concerns" about George's testimony and that of a second FBI agent and a State Department employee assigned to a Middle East embassy, the government said.
Two of the defendants, Karim Koubriti and Abdel-Ilah El Mardoudi, were convicted of providing material support to terrorists. Along with a third man, Ahmed Hannan, they also were convicted of document fraud. In their motion, the Justice Department asked Judge Rosen to set aside those convictions, but said it wanted to retry the men on the document fraud charges.
Defense lawyers said they felt vindicated by the government's actions. "They're really confirming that there was no terrorism in this case," says James Thomas, the lawyer for Hannan. "But I don't think they've gone far enoughI think the case should have been dismissed in its entirety because of prosecutorial misconduct." Richard Helfrick, who represents Kobruiti, said the government's condemnation of prosecutor Convertino was a long time coming, but said he was pleased that "there's finally some justice for these defendants." Margaret Raben, who represents El Mardoudi, applauded the government's internal inquiry"the government did the right thing," she says.
Convertino's lawyer, William Sullivan, said that his client pursued the investigation "in a fair and responsible way, with the safety and protection of his community uppermost in his mind." Sullivan says the material in question, even if handed over to the three defendants, would not have resulted in acquittals. The Justice Department is investigating Convertino for possible obstruction of justice.
The decision comes at an embarrassing time for the administration, as President Bush prepares to accept the Republican Party's nomination for a second term. Bush has made fighting terrorism the centerpiece of his re-election platform. The government previously touted the casethe only jury convictions to stem from the FBI's investigation into the September 11 attacksas a stellar victory in the war on terrorism. In June 2003, Attorney General John Ashcroft said that the "convictions send a clear message" that "the Department of Justice will work diligently to detect, disrupt, and dismantle the activities of terrorist cells in the United States and abroad."
In the wake of the convictions last year, the case became imperiled by nasty bureaucratic infighting. Convertino, the prosecutor, alleged that the government didn't provide enough resources to investigate the terrorism case; his bosses in Detroit and Washington accused Convertino and his supervisor, Keith Corbett, of bungling the case.
Ultimately, the Justice Department and Convertino began suing and investigating each other, and Convertino and Corbett were removed from the post-conviction proceedings. Under orders from Judge Rosen, Ashcroft named a special attorney, Craig Morford, to examine thousands of pages of documents relating to the case. The U.S. attorney in Detroit, Jeffrey Collins, asked the Justice Department to investigate whether Convertino committed acts of ethical misconduct in pursuing the investigationallegations he denies. Officials say Collins recently resigned under pressure from main Justice because of the terrorism mess, and because of reversals in three other high profile cases.
Convertino is suing Collins, Ashcroft and other Justice officials, citing gross mismanagement of the terrorism case. In his civil lawsuit, he has also charged that Ashcroft and other officials leaked Collins ethics complaint against him to a Detroit newspaper in an attempt to ruin his reputation and career. He also said they illegally leaked the name of an FBI confidential informant with whom he was working.
Morford was named acting U.S. attorney in Detroit. Last night, he filed the report for the Justice Department critical of Convertino's prosecution as part of the government's motion to set aside the verdicts. As a result of his inquiry, Morford handed over hundreds of pages of non-classified documents to defense attorneys earlier this yearpapers that the government argues should have been turned over prior to the trial.
The entire mess began only six days after the September 11 attacks when FBI agents arrested Kouretas, Hannan, and Farouk Ali-Haimoud at a Detroit apartment. The FBI agents found fake passport photos, forged green cards, and visas, 105 audiotapes advocating Jihad, sketches of a U.S. air base in Turkey and an airport in Jordan. They also found a videotape recording showing Disneyland and the MGM Grand Hotel and Casino in Las Vegas and the New York Times headquarters building.
Eleven days later, the Secret Service arrested Youssef Hmimmsa, a former roommate of Hannan and Koubriti in Cedar Rapids, Iowa. In November federal agents picked up the alleged leader of the group, Abdel-Ilah El Mardoudi, with $90,000 in cash and fraudulent documents; they also found evidence that he had made numerous trips to Turkey under various aliases.
Hmimmsa pleaded guilty to multiple felonies, and was given a reduced sentence in exchange for helping the government. At trial, Koubriti and El Mardoudi were convicted of providing material support to terrorists and of document fraud. Hannan was acquitted in the material terrorism case, but convicted of document fraud. Al-Haimoud was acquitted of all charges. Defense attorneys later alleged that Convertino had Corbett had failed to turn over so-called "Brady" materialinformation that might be exculpatory. The defense attorneys filed a motion for a new trial.
Hannan was recently granted a modified bond by Judge Rosen and is in a half way house under electronic surveillance. Kobruiti and El-Mardoudi are still behind bars. Koubriti has filed a motion seeking his release on bond. The government says it will recommend a restrictive form of release similar to that of Hannan.