Attorneys for three Twin Cities men serving decadeslong prison sentences for trying to join ISIS will challenge their 2016 murder conspiracy convictions in federal appeals court next month in one of the biggest ISIS recruitment cases in the country.
The attorneys also plan to argue that Abdirahman Daud, Mohamed Farah and Guled Omar should have been given sentences more comparable to those imposed on their six co-defendants, who pleaded guilty to lesser charges.
Daud, 24, and Farah, 24, were each sentenced to 30 years in prison, and the 23-year-old Omar — described by prosecutors as an "emir," or leader, of a group that sought to join ISIS — was sentenced to 35 years. Senior U.S. District Judge Michael Davis imposed 10-year sentences on four men who pleaded guilty and much shorter terms, including time served, on two who testified at trial.
Now, a three-judge panel on the Eighth Circuit Court of Appeals has agreed to listen to 30 minutes of oral arguments from each attorney on June 14 in St. Paul. Daud, Farah and Omar are being held in separate federal prisons across the country and will not be at the hearing.
Bruce Nestor, an attorney for Daud, said Friday that a key issue in the case stemmed from Davis' jury instructions, which he said cleared a path for his client to be convicted of conspiring to commit murder abroad without prosecutors being required to prove a specific intent to kill anyone. Instead, he said, Daud was convicted based on evidence that he planned to associate with a group "engaged in unlawful fighting."
"If this standard was applied to the U.S. government, which routinely funds and supports groups also engaged in unlawful killing, then many U.S. government officials should be locked up alongside Mr. Daud," Nestor said Friday. "Mr. Daud's conviction was unfair, and his sentence of 30 years was disproportionate compared to his actual conduct."
Nestor also argued that Davis should have instructed jurors on Daud's contention that he had "an unreasonable but genuine belief" that the conspiracy was meant to defend other Muslims in Syria from President Bashar Assad's regime.
Assistant U.S. Attorney Lisa Kirkpatrick wrote in a February brief to the appeals court that none of the men's arguments have merit and that the government presented "overwhelming evidence" of their "specific intent to kill." Kirkpatrick also argued that Davis "thoroughly and thoughtfully" considered the sentencing factors that included a possible life sentence for each defendant.
The men are not challenging the FBI's use of an informant, whose secret recordings and trial testimony proved crucial in the case but drew protests from supporters who claimed the government entrapped the young men.
Farah — whose younger brother, Adnan, is serving a 10-year sentence in the case — has said he was "radicalized by his peers by the age of 18." Daud, in a letter to probation officials before sentencing, wrote, "I was caught up in my version of jihad and idealized the defense of fellow Muslims who I knew were being killed and tortured." Omar said his support for ISIS' cause had been insincere and in response to challenges to his "masculinity and courage" by the FBI informant, Abdirahman Bashir.
In his brief to the Eighth Circuit, Omar's attorney, Glenn Bruder, tried to cast doubt on Omar's leadership role in the conspiracy by noting that the probation office, in a presentencing report, assessed him as an "average participant" in the plot. Bruder previously tried to lobby for a 15-year sentence, arguing that each of the co-conspirators "acted in a generally similar manner" and that Omar's participation "was, at worst, average."
"The simple and undeniable fact is that every alleged co-conspirator in this case either [pleaded] guilty or was convicted of an offense based on that young man's desire to travel to Syria and offer his services to ISIL," Bruder wrote to the Eighth Circuit.
At Omar's sentencing, Davis pointed to evidence of Omar's past support for both Al-Shabab and ISIS and his older brother's suspected flight to join militants in Somalia. Davis told Omar, who testified at his trial, that he was "charismatic, and that's why you're being locked up for the period of time you are."
Jordan Kushner, an attorney now representing Farah, also plans to argue next month that Davis should have provided Farah with a new attorney after half his defense team withdrew and after Farah reported a breakdown in trust with his remaining attorney days before trial.
P. Chinedu Nwaneri, one of Farah's original lawyers, withdrew after the government disclosed potential testimony claiming that his legal clerk, Hassan Mohamud, who is also an imam in St. Paul, had given a lecture in which Mohamud discussed how to pray while "battling in jihad." Defense attorneys and prosecutors in the case also had expressed concerns that Mohamud had exerted inappropriate influence on defendants, including urging family members not to let defendants plead guilty.
Davis also denied motions by Farah's remaining attorney, Murad Mohammad, to withdraw from the case in light of reports about Farah's "extreme distrust" of Mohammad's advice. At a hearing before trial, Farah said Mohammad pressured him to plead guilty and told him that his chances at trial were not good. Kirkpatrick has argued that Davis was within his discretion to deny the motion after finding that Farah's unhappiness with his attorney "was simply a disagreement over strategy."