Attorneys for three Twin Cities men convicted of trying to join the Islamic State asked a federal appeals court panel Thursday to consider whether jurors conflated support for the terror group with a plot to murder.
Family and supporters of Abdirahman Daud, Mohamed Farah and Guled Omar packed two courtrooms to watch oral arguments before the Eighth U.S. Circuit Court of Appeals in their bid to cut short decadeslong sentences received after a tense, three-week trial in 2016.
Daud and Farah, both 24, are serving 30-year sentences and Omar, 23, received a 35-year sentence after the three were convicted of conspiracy to murder abroad and conspiracy to provide material support to ISIS, among other charges. Debate over the instructions jurors used to convict the men dominated the hearing, as their attorneys claimed the government fell short of proving the men planned to kill when they reached Syria.
Prosecutors, meanwhile, countered Thursday that they offered up at trial “overwhelming evidence” of the defendants’ intent to kill and their “callous and wanton disregard for human life.”
“There’s not a scrap of evidence that the defendants were going to Syria to do anything but kill for ISIL,” said Assistant U.S. Attorney John Docherty, using another acronym for the group. “Just as what some defendants who did make it over there wound up doing.”
The three were among nine men arrested in one of the nation’s largest terrorism recruitment probes. Two others were charged in absentia and several other associates are believed to have been killed fighting for ISIS.
Thursday’s hearing had a trial-like atmosphere with scores of supporters rallying outside the courthouse before and after arguments in the case. Many came clad in orange ponchos, representing prison jumpsuits, and others wore placards bearing the men’s names and prison identification numbers.
Intent to kill?
Bruce Nestor, Daud’s attorney, argued that the men were convicted based on jury instructions whose “erroneous interpretation of the law” excused the government from proving an actual intent to kill.
“Isn’t that implied when you join and fight with a paramilitary or terrorist group known to do this?” Judge Raymond Gruender asked.
Nestor argued that the jury’s instructions improperly encouraged them to convict on the murder charge based on any association with ISIS — rather than on a specific agreement or intent to murder. Speaking afterward outside the courthouse, Nestor said Daud was serving an unjust sentence for what he described as a “thought crime.”
“I don’t mean to say that my client didn’t do anything wrong or didn’t make any bad choices in life, but whatever was proved in that courtroom was not anything that justified a sentence of 30 years,” Nestor said.
Docherty pointed to evidence gathered by a conspirator turned FBI informant, including conversations rationalizing and celebrating execution videos of a Jordanian pilot burning alive and tape-recorded remarks evincing a desire to kill Shia Muslims once the men reached Syria. Docherty also relied on accounts of the deaths in battle of two associates as evidence that the men were aware they would be expected to kill for the group.
But Circuit Judge James Loken scrutinized how part of the jury instructions were worded, saying they could allow for an argument that jurors may have thought a conspiracy to join ISIS would be enough to also prove an intent to kill. Loken called the arguments raised Thursday “important” before closing the hearing to consider the case and issue an opinion at a later date.
The FBI’s use of an informant to bolster the case has previously drawn protest and claims of entrapment from many supporters of the men, but the informant’s involvement in the case has not been the subject of any appellate challenges.
Family watching closely
Thursday’s arguments also briefly took up the dramatic pretrial upheaval of Farah’s legal team. One of two lawyers representing Farah left the case a month before trial after prosecutors disclosed that an imam and paralegal on his team might be the subject of trial testimony. The father of another defendant also said the imam had urged him to not allow his son to plead guilty.
The judges on Thursday did not appear persuaded that Farah’s request to replace his remaining attorney days before trial went beyond a disagreement over trial strategy. They cited court transcripts in which Farah said he was “100 percent” confident in his attorney and confirmed the two had met multiple times to discuss his defense.
Farah is the oldest of two brothers convicted in the case. A younger brother, Adnan Farah, pleaded guilty to lesser charges a month before trial and is now serving a 10-year prison sentence.
Speaking to a group of supporters outside the courthouse Thursday, a younger brother, Abdifatah Farah, 19, expressed hope for a favorable ruling.
“This injustice has to be something that is dealt with,” Farah said. “And we can’t just let these youth — these three boys — sit in jail for the rest of our lives while we continue our lives and forget about them.”