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ATLANTA — Federal appeals judges last week sounded skeptical of arguments by lawyers for accused terrorism supporter Jos� Padilla that the government’s indictment contained overlapping charges that violated the double-jeopardy rights of Padilla and two co-defendants. The case was before the U.S. Court of Appeals for the 11th Circuit Jan. 10 on prosecutors’ appeal of an August ruling by U.S. District Judge Marcia Cooke. The Miami federal judge threw out the first count of the indictment against Padilla, Adham Amin Hassoun, and Kifah Wael Jayyousi. Once accused by federal authorities of planning to explode a radiological “dirty bomb,” Padilla is now alleged in an indictment to have gone to Afghanistan to attend a terrorist training camp. The U.S. citizen was charged in late 2005 after spending more than three years in military custody as an “enemy combatant” without any charges filed against him. The government brought its charges as Padilla’s challenge to his military detention was pending before the U.S. Supreme Court. In April, the Court denied review in Padilla’s case, as requested by the Justice Department, which argued that because Padilla was no longer in military custody, his challenge to his detention as an enemy combatant was moot. Padilla’s lawyers have asked Cooke to dismiss the charges against him on grounds that he was treated inhumanely while in military custody. They also have asked the trial judge to determine whether he is mentally fit to stand trial, citing reports from doctors that he is suffering from post-traumatic stress disorder as a result of his experiences in detention. The government did not object to Cooke’s decision to order a mental examination. In a brief, however, prosecutors said a detailed response to Padilla’s factual allegations about his detention was not warranted because the law does not provide for dismissal of a criminal charge on the basis of the defendant’s treatment while being detained. But it also maintained that Padilla’s conditions were humane and designed for his safety. Cooke’s dismissal of one count against Padilla and his co-defendants on grounds of double jeopardy left the trio facing a count for providing material support to a murder conspiracy and a count for conspiracy to provide such material support, as well as additional counts against Hassoun. But the dismissal of the first count — which charged a “conspiracy to murder, kidnap and maim persons in a foreign country” — made it more difficult for the government to win a life sentence. In order to get a life sentence on the counts that remain after Cooke’s order, prosecutors will have to prove that the three men were directly responsible for deaths abroad — which, according to Paul Rashkind, a lawyer for the defendants, is not alleged in the indictment. Cooke said charging the defendants with conspiracy in multiple counts while alleging the existence of only one conspiracy was a violation of the defendants’ right against double jeopardy. Last week, federal prosecutor Anne Schultz told the appellate panel — 11th Circuit Chief Judge J. L. Edmondson, Judge Gerald Tjoflat, and 8th Circuit Senior Judge John Gibson — that Cooke had applied the double-jeopardy standard incorrectly. Instead of looking at the elements of the offenses charged, said Schultz, Cooke improperly looked at the underlying facts contained in the allegations. Each of the offenses charged contains a unique element such that there’s no double-jeopardy problem, argued Schultz, chief of the appellate division at the U.S. Attorney’s Office in Miami. “As with other facilitation-type offenses, the provision of material support is an offense distinct from the object crime,” she told the judges. The judges allowed Schultz to present her argument with few interruptions, saving their questions for Rashkind, a lawyer in the Miami Federal Public Defender’s Office. Tjoflat and Edmondson peppered Rashkind with hypotheticals, with Tjoflat and Rashkind going back and forth in apparent disagreement. Saying the defense argument “troubles” him, Tjoflat wondered what should happen if a group of people conspired to commit murder while another group, not part of that conspiracy, agreed among themselves to provide material support to the first group. Rashkind said he disagreed with the idea those would be separate conspiracies. “Once the parties agree to the same objective, they don’t have to know each other,” he said. Edmondson suggested the proper remedy for any problem with the indictment, laying out this scenario: One group conspires to market drugs and needs a car. Another group with no interest in the drug marketing but other political aims ensures that the drug dealers have a fast car, without telling the first group. Both groups are charged with conspiracy and material support of crimes but get convicted of different crimes, posited Edmondson. “I think that’s all right,” said Edmondson. Tjoflat asked Rashkind why Cooke did not dismiss the count for conspiracy to provide material support, rather than the more serious murder-conspiracy charge, which carries a life sentence. Rashkind told Tjoflat that Cooke had said on the government’s motion for reconsideration that she might have dismissed the wrong count, but prosecutors did not take her up on her offer to ask that a different count be dismissed. He said that meant that the government had waived its right to ask for a different remedy. Rashkind added that the government could have avoided the need for an appeal and instead reindicted the case. “Nothing here is final, because the government can turn around tomorrow to reindict this case . . . it’s not as though they’ve lost this life count,” he said.
Alyson M. Palmer is a reporter for the Fulton County Daily Report , the ALM publication in which this article first appeared.

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