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The perjury defense of a San Diego college student arrested for claiming that he did not know one of the Sept. 11 hijackers will depend on the ability of his lawyer to prove that the defendant recanted his false testimony. A yet-unscheduled pretrial hearing in the case against Osama Awadallah will focus on the defense’s claim that Awadallah was not deceitful but merely confused when he denied knowing a terrorist named “Khalid” while testifying at an October appearance before a special grand jury probing the attacks. Defense attorney Jesse Berman claims that Awadallah realized his mistake, and then recanted that testimony before the grand jury five days later. Awadallah’s arraignment was held in New York Monday before U.S. District Judge Shira A. Scheindlin. At the arraignment, Berman said Awadallah “wants to make a defense that he corrected his testimony in the very same grand jury.” After questioning by agents of the Federal Bureau of Investigation in San Diego, Awadallah was detained on Sept. 21 as a material witness in the case and brought to New York, where he is being held at the Metropolitan Correctional Center. He was charged with two counts of perjury under �1623 of the Federal Criminal Code following grand jury appearances on Oct. 10 and Oct. 15. In his first appearance before the grand jury, Assistant U.S. Attorney Robin Baker charged, Awadallah denied knowing “Khalid,” or Khalid Almihdhar, allegedly one of the hijackers of American Airlines Flight 77 that crashed into the Pentagon Sept. 11. But Awadallah was then presented with an examination booklet from his English class at Grossmont College, in which he wrote: “One of the quietest people I have met is Nawaf. Another one is Khalid.” Nawaf is Nawaf Al-Hazmi, also one of the terrorists on Flight 77. Awadallah acknowledged in the grand jury that he had met Al-Hazmi as many as 40 times leading up to about a year ago. The government charged Awadallah with lying about Almihdhar. However, after meeting with Berman, and after asking again to review the examination booklet, the 21-year-old Awadallah returned to the grand jury on Oct. 15 and said that he had, indeed, met “Khalid,” on just a few occasions — and always in the presence of Al-Hazmi. Berman argues that Awadallah had no reason to lie to the grand jury because he had already conceded knowing one terrorist. Berman said his client made the mistake for which he was charged at the close of a long session of questioning before the grand jury on Oct. 10, and that Awadallah, who has limited English skills, was chained to a chair throughout the proceeding. Berman has also charged that the government, straining to find links to the hijackers, has overreached in indicting Awadallah. He has dismissed as “window dressing” the government’s statement that investigators found photographs of Osama bin Laden in Awadallah’s apartment. “This is so petty,” Berman said after yesterday’s arraignment. “Obviously a decision was made to trip him up so they could charge him with something. What’s the point? Is Washington saying, ‘Let’s lock up a thousand people because one of them has done something ?’ “ In trying to show that Awadallah made a mistake and effectively recanted his testimony, Berman will be governed by �1623(d), which bars a prosecution for perjury where a defendant admits to making a false statement if, at the time the admission is made, “the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.” Although proof of the elements of the section acts as a bar to prosecution, recantation is treated as an affirmative defense, and so the burden will be on Berman to prove the elements. The defense can be offered only in pretrial proceedings before Judge Scheindlin, and, if the judge determines that Berman has failed to carry his burden, the defense lawyer will be blocked from arguing for an acquittal based on recantation. Commentators on the law say that the threshold for determining whether a proceeding has been “substantially affected” is a low one, and that courts often defer to the prosecution in making that determination. But Berman said he believes that the case against his client is meritless, and that even if he is unable to win a bar to prosecution pretrial, he can win at trial. The pretrial hearing is expected to be scheduled around the end of December, but Berman said he would ask for a hearing to set bail before then.

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