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Appeals court's unusual ruling: Give Jose Padilla a tougher sentence

Convicted Al Qaeda supporter Jose Padilla, a US citizen once labeled an 'enemy combatant,' was given a 17-year sentence. In a rare ruling, a US appeals court called that too lenient.

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The government presented testimony by an FBI agent who said many of the words used in the recorded conversations were code words to mask the participants’ support of violent jihad. He said they used the word “eggplant” to mean rocket-propelled grenade, and “tourism” for jihad, Islamic holy war.

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Defense lawyers said the recorded conversations involved innocent discussions of international political events involving the persecution of Muslims.

The appeals court split 2 to 1 on whether Judge Cooke was correct to allow the FBI agent to testify about his opinion of what the “code” words actually meant.

“[The agent’s] knowledge of the investigation enabled him to draw inferences about the meaning of code words that the jury could not have readily drawn,” Dubina wrote, in upholding the admission of his testimony.

Barkett disagreed. “[The agent’s] lay opinions were nothing more than the government’s closing argument in disguise because the jurors were able to review the same transcripts of the pre-recorded telephone conversations and could draw their own conclusions about that evidence,” she wrote.

Barkett added that incriminating statements given by Padilla to the FBI shortly after his arrival at Chicago’s O’Hare International Airport should not have been presented to the jury because Padilla had not been given Miranda warnings prior to making his statements.

Dubina agreed that statements from part of Padilla’s FBI interrogation at the airport could not be presented to a jury. But he said the error was harmless since no testimony from that portion of the interrogation was presented to the jury at Padilla’s trial.

Although there is no suggestion that the three alleged support cell members had any connection to the 9/11 attacks, Judge Cooke allowed prosecutors to play a videotape of a 1997 CNN interview with Mr. bin Laden.

Bin Laden told CNN that he had declared a holy war against the US because it was an unjust and tyrannical country.

Defense lawyers objected to the video on grounds that it would enflame the passions of the jurors against the defendants and subject them to guilt by association.

Prosecutors presented a snippet of a 1997 monitored conversation between co-defendants Hassoun and Jayyousi discussing the bin Laden interview. “May God protect him,” Hassoun said of bin Laden.

“The excerpted portion of the video did not present a risk of unfair prejudice such that the district court committed an abuse of discretion in allowing the government to present it to the jury,” Dubina wrote.

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