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Criminal – Terrorist Sympathizer Prosecution – False Statement

Although defendant, part of a network of people investigated for connections to radical Islam and violent jihad, was acquitted of certain offenses related to attendance at a jihadist training camp, the 4th Circuit says the government was not collaterally estopped from prosecuting defendant for making false statements for lying about attendance at the jihadist camp.

Defendant Sabri Benkahla was part of a network of people the government investigated for crimes connected to radical Islamic terrorism and violent jihad. The FBI questioned him and prosecutors twice called him before grand juries. Then he was prosecuted for false declarations, false statements and obstructing justice.

He raises three main issues on appeal. First, he claims his prosecution violated the collateral estoppel component of the Double Jeopardy Clause, as he had already been prosecuted and acquitted for some of the activities he was questioned about, such as attending a jihadist training camp. Second, he claims the trial court admitted irrelevant and unduly prejudicial evidence about terrorism and violent jihad. Third, he claims the trial court erred in determining his sentence by applying the sentencing guidelines’ terrorism enhancement. We reject all three claims and affirm the district court judgment.

Defendant’s collateral estoppel claim arises in an area of legal tension. There is some potential for abuse in the government’s procedure of acquittal, questioning on matters related to the acquittal, and a second prosecution for some form of perjury.

Prosecutors frustrated at an acquittal should not lightly be able to take a second bite at the apple by bringing perjury charges afterwards. On the other hand, a defendant does not win with acquittal a license to commit perjury.

Defendant’s first prosecution was a bench trial that concluded with the district court’s explanation that it was disturbed by a lack of evidence showing that the jihadist training camp was in Afghanistan rather than Pakistan and, if it was in Afghanistan, that defendant provided any serious form of support to the Taliban while there. In no way did the court’s decision turn on doubt about whether defendant attended a jihadist training camp somewhere.

The second prosecution once again put at issue whether defendant attended a jihadist training camp in Afghanistan. It was legitimate to ask defendant, even post-acquittal, about his jihadist training in Pakistan or Afghanistan, and it was legitimate to prosecute him when he spoke falsely about it. Thus, the issue of ultimate fact in defendant’s two prosecutions was distinct and collateral estoppel presents no bar to the second.

Nor was testimony from the government’s terrorism expert, Evan Kohlmann, and from an FBI agent inadmissible as unduly prejudicial. Undoubtedly, some of what these experts had to say, and some of that the exhibits showed, was alarming.

Undoubtedly, the scope of the evidence was wide. But the jury here acquitted defendant of several alleged falsehoods – not exactly the mark of irrational fervor. The relevance of the challenged evidence cannot be doubted. To reverse the judge for an abuse of discretion would betray too much distrust of the ability of the adversary process to reach just results when the evidence on both sides is in.

Benkahla’s guidelines range was 210 to 262 months. But the court thought the case called for a downward departure under USSC § 4A1.3 or (in the alternative) a variance under 18 U.S.C. § 3553(a). The court stated defendant “is not a terrorist” and “has not committed any other criminal acts” and that his likelihood of doing so upon release is “infinitesimal.” Defendant’s former co-defendants, the other 10 members of the Dar al-Arqam paintball group, had received lesser sentences for what were more dangerous and more violent offenses, a disparity the court found “staggering.” The court treated defendant as having a Category I criminal history and sentenced him to 121 months.

The district court’s factual findings clearly supported application of the terrorism enhancement under USSG § 3A1.4. All the evidence indicates defendant attended a jihadist training camp abroad, was acquainted with a network of people involved in violent jihad and terrorism and lied about both. We approve application of the enhancement.

Judgment and sentence affirmed.

U.S. v. Benkahla (Wilkinson, J.) No. 07-4778, June 23, 2008; USDC at Alexandria, Va.; William B. Moffitt for appellant; Gordon D. Kromberg, AUSA, for appellee. VLW 008-2-108, 18 pp.

VLW 008-2-108

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