“Minnesota men” go to trial (15)

Conspirator turned government informant Abdirahman Bashir completed his testimony during his fifth day on the stand yesterday. Defense counsel Bruce Nestor represents Abdhirahman Daud and is the best lawyer at the trial. He aggressively cross examined Bashir about his role promoting the trip to San Diego that culminated in the arrest of Daud and Mohamed Farah. (Ruled Omar was arrested in Minneapolis.) Bashir worked with the FBI to promise fake passports to Daud and Farah that were, in their minds, intended to facilitate their travel to Syria through Mexico.

Nestor made the point that Bashir egged defeandants on. When financial obstacles to defendants’ travel appeared, Bashir worked with the FBI to keep the operation moving forward. He never discouraged them from traveling. He questioned the manhood of anyone who backed out. All this was intended not just to impugn Bashir’s credibility, but to lay the ground for a defense of entrapment.

Under the instruction that Judge Davis will give the jury, the prosecution has the burden of proving beyond a reasonable doubt either that defendants were willing to commit the crime charged before they were Bashir began to work with the FBI, or that neither Bashir nor the FBI persuaded or talked the defendants into committing the crimes charged. “If you find that the government proved at least one of these two things beyond a reasonable doubt,” Judge Davis will tell the jury, “then you must reject the defendants’ claim of entrapment.”

The covert recordings that Bashir made of defendants in early 2015 belie the defense of entrapment. They show defendants ardent desire to travel to Syria and join ISIS to wage jihad by any means necessary. Moreover, in their effort to join join ISIS in Syria, the fake passports scheme constituted the third time around following their previous failed attempts in the spring and fall of 2014. The entrapment defense is highly unlikely to fly.

Bashir is the government’s star witness. His testimony was well prepared and credible, supported by the recordings and other corroborating evidence. His evidence is the linchpin of the case.

Defendants’ co-conspirator Abdirizak Warsame took the stand in the afternoon. Like Abdullahi Yusuf, he has pleaded guilty to conspiracy to provide material support to a foreign terrorist organization and is testifying under a cooperation agreement in the hope that Judge Davis will exercise leniency in his sentencing.

With the courtroom full of family and friends of defendants, the tension is thick when Somali witnesses testify voluntarily against defendants on behalf of the prosecution. Before Warsame began his testimony following the afternoon break, Judge Davis emerged to warn the mother of one of the defendants to behave. Summarizing yesterday’s proceedings, Star Tribune reporter Stehen Montemayor leads his story with this moment.

I would add this point. I believe that Judge Davis seeks to prevent an incident that will prejudice either side in the trial or that might result in a mistrial. Having previously presided at trials raising similar issues in the past, Judge Davis is determined to maintain order and decorum in the courthouse and the courtroom.

Assistant United States Attorney Julie Allyn conducted the direct examination of Warsame. He is a terrible witness. Extracting his testimony is like pulling teeth, except perhaps more painful. So far, anyway.

Allyn accordingly resorted to leading questions to get the testimony she sought to elicit from Warsame. Leading questions are not proper form on direct examination. When defense counsel objected, Judge Davis expressed extreme displeasure on this point in front of the jury. When the problem recurred, he called a sidebar conference with counsel during which I am quite sure he forcefully reiterated his views. Warsaw’s testimony continues today.