“Minnesota men” go to trial (20)

The prosecution and defense made their closing arguments to the jury on Tuesday and Wednesday. Judge Davis instructed the jury and submitted the case to them with separate verdict forms for each of the three defendants. The charges include a total of ten counts. I would guess the jury will until the middle of next week.

The Star Tribune’s Stephen Montemayor gives relatively straightforward accounts of the closings here (May 31) and here. I want to note themes and provide a few other stray observations here in lieu of recapitulating the evidence that the parties reviewed with the jury.

Before he sent the jury off to deliberate yesterday afternoon, Judge Davis designated three jurors of the fifteen who heard the case to serve as alternates. He explained that they had been randomly selected as alternates by computer. Based on my own admittedly speculative and uncertain reading of body language during the trial, I had picked them as three of the four most attentive and pro-prosecution jurors.

This is a conspiracy case. The government charges defendants with conspiracy to provide material support to ISIS (a designated foreign terrorist organization) by seeking to join the group. It also charges them with conspiracy to commit murder overseas by joining ISIS. Other charges include perjury before the grand jury, false statements to the FBI, and attempted federal financial aid fraud. (One of the defendants sought to finance his trip to Syria at taxpayers’ expense.)

Does the evidence prove the defendants guilty of the offenses charged beyond a reasonable doubt? That is the question the attorneys addressed in their closing arguments.

Judge Davis gave each party three hours for argument. Defendants took short of two hours each. The government took nearly the full three hours including rebuttal.

Three co-conspirators testified against defendants at trial. Two had pleaded guilty to conspiracy to provide material support and agreed to cooperate with the government. The third went to work for the FBI as an informant and covertly recorded the defendants talking among themselves and with other co-conspirators who have pleaded guilty. He has not been charged. His recordings run from February through the arrests in April 2015, at the end of the road in San Diego. They are the central piece of evidence in a case full of evidence. They are devastating.

In criminal cases the government goes first and last at closing arguments. Assistant United States Attorney Andrew Winter had made the opening statement on behalf of the government. AUSA John Docherty made the closing argument but yielded to Assistant United States Attorney Julie Allyn for rebuttal. I don’t think that’s good trial practice, but the prosecution split up their case among Winter, Docherty, and Allyn throughout the trial.

Docherty opened with the proposition that the case demonstrated exceptionally persistent efforts to fight for the exceptionally violent group ISIS in Syria. Docherty asserted that the evidence had proved defendants guilty beyond a reasonable doubt and methodically summarized the evidence in support of the proposition. He did not discuss or explain the burden of proof that the government bears in the case. I don’t understand that’s good trial practice either.

The evidence certainly supports the argument that defendants made three efforts to depart Minnesota for Syria and ISIS, beginning in the spring of 2014, continuing the following November and ending with their arrests a year later. Docherty discussed the three phases of the defendants’ efforts to depart Minnesota. Conspiring to volunteer their personal services to ISIS is the “material support” with which they are charged.

Without going into the details, I will only say that the heart of the government’s case is the recordings made by co-conspirator turned informant Abdhirahman Bashir. We heard hours of them during the trial and Docherty effectively replayed highlights during his closing. Bashir made the recordings during phase 3 of the conspiracy, when defendants sought to make their way to Syria via San Diego and Mexico with the use of fake passports. If I can refer to the recordings as a witness, they were the star of the trial.

The fake passports were provided to defendants Mohamed Farah and Abdirahman Daud in San Diego by “Miguel” in conjunction with an FBI team that made the arrests in San Diego. Defendant Guled Omar elected to stay behind and was arrested in Minneapolis.

The recordings also include discussions of the defendants’ efforts to make it to Syria during in the spring and fall of 2014. They document the defendants’ ardent desire to leave the United States and join the jihad with ISIS. As much as they wanted to wage jihad, they wanted to die in the act.

It’s the Islam, stupid. Islam permeates the case.

Among the conspirators the use of federal financial aid to finance travel was preferred when available. Defendant Guled Omar resorted to it. So did convicted co-conspirator Hamsa Ahmed.

Docherty occasionally referred to the JFK Four. That is a moniker that should stick. The JFK Four refers to defendant Mohamed Farah and three other “Minnesota men” who have already pleaded guilty in the case. They took a Greyhound bus to New York City to try to fly out of JFK in November 2014. There they were stopped by the FBI. Farah accused the FBI agents of profiling him because he is Muslim. According to Farah, he was just heading off on a vacation alone to sunny Sofia, Bulgaria.

I could go on, but let’s turn to the defense. Defense counsel Murad Mohammad went first, on behalf of Mohamad Farah. Mohammad gave a very bad closing. His theme seemed to be that Farah only wanted martyrdom consistent with Islam, not that there’s anything wrong with that. Except that you get martyrdom waging jihad. As I mentioned before, it’s the Islam.

Another of Mohammad’s themes was the youth of the defendants and their co-conspirators. He referred to them as “these kids.” Unfortunately, there is no evidence of a minimum age for jihad.

Mohammad argued that Farah was entrapped. “Without the FBI these kids would never have gone anywhere,” he said. That was in Phase 3, when Farah was ancy yet again to escape the United States and join the jihad in Syria. And his predisposition to join the jihad negates entrapment.

Defense counsel Bruce Nestor went next, on behalf of defendant Abdirahman Daud. Nestor is an excellent attorney working with a tough case. He capably reviewed the jury instructions and the witnesses, seeking to make the point that the incriminating recordings just represented words rather than guilty acts.

Nestor attacked the credibility of the co-conspirators who pleaded guilty and testified at trial as well as the co-conspirator turned informant who made the recordings. Nestor disparaged the informant as a “paid true believer.”

Nestor fabricated the hypothesis that the informant failed to record exculpatory parts of conversations. When I say fabricated, I mean conjured out of thin air. Regardless of the informant’s credibility, the recordings stand with Daud’s incriminating (“offensive,” as Nestor conceded) words. They are one tough nut to crack.

Nestor made one point which I have made here in the same words I used. He claimed that Daud got into something — I don’t think he said exactly what — “way over his head.” With Daud and his family and friends, however, we are in further over our head than he is.

Defense counsel Glenn Bruder went last before the government’s rebuttal, on behalf of Guled Omar. Omar is the one defendant who testified on his own behalf at trial. I would say he cooked his own goose in terms of his defense. He thought he could talk his way out of the mess he’s in, or that it was worth a shot, but I don’t think it turned out that way. He couldn’t quite talk his way out of the recordings. Bruder too argued — based on precisely no evidence — that the informant had recorded conversations selectively and that Omar’s guilty words were merely boasting and bragging.

Omar is charged with attempted financial aid fraud. He is a resourceful young man who has wasted talent and opportunities. He is also the guy whom ISIS commissioned to kill 16 American pilots and family here in the United States — another fact we know because of the recordings.

Toward the end of his argument Bruder sought to defuse the ire an average American would feel on hearing the evidence. Omar is not like us, he conceded, he comes from a different culture and practices a different religion.

Gee, thanks for the explanation. It makes you wonder what we were thinking when we brought him and his disabled father and prolific mother and his many brothers and sisters into the United States and set up housekeeping for them. We must have been out of our minds.

Bruder concluded with the story of his visit on vacation to Old Bailey in London a while back. He discussed the plaque on display in Old Bailey paying tribute to the jury that refused to convict the Quaker William Penn. (Bruder didn’t explain that the jury’s refusal to convict Penn is a landmark in the history of jury nullification, or refusal to follow the law.) Bruder said he was confident that he had done his job as counsel and asked the jury to do its job like Penn’s jury.

Bruder unsubtly sought to invite the jury to demonstrate its freedom from prejudice by returning a verdict of not guilty. The possible differences between the case against the Quaker William Penn and the aspiring jihadist Guled Omar were of course left unstated, but Bruder’s story got me — it got me thinking and laughing and seething, all at the same time.

Following the rebuttal by Julie Allyn, Judge Davis read a complicated set of instructions to the jury and sent them off to begin their deliberations with a verdict form for each defendant. The jury should return with its verdicts next week.

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