U.S. Claims Abundance of Evidence for Guilty Verdict in Terror Trial

Prosecutors are doing their best to make the single count of conviction against U.S. embassy bomber Ahmed Khalfan Ghailani stick.

In a memorandum filed yesterday, Assistant U.S. Attorney Michael Farbiarz and his team argue that Southern District Judge Lewis A. Kaplan should deny the motion of defense lawyers for a judgment of acquittal for the Tanzanian native or, in the alternative, a new trial.

Defense lawyers filed a memo on Dec. 17 saying that Mr. Ghailani's conviction on a single count of conspiracy to destroy U.S. buildings and property was inconsistent with his acquittal on 284 other counts by a Southern District jury on Nov. 17, including 224 murder counts that represent each of the 224 people killed in the dual bombings of U.S. embassies in Kenya and Tanzania by al-Qaida on Aug. 7, 1998.

"In light of the overwhelming statement of the jury acquitting Ghailani on all but one count of conspiracy, as well as every single substantive count, the question for this court is now whether sufficient evidence remains to have convicted Ghailani of the elements" of the conspiracy count "that would not be inconsistent with the identical conduct" for which he was acquitted, defense attorneys Peter Quijano and Michael Bachrach wrote in December.

The lawyers argued at trial that their client was a dupe used by al-Qaida. In their memo, they say there was no direct evidence of his involvement in the conspiracy.

But yesterday, Mr. Farbiarz, Harry A. Chernoff, Nicholas Lewis and Sean S. Buckley said "abundant evidence" supports a conviction whose validity "is not affected by the acquittals returned on other counts."

The trial evidence, they tell the judge, showed that Mr. Ghailani bought the truck and the large metal tanks filled with explosive gases used in the Tanzanian bombings, that he stored explosive detonators at his house in Dar es Salaam and sheltered the senior al-Qaida operative who ran the Tanzanian bomb factory—all of which showed that Mr. Ghailani "acted with the requisite mens rea" for a conspiracy conviction to destroy U.S. buildings and property under 18 U.S.C. §844(f)(1).

Other evidence supporting the conviction, they argue, includes his flight; using a false passport from Nairobi, Kenya, to Karachi, Pakistan, with senior al-Qaida operatives the day before the twin bombings; and Mr. Ghailani's repeated lies to family and friends as to where he was headed.

The prosecutors add that al-Qaida "is fanatically (even murderously) committed to operational security…and that the al-Qaida cell in East Africa was especially so."

They continued, "These facts make it even less likely that a mere 'dupe'—a person who lacks mens rea—would be permitted to operate, as the defendant did, at the very heart of al-Qaida's embassy bombings plot."

The government goes on to cite a phone registered in Mr. Ghailani's name that was "repeatedly used to contact key locations associated with the embassy bombings plot" and his "close, trusting relationships with many of the al-Qaida operatives working at the core of the terror cell."

The conviction came on Count 5, but the jury also answered in the affirmative the question in Count 5B: that Mr. Ghailani's conduct in Count 5 "directly or proximately caused death to a person other than a co-conspirator."

In their memo, Mr. Quijano and Mr. Bachrach state that "the jury's finding on Count 5B could only have been referring to the deaths that resulted during the embassy bombings."

So, the defense lawyers say, the jury's finding that Mr. Ghailani was "directly or proximately responsible for the deaths" that occurred as a result of the conspiracy has to be squared with not guilty verdicts on Counts 7 and 8, which asked the jury to determine whether he "was guilty of the substantive offense of bombing the United States Embassies in Kenya and Tanzania."

The defense lawyers continued, "Both counts also require a finding that Ghailani directly or proximately caused the death of the 224 individuals that were killed. The jury found, however, that Ghailani was not guilty of such conduct."

But in its response yesterday, the government took direct aim at the defense claim that the conviction must be set aside, otherwise, the counts on which Mr. Ghailani was acquitted would not have "any meaning."

The prosecutors state that the "'meaning' of an acquitted count is that a defendant has been found not guilty on that count—not that, by operation of law, he somehow becomes not guilty of othercounts, as to which he has in fact been found guilty."

They cite United States v. Acosta, 17 F. 3d 538 (1994), where the U.S. Court of Appeals for the Second Circuit said that "it has long been established that inconsistency in jury verdicts of guilty on some counts and not guilty on others is not a ground for reversal of the verdicts of guilty."

The circuit was referring to the so-called "Dunn rule," after Dunn v. United States, 284 U.S. 390 (1932).

"Rather than attempting directly to reckon with the Dunn rule," the prosecutors say, the defendant "seeks to skirt it."

They urge Judge Kaplan to accept the jury's collective judgment and resist inquiring into the jury's thought processes.

Oral argument on the motion is scheduled for Jan. 20.

Mr. Ghailani faces a 20-year mandatory minimum prison term when he is sentenced by Judge Kaplan on Jan. 25. But the government has asked for an upward departure to a life sentence and the defense has asked for leniency based on Mr. Ghailani's alleged mistreatment by the CIA while in custody and his cooperation in providing agents with useful intelligence. @|Mark Hamblett can be contacted at mhamblett@alm.com.

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