Following up on Informant who set himself on fire figured in at least three terror probes, a news update from the New York Times: Judge Bars Terror Evidence Against Sheik By WILLIAM GLABERSON Published: January 26, 2005
In an important victory for a Yemeni sheik charged with financing terrorism, a federal judge yesterday prevented prosecutors from introducing what they have described as vital evidence during their initial presentation to the jury. The judge in federal court in Brooklyn, Sterling Johnson Jr., ruled that the prosecutors cannot display three items they have said are their only corroboration for secretly recorded conversations in which they say the sheik and an aide plotted to take money for terrorist organizations. In arguing unsuccessfully to persuade the judge to change his mind, a prosecutor, Kelly Moore, said the items the judge barred yesterday were "a significant part of the government's evidence in this case." The ruling was important because the items the judge banned were the prosecutors' only way of proving that the defendants' supposed plan to take money for Al Qaeda and Hamas was part of a long-running effort to provide financial support to terrorist organizations. The sheik, Mohammed Ali Hassan al-Moayad, 56, and his aide, Mohammed Mohsen Yahya Zayed, 31 are charged with conspiracy and providing financial support for Al Qaeda and Hamas. The ruling, which created palpable anxiety among the prosecutors, said the prosecutors cannot show jurors an application of a mujahedeen fighter for entry into an Al Qaeda training camp. The prosecutors said the application, found in Afghanistan in 2001, listed Sheik Moayad as the fighter's sponsor. The ruling also stopped prosecutors from introducing into evidence address books taken from two Muslim fighters in Bosnia in 1996. The prosecutors said the books included entries for Sheik Moayad. Judge Johnson said that "we don't know what the source" of the Al Qaeda application was and that the address books were from a time too remote from the alleged fund-raising by the sheik in 2003. Judge Johnson said they dated back to before Al Qaeda was listed as a terrorist organization by the United States government. The third item he banned during the prosecution's initial presentation was a videotape of a wedding in Yemen that the prosecutors said included images of Sheik Moayad cheering about the death of Jews in a Hamas terrorist attack in Israel. Focusing on a central vulnerability for the prosecutors, Judge Johnson noted that the videotape was taken by the prosecution's main informer, Mohamed Alanssi. Mr. Alanssi drew attention to a history that included bad debts and legal troubles when he set himself on fire outside the White House in November. After that act, the prosecutors suggested they would not call Mr. Alanssi as a witness. Yesterday, Judge Johnson said the prosecutors could not show the wedding videotape unless Mr. Alanssi testified. "If the informant wants to come in and testify as to what he saw and observed, I'll allow it," Judge Johnson said from the bench. Pressed by Judge Johnson, Ms. Moore said more definitively than she has before that the prosecutors were "not planning" to call Mr. Alanssi as a witness. In her argument, Ms. Moore noted that Mr. Zayed and, possibly the sheik, were expected to argue that they were entrapped by two informers into making the damaging statements that were secretly taped in Germany in January 2003. She said the prosecutors wanted to use the documents and the tape recordings to undercut that argument by asserting that they showed a long pattern of involvement in terrorist activities. The prosecutors have portrayed Sheik Moayad as an important Al Qaeda financier, but in recent weeks it has appeared that their allegations about Al Qaeda have been fading in importance to the case. Judge Johnson said the prosecutors could renew an application to have the three items admitted after the initial phase of the case when they try to rebut any defense that is advanced. But Jonathan Marks, the defense lawyer for Mr. Zayed, said the judge's legal reasons for disallowing the items would probably remain the same. The ruling came on what was to have been the eve of the opening of the prosecution's case. But the opening statements scheduled for today were delayed because one of the sheik's lawyers, Howard L. Jacobs, was hospitalized because of a heart attack Monday morning. Mr. Jacobs, a court-appointed lawyer, has represented the sheik for nearly two years. A month ago, another lawyer, William H. Goodman, joined in the defense. Yesterday, Mr. Goodman asked for a delay because of Mr. Jacobs's illness. But Judge Johnson bowed to the prosecutors' request that no lengthy delay be granted, saying that Mr. Goodman was capable of carrying on. Jury selection is to be completed this morning. Opening statements and the start of testimony is now scheduled for tomorrow. "The harm to my client," Mr. Goodman said yesterday, "is his attorney for the past two years cannot participate in his defense."