Court reinstates only charge that carries a life sentence in Padilla terrorism case


Published: Wednesday, January 31, 2007 at 6:01 a.m.
Last Modified: Wednesday, January 31, 2007 at 12:00 a.m.

MIAMI — A federal appeals court on Tuesday reinstated a key terrorism charge in the case against alleged al-Qaeda operative Jose Padilla, restoring the only count that carries a potential life sentence.

A three-judge panel of the 11th U.S. Circuit Court of Appeals agreed with federal prosecutors in Miami who said the charge that Padilla and his two co-defendants conspired to "murder, kidnap and maim" people overseas did not duplicate other counts in the same indictment.

The Atlanta-based court reversed a decision made last summer by U.S. District Judge Marcia Cooke, who ruled that the three charges in the indictment contained nearly identical elements and could subject the defendants to extra punishment for the same act.

In a 15-page ruling, the appeals judges said it was clear the "murder, kidnap" charge was distinct from the charges of providing material support to terrorist groups and that double jeopardy does not come into play.

"Although they may appear to be nested within one another, each charge stands alone from the others and requires proof of independent elements," Circuit Judge Gerald Tjoflat wrote for the panel. "By definition, none of the offenses is a lesser-included offense of another."

Although the decision is not yet final because defense attorneys can file a challenge, it brings the case a step closer to trial as scheduled April 16. The appeals court agreed to hear the case on an expedited basis — oral arguments were held Jan. 10 — after Cooke said she would not begin jury selection until the issue was settled.

"We are gratified by the 11th Circuit's swift decision and look forward to presenting the evidence at trial," U.S. Attorney R. Alexander Acosta said in a statement.

Defense attorneys have 21 days to ask the panel to rehear the case or could request that the full appeals court take up the issue. Lawyers for Padilla and his co-defendants did not immediately respond Tuesday to telephone and e-mail messages seeking comment.

The other two main terrorism support charges against Padilla and the others carry maximum prison sentences of 15 years each.

Padilla, a 36-year-old U.S. citizen, is charged with being part of a North American terror support cell that provided personnel, materiel and money to extremist Islamic causes around the world.

He and his two co-defendants — Adham Amin Hassoun, 44, who allegedly recruited Padilla; and 45-year-old Kifah Wael Jayyousi — have pleaded not guilty.

After Padilla was arrested in May 2002 at Chicago's O'Hare International Airport, Bush administration officials claimed he was plotting to detonate a radioactive "dirty bomb" in a major U.S. city.

President Bush declared Padilla an enemy combatant, and he was held without criminal charge for 3 years until he was added in late 2005 to the Miami terror support case.

The "dirty bomb" allegations are not part of the Miami indictment.

Padilla claims he was tortured while in custody at a Navy brig in Charleston, S.C., and his lawyers say he is suffering from post-traumatic stress disorder that raises questions about his competence for trial. U.S. officials deny the torture allegations, but Cooke has ordered a competency exam and expects results next month.

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