The panel of the 2nd U.S. Circuit Court of Appeals in Manhattan issued its 2-to-1 decision affirming Dr. Rafiq Sabir's conviction on a charge of conspiring to attempt to provide material support to a terrorist organization and its unanimous affirmation on a charge that he conspired to provide material support.
Sabir, 56, of Boca Raton, Fla., was sentenced in November 2007 to 25 years in prison after his conviction at a Manhattan trial. The government said he had agreed to treat injured al-Qaida members so they could return to Iraq to fight Americans, though Sabir insisted throughout that he was innocent.
The jury was shown evidence that the Columbia University-trained doctor swore an allegiance to al-Qaida in May 2005 and promised to treat wounded members of the group in Saudi Arabia.
Sabir's lawyers had challenged his conviction on the grounds that the law used to convict him was unconstitutionally vague and too broad, there was insufficient evidence, prosecutors exhibited racial bias in their exclusion of some jurors during jury selection and the judge made incorrect rulings.
In its written opinion, the appeals court said it rejected the arguments and concluded Sabir received a fair trial.
In a dissent, Judge Raymond Dearie said his fellow judges seemed to go too far by allowing Sabir to be convicted on a charge that he tried to provide material support when he only pledged to work under the direction of al-Qaida.
"This conclusion is without precedent and hinges upon what is, in my view, a seriously flawed interpretation of the material support statutes," he wrote.
Dearie said he agreed that Sabir conspired to provide medical support to wounded al-Qaida members in Saudi Arabia in a meeting with a co-conspirator and an undercover FBI agent.
But he said evidence that he actually tried to provide the support was insufficient.
"Regardless of Sabir's inclination, as a matter of law, any step he took toward that end was insubstantial and any support he furnished unquestionably immaterial," Dearie said. "In the end, a man stands guilty, and severely punished, for an offense that he did not commit."
Edward Wilford, a lawyer for Sabir, said he believes Dearie was correct but that the entire conviction should have been overturned for lack of evidence.
"We'll do everything we can to appeal this case and pursue his liberty," he said.
At his sentencing, Sabir blamed a co-defendant - jazz musician and martial arts expert Tarik Shah - for his plight, saying he had duped him into taking an oath with an FBI agent who posed as an al-Qaida recruiter, never explaining that he was pledging loyalty to al-Qaida or its leader, Osama bin Laden.
"I'm an extremely gullible man," he said.
Shah was sentenced to 15 years in prison in a deal with the government. A Brooklyn bookstore owner who pleaded guilty was sentenced to 13 years in prison.