Federal prosecutors are asking an appeals court to reinstate a terrorism conspiracy charge against alleged al Qaeda operative Jose Padilla that could bring him a life sentence.
The motion argues the Miami trial judge used "incorrect legal analysis" in finding the first count duplicated two other counts in the indictment against Padilla and four codefendants.
The men are charged with being part of a North American "jihad" support cell for Islamic extremists overseas.
Padilla, 36, a U.S. citizen held in military custody for three-and-half years without charge as an "enemy combatant," was originally accused of plotting to detonate a radioactive "dirty bomb" in a U.S. city.
The indictment against him makes no mention of such a scheme. Soon after a Miami grand jury handed down the charges last November, the government transferred him back to civilian custody.
The government motion filed with the 11th U.S. Circuit Court of Appeals in Atlanta late Monday argues the murder conspiracy charge dismissed in August by U.S. District Judge Marcia Cooke differs from the charge of providing material support for terrorism.
"Even if the counts were multiplicitous, it was premature for the court to dismiss count one," prosecutors said. "The proper procedure was to allow the purportedly multiplicitous counts to go to the jury, and if the jury convicted on more than one multiplicitous count, to enter judgment on only one count."
The dismissed charge is the only one in the case that carries a potential life prison sentence. If prosecutors were to obtain a conviction against the two remaining counts, the maximum sentence would be 30 years.
Defense attorneys are due to respond to the government's appeal by Dec. 11. The appeals court has scheduled oral arguments for January 10th.
The latest appeal – and the pending defense motions that the case be dismissed for "outrageous government conduct" put the Jan. 22 trial date in jeopardy.
The trial court has already sent out letters to a pool of 3,000 potential jurors in the Miami area, alerting them they have been tapped to serve on a potential five month trial next year, and inquiring if they might have a conflict with serving that long.
Once that pool is whittled down, the parties will mail out a more substantive questionnaire probing potential jurors' knowledge of the case.
The government's case portrays Padilla, who lived in South Florida in the 1990s before moving to Egypt, as one of the cell's recruits who trained with al Qaeda in Afghanistan. One of his codefendants, still at large, allegedly fought with Muslim separatists in Kosovo.
The cell's alleged ringleader, Adham Hassoun, and two others allegedly "sent money, supplies, and recruits to various terrorist organizations…to fight in violent jihad," prosecutors said.
Last week, the government denied Padilla was tortured during his military custody in a Charleston, S.C., naval brig. In court papers filed with Judge Cooke, prosecutors opposed defense motions to dismiss the whole case, saying Padilla's torture allegations were "unsupported" and levied "without citing a shred of…evidence."
If Padilla were in fact mistreated during his military custody, prosecutors said, his remedy would be to pursue a civil complaint against his military captors, not a "free pass from his own criminal conduct."
Padilla's court-appointed federal defenders have argued the "deprivations, physical abuse, and other forms of inhumane treatment" Padilla endured at the hands of the military was "outrageous government conduct" resulting in "serious medical problems" and "psychological damage."
Defense attorneys cited his "stark isolation" in a nine foot by seven foot cell, where he took his meals, had no reading materials and no one to talk to except guards. Padilla often slept on a bunk with no mattress and was deprived of showers for weeks at a time and daylight for months at a time, his lawyers alleged. They say he was hooded and forced to sit shackled in stress positions, was drugged with LSD to act as a truth serum, and was often hooded and forced to sit shackled in stress positions.
"Mr. Padilla is steadfast in his assertion that in a nation of laws and of respect for the dignity of all persons, his prosecution is an abomination," his attorneys said, calling his treatment a "blot on this nation's character, shameful it is disrespect for the rule of law, and should never be repeated."
By Phil Hirschkorn