Setback for 2 charged in FBI sting
Allegations of links to foreign terror figures to be raised at local men's trial
By BRENDAN LYONS, Staff writer, Times Union
First published: Tuesday, January 10, 2006
ALBANY -- A federal judge on Monday ruled that an Albany mosque leader's alleged ties to Middle Eastern terrorist figures will be allowed as evidence against Yassin Aref and Mohammed Hossain, who were arrested in an FBI sting on charges of money laundering and supporting terrorism.
The decision was part of a series of rulings by U.S. District Judge Thomas J. McAvoy, who declined to throw out the charges or any of the evidence seized by authorities in the case.
Aref, the longtime spiritual leader of a Central Avenue mosque, has denied government allegations that he was aligned with high-ranking terrorist figures. Lawyers for both Aref and Hossain said the accusations would prejudice a jury when they go to trial later this year on charges of taking part in a plot to make money off the sale of shoulder-fired missiles to terrorists.
Government prosecutors contend the background is critical and will demonstrate that Aref was a willing participant in the fictitious scheme, which was concocted by FBI agents in an effort to ensnare the pair.
The allegations about Aref's background arose in three additional charges stemming from allegations that he lied about his background when entering the United States. Those charges are unrelated to the sting.
McAvoy characterized his decision as "a close call" and conceded the accusations against Aref could be "a danger to Mr. Hossain."
The judge's rulings clear the way for government prosecutors to lay out at trial their allegations that Aref, a Kurdish refugee, had associated with key terrorist figures before coming to the United States in 1999.
"That's his motivation. ... He's a student of these jihadist causes and that's part of the government's case," Assistant U.S. Attorney William Pericak said.
McAvoy also declined to grant the men separate trials or to throw out the case against them after hearing arguments from their attorneys that they were entrapped by a government informant. The judge said it will be left to a jury to decide whether they were induced to take part in a crime.
The judge sidestepped a challenge by the defense attorneys related to a controversial National Security Agency spying program. The attorneys recently filed motions demanding the government disclose whether the defendants were subjected to the secret domestic surveillance measures, which triggered a national debate when they were first exposed last month in a report by The New York Times.
McAvoy said the issue may fall under the Classified Information Procedures Act (CIPA), which allows prosecutors to file some of their evidence under seal in cases involving national security. So far, he has reviewed three CIPA filings by prosecutors in this case but has not issued a decision on whether defense attorneys will be allowed access to any of the top secret materials.
The final CIPA filing by prosecutors will be handed over to the judge on Friday.
Neither defense attorneys nor the public may review the materials unless McAvoy, who examines them privately, decides they might aid the defense teams. The government could appeal any ruling by McAvoy, and the appeals process on that issue could drag on for months, further delaying the trial, which had been expected to begin early this year.
There have been translation errors in some of the government's key evidence. Hossain's attorney, Kevin Luibrand, told McAvoy he's concerned about the judge making decisions in private about pertinent information that has not been vetted by defense experts.
It's not clear what type of information has been filed under seal.
The Albany-based sting began in July 2003 when the FBI sent an undercover informant, a Pakistani immigrant, into Hossain's pizza shop to lure the men into a plot to make money from the sale of missile launchers to terrorists.
Federal authorities have admitted Aref was the "ultimate target" of their operation. Aref's name, phone number and Albany address were found in a notebook recovered from a bombed-out Iraqi encampment -- about two months before the sting began -- that the government contends was occupied by "terrorists."
Defense attorneys have not been allowed access to the notebook, nor to Pentagon reports on what else was recovered from the encampment and whose bodies were found there. It's also not clear if the notebook entry triggered the sting against Aref.
Terence L. Kindlon, Aref's attorney, told the judge the CIPA filings have put defense attorneys in a position where they are much like game show contestants and have to guess "what's behind the curtain."
Since their arrest in August 2004, the government has added more charges, including allegations the men conspired to provide material support to a Pakistani terrorist group, although the support was in the form of taking part in the FBI sting. There was never any real terrorist plot.
Hossain, a Bangladeshi immigrant who has lived in Albany for more than two decades, claims he was lured into the plot by an overzealous FBI informant and that language barriers prevented him from understanding what was really unfolding.
To counter his claims, the FBI released surveillance footage of Hossain and the informant talking as the informant held a shoulder-fired missile launcher. Aref never saw the weapon, although prosecutors contend he was later shown a triggering device.
Aref, 35, is an Iraqi-born religious scholar who was hired as imam at the Masjid As Salam mosque on Central Avenue soon after he arrived in the United States seven years ago.
The FBI claims that entries in Aref's personal journals, which were seized in August 2004 when the men were arrested, link him to Mullah Krekar, founder of Ansar al-Islam, a violent terrorist group that U.S. authorities contend has ties to al-Qaida and has been responsible for many of the attacks on coalition forces. Aref has admitted meeting Krekar, but denied any allegiance to him.
Hossain remains free on bond while the case is pending. Aref's freedom was revoked by a federal judge on Sept. 30 when federal prosecutors filed a superseding indictment that contained allegations of his past ties to terrorist organizations.