Last week, the 9th U.S. Circuit Court of Appeals overturned Pete Seda's conviction for tax fraud, which according to the government, had links to terrorism.
Seda, a tree surgeon who lived in Ashland, Ore., was sentenced to 33 months in prison after prosecutors convinced a jury that he falsified a tax form to conceal the purpose of a $150,000 donation – financing Chechen terrorists.
The 9th Circuit Court of Appeals threw out the verdict, saying the trial was tainted. The ruling says prosecutors violated federal law by secretly paying a witness whose wife gave key testimony, and withholding that information, along with other key evidence, from Seda's defense team.
LINK to pdf. of 9th U.S. Circuit Court of Appeals ruling
"This is a tax fraud case that was transformed into a trial on terrorism," wrote Circuit Judge Margaret McKeown in the ruling. "The appeal illustrates the fine line between the government's use of relevant evidence to document motive for a cover up, and its use of inflammatory, unrelated evidence about Osama Bin Laden and terrorist activity that prejudices the jury."
This week, Gov. Kitzhaber signed a bill into law designed to prevent the same thing from happening to other Oregon defendants. The new law details prosecutors' responsibilities to hand over any evidence that helps prove the defense case.
It's not before time. The Supreme Court ruled 50 years ago in the Brady v. Maryland case, that prosecutors must turn over to the defense any information that helps prove the defendant's case. In the Brady case prosecutors had a murder confession from one of two accused men, but did not disclose that while prosecuting the other man, Brady.
"Brady was a landmark case," says David Angeli, a former U.S. Navy pilot and vice-chairman of the national Criminal Defense Lawyers Association. "The court held that prosecutors had a constitutional duty to hand over to the defense any material in the government's possession which might be favorable to the defense."
Yet despite the Supreme Court ruling, prosecutors had no clear guidelines on how to apply it to their cases –and in some cases they may have deliberately ignored the law, Angeli says.
The high-profile conviction of Alaskan Sen. Ted Stevens, for example, was overturned when an FBI officer came forward to say the government had withheld crucial witness statements and documents from Stevens' defense that suggested he was innocent.
"For the last 50 years Brady has existed, but there has been a lot of confusion about what exactly it means," Angeli says. "What is favorable evidence? When do they have to turn it over? Is it enough for prosecutors to just turn over material in their own files or do they also have an obligation to go to people who are helping them in the case – like the police—and figure out whether they have helpful information."
Oregon's New "Brady" Rules
Oregon's new "Brady Law" spells out the rules. It passed unanimously in both the Oregon House and Senate after a series of hearings showed defense lawyers and District Attorneys had very different ideas about how the law should work.
"During the hearings it became apparent that many DAs believed they fulfilled their Brady obligations merely by turning over material that exists in their own files," Angeli said. But that's not enough according to federal case law.
"The US Supreme Court has made clear that prosecutors also have to look for and turn over favorable evidence known to others acting on the government's behalf in the case, including the police," he says.
"For example, if it's an environmental case, and if the Oregon Department of Environmental Quality is working with the U.S. District Attorney, then the DA's office has to go to the DEQ and ask them if they have any material favorable to the defense. If they do, they have to turn that over too. So this legislation makes clear that a prosecutor's obligation extends beyond what he or she has in their own files."
Some district attorneys believed the law applied only to evidence that would by itself lead a jury to bring a not guilty verdict. Oregon's new law states that any evidence that "tends to" show the defendant is not guilty --or mitigates that guilt - must be turned over.
"The correct standard is that the state has to turn over anything that tends to be favorable to the defense," Angeli said. "So that's a much lower standard than 'necessarily will lead to an acquittal.' This legislation makes that clear."
A third important rule in the new law governs the timeframe for turning over that evidence.
"Some prosecutors will hold on to that evidence until the eve of trial and the defense is deprived of knowing what that evidence is, and being able to build their trial strategy around what that evidence is," Angeli says.
"This legislation makes it clear that Brady information has to be produced, 'without delay after arraignment and prior to the entry of any guilty plea.' So very early on in the process the government has to turn this material over."
The FBI Case Against Pete Seda
The Pete Seda case began four days after 9/11, when FBI agents questioned him over a $151,000 donation delivered to Soliman Al Buthe, a representative of the Saudi Arabian Islamic charity, Al Haramain. The donation, which came from an Egyptian man living in England, was wrongly listed on the charity's 2001 tax return as part of the purchase costs for a prayer house in Missouri.
In the 1990s Al Haramain was described by U.S. government agencies as the "United Way" of Saudi Arabia, with 50 offices worldwide that funded humanitarian aid and religious education. Some of its members, however, supported groups that were identified as terrorists by the West. In 2002, the United Nations imposed sanctions on Al Haramain's offices in 11 countries.
During the 1990s, Seda had co-founded a group which distributed Qurans to prisoners. But in 1997, after Al Buthe offered to provide his group with Qurans through Al Haramain, the men worked together to create a U.S. branch of Al Haramain. Al Buthe was listed as its president; Seda was the secretary; and another Saudi man, Aqeel Abdul Aziz Al-Aqil, was the treasurer. Seda applied for nonprofit status, which was granted. In 1999 Al Haramain was seeking donations for humanitarian aid to Chechnya.
At Seda's trial, prosecutors said most of the money delivered to Al Buthe went to the Chechen mujahideen, a militia made up of Arab and Turkish fighters that was fighting for Chechen independence from Russia, and was designated a terrorist organization. Seda says the $151,000 donation was intended for humanitarian aid to needy Chechen families. The fighting had caused hundreds of thousands to flee their homes.
In Saudi Arabia, Al Buthe deposited the checks into his own bank account, his customary practice. At the trial, prosecutors and Seda's defense team gave different accounts of what then happened to the money.
Click here to see pics of Ameer Khattab on the Kavzak Center site . The Kavzak Center calls itself a Chechen news source. According to Wikipedia, controversy over who sponsors the center, and why, remains unresolved.
Prosecutors said Al Buthe had delivered it to the Saudi-born military leader Ameer Khattab to fund Chechen mujihadeen. Seda said it went into a Saudi bank account that funded Chechen humanitarian aid.
But the defense team could not obtain firm evidence to confirm the deposit. Much of the prosecution evidence was kept secret --even from the defense team. Prosecutors cited national security issues.
Back home in Ashland, the money transfer was wrongly listed on the Al Haramain-US tax return, bundled into funding for a building purchase. The defense said that was simply a tax preparer's mistake.
"The government took an ordinary tax fraud case and they presented it to the jury as this is a case in which Pete Seda was supporting terrorism, supporting the mujahideen, and was supporting jihad," Angeli said.
"I think they used the word jihad something like 35 times during the course of the trial and it really made that the central theme of the case."
Allegations of Terrorism
Seda left the United States for the United Arab Emirates in 2003, and did not return until 2007. After numerous detention hearings his trial was held in 2010.
In 2004 The US Treasury designated Al Buthe and the Al Haramain-US as supporters of terrorism. That same year, the Saudi government dismantled Al Haramain.
In 2005, Seda, Al Buthe and Al Haramain were indicted on tax and financial charges.
In 2006, Al Buthe and two lawyers hired to defend Al Haramain filed suit against the NSA after discovering their calls had been wiretapped without a warrant.
Al Buthe was removed from the list of global terrorists in February 2013.
Seda was convicted in September 2010 of one count of conspiracy to defraud the IRS and one count of filing a false tax return. His appeals for a new trial were thrown out and in 2011 he was sentenced to 33 months in prison. But his defense team, led by Federal Public Defender Stephen T. Wax, took the case to the 9th U.S. Circuit Court of Appeals.
View the Mail Tribune's timeline of the Pete Seda case that runs to Feb 2012.
How the 9th Circuit Court Ruled
The 9th Circuit Court ruling, released Aug. 23, says the government case tried to link Seda to Osama bin Laden and terrorist violence, while downplaying evidence that Seda had been a bridge builder between different communities, including the Jewish and Palestinian communities.
For example, prosecutors pointed to a section at the back of the Qurans that said every Muslim should join the jihad. Yet Seda had worked to obtain a version of the Quran that did not include the call to jihad.
The only witness who tied Seda to a desire to give money to the mujahideen, was Barbara Cabral, a convert to Islam who had been a member of the Ashland prayer house. FBI agents interviewed Barbara Cabral and her husband Richard Cabral, who died before the trial, visiting one or both of them a total of 20 times. However they turned over reports to the defense for just eight of those 20 interviews.
That alone merits a new trial, the court says in its ruling, because it violated the Supreme Court's Brady decision.
But there was more. FBI agents had paid $14,500 to Richard Cabral and they had promised to seek authorization to pay Barbara Cabral an additional $7,500. The payments were not disclosed to the defense team until then US Attorney for Oregon Dwight Holton refused to authorize the $7,500 for Barbara Cabral and demanded the payments be disclosed.
"The records of the FBI's payments provide significant impeachment evidence that would have shaded the jurors' perceptions of Cabral's credibility," the court said in its ruling. "Payments to a government witness are no small thing."
But the ruling was not unanimous and Judge Richard Tallman makes a spirited defense of the trial judge, U.S. District Court Judge Michael Hogan, saying he had done a good job with a sensitive case that had to deal with issues of national security.
The court also found that the missing interview reports show up important inconsistencies in what the Cabrals had told FBI agents.
"For instance Richard Cabral at different times told case agents that Seda had identified the proposed recipients of the collected funds simply as 'the people of Chechnya' and Chechen refugees without reference to the mujahideen….one draft summary of an interview with Richard Cabral contained the statement that Richard Cabral did not recall Seda discussing the topic of Kosovo or supporting mujahideen there. "
Map of Chechnya here. Assessment of Chechen war in 1999 Briefing on Russia by John Gannon, chair of the National Intelligence Council
Barbara Cabral also told agents things that turned out to be untrue, such as that Seda had traveled to Saudi Arabia in 2000.
The case had other problems, according to the court ruling. FBI investigators overstepped the bounds of their search warrant, and secret classified information, introduced by the prosecution, was slanted and incomplete. It contained information that would have benefited the defense, but because it was classified, the defense and the jury were only allowed to look at a prosecution summary. And the summary left out everything that would have helped Seda.
"Although there is no indication of bad faith, the government appears to have looked with tunnel vision at limited issues that it believed were relevant," the ruling says.
Seda is now a free man. However Amanda Marshall, the U.S. attorney for Oregon, has said her office could take further action after reviewing the opinion. The case could be dismissed, or prosecutors could bring a new trial or file an appeal that might go all the way to the U.S. Supreme Court.