Tuesday, June 26, 2007
Court Denies En Banc Review in ‘Millenium Bomber’ Case
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals, over the dissent of six of its judges, has denied the government’s request to review a ruling that could result in a lesser sentence for Ahmed Ressam, convicted of plotting to detonate explosives at Los Angeles International Airport while Americans celebrated the dawning of the 21st Century.
Ressam, dubbed the “Millennium Bomber,” is serving a 22-year sentence imposed by a federal judge in Seattle after he was convicted of international terrorism, placing explosives in proximity to the ferry terminal, possessing false identification, using a fictitious name, falsely identifying himself on a customs declaration form, the smuggling of and transportation of explosives, the illegal possession of a destructive device, and carrying an explosive during the commission of a felony.
But a Ninth Circuit panel ruled in January that the conviction on the last count should be thrown out because the prosecution failed to prove a relationship between Ressam’s possession of explosives and the underlying felony, which was lying on a customs declaration. Under 18 U.S.C. Sec. 844(h)(2), the crime carries a mandatory 10-year sentence, in addition to the penalty imposed for the underlying offense.
Ressam was arrested after crossing into Washington state from Canada by ferry. A suspicious customs inspector initiated an intensive search of his vehicle, which revealed enough explosives, prosecutors said, to have killed hundreds of people had they detonated at LAX during the holiday travel period.
Investigators determined that Ressam was an Algerian citizen who was turned down for asylum in Canada but was allowed to stay in that country due to a moratorium on deportations to his homeland. He trained with al Qaeda in Afghanistan before returning to Canada in February 1999, where he continued to work on the Millennium plot.
Facing a sentence of about 65 years in prison after his conviction, he began cooperating with authorities, although he stopped doing so in early 2003. His sentencing was delayed until 2005 as the government unsuccessfully sought further assistance from him.
Citing his lack of further cooperation, the government recommended a sentence of 35 years, while defense counsel argued that the cooperation had had given earlier warranted sentencing him to 10 years. District Judge John Coughenour sentenced him to 22 years, and both sides appealed.
Judge Pamela Ann Rymer, joined by Judge Marsha Berzon, agreed with the defense that there must be a relationship between the explosive possession and the underlying crime for the defendant to be convicted of violating Sec. 844(h)(2). She cited a U.S. Supreme Court decision that applied such a requirement to a similar statute involving possession of a firearm.
The judge also said that it was unnecessary to rule on the government’s sentence appeal, saying the district judge should review the sentence on remand in light of changes in sentencing law since 2005.
Senior Judge Arthur Alarcon dissented, arguing that the conviction should be affirmed on all counts and that the judge’s sentencing order failed to justify the relatively light sentence.
In an order filed June 6 but not posted on the court’s Web site until yesterday, the court announced that a majority of the unrecused active judges had voted to deny the government’s request for en banc review.
But Judge Diarmuid F. O’Scannlain, joined by Judges Andrew Kleinfeld, Ronald Gould, Jay Bybee, Consuelo Callahan, and Carlos Bea, said the case should have been taken en banc.
The Supreme Court case cited by Rymer isn’t controlling, he explained, because the two statutes have significant differences in wording, and the explosives provision lacks the “relational element” of the gun law.
Three other circuits, he noted, have considered the issue and have all held that the prosecution need only prove that the defendant was in possession of the explosives at the same time he or she committed the underlying felony, just as the district judge charged the jury.
The case is United States v. Ressam, 05-30422.
Copyright 2007, Metropolitan News Company