Tuesday, March 13, 2012
Court Orders Third Sentencing for Millenium Bomb Plotter
From Staff and Wire Service Reports
The 22-year sentence imposed on the so-called “Millennium Bomber” was excessively lenient, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In a 7-4 en banc decision, the court ordered Senior U.S. District Judge John Coughenour of the Western District of Washington to conduct a third sentencing of Ahmed Ressam.
“Upon our review of the record, we have a definite and firm conviction that the district court committed a clear error of judgment in sentencing Ressam as it did,” Judge Richard Clifton wrote for the court. Noting that the nine counts of which Ressam was convicted carry a guidelines sentence of 65 years to life, Clifton said the 22-year term was “substantively unreasonable.”
Ressam is an Algerian national convicted of plotting to detonate explosives at Los Angeles International Airport while Americans celebrated the beginning of the year 2000.
He was arrested after crossing into Washington state from Canada by ferry. A suspicious customs inspector initiated an intensive search of his vehicle, which revealed explosives.
Investigators discovered that Ressam had been 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-Qaida in Afghanistan before returning to Canada, where he continued to work on the Millennium plot, in February 1999.
Convicted of Lying
Ressam was convicted of lying on a customs declaration, carrying an explosive during the commission of that felony, international terrorism, placing explosives in proximity to a ferry terminal, possessing false identification, using a fictitious name, smuggling and transportation of explosives, and illegal possession of a destructive device.
After the guilty verdict, but before sentencing, he began cooperating with authorities. He abruptly stopped doing so in early 2003.
His sentencing was delayed until 2005 as the government unsuccessfully sought further assistance from him.The prosecution then urged a sentence of 35 years, while defense counsel argued that the cooperation he had given earlier warranted sentencing Ressam to 10 years.
After Coughenour imposed the 22-year sentence the first time, both sides appealed, the defense arguing that Ressam could not be guilty of carrying an explosive while lying on a customs declaration because the device was not being used to commit the underlying crime, and prosecutors arguing that the sentence was too lenient.
The Ninth Circuit, in a 2007 decision, agreed with the defense and reversed the conviction on the one count, without reaching the sentencing issue. The U.S. Supreme Court, however, reinstated the conviction, saying the statute required that the acts occur simultaneously, not that they be otherwise related to each other.
The case went back to the Ninth Circuit, which in a 2008 order sent the case back to Coughenour with instructions to resentence the defendant in light of changes in sentencing case law over the previous three years. At the new hearing, prosecutors argued for life in prison, while Ressam recanted all his prior cooperation and insisted that lawyers and prosecutors had badgered him into making false allegations against other alleged terrorists.
“Sentence me to life in prison or anything you wish,” Ressam told the judge. “I will have no objection to your sentence.”
But Coughenour again sentenced Ressam to 22 years, citing his two years of cooperation, and said Ressam’s “life history and personal characteristics support favorable sentencing consideration.”
The Ninth Circuit, in a 2-1 decision, agreed with the government that the judge had departed too far from what the Sentencing Guidelines require. The full court granted en banc review, but yesterday reached the same conclusion as the panel.
Clifton cited 18 U.S.C. Sec. 3553(a), which lists the factors to be followed in sentencing, and the guidelines.
Clifton emphasized two of the Sec. 3553(a) factors—the deterrent effect of the sentence and the need to protect the public from the defendant. He concluded that the district judge overstated the value of Ressam’s cooperation—which consisted largely of explaining his own history and confirming information that the government already knew—especially given his recantation and the fact that he waited until after the trial to furnish assistance.
“There is no doubt that Ressam cooperated with the federal government and with governments of some other allied nations, for a period of time,” Clifton wrote. “But he did not begin to cooperate until after he was convicted by the jury and faced life in prison. The timing of Ressam’s cooperation suggests that it was prompted by his desire to make the best of a bad situation, not some altruistic motive, sincere regret, or deeper good nature.”
Ressam’s decision to cease cooperation, the judge noted, resulted in the release of some suspects against whom he was expected to testify. Besides, Clifton said, since there was some hope at the time of the original sentencing that he might change his mind and resume assisting the government, the disappearance of that hope by the time of the second sentencing three years ago was a “dramatic change in circumstances” that the district judge failed to consider.
The trial jurist also gave inadequate attention to the fact that Ressam would be only 51 years of age and able to resume terrorist activities at the end of the sentence.
The three-judge panel had also taken the unusual step of ordering Coughenour off the case, saying his views appeared “too entrenched to allow for the appearance of fairness on remand.” The en banc court, however, reinstated the jurist, with Clifton—who had concurred in the original decision to remove him—explaining in a footnote that the court had “confidence that the district court will take heed of this opinion.”
Judges Susan P. Graber and M. Margaret McKeown concurred fully in the opinion. Judge Stephen Reinhardt authored a special concurrence, joined by Chief Judge Alex Kozinski and Judge Kim McLane Wardlaw, saying that terrorism cases are unique and that the opinion should not be read as creating “general principles governing when ‘substantive unreasonableness’ will warrant vacating a sentence imposed by the district court.”
Senior Judge Mary M. Schroeder, joined by Judges Mary Murguia, Marsha Berzon, and Richard A. Paez, dissented, arguing that the court was being inadequately deferential to the district judge.
“The majority may disagree with the weight the district court assigned to the net value of Ressam’s cooperation, yet the district court’s assessment of the net value and the weight it assigned that value as a sentencing factor were matters within its discretion to decide,” Schroeder argued.
Ressam’s attorney had a predictable reaction. Tom Hillier, the federal public defender in Seattle, told The Associated Press:
“Obviously, I’m disappointed that we have to go through another sentencing. This has been a long haul for Ahmed. But when it comes to terrorism cases, there are some fairly strong opinions on what [the sentence] should be.”
The case is United States v. Ressam, 09-30000.
Copyright 2012, Metropolitan News Company