11th Circuit Affirms Jose Padilla's Conviction, and Grants Government Appeal of His Sentence

A divided 11th Circuit panel has issued a lengthy opinion (112 pages in pdf, with the dissent) affirming the conviction of  Jose Padilla, Adham Hassoun, and Kifah Jayyousi, and granting the government's cross-appeal challenging the adequacy of Padilla's sentence.  Chief Judge Dubina's majority opinion identified 10 issues, which I list below followed by a short statement of how the panel ruled:

1. Whether the district court properly admitted the testimony of FBI Agent John Kavanaugh.

The panel held that Kavanaugh's lay opinion testimony (on matters such as what certain code phrases meant) was rationally based on his own perceptions, and that it was no abuse of discretion to admit it.

2. Whether there is sufficient evidence to support Padilla’s convictions on all counts and Jayyousi’s conviction on Count 3, the substantive material support offense.

The panel concluded that the record included sufficient evidence on each count of conviction in question.

3. Whether the district court properly admitted the expert testimony of Dr. Rohan Gunaratna.

The panel concluded that it was not an abuse of discretion to accept Dr. Gunaratna as an expert, and that it was not error to exclude his testimony on the ground that the defense was not allowed to identify the undisclosed sources relied upon in Dr. Gunaratna's published works.

4. Whether the district court properly admitted against Hassoun and Jayyousi portions of a television interview with Osama bin Laden.

The district court's decision not to exclude the video under Rules 401/402 or 403 was not abuse of discretion.

5. Whether the district court properly denied Padilla’s motion to suppress statements he made during an interview with FBI agents.

When Padilla was arrested at O'Hare in 2002, he was questioned by FBI agents before they Mirandized him.  Padilla argues this was custodial interrogation, but the panel noted that the standard for custody-status is higher at a border inspection, requiring a "distinctly accusatory" context.  Turning to the details of the interrogation, the opinion from pp. 48-50 describes the process in considerable detail; it's very interesting to read it now in light of current controversies about the proper mode of interrogation in similar circumstances.  Here's a recap:

Padilla was taken by customs agents to a room at the airport where FBI agents awaited.  An agent told Padilla that the government believed he had information relevant to a possible terrorist attack, and wanted his cooperation.  Padilla spoke relatively freely about his travels and background; took an hour-plus dinner break; the interview then resumed with a discussion of the fact that Padilla had more money on him than he had declared to customs; Padilla made a request to call his mother but then dropped the issue; Padilla indicated he was tired but wished to wrap up the discussion to get it over; the interview continued; after another break the FBI confronted Padilla with their belief that he had been trained by al Qaeda and was here to commit or help prepare for an attack; Padilla refused to cooperate after that; the FBI said that if he did not cooperate he would be given a subpoena to give grand jury testimony; after an hour's consideration, Padilla declined to cooperate, and was at that point arrested and Mirandized.

The panel concluded that the interview became custodial after that final break, when the FBI confronted Padilla and he asserted that he was done cooperating.  But since no statements of his beyond that point were offered into evidence, nothing turned on this.  Note that the dissent took a different view, finding custody to begin at the point in the interview when the FBI agents challenged Padilla in relation to his failure to declare all his currency.

6. Whether the district court properly denied Padilla’s motion to dismiss his indictment based on alleged outrageous government conduct.

The panel concluded that the defense of outrageous government conduct does not apply "alleged mistreatment ...after the conclusion of his criminal acts and prior to the indictment on the present charges." (slip op. at 55) 

7. Whether the district court precluded Hassoun from admitting evidence of innocent intent.

The panel rejected the argument that defense evidence was improperly excluded as hearsay ineligible under Rule 807, among other things.

8. Whether the district court properly denied Hassoun’s motion for severance.

The panel rejected Hassoun's severance argument, noting that the jury selection process went on for four weeks and included jury instructions on pre-trial publicity.

9. Whether the district court properly applied the terrorism enhancement to defendants’ sentences.

The panel concluded that the conditions for application of the enhancement were satisfied here.

10. On cross-appeal, whether the district court erred procedurally or substantively in sentencing Padilla.

 The government argued that the district court erred substantively and procedurally in sentencing Padilla to 208 months.  The panel rejected the government's process argument, but concluded that the district judge erred on substance because the sentence "does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based on inappropriate factors." (slip. op at 68).  As to the first point in that list, the panel noted that Padilla is a career offender (17 arrests, and a murder conviction) for whom a sentence at or near the top of the range, not 12 years under it, would be proper.  Second, the panel concluded that the judge should have given more weight (in terms of the threat to the public) to the fact that Padilla was convicted of trying to become a terrorist and having received training toward that end.   "Padilla poses a heightened risk of future dangerousness due to his al-Qaeda training." (slip op. at 69-70).  Third, the panel said it was not appropriate to compare Padilla to Yahya Goba (of the Lackawanna Six) or David Hicks (former GTMO detainee, from Australia) for sentence purposes, nor to downplay the significance of his conduct because it did not compare to that of Terry Nichols or Zacharias Moussaoui.  Fourth, the panel concluded that it was error to discount the sentence because Padilla did not personally harm anyone or necessarily target the United States (recall that he was not prosecuted in connection with his conduct relating to his return to the United States).  Last, the panel held that the sentence over-accounted for harsh conditions of pretrial confinement (though some variance for this factor might be permitted).  Note that Judge Barkett dissented on items 1, 5, and 10 on this list.