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United States v. Abu Ali

United States Court of Appeals for the Fourth Circuit

June 21, 2007, Argued; June 6, 2008, Decided

No. 06-4334, No. 06-4521

Opinion

 [*221]  WILKINSON, MOTZ, and TRAXLER, Circuit Judges:

Ahmed Omar Abu Ali was convicted by a jury of nine criminal counts arising from his affiliation with an al-Qaeda terrorist cell located in Medina, Saudi Arabia, and its plans to carry out a number of terrorist acts in this country. He was sentenced by the district court to 360 months imprisonment and 360 months of supervised release following imprisonment. Abu Ali appeals his convictions and the government cross-appeals his sentence. For the following reasons, we affirm the conviction, but we vacate and remand for purposes of resentencing.

Unlike some others suspected of terrorist acts and designs upon the United States, Abu Ali was formally charged and tried according to the customary processes of the criminal justice system. Persons of good will may disagree over the precise extent to which the formal criminal justice process must be utilized when those suspected of participation in terrorist cells and networks are involved. There should be no disagreement, however, that the criminal justice system does retain an important place in the ongoing effort to deter and punish terrorist acts without the sacrifice of American constitutional  [**3] norms and bedrock values. As will be apparent herein, the criminal justice system is not without those attributes of adaptation that will permit it to function in the post-9/11 world. These adaptations, however, need not and must not come at the expense of the requirement that an accused receive a fundamentally fair trial. In this case, we are satisfied that Abu Ali received a fair trial, though not a perfect one, and that the criminal justice system performed those functions which the Constitution envisioned for it. The three of us unanimously express our conviction that this is so in this opinion, which we have jointly authored.

Some differences do exist, however, among the panel members. Judge Wilkinson and Judge Traxler join in the opinion in its entirety. Judge Motz dissents (in footnote 6) from the majority's holding that the interrogation of Abu Ali on June 15, 2003, did not constitute a joint venture between law enforcement officers of Saudi Arabia and those of the United States. Judge Motz likewise dissents from Section VII of the panel's opinion, which directs that the case be remanded to the district court for the purposes of resentencing.

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528 F.3d 210 *; 2008 U.S. App. LEXIS 12122 **

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AHMED OMAR ABU ALI, a/k/a Reda, a/k/a Hani, a/k/a Abi Umar, a/k/a Ashraf, a/k/a Abu Abdullah, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellant, v. AHMED OMAR ABU ALI, a/k/a Reda, a/k/a Hani, a/k/a Abi Umar, a/k/a Ashraf, a/k/a Abu Abdullah, Defendant-Appellee.

Subsequent History: US Supreme Court certiorari denied by Ali v. United States, 129 S. Ct. 1312, 173 L. Ed. 2d 584, 2009 U.S. LEXIS 1443 (U.S., 2009)

Appeal after remand at United States v. Ahmed Omar Abu Ali, 2011 U.S. App. LEXIS 2058 (4th Cir. Va., Feb. 1, 2011)

Prior History:  [**1] Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. (1:05-cr-00053-GBL). Gerald Bruce Lee, District Judge.

United States v. Abu Ali, 2006 U.S. Dist. LEXIS 29461 (E.D. Va., Apr. 17, 2006)United States v. Abu Ali, 395 F. Supp. 2d 338, 2005 U.S. Dist. LEXIS 25552 (2005)

Disposition: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

CORE TERMS

sentence, district court, classified information, confession, interrogation, Guidelines, communications, terrorist, questioning, cell, witnesses, al-Qaeda, disclosure, variance, al-Faq'asi, classified, factors, depositions, documents, impose sentence, arrest, authorities, conspiracy, training, corroboration, redacted, appellate court, imprisonment, plans, national security

Criminal Law & Procedure, Commencement of Criminal Proceedings, Initial Appearances, Delays, Procedural Requirements, Interrogation, General Overview, Preliminary Proceedings, Pretrial Motions & Procedures, Suppression of Evidence, Standards of Review, Harmless & Invited Error, Evidence, Voluntariness, De Novo Review, Conclusions of Law, Clearly Erroneous Review, Findings of Fact, Motions to Suppress, Confessions, Substantial Evidence, Sufficiency of Evidence, Evidence, Exemptions, Confessions, Trustworthiness Doctrine, Plain Error, Burdens of Proof, Jury Instructions, Particular Instructions, Types of Evidence, Circumstantial Evidence, Constitutional Law, Fundamental Rights, Criminal Process, Right to Confrontation, Trials, Defendant's Rights, Closing Arguments, Postconviction Proceedings, Imprisonment, Administrative Law, Judicial Review, Reviewability, Exhaustion of Remedies, Verdicts, Discovery & Inspection, Discovery by Defendant, Privileges, Government Privileges, Classified Information Procedures Act, Abuse of Discretion, Constitutional Rights, Sentencing, Imposition of Sentence, Sentencing Guidelines, Appeals, Abuse of Discretion, Proportionality & Reasonableness Review, Factors, Inchoate Crimes, Conspiracy, Penalties, Adjustments & Enhancements, Terrorism & Treason