Judge sets bail, citing 'serious questions'
Albany -- Evidence tying suspects to terror called lacking; 2 could be out of jail this week
By BRENDAN LYONS, Staff writer
Times Union
First published: Wednesday, August 25, 2004
A federal judge, citing government mistakes and weakened evidence, set bail Tuesday for two Muslim men accused of taking part in a money-laundering scheme that was part of an elaborate FBI counterterrorism sting.
U.S. Magistrate Judge David R. Homer said that more than a year after the undercover investigation began, federal prosecutors and the FBI have no evidence the men are connected to any terrorist group. He said the entire case appears to hinge on a fictitious terrorist plot proffered by an undercover informant.
"There are serious questions of fact," Homer said.
The judge set bond at $250,000 each for Yassin Muhiddin Aref, a 34-year-old imam at a Central Avenue mosque, and Mohammed Mosharref Hossain, a 49-year-old Bangladeshi immigrant who owns an Albany pizza shop. The courtroom was packed with supporters of both men, including their wives. Members of their Central Avenue mosque pledged to help the suspects post bond so they could be released this week. Homer also imposed conditions that include home confinement and electronic monitoring and restricted their travel to Albany County.
Kevin Luibrand, Hossain's attorney, called Homer's reversal of his earlier decision -- to keep the men jailed without bail while the case is pending -- a sign that the prosecution's case is foundering.
"It was the beginning of the turning of the tide," Luibrand said outside court. "It took the courage of this judge, in this political climate, to issue this decision."
Federal prosecutors declined to comment after the ruling.
Homer reopened the bail hearing Tuesday after prosecutors acknowledged the Department of Defense had mistranslated a document allegedly linking one of the men to a purported terrorist camp in Iraq. At the first detention hearing on Aug. 10, five days after Aref and Hossain were arrested in pre-dawn raids of their homes, Homer cited the document in ruling both men were dangerous and should remain in jail without bail while awaiting trial.
"The weight of the evidence in this case appears less strong than it did on Aug. 10," Homer said Tuesday.
The document was a page from a notebook that listed Aref's name, address and phone number in Albany. It was recovered 14 months ago by Army troops after they bombed an encampment and killed 78 heavily armed men who had attacked U.S. forces. Prosecutors said the notebook listed Aref as a "commander," but last week they admitted the entry was written in Kurdish, not Arabic, and actually meant "brother."
The error was caught by an FBI translator who examined the notebook before it was turned over to defense attorneys.
Homer zeroed in on the mistake Tuesday, saying the "commander" title portrayed Aref as a militant leader for a terrorist cell. Aref fled Iraq as a Kurdish refugee in the mid-1990s and still has numerous relatives there, according to his attorney, Terence L. Kindlon.
Assistant U.S. Attorney David M. Grable skirted the issue in court Tuesday, instead focusing on the money-laundering scheme and introducing phone records that showed both men had made dozens of calls to numerous countries in the past five years. But defense attorneys challenged that the overseas calls were anything but ordinary telephone traffic for two families who have relatives and friends spread around the globe.
Grable offered no evidence that any calls were connected to terrorism or any other crime. He said they were being offered as evidence because they show both men have "significant ties to foreign countries" and would be a risk of flight if released.
Grable was flanked by Assistant U.S. Attorney Greg West, the counterterrorism coordinator in New York's Northern District, and FBI Special Agent Tim Coll, the lead investigator on the case. On the floor next to them in the courtroom was a surface-to-air missile that their informant had allegedly shown Hossain when they were filmed discussing laundering money from its sale.
Grable never referred to the missile or displayed it in court. Kindlon called its presence a stunt and accused prosecutors of attempting "to play on everybody's paranoia and fear."
With the specter of overseas terror connections, Kindlon said his client became a "fictional character" in the minds of federal authorities.
The investigation began in July 2003, about a month after the notebook that listed Aref's name was recovered in Iraq.
The sting took root when Hossain and the FBI informant, Albany businessman Shahed Hussain, allegedly talked about the informant helping obtain a fraudulent driver's license for Hossain's developmentally disabled brother.
Following that contact, Hossain asked the informant for a loan. The informant, at the FBI's direction, allegedly asked Hossain if he wanted to make $5,000 by participating in a plot to launder money from the sale of a missile launcher that was to be used in a terrorist attack in New York City. Aref was enlisted in the plot five months later, in December, when Hossain suggested he should be a witness to the deal.
But Luibrand said 16 hours of surveillance tapes, and nearly two inches of transcripts, turned over by prosecutors this week raise questions about whether Hossain agreed to take part in the fictitious terrorism plot.
"This is a clear case of inducement," Luibrand said.
Luibrand used the FBI transcripts at Tuesday's hearing to show they may contain evidence showing Hossain actually opposed terrorism.
In the transcript, the informant listens as Hossain describes raising his five children to be law-abiding and productive, adding: "We don't need to fight against anyone. We need to follow the path of God."
But prosecutors contend the tapes show both men willingly took part in helping finance a phony plot to kill a Pakistani ambassador in New York City. The informant was filmed showing off the surface-to-air missile to Hossain, and also showing the missile's triggering device to Aref at a later meeting, authorities said.
Aref and Hossain are charged with money laundering, providing material support to a foreign terrorist organization, importing firearms without a license and conspiracy charges related to the sting. During FBI raids of their homes and mosque, Masjid As-Salam on Central Avenue, the FBI also seized videotapes, computer disks, property and financial records, receipts allegedly related to the money-laundering scheme, $6,848 in cash, letters and other written material, much of it in Arabic.