For those of you who were not able to come with us on the bus to hear the oral argument in NY City, I wanted to give you a brief description of what happened. First I should note that without any discernable organization, we ended up with exactly a full bus - 47. We had not one extra seat and nobody was left behind. Only divine intervention seems to be an adequate explanation for this improbable event. Also I note that the bus had approximately equal numbers of Muslims and non-Muslims so we really all got to hang out together for a day. Steve Trimm has expressed far better than I can how much this meant to all of us, and made the trip a wonderful experience I will not forget.
I wanted to briefly tell you about the oral arguments with this caveat. Predicting the outcome of a case from oral argument is a little like predicting the outcome of March Madness from the prior records of the team involved - upsets and unexpected outcomes routinely occur. This is especially so in the cases of Aref and Hossain, in part because the two defendants have very different legal arguments. Kevin Luibrand arguing for Hossain, had essentially two strong arguments. - One was entrapment, the other was the argument that since the transaction was always presented as a loan, there was no attempt to conceal the source of the money, and hence no crime of Money Laundering occurred (which has a required element of the intent to conceal the source). If the court agreed with either of these claims it could lead to the dismissal of all the charges against Hossain and (if the Money Laundering argument was accept by the court) to dismissal at least some of the charges against Aref as well. The court seemed most interested in these two strong sharply focused arguments, and Perichek the government's lawyer seemed to have the most difficulty with them.
Terry Kindlon arguing for Aref, had as his main argument, the claim that there was insufficient evidence to justify a conviction, and a number of claims of error in presenting evidence to the jury. While the insufficient evidence claim may be very strong, it is difficult to present in oral argument because it is impossible in just a few minutes to go through all of the evidence to show how insufficient it was. The court did not seem inclined to spend a lot of time on this issue, although at least one of the three judges, Jacobs, seemed to have a very detailed understanding of the evidence in the case, and seemed to understand what the defense was saying (while carefully not indicating whether he agreed with it). The fact that the Court did not spend a great deal of time or questions on the insufficiency argument does not in my view indicated that the Court has rejected it. Rather I think it is a difficult issue for oral argument and the Court was essentially saying, "lets not spend time on it now. We have the briefs and we will go through the evidence very carefully and only then can we say whether we agree with you." The remainder of Aref's case had to do with errors in the trial, which if accepted by the court would lead to a new trial but not to dismissal of the charges.
Cory Stanton of the Civil Liberties Union, argued briefly against the way the trial judge handled the classified material in the trial. Once again this was an awkward oral argument, because the defense did not know what the classified material consisted of, and so this potentially explosive issue slipped by relatively quietly. Again however, I think that the relatively short time spend on the argument does not mean that the court was not interested but rather that the court felt that spending more time on the issues involved would not be productive at oral argument where people did not know what the material consisted of and so could not comment intelligently on it.
So where do I come out. Predicting the outcome from oral argument is like reading tea leaves, and yet it is hard to resist the temptation to say something. So here goes. I had the feeling listening to oral argument that the defense, the court and the prosecution were all quietly agreeing that Hossain was simply the patsy here. He was caught up in an FBI sting and used by the government, but nobody ever believed that he was a danger to anyone. This sense would allow the court to look favorably on an entrapment defense. (From their point of view they would not be releasing a real criminal). The court spent a fair amount of time on the entrapment defense and the government had a lot of difficulty explaining it away (and did so I though somewhat half heartedly as if to say, "well Hossain - we never really cared about him). The facts are there to support a dismissal and so is the legal theory, and so is the sense that this man was not dangerous. So I could see the Court dismissing the charges as to Hossain, or granting him a new trial.
It is harder to predict Aref's outcome based on how the Court seemed to react to Aref oral argument. Most of the court's questions seemed to center on evidentiary issues and seemed to show a very detailed knowledge of the record. I had the feeling that the Court was actively looking for errors that could result in a new trial. (From their point of view, if Yassin was the target, they may feel that it would be a stretch to dismiss a conviction, but that with all the issues here a new trial would be the best way to clear the air.) I think that the court's view of Aref character may be important. If the court thinks that he really is a jihadist, they may be less likely to resolve evidentiary issues in his favor, whereas if they feel that the government may have misunderstood his character they may well want to give him a second chance at a trial. Terry spent a considerable part of his argument on this "character" issue but only time will tell if this will be successful.
As to the secret classified material and the way it was handled, I have no idea how this will be resolved. I remain as puzzled and uninformed about this issue as I was before oral argument.
I invite Kathy, who knows much more about his case than I do, to contradict any of my observations that she disagrees with, and of course all of you who were present have equally valid observations that I might have missed or misinterpreted. This is the fun of critiquing appellate argument (while at the same time we have to remember that it is a deadly serious business in which the future of two families, and our community and indeed our country may be at stake). But I am so glad that all of you made the effort to ride the bus, or to cheer us bus riders on (And I am really glad that no more people came to ride the bus because we would not have had room for you). Salaam. Peace be with you. Steve D.