Life Sentence Urged in Hamas Funding Case

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The New York Sun

A federal probation officer is recommending that a Palestinian Arab activist be sentenced to life in prison for refusing to testify before a grand jury investigating the activities of a terrorist group, Hamas.

Abdelhaleem Ashqar, 49, who once ran for unsuccessfully for president of the Palestinian Authority while under house arrest in Virginia, was convicted of criminal contempt and obstruction of justice earlier this year following a trial in Chicago. However, the same jury acquitted Ashqar of joining in a racketeering conspiracy to aid Hamas.

Ashqar’s case raises the unusual prospect of a defendant who could face as severe a sentence after being acquitted of the most serious charge against him as he could have if he were convicted of that charge.

“Under the probation officer’s draconian theory, Dr. Ashqar is subject to the same life sentence that he would have been subject to if convicted of the [racketeering] conspiracy charge,” the Palestinian activist’s attorney, William Moffitt, said in a recent court filing. “Under these circumstances, what was the purpose of the trial? … A verdict of not guilty has no meaning in the mind of the probation officer. Instead, the probation officer’s theory is ‘Sentence first! Verdict afterwards,'” the lawyer wrote, borrowing a phrase from “Alice in Wonderland.”

A life sentence for Ashqar is at least theoretically possible because federal law prescribes no specific sentence for criminal contempt of court. A sentence for obstruction of justice, by contrast, can be no longer than 10 years.

The probation officer’s recommendation for a life sentence was based on her conclusion that Ashqar’s refusal to testify blocked an investigation into Hamas-related crimes, “including murders,” that constitute terrorism under federal law. That single finding can boost a defendant’s sentence under federal guidelines to 20 years, or even life, instead of a year or two.

“If you can throw in the terrorism enhancement, it acts as a nuclear bomb, for lack of a better word, in the sentencing guidelines,” a law professor who specializes in sentencing issues, Douglas Berman of Ohio State University, said.

Judge Amy St. Eve, who presided over the trial, is scheduled to sentence Ashqar early next month. Prosecutors are set to file their response to the probation officer’s recommendation today. The defense filing said the prosecution initially proposed a sentence of between 17 1/2 and 22 years for Ashqar.

While recent Supreme Court decisions can be read to encourage more deference to the role of juries, it is not always clear what conclusions a sentencing judge should draw from a jury checking the “not guilty” box on a verdict form.

“There are not findings in an acquittal,” Mr. Berman observed.

Another man tried with Ashqar, Mohammed Salah, was acquitted on the same racketeering charge but convicted of obstruction of justice for making false statements in a civil lawsuit brought by the family of a victim of a Hamas attack.

In July, Judge St. Eve sentenced Salah to 21 months in prison. She said she based her decision in part on her discussions with jurors who believed that Salah stepped back from his support of Hamas after such aid was banned by the American government in 1995. A defense lawyer said other jurors offered different reasons for the verdict. The legal weight of such informal discussions with jurors is murky.

Ashqar’s predicament has parallels to that of a former newspaper baron, Conrad Black. In a subsequent trial before Judge St. Eve in the same Chicago courtroom, Black was acquitted on nine counts and convicted on four others related to self-dealing and fraud at his publicly traded company, Hollinger International.

Defense lawyers contend that Black was acquitted on the most serious charges and that any sentence should reflect the acquittals. However, prosecutors have suggested that the newspaper magnate be sentenced to 24 to 30 years in prison. For Black, 63, that would amount to a life term.

“Conrad Black is going to present this issue very starkly,” Mr. Berman said.

Ashqar’s defense is recommending he not be incarcerated and that he receive a sentence of probation or home confinement. The defense calls Ashqar’s refusal to testify “the epitome of a nonviolent and non-dangerous crime.”

In their 162-page filing, Ashqar’s lawyers called his obstruction an act of “civil disobedience” that was justified by the prospects of Israeli persecution of his family and associates. “What was Dr. Ashqar to do? Is he expected in the face of the brutality of the Israeli occupation to join with them to continue the brutality? … Under the circumstances of this case, silence is a far more reasonable and honorable course,” Mr. Moffitt wrote. The defense pleading also quoted an article in which a former New York Times correspondent, Christopher Hedges, accused Israeli soldiers of murdering Palestinian Arab children “for sport.”

Due to a quirk in federal court procedures, a probation officer’s report is not available to the public, but objections to the report from the prosecution or defense usually are, and they often quote from the probation officer’s recommendations.


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