EL PASO, Texas -- A federal appeals court has affirmed two life terms against an AWOL soldier who planned to detonate a bomb inside a Texas restaurant frequented by Fort Hood soldiers.
Naser Jason Abdo appealed that his arrest was unlawful, that he had been denied access to an expert witness and that he was unfairly charged twice for the same offense. But the 5th U.S. Circuit Court of Appeals in New Orleans on Monday threw out all Abdo's claims, saying the August 2012 sentence stands.
Stan Schwieger, Abdo's lawyer, said the aim of the appeal was to get a trial and now he will most likely request an "en banc" review of the appeal, meaning that all the judges of the 5th Circuit would have to review the three-judge panel's opinion. Such a review is discretionary and, according to Schwieger, only 1 percent of cases that go before the Circuit Court of Appeals get it.
Abdo was AWOL from Fort Campbell, Ky., when he was arrested with bomb-making materials in 2011. A federal jury convicted him in May 2012 on six charges including attempting to use a weapon of mass destruction. Abdo also was found guilty of attempted murder of U.S. officers or employees and four counts of possessing a weapon in furtherance of a federal crime of violence.
He was sentenced last August to two life terms plus additional time.
The appeals court denied Abdo's request to consider his initial police detention a full arrest instead of just an investigatory stop, which would have made it unlawful and rendered it and statements obtained at the time inadmissible as evidence. It said the officers who detained Abdo knew he had purchased firearm supplies, and that he could have been armed was sufficient reason to hold him at gunpoint, handcuff and put him in the back of a police car.
Abdo was not formally arrested until after the officers learned there were outstanding warrants against him.
Schwieger said the court ruled it was not an arrest, based on a previous ruling by a 1st Circuit Court of Appeals. However, he said, he believes the 5th Circuit has ruled in the past that placing someone in the back of a police car constitutes an arrest.
He asked the court to vacate one of two charges of possession of a firearm in furtherance of a crime of violence, contending he should not have been charged for the possession of the same handgun twice. The court denied the request, saying he had two purposes for the gun -- to aid him in his plan to plant the bomb in a restaurant and, as he told police, to shoot the survivors of the blast.
The court also denied that Abdo's trial was unfair. He said an expert witness could have testified that the bomb he was making would not have caused extensive harm. The court said $3,500 was granted to consult with the expert, but that the expert lived far away and expected to be paid an "exceedingly high fee" to appear in court and the judge refused. The circuit court also said Abdo was convicted on an attempt charge, making "actual damage that could have been caused irrelevant."
Abdo grew up in Garland, Texas, and enlisted in the military in 2009 thinking the service would not conflict with his religious beliefs. But as his unit neared deployment, the private first class applied for conscientious objector status, writing in a letter accompanying his application that he wasn't sure "whether going to war was the right thing to do Islamically."
His unit deployed to Afghanistan without him. In a police interview, Abdo said he wanted to carry out the attack because he didn't "appreciate what (his) unit did in Afghanistan."
|Army Military Justice|