Appeal is filed in Fort Dix terrorist case

Against what most courtroom observers consider a legal long shot, lawyers for the Fort Dix Five filed a multipronged appeal Tuesday seeking to have the convictions of the jailed suburban terrorists overturned.

The 149-page legal brief, citing many of the same arguments that were rejected by the trial judge in the case, was submitted as nearly two dozen family members and supporters of the defendants staged a noontime rally outside the federal courthouse at Sixth and Market Streets, where the Third Circuit Court of Appeals is based.

The prosecution has 21 days to respond to the appeal motion but will likely be granted an extension.

The Third Circuit could ask for oral arguments once the government has filed its response. But those probably would not be heard until next year.

Contacted at his South Jersey office Tuesday, Richard Sparaco, the lawyer for defendant Serdar Tatar, said members of the defense team would not comment beyond what was said in the filing.

Tatar, 27, is serving a 33-year sentence.

His codefendants, Mohamad Shnewer, 25; and brothers Dritan Duka, 31; Shain, 29; and Eljvir, 27, are each serving life terms.

All five were found guilty of conspiring to attack U.S. military personnel in what authorities alleged was an attempt to launch a jihad in South Jersey.

Steven Downs, an attorney for Project SALAM, a Muslim legal advocacy organization, said the appeal process would be difficult for the Fort Dix defendants.

The Albany, N.Y.-based lawyer said it was his belief that appellate court decisions have been based on "government policy" rather than the law in cases involving allegations of terrorism.

In a short speech at the rally, Downs was more pointed: "This case is garbage and should be thrown out."

Standing before posters and banners, supporters contended that the Fort Dix defendants were victims of "preemptive prosecution" and entrapment.

The legal brief filed Tuesday lacked the emotionalism of the rally but covered a broad range of issues, including the constitutionality of the Foreign Intelligence Surveillance Act, prosecutorial and trial court error, and denial of the defendants' right to a fair trial.

U.S. District Judge Robert B. Kugler, who presided at the 12-week trial in federal court in Camden, found no validity in those arguments when the defense raised them after the convictions.

"This was the fairest trial this court could provide any defendant," Kugler said while dismissing the posttrial motions of the defense in May 2009. "There was overwhelming evidence from which the jury could find guilt."

The jury convicted all five defendants of conspiracy to kill military personnel. All five were acquitted of attempted murder charges. All but Tatar also were found guilty of weapons offenses.

The five foreign-born Muslims, who came to the United States as children and grew up in the Cherry Hill area, have been jailed since their arrests in May 2007.

The case was based in large part on hundreds of secretly recorded conversations and the testimony of two witnesses, Mahmoud Omar and Besnik Bakali, who were informants working for the FBI.

Omar, an Egyptian, and Bakali, an Albanian like the Dukas, both wore body wires and recorded conversations with the defendants after the FBI had targeted the group in a terrorism investigation.

The probe began after a clerk at a Circuit City store in Mount Laurel was asked to make a copy of a videotape of the Dukas and their friends. The tape included video from a shooting range in the Poconos where several men shot rifles and shouted Muslim slogans.

The defense argued during the trial and in the appeal filed Tuesday that the tape was merely a depiction of the men on vacation in January 2006.

It was, the legal brief argued, videotape of the defendants "engaging in what is typical Pocono vacation-type activity, including skiing, horseback riding, playing pranks on each other, and shooting rifles and guns at a firing range."

But authorities said that trip, as well as a second to the Poconos and a paintball excursion to a South Jersey farm, were part of loosely organized training exercises the defendants took part in as they planned "jihad."

Jurors heard hundreds of taped conversations and also were shown several radical Muslim videotapes lifted from Shnewer's laptop computer after he was arrested.

The videotapes included speeches by terrorist leaders and acts of terrorism, including bombings and beheadings.

Among other things, the appeal argued that the jury was unduly prejudiced and that the defendants were denied a fair trial after Kugler permitted the prosecution to play "violent jihadist videos, including beheading videos."

While the videos were edited to exclude the actual beheadings, the defense appeal argues that "the videos . . . shown to the jury, as well as the description of the contents of the videos as testimony, had no relation to" any of the charges in the case and unduly influenced the jury.

Dritan, Shain, and Eljvir Duka are housed in the ultra-maximum security federal prison in Florence, Colo. Shnewer is in a federal prison in Marion, Ill. Tatar is in a federal prison in Tucson, Ariz.

In their appeal, defense attorneys are seeking to have the convictions overturned. If the convictions are not vacated, they ask for new trials and sentence reductions.