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Was indictment misleading?

When the government charged Sameeh Hammoudeh with terrorism-related activities, it used wiretap transcripts that may have been unfairly summarized.

By MEG LAUGHLIN
Published March 19, 2006

TAMPA - Before dawn on Feb. 20, 2003, FBI agents knocked on the door of Sameeh Hammoudeh's North Tampa home, indictment in hand, and carted him off to jail, accused of sending money to the Palestinian Islamic Jihad.

Three years later, an examination of the records that were the basis for his initial arrest raises questions about whether there was legitimate justification for many of the charges in the first place.

Since that morning more than three years ago, Hammoudeh has been acquitted of all terrorism-related charges. A federal judge has ordered him released from jail.

Hammoudeh was supposed to be deported in a plea deal in a separate immigration case, but he remains imprisoned, detained by Immigration and Customs Enforcement, without a clear explanation.

The initial charges were based on "tech cuts": summaries of Hammoudeh's telephone conversations, secretly recorded by the FBI between 1999 and 2001. FBI translators made these summaries within days of the secret surveillance.

The tech cuts were not entered as evidence at the trial, although full transcripts of some portions of the conversations were presented to jurors.

These tech cuts, which included paraphrases and translated quotations from Hammoudeh's conversations in Arabic, show that the indictment did not fully or accurately reflect what was in them.

Instead, sentences from the tech cuts were cut off, omitting important information about Hammoudeh's charitable donations, which were shown during the trial to have no connection to the PIJ.

Some information was taken out of context. Other information was distorted.

Now Hammoudeh's case is getting attention at the same time that government surveillance is the center of national controversy.

What his case shows, Hammoudeh said, "is how government agents can manipulate and omit information from wiretaps to make someone appear guilty."

Hammoudeh's attorney, Stephen Bernstein, said it illustrates "how the federal government can misuse surveillance to ruin the life of an innocent person."

Prosecutors have the discretion to limit and condense information in an indictment, and to include lawful as well as unlawful acts, said Miami criminal defense attorney Neal Sonnett, who was a federal prosecutor before going into private practice.

"But," Sonnett said, "if an innocent purpose is there and prosecutors omit it, it's misleading and underhanded."

Federal prosecutors declined to comment on what the tech cuts showed.

"This is not the time to respond to that," said Steve Cole, a spokesman for federal prosecutors in the case.

In September 2004, prosecutors revised the original indictment and removed eight misstatements against Hammoudeh. They also dropped eight counts against him.

On that chilly day three years ago when Hammoudeh was arrested, two FBI agents handcuffed him and drove him to FBI headquarters for questioning. Hammoudeh said the agents told him he was not their target, but that they wanted him to aid their investigation. They asked him to provide information about how he helped Sami Al-Arian, a former professor at the University of South Florida, get money to the Palestinian Islamic Jihad after 1994.

The U.S. government has designated the PIJ a terrorist organization. The group has claimed responsibility for the deaths of hundreds of people in Israel and the occupied territories.

In 1995, it became illegal for people in the United States to provide funds, goods or services to the organization. Because Hammoudeh worked with Al-Arian, prosecutors focused on money Hammoudeh was sending to the occupied territories, in an attempt to link Al-Arian to the PIJ after 1994. Hammoudeh's indictment accused him of "transferring monies and funds . . . for the purpose of promoting PIJ activities."

Summaries of the wiretapped conversations that the government used to justify this accusation seem to undercut the charges.

Here are three excerpts, chosen from more than a dozen similar examples in the indictment, that show what the government chose to include from the tech cuts in building a case that Hammoudeh's activities are linked to the PIJ:

From the indictment: "On Dec. 20, 1999, defendant Sameeh Hammoudeh used his residence telephone line to call his father, who is in the occupied territories of Israel. In this conversation, Sameeh Hammoudeh indicated to his father that he raised some money and will be receiving more. He also told his father he will be sending him $1,000 to distribute."

From the FBI tech cut, the source for this Dec. 20, 1999, conversation: "Sameeh told his father, "I would like you to spend, give a thousand and when I get someone traveling to the homeland I will send it to you with him."'

"His father said he would "distribute it to the people or give it to the Kaffiat,"' believed to be an institution for the blind and/or disabled in the area.

Hammoudeh replied: "There are orphans in the Family Welfare Organization. Give them. They are also an institution."

A second example from the indictment: "On or about Dec. 29, 1999, Sameeh Hammoudeh called his father who was overseas. Sameeh Hammoudeh asked his father to distribute money, and Sameeh Hammoudeh said he would reimburse him by sending money overseas via courier."

From the tech cut of this same Dec. 29, 1999, conversation: "Hammoudeh asked his father to give the funds to those in need, especially the orphans. His father said that he will give it to the orphans, the family sponsorship society and the disable (sic) and/or blind society."

A third example from the indictment: "On or about Feb. 22, 1995, . . . Sameeh Hammoudeh . . . received a facsimile at WISE (a think tank where he worked that was created by Al-Arian and affiliated with the University of South Florida) . . . from Fathi Shikaki (the head of the PIJ in Damascus, Syria)." From the tech cuts: The receiving phone number is (813) 989-xxxx.

According to the tech cut index, that was the phone number for the Tampa home of Ramadan Shallah, who also worked at WISE. The PIJ faxes were not sent to WISE or to Sameeh Hammoudeh. They were sent from PIJ headquarters to Shallah's home. (Editor's note: We have omitted the last four digits because the number is no longer issued to Shallah, and may belong to someone else.)

Shallah worked at WISE until May 1995. He left Florida and became the leader of the PIJ in October 1995 in Syria after the death of Shikaki.

A year and a half after Hammoudeh was arrested, prosecutors acknowledged the phone number in the faxes was Shallah's and dropped the eight counts associated with the error. But the misinformation, contradicted by the tech cuts, was among the justifications used for arresting Hammoudeh.

Federal prosecutors declined to comment on repeated contradictions between information in the indictment and the tech cuts, the source material for the indictment. But former FBI agent and federal prosecutor Todd Foster didn't.

Foster, now a Tampa criminal defense attorney, was part of the defense team in a high-profile 1997 case, which, like the case against Hammoudeh, was built on secret surveillance of the defendants' conversations.

In the Aisenberg case, a Valrico couple reported their baby girl, Sabrina, missing. Hillsborough County sheriff's investigators planted secret listening devices in the couple's home and based the indictment on their conversations. But a federal judge said many of the surveillance tapes were largely inaudible, and that investigators had misled authorities about what they contained in order to justify arresting the parents. The case crumbled.

Foster called the Aisenberg case "a shocking example of how wiretap information in an indictment can be full of missing statements, statements taken out of context and false statements."

He said, however, that he doesn't think such distortions are common: "But when it happens rarely, that's too often. Whether reckless or deliberate, it's wrong."

Wednesday, an Immigration and Customs Enforcement officer brought papers to Hammoudeh's cell at the Manatee County Jail. They said, "ICE has made the decision to continue your detention."

Federal prosecutors have a Monday deadline to file documents explaining why. Wednesday, U.S. District Judge James Whittemore will preside over a habeas corpus hearing for Hammoudeh, where his attorneys will argue that his continued incarceration is unconstitutional.

"I am hopeful," Hammoudeh said. "I can't say why after this long nightmare. But I am."

Meg Laughlin can be reached at 813 226-3365 or mlaughlin@sptimes.com

[Last modified March 19, 2006, 01:06:13]