Defense files long appeal brief in Fort Dix plot

PHILADELPHIA - August 31, 2010 -- Attorneys for five men imprisoned for conspiring to kill military personnel at Fort Dix sought Tuesday to get their convictions thrown out, arguing in a federal court filing that mistakes were made at trial and questioning whether the crimes qualified for a terrorism sentence.

The wide-ranging, 149-page brief seeks to have the convictions overturned for Mohamad Shnewer, Serdar Tatar, and brothers Dritan, Eljvir and Shain Duka. Tatar was sentenced to 33 years in prison, and the other four are serving life terms.

Attorney Richard Sparaco, who represents Tatar, filed the brief in the 3rd U.S. Circuit Court of Appeals on behalf of all five defendants. He declined to comment beyond the filing. Rebekah Carmichael, spokeswoman for U.S. Attorney Paul Fishman, said prosecutors plan to respond in their own filing.

The defense's motion said the men's actions did not qualify as a federal crime of terrorism for the purpose of sentencing "since their offenses were not calculated to influence or to affect the conduct of government by intimidation or coercion or were not calculated to retaliate against government conduct," and did not cross national boundaries.

At worst, the defendants were motivated "by the desire to defend their religious faith against a perceived enemy, and to eliminate any impression of effectiveness attached to the War on Terror," the brief said. "Desire to cause a feeling of ineffectiveness of achievement does not equate to intimidation, coercion or retaliation."

The filing also alleges that the Foreign Intelligence Surveillance Act is unconstitutional; it says that evidence of videos depicting individuals being beheaded by groups unrelated to the defendants were "unduly prejudicial" and that the government committed prosecutorial misconduct during its rebuttal closing argument.

Prosecutors alleged that the men, arrested in 2007, had taken training trips to the Pocono Mountains and scouted out Fort Dix, an Army base in New Jersey used primarily to train reservists for duty in Iraq, and other military sites.

In December 2008, a federal jury convicted the five of conspiring to kill U.S. military personnel at Fort Dix. They were acquitted of attempted murder, after prosecutors acknowledged the men were probably months away from an attack and did not necessarily have a specific plan.

In other points, the appeal said that the court erred in denying Dritan Duka's motion to admit two audio recordings during cross-examination of a confidential witness, and that the court should have suppressed evidence seized from Tatar's apartment in Philadelphia because the search warrant contained information that was stale.

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