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United States v. Alwan

January 25, 2002

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
SHARIF ALWAN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 CR 582--Ruben Castillo, Judge.

Before Harlington Wood, Jr., Coffey, and Easterbrook, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

ARGUED October 24, 2001

Sharif Alwan was charged in a one-count indictment with contempt of court in violation of 18 U.S.C. sec. 401(3) for failing to testify before a federal grand jury as ordered.*fn1 He was found guilty by a jury on October 20, 2000. On December 15, 2000, defendant's post-trial motion for judgment of acquittal or in the alternative for a new trial was denied. Subsequently on March 7, 2001, the defendant was sentenced to 24 months imprisonment followed by 5 years supervised release, but no fines, restitution or special assessments were imposed. The defendant remains incarcerated.

Alleged trial errors on appeal involve the admission of evidence, possible exculpatory evidence not revealed by the government, and sentencing errors, but the result we reach does not require an examination of all these issues.

I. BACKGROUND

Some of this factual background is not contested by the defendant, but where it is it will be indicated. The facts are set forth in some detail so the case may be better understood.*fn2

The defendant is a legal permanent resident of the United States, who was born in Ramallah in the West Bank of Israel, commonly known as the Occupied Palestinian Territories. There the defendant was a friend and classmate of Rezeq Saleh. They often studied together. In 1989 the defendant emigrated to Chicago where his school friend, Rezeq Saleh, also came to live. In Chicago the defendant took classes at two local colleges but had no regular job. He did some odd jobs but said he was regularly supported by his brother.

In September 1992, the defendant flew back to the Middle East with Rezeq Saleh. Their tickets were purchased with one payment of $2,770.90 for travel via Amsterdam to Damascus, Syria, arriving in Damascus on September 28. The tickets provided for an open return not good after December 26, 1992. At trial the defendant explained that he went to attend his cousin's wedding in Jordan, but he could not remember whether or not he was accompanied on the trip by Rezeq Saleh.

Subsequently, in January 1993, a person named Muhammad Salah, a resident of the Chicago area who was arrested in Israel, gave several statements to Israeli authorities. He was a member of Hamas, which is identified as a political organization promoting violence to help establish an independent Palestinian homeland. In 1995, Salah's statements were provided to the FBI, and then to the United States district court in 1996 for use in the extradition proceeding of Mousa Abu Marzook (identified below). The Alwan/Saleh tickets and Middle East itinerary were obtained by the FBI in an effort to corroborate Salah's statements.

At about this same time in 1995, the defendant returned to the Middle East and while en route from Jordan to the West Bank was arrested by Israeli authorities. At this point the government's evidence and the defendant's story diverge. After he was arrested the defendant says that for two weeks the authorities tied him to a small, misshaped chair, covered his head with a dirty sack, shook him, and deprived him of sleep while being repeatedly questioned. As a result of that ordeal, he says he wrote out and signed a statement in Arabic. At trial he testified his statement was dictated to him and was mostly false.

In his handwritten Arabic statement the defendant says he and Rezeq Saleh were recruited in Chicago by Hamas in 1990, given code names and then sent for training. First, he was sent for political training with Mousa Abu Marzook to Al-Amal Camp in Virginia. In his statement defendant wrote,

A number of lecturers attended the camp, including the head of the political committee, Najeeb Al-Ghosh, Abu Ahmad [AKA Muhammad Salah], and Muhammad Saleh. The conference was held over a weekend. Mousa Abu Marzook gave a speech concerning the political situation of the Gulf War, the status quo of the Occupied land, and the necessity of assisting the people in the Occupied Territories. I attended a camp that took place in Milwaukee. It was held on a weekend. I do not recall the exact date. Theoretical weapon training was conducted at this conference, or camp. The training on Klash (Kalishnikov or AK-47), M-16, and # 9 revolver was conducted. Later, theoretical training was given on how to deal with explosives, as far as assembling, types, and connecting, and how to booby-trap a car. Among those who attended this training were Rezeq Saleh, Muhammad Saleh, Abdul Hameed, as well as a Moroccan instructor, an instructor by the name of Khalid (LNU), and three other ...


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