On Jan. 12, 2011 lawyers for Pete Seda, co-founder of Al-Haramain Islamic Foundation of Oregon, filed motions in federal court asking for a re-trial of his conviction for tax fraud, based on post-trial revelations that the FBI paid $14,500 to a key prosecution witness. Seda was charged with filing false tax returns hiding funds sent to Chechen mujahedeen and convicted on Sept. 10, 2010. The motions also seek the release of Seda, who has been in jail awaiting sentencing since the conviction, and an investigation into government conduct of the case.
Seda’s supplemental motion for a new trial provided details regarding the payments to witness Barbara Cabral and her husband, saying “We now learn for the first time, from FBI documents that are themselves suspect, that the Cabrals were paid $14,500 in cash by the FBI, that Barbara Cabral, a testifying witness for the government, was told before the trial that the FBI would attempt to make a direct payment to her, but only after the trial in this matter, and that Barbara Cabral and her late husband, Richard Cabral, developed a close personal relationship with the principal FBI case agent.”
The motion also noted that “Over nine years of investigation by numerous federal agents, only one witness – Barbara Cabral – directly linked Mr. Sedaghaty with attempting to raise money for the Chechen mujahedeen. .. In all, the new information reveals at least twelve investigative contacts and interviews with the Cabrals that were not previously disclosed, some of which involved payments and discussions of potential further payments.”
Failure to provide Seda with this information prior to trial is an apparent violation of Rule 16 of the Federal Rules of Criminal Procedure, which requires the prosecution to turn over records material to preparing a defense before trial, as an essential element of due process. In particular, the “Brady rule,” named after the 1963 Supreme Court case Brady v. Maryland, requires prosecutors to turnover information that may help the defense, such as statements that conflict with a prosecution witness’s testimony or information, such as the cash payments in this case that would allow the defense to attack the credibility of a prosecution witness. Seda’s motion for a new trial noted that “It is axiomatic that payments and offers of payments are among the most fundamental of tools for impeachment and that their pre-trial disclosure is required.”
Tom Nelson, one of Seda’s attorneys, reacted to the news of the witness payments by saying,
“This was not disclosed to defense counsel prior to the trial, and had it been it would have been the source of deep, searching, and long-lasting cross examination…the FBI, or at least the FBI in Oregon, simply cannot be trusted. Secret cash payments to witnesses willing to say what the FBI wants should be unthinkable in American courts, but here we have a clear-cut case of precisely that happening.”
Assistant U.S. Attorney Kelly Zusman told the Associated Press that “What has changed since Seda was taken into custody at the close of the trial is that the United States has discovered some materials that should have been turned over to the defense during pretrial discovery.” In Jan. 13, 2011 court filings the government said it will take no position on whether Seda should be released.
The details of the withheld information are provided in an affidavit from James Strupp, an investigator for the federal public defender’s office.
An additional motion asks the court for further investigation and an evidentiary hearing to “uncover the extent of the government’s failings.” It states that Seda “takes strong issue with the government’s statement that its failure to comply with its obligations can be characterized as “inadvertent.” Moreover, the full extent of the government’s failings is not known at this time. The record as it exists now suggests that this case has been infected with governmental conduct so extreme that dismissal of the indictment is warranted.
A previous motion for new trial based on appeals to prejudice was filed on Sept. 23, 2010. A footnote summary in the new motion says:
“3 E.g.: (1) the government appealed to prejudice by referring to the defendant’s association with a “strident form of Islam” that “promoted acts of violence” and a “kill people” jihad, and by telling the jury that “The Noble Qur’an is the defendant,” calling it “junk,” waving it before the jury and slamming it down on the table; (2) the government materially changed the trial testimony of the chief IRS case agent from her grand jury testimony and influenced the trial testimony of accountant Tom Wilcox concerning who provided the false information on the tax form; (3) the government refused to use its unique ability to obtain authentication of evidence that undermined its theory that the El Fiki funds were diverted to Chechen mujahideen and used for personal gain.”
Al-Haramain Islamic Foundation OR was shut down by the Department of Treasury in 2004 in a proceeding that has been held unconstitutional by the federal court in Oregon. The case is now on appeal to the Court of Appeals for the Ninth Circuit.
The charity is also well-known for winning a judgment against the United States for an illegal wiretap of its communications with its attorneys.