New Haven Independent

In a split decision, U.S. District Court Judge Mark R. Kravitz also upheld a jury’s conviction on a second charge of disclosing national defense information to someone not entitled to receive it.

Kravitz also denied a defense motion for a new trial for Hassan Abu-Jihaad, the sailor. Each count carries a maximum of 10 years behind federal bars, so the ruling in effect reduces the maximum statutory imprisonment term Abu-Jihaad faces from 20 years to 10.

Click here to read Kravitz’s 71-page ruling.

Abu-Jihaad was convicted in February 2008 and his appeal was heard last Jan. 6.

Robert G. Golger, one of the two defense lawyers in the case, said he plans to appeal after Abu-Jihaad is sentenced. A sentencing hearing is scheduled for April 3. Read previous coverage here, here, here.

The government also has the right to appeal. “We are reviewing the ruling and have no further comment at this time,” said Thomas Carson, the public information officer for the U.S. Attorney’s Office.

The sentencing guidelines have not yet been set for this charge, said Golger, an attorney with the Fairfield law firm of Quatrella & Rizzo, LLC.

“This ruling is significant,” Golger said. “Certainly, by knocking out the one count, it lessens” the exposure his client has to jail time, he said. If both counts had been upheld and Kravitz decided to throw the book at Abu-Jihaad, he could have potentially faced 20 years in federal prison. Now he faces only half that.

In his 71-page ruling, Kravitz said he was reversing the terrorism conviction “for reasons largely related to the language of the governing statute.”

“The court is acutely aware that its decision will not be the last word on these important issues,” he said. The judge said he was convinced that Abu-Jihaad “received a full, fair and impartial trial.”

The court denied the motion for a new trial because “all that would occur upon a new trial is a re-trial with all of the same evidence and all of the same witnesses, all the same jury charges, and presumably all the same arguments of counsel.” He said the appeal-process rule “is not intended to allow a defendant to keep retrying his case until he gets a favorable verdict.”

“The government alleged that in 2001, while Mr. Abu-Jihaad was serving as a U.S. Navy Signalman aboard the destroyer, the U.S.S Benfold, he disclosed classified information regarding the movement of the Fifth Fleet Battle Group which included the aircraft carrier, the U.S.S. Constellation, to individual in London associated with Azzam Publications, an organization that the government alleged supported violent Islamic jihad,” the ruling said.

In its appeal in January, the defense argued that there wasn’t enough evidence against the defendant for a jury to convict and that the government never proved he knew the information he was providing to terrorists was dangerous.

Golger said his appeal is not limited to Wednesday’s ruling, but can engage other parts of the case. He said he was disappointed because “you certainly want everything all the time.”