Terror trial prosecution in crosshairs

Special grand jury considers indicting 3 accused of holding back evidence in Metro case.

David Shepardson / The Detroit News

DETROIT -- A special federal grand jury is nearing the end of its probe into whether three government officials conspired to obstruct justice and induce perjury in the 2003 Detroit terrorism trial, officials familiar with the case told The Detroit News.

Under investigation is the former lead prosecutor, Richard G. Convertino, along with the FBI Special Agent Michael Thomas and another witness in the trial, U.S. State Department security officer Harry Raymond Smith.

In June 2003, Convertino won a conviction against two Detroit men on terrorism charges. The case, which claimed four Arab immigrants were part of a sleeper cell, was the nation's first terror trial after the September 11 attacks.

The convictions were tossed out in 2004 after a Justice Department review found prosecutors suppressed evidence that might have bolstered the defendants' claims of innocence.

The special grand jury has heard from numerous witnesses in the last six months, ranging from prosecutors to an office paralegal, according to several people familiar with the proceedings. By law, grand jury deliberations are secret. The grand juy is also considering other charges.

Thomas has retained prominent Detroit defense attorney Steven Fishman for the criminal investigation. He is separately represented by Richard L. Swick in Washington, D.C., in an internal matter. Smith has hired Thomas Cranmer, a well-known defense attorney and current president of the Michigan State Bar.

Fishman declined to comment; Cranmer didn't return calls.

"I am convinced that Rick Convertino always acted to preserve the safety of his community," William Sullivan, Convertino's lawyer, said Friday. He declined to discuss the ongoing investigation.

Memo questions conduct

An August 2004 Justice Department memorandum that sought the dismissal of the terror case raised questions about the conduct of Convertino, Thomas and Smith during the trial.

Opinions by other government agencies -- the Las Vegas FBI, the CIA, Air Force investigators -- that contradicted aspects of the government's case were ignored and simply never turned over to the court or the defense, the memorandum said.

Following the terror convictions, Convertino was removed from the terror case in September 2003. In February 2004 he filed a whistleblower lawsuit against then-Attorney General John Ashcroft and Justice Department officials in Detroit, claiming they leaked an internal disciplinary report and "mismanaged the war on terrorism."

U.S. District Judge Royce Lamberth dismissed half of the suit in October.

The Justice Department in a court filing Wednesday made its strongest statement to date suggesting it was seriously considering seeking indictments. Government attorney Rupa Bhattacharyya agreed to finally allow Convertino's whistleblower suit to proceed, as long as it is "managed in a way that does not endanger the ongoing investigation or any subsequent criminal proceedings."

That filing asked Lamberth to delay the start of the civil case until April 15 -- and some federal officials believe the Justice Department will seek a grand jury indictment of Convertino and possibly Thomas and Smith before then.

Led by Justice Department attorney Daniel Schwager, the Detroit special grand jury has regularly convened on Wednesdays in recent months and even met during Super Bowl XL week in Detroit.

The extensive criminal investigation -- first disclosed by The News in June 2004 -- was opened in March 2004. Investigators traveled worldwide to interview more than 100 witnesses, including military personnel and foreign officials. The trial judge in the sleeper cell case, Gerald E. Rosen, consented to an FBI interview, and one of the lead FBI agents was questioned for more than eight hours during the exhaustive investigation.

In August 2004, the Justice Department asked a federal judge to overturn the convictions of two men on charges of supporting terrorism. Rosen granted the request.

Terror attacks triggered case

The sleeper cell case started six days after the Sept. 11, 2001, attacks, when FBI agents went to the door of a southwest Detroit apartment seeking to interview Nabil al-Marabh, a man high on the FBI's "watch list" of suspected terrorists.

Instead, they found three men, Karim Koubriti, Ahmed Hannan and Farouk Ali-Haimoud, along with 100 audiotapes featuring fundamentalist Islamic teachings, a videotape about U.S. tourist spots and a day planner bearing suspicious documents labeled "the American Air Base in Turkey."

A fourth man, Abdel Ilah-Elmardoudi, was later arrested in Greensboro, N.C. The government suggested the sketches were part of a plot to attack overseas targets -- and used a cooperating witness, Youssef Hmimssa, to suggest the defendants were planning attacks in Michigan and had sought Stinger missiles.

The arrests prompted banner headlines around the world as the first significant terrorism case after September 11. Weeks later, Attorney General Ashcroft said the men were suspected of having knowledge of the Sept. 11, 2001, attacks -- a claim quickly retracted.

In June 2003, a jury in Detroit convicted Koubriti and Elmardoudi of terror charges; acquitted Ali-Haimoud of all charges, and convicted Hannan only of document fraud charges.

The Justice Department memo raised questions about nearly all of the key evidence:

• The Las Vegas FBI said it didn't believe the videotape was a "terrorist casing video" -- as a Detroit FBI agent, Paul George, testified during the trial. The contradictory opinion was never shared with the defense.

• The government never turned over a grand jury transcript of an interview with Hmimssa's former landlord in Iowa, who claimed Hmimssa spoke ill of U.S. soldiers. The transcript would have bolstered the evidence from a notorious convicted drug dealer, Butch Jones, that raised questions about Hmimssa's credibility as a pro-government witness.

• Convertino ordered the FBI agents -- including Thomas -- not to take notes during 10 interviews with Hmimssa that lasted between 20 and 30 hours, an unusual practice criticized by defense attorneys and government officials.

• Convertino took notes and then transcribed them on his laptop. The government found significant differences between the initial notes and the later versions recovered from his computer.

• Assistant U.S. Attorney Keith Corbett -- who headed the organized crime strike force and was Convertino's boss -- said in the government's memorandum that he would not have agreed to participate as co-counsel in the trial if he had known of the evidence that was withheld from the defense. He also agreed with the decision to throw out the case and has testified before the grand jury.

Rosen held a hearing in December 2003 in which he sharply criticized the government's failure to turn over evidence to the defense and ordered a government review to ensure no other evidence had been withheld. Ashcroft appointed a special U.S. attorney, Craig S. Morford to conduct the court-ordered review. Following a nine-month probe, the government turned over more than 2,000 pages of records to the defense and abandoned the case.

Prosecutors pledged not to retry the men on terror charges.

Hannan was deported after being sentenced to six months in prison on the document fraud charge. Koubriti is living and working in an Oakland County hotel, awaiting trial on attempted insurance fraud. Elmardoudi is on his way to Minnesota to face a 2001 charge of telephone fraud. Ali-Haimoud has returned to Michigan and is living with his mother in Dearborn.

Convertino, a former assistant U.S. attorney who handled the perjury prosecution of former NBA star Chris Webber, resigned in May 2005 and has become a defense attorney, winning an acquittal last month for Michigan State Trooper Jay Morningstar on murder charges for shooting a homeless man.

A separate investigation into Convertino's handling of two earlier drug cases continues.