MIAMI – Five men convicted of plotting with Al Qaeda to destroy a Chicago skyscraper and blow up FBI offices want a federal judge to declare them innocent or order a new trial, claiming that a juror who appeared skeptical of the prosecution's case was improperly removed during deliberations.
The men also contend there was insufficient evidence to support their May convictions — which came after two previous mistrials — and that prosecutors modified the original indictment in ways that trampled on their constitutional rights.
Convicted ringleader Narseal Batiste, 35, and his four followers face between 30 and 70 years in prison for convictions on charges that include plotting to provide material support to terrorists and conspiring to wage war against the U.S.
Sentencing is currently set for Sept. 8. Two members of the original "Liberty City Seven" were acquitted.
Prosecutors said they plotted with an FBI informant posing as an Al Qaeda operative to bomb the famed Sears Tower in Chicago — now called the Willis Tower after a name change this month — and attack FBI offices in hopes of sparking an anti-government insurrection.
Batiste testified in all three trials that all his terrorism talk captured on FBI recordings was an act designed to obtain money from the informant.
The two mistrials were declared when jurors could not agree on the men's guilt or innocence. In the third trial, U.S. District Judge Joan Lenard removed one female juror, known only as juror No. 4, after the other 11 on the panel complained she was not deliberating and had said she did not believe in the law. The convictions quickly followed after the juror was replaced.
Attorney Nathan Clark, who represents 25-year-old Rotschild Augustin, filed a motion Tuesday arguing that the removed juror had been deliberating as required and that she likely represented a lone holdout against convictions. Her replacement violated the men's right to trial by an impartial jury, he wrote.
"All of the jurors recognized juror No. 4's view of the evidence in this case: that she didn't trust the government's case and that she wasn't going to change her mind," Clark wrote.
Attorneys for the other four men filed papers asking to join in Clark's motion, which also argues that the convictions were based on skimpy evidence and no proof that the plot was serious. Even an oath of loyalty to Al Qaeda staged by the undercover informant and videotaped by the FBI is insufficient for the convictions, Clark wrote.
"Nowhere in the oath does it indicate that he (Augustin) is going to operate under the direction of Al Qaeda," the motion says.
The Miami U.S. attorneys office did not immediately respond to a request Wednesday for comment but would typically file a reply in court. Prosecutors have not yet recommended whether they will seek maximum or more lenient sentences for any of the five men, who were arrested in June 2006.
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