Witness to Abuse - Human Rights Watch

sentencing. The judge finally got angry with the prosecution and
rebuked the government for alleging that Biheiri had terrorism
connections without any basis. 111
In January 2004, Biheiri was convicted of the criminal document fraud charges after a
jury trial and given a one-year sentence, the mandatory minimum, with credit for time
served. Days before Biheiri was scheduled to be released in June 2004, the Department
of Justice brought new criminal charges against him. Using the same facts from his first
conviction, the government charged Biheiri with one count of using his U.S. passport
unlawfully because it was procured by a false statement. 112 The government also charged
Biheiri with two counts of making false official statements to government agents based
on statements Biheiri made when he was first questioned by the FBI without an
attorney. In October 2004, a jury convicted Biheiri of one count of fraud.
Mohamad Kamal Elzahabi
The Department of Justice arrested Mohamad Kamal Elzahabi as a material witness in
Minneapolis, Minnesota, in May 2004. He was incarcerated in Minneapolis for about
three weeks 113 and then transferred to the Special Housing Unit of the Metropolitan
Correctional Center in Manhattan, where he was held in solitary confinement for two
weeks. During these five weeks of incarceration, Elzahabi was never brought before a
grand jury.
When the presiding judge indicated that he would release Elzahabi if the government did
not call him to testify in front of a grand jury, the government filed two charges against
him for making false statements to the FBI. As his attorney described the situation:
We had a time deadline—the government had to do something in order
to justify keeping him in detention as a witness; he hadn’t testified at all.
Judge Castel told the government, “Look you’ve got to produce him to
the grand jury; what are you doing?” The government basically hemmed
and hawed. It was clear to me if the government didn’t do something
Mohamad may be released; Judge Castel would lose his patience. The
government understood this, and the day before we were supposed to
111
Interview with James Clark.
112
May 2004 Indictment of Soliman S. Biheiri, United States v. Biheiri, Crim. No. 04-201 (E.D.V.A. Filed May 6,
2001) (charging him with two counts of false official statements and fraudulent procurement of passport).
113
HRW/ACLU telephone interview with Dan Scott, federal public defender for the District of Minnesota,
Minneapolis, Minnesota, August 11, 2004 (Interview with Dan Scott).
35 HUMAN RIGHTS WATCH VOL. 17, NO. 2(G)