In the middle of the spectator section at Philadelphia federal court Monday sat Ferik Duka, whose three sons were among five men convicted in 2008 of plotting to kill U.S. soldiers at Fort Dix.
As the Duka brothers enter the third year of their life sentences, their father listened as a three-judge panel heard nearly two hours of arguments for why the Fort Dix Five should, or shouldn't, get second trials.
Nodding toward the table where a team of prosecutors sat, the senior Duka defended his sons. "I know them better," said the Albanian immigrant.
The five men, all Muslims, were convicted in December 2008 after a two-month trial. Four were given sentences of life in prison; the fifth got 33 years.
Since then, family members have waged a campaign to overturn the convictions or reduce the sentences. The three-judge panel of the U.S. Court of Appeals for the Third Circuit in Philadelphia, which heard the arguments Monday is expected to rule this year.
The defendants - Serdar Tatar, 28; Mohamad Shnewer, 26; and the Dukas, Dritan, 32; Shain, 29, and Eljvir, 28 - grew up in the Cherry Hill area after immigrating to the United States with their families as small boys.
The Dukas, who ran a roofing business, were accused of training for their mission by shooting at a Poconos firing range and playing paintball. Dritan and Shain Duka were arrested after trying to buy seven rifles from a government informant.
Family members say the Poconos trips were harmless vacations and that the guns were intended only for the firing range.
The Dukas, who are ethnic Albanians, and Shnewer, born in Jordan, are serving life. Tatar, who was born in Turkey, is serving 33 years.
Much of the evidence is not in dispute. The families' dispute with the government is about what the defendants meant when they talked of "jihad," and whether they intended to carry out any violent acts.
Family members insist not. The government says the facts speak for themselves.
Ferik Duka is still rankled by the federal government's use of two informants to prosecute the five. After the hearing, he was not hopeful.
"The judges were more agreeable with the government than the defense," concluded the 65-year-old roofer.
Informants Mahmoud Omar, an Egyptian native, and Albanian national Besnik Bakalli recorded hundreds of conversations with the defendants.
Defense attorneys have argued that the informants steered the conversations toward a plot to attack Fort Dix and created a conspiracy when none existed.
But the appeal is largely on technical issues. Was evidence gathered under the Foreign Services Intelligence Act done in a manner that violated the Fourth Amendment, which forbids unreasonable searches?
The government says no. What's more, said a defense attorney, the evidence obtained through searches authorized under the act - two recordings and five photos - were a fraction of the government's case.
Defense attorneys also argued that jurors were biased by information that jihadist videos downloaded and much discussed by the defendants contained images of several beheadings by Iraqi militants.
Assistant U.S. Attorney Norman Gross argued that because those sections were edited out for the trial and were unseen by jurors, the videos were properly admitted into evidence to "show the defendants' intent and motivation to engage in violent jihadist act."
Gross made only brief mention in court of a decision by the government on Friday to drop its appellate defense of one charge against Shnewer - "attempted possession of a firearm in furtherance of a crime of violence" - because it was what court documents called an "error in the indictment."
Schnewer's 360-month sentence on that charge will be vacated, but he will remain sentenced to life for conspiracy to commit murder.
Hearing the case are Chief Judge Theodore A. McKee and Judges Anthony J. Scirica and Marjorie O. Rendell.
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