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The story behind this week's appeals in 3 ISIS cases

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Protestors gather after closing arguments.
Protestors gather after closing arguments in the trial of three Twin Cities men accused of trying to join the ISIS terror group in Syria at the Federal Courthouse in Minneapolis May 31, 2016.
Courtney Perry for MPR News 2016

Attorneys for three Twin Cities men who were found guilty of trying to join the terrorist group ISIS are appealing their convictions this week in court. Oral arguments are scheduled for Thursday before a three-judge panel from the Eighth Circuit.

It's the first significant development in the case since the men were sentenced a year and a half ago. Here is what you need to know.

Who are the men, and what were they convicted of?

Guled Omar, 23, and Mohamed Farah and Abdirahman Daud, both 24, were three of the nine Twin Cities men who were charged in Minnesota's ISIS conspiracy — and the only three to take their cases to trial rather than plead guilty. They were convicted of trying to join ISIS in Syria and conspiring to murder outside the United States.

While they weren't accused of planning attacks on U.S. soil and never made it to Syria, evidence presented at trial showed they took tangible steps to get there. The trial, which took place in the spring of 2016, drew worldwide interest and opened a window into ISIS' sophisticated propaganda and recruiting techniques.

What were the sentences, and how did they compare to those of the other men who were charged in the case?

Omar, who was at one point the group's leader and drew others into the conspiracy, received the harshest penalty of 35 years in prison. Farah and Daud each were sentenced to 30 years.

Four others who pleaded guilty to lesser charges received 10 years, but those who cooperated with the government received even lighter sentences, including time served.

U.S. District Judge Michael J. Davis
U.S. District Judge Michael J. Davis is presiding over the cases of several men accused of plotting to join the terror group ISIS is launching the first steps of a de-radicalization program for four men who pleaded guilty. He was photographed Wednesday, March 2, 2016.
Courtney Perry for MPR News 2016

At the November 2016 sentencings, U.S. District Judge Michael Davis acknowledged the severity of the punishment for Omar, Farah and Daud. At the time, Davis said he hoped the harsh deterrents would help incapacitate a "terror cell" in Minneapolis.

Attorney Bruce Nestor, who represents Daud, said his client should have received a sentence that was more in line with what the other co-conspirators got. "It appears that Mr. Daud was punished for going to trial," Nestor told MPR News. "The people who pled guilty engaged in the same conduct he was convicted of and received substantially lower sentences."

How did these sentences of 30 to 35 years compare to what defendants received in other ISIS cases around the country?

They're in the top range, said Seamus Hughes, deputy director of the Program on Extremism at George Washington University. "But those that go to trial tend to get longer sentences," he said.

Out of nearly 90 defendants convicted in ISIS-related cases that the university tracks, the only cases that resulted in stiffer or comparable sentences involved individuals who had plotted attacks on U.S. soil or, as in the case of Tairod Pugh, also took their cases to trial. Pugh was sentenced to 35 years for trying to join ISIS.

What's the basis of their appeal?

The attorneys for Omar, Farah and Daud are challenging the jury instructions Judge Davis provided as they related to the charge of conspiracy to murder overseas. The jury was told to convict if the men agreed to act with a "callous and wanton disregard of the consequences of human life."

That, the attorneys argue, is a different standard from what is required, and it allowed their defendants to be convicted of conspiracy to murder by merely conspiring to join a terrorist group.

In addition, Mohamed Farah's new attorney, Jordan Kushner, argues that his client lacked adequate representation and should have been given a substitute attorney before trial. Farah's previous attorney, Murad Mohammad, sought to withdraw from the case days before the trial was to begin. 

"Farah's allegations that he had not been shown discovery and did not have meaningful communications with his attorney were sufficient to establish that he was being deprived of his Sixth Amendment rights to adequate counsel and to assist in his defense," Kushner wrote.

Another attorney who was initially hired to represent Farah withdrew from the case after his law clerk, a St. Paul imam, was accused of interfering with the other defendants' cases.

What about the informant? Is that part of the appeal?

The attorneys are not challenging the government's use of an FBI informant, which became a flashpoint among families and friends of the men. The informant, Abdirahman Bashir, secretly gathered damaging evidence against the men and caused some of their supporters to cry entrapment.

"In the tapes made by Bashir, the defendants convicted themselves with their own words," Assistant U.S. Attorney Lisa Kirkpatrick said in a brief filed earlier this year. "At no time, in any recording — and in fact, nowhere in the evidence of this case — did any of these three defendants evince the slightest belief that they were going to Syria to join a professional, ethical army, or to do humanitarian work. Instead, as detailed below, all three defendants expressed unequivocal enthusiasm for even the most depraved of [ISIS'] atrocities," including beheadings and mass executions.

What are federal prosecutors arguing?

The government said the appeals court should uphold the lower court's rulings, and that the jury instructions were proper. They also say the decades-long sentences were fair, and that the three men had faced the possibility of life in prison. Kirkpatrick said Judge Davis used discretion by appointing a "de-radicalization expert" to evaluate the defendants.

Prosecutors also say the conduct of Omar, Daud and Farah was not comparable to that of the other defendants who pleaded guilty. Kirkpatrick wrote that Omar helped recruit eight men into the conspiracy and perjured himself while taking the stand during trial; Daud's involvement in the conspiracy spanned from its very beginning to its very end; and Farah made multiple attempts to join ISIS.

What should we expect on Thursday?

Oral arguments begin at 9 a.m. in St. Paul. Lawyers for the three men will have a total of 30 minutes to be heard. The government will have an additional 30 minutes.