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04/09/93 ABDUL R. DARAB v. UNITED STATES

April 9, 1993

ABDUL R. DARAB, ET AL, APPELLANTS
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. W. Byron Sorrell, Trial Judge)

Before Rogers, Chief Judge, and Terry and Sullivan, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge : These twenty-four appeals arise from appellants *fn1 convictions by a jury of unlawful entry, D.C. Code § 22-3102 (Repl. 1989), at the Islamic Center located at 2551 Massachusetts Avenue, N.W., Washington, D.C., on July 11, 1983. On appeal appellants contend that their convictions violated the Free Exercise and Establishment Clauses of the First Amendment. They also contend that the trial Judge abused his discretion by replacing a regular juror with an alternate, and by denying a new trial based on misconduct of the courtroom clerk. The law controlling the constitutional claim raised by appellants is settled, and they cannot prevail. We find no abuse of discretion by the trial Judge in replacing the regular juror. Although we are troubled by the unprofessional conduct of the courtroom clerk, we find no abuse of discretion by the trial Judge in denying the motion for a new trial. Accordingly, we affirm. *fn2

I.

The Islamic Center is owned and operated by an organization incorporated as the Islamic Center. *fn3 In November 1982, the Board of Governors named Dr. Samuel Hamoud the administrator and program planner of the Islamic Center. In his capacity as administrator, Dr. Hamoud was responsible primarily for secular matters involving the Center, including daily operations and security.

July 11, 1983, was significant to the Islamic Center for two reasons. First, a service was scheduled to celebrate a major Islamic holiday, the Eid Al-Fitr or the Feast of the Breaking of the Fast following Ramadan. In addition, it was the first day that the Mosque was open to the public following a three to four month renovation period. The Board of Governors of the Center had announced, in a newspaper advertisement, the reopening of the Mosque and invited Muslims to join in the Eid prayer to be held on July 11th. Dr. Hamoud testified that the center was expecting 1,500 to 3,000 people; the capacity of the Mosque was only 850 to 1,000 people.

The disturbance at issue arose from a schism within the Muslim community. According to the testimony of appellants Mohammed Asi and Tariq Khan, for several years members of the Muslim community in the Washington metropolitan area were displeased with the appointed leadership at the center and wanted to have a greater role in its administration. An election was held on November 11, 1981, to choose a Counsel of Guidance and an Imam, who serves as the religious leader for the congregation. Approximately 400 to 500 members voted, and appellant Asi was chosen by 250 votes to be Imam. From the time of his election through March of 1983, appellant Asi delivered the Friday sermons at the Center. On March 5, 1983, however, Asi was evicted from his apartment in the Islamic Center and the Center was closed. Nevertheless, Muslims continued attending services led by Asi outside the center. This set the stage for the reopening of the Mosque at the celebration of the Eid on July 11, 1983.

The administrator of the Center, Dr. Hamoud, made special security arrangements for the event. He hired ushers to help seat people, H & H investigators (a private security company under contract with the Center since it had closed in March of 1983), and fourteen additional private security officers. Dr. Hamoud testified that he had made these special arrangements for two main reasons. First, he was concerned about the size of the crowd expected in view of the coincidence of the reopening and the holiday. Secondly, he anticipated that a confrontation might occur between those leading the service conducted by the appointed Imam and the dissatisfied segment of the Muslim community led by Imam Asi. *fn4 He based his concern on a newsletter circulated by the dissatisfied group which stated that only Mohammed Asi would lead the prayer. *fn5

On July 11, 1983, the Islamic Center opened at 7:00 a.m. for the ritual chanting. The Center's appointed Imam, Dr. Al-Aseer, *fn6 testified regarding the format of the Eid ceremony. He explained that the ritual chanting, or the "takbiraat," is supposed to stop once the Imam issues the order for the person in charge to give a prelude to the prayer. The prelude normally takes one to three minutes, at which point the worshipers rise and the Imam begins the prayer, which is in two parts. The first prayer begins with the takbiraat, which is repeated seven times, followed by a recitation from the Koran. The second unit of prayer involves a similar sequence. According to Dr. Hamoud, the chanting was scheduled to begin at 7:00 a.m. followed by the prayer at 8:00 a.m.

Dr. Al-Aseer arrived at the Center between 7:30 and 8:00 a.m. in order to lead the prayer and deliver the sermon. *fn7 He went into the Mosque and shared the takbiraat with the Muslims present who were already performing the ritual chanting. A few minutes after 8:00 a.m. he signaled to the officer in the Mosque to begin the prelude. According to Dr. Al-Aseer, as that person stood up to deliver the prelude, someone moved toward him and took the microphone, another person sat in the mihrab, and a third person sat on the mimbar. *fn8 The person who took the microphone then led a chant of takbeer, in which approximately fifty people joined. At some point after that, Dr. Al-Aseer was hit and his turban was knocked to the floor. As he moved to pick up his turban, he saw two worshipers fighting with someone close to him. He left the Mosque and returned later, at 10:00 a.m., to lead a second ceremony.

Dr. Hamoud testified that when he first entered the mosque that morning it was "jammed with people like sardines." Shortly after 8:00 a.m., he was standing in the courtyard when he heard people yelling that fighting was taking place inside the Center. Upon entering the Mosque for a second time, he heard the shouting and observed an unauthorized man sitting on the mimbar with a microphone in his hand. Dr. Hamoud approached that person and asked twice for the microphone. The man refused and continued chanting. When Dr. Hamoud held out his hand for the microphone, the man swung the microphone at him, hitting him in the arm. Dr. Hamoud then grabbed the man with his left hand and felt himself being pushed by others. He also noticed that two Muslim worshipers were defending the appointed Imam and that "there were blows being struck." As he continued to push, Dr. Hamoud was knocked to the ground, and he observed more fighting and arguing. He was unable to stand up, despite several efforts to do so, because he was being hit and kicked. *fn9 He crawled toward the back of the Mosque and ran out in order to call the police.

As he ran out of the Mosque, Dr. Hamoud saw Sadiq Hassan-Bey of H & H security and requested that he go in and attempt to quiet the disturbance. Hassan-Bey testified that when he went to the front door of the Mosque, he saw "basically pandemonium. I saw individuals at the rear of the mosque being involved in some type of multiple struggles. I observed an individual sitting on what is known as the mimbar. I observed others individuals involved in shouting matches." According to Dr. Hamoud, Hassan-Bey responded that police assistance was needed, and Dr. Hamoud approached Lieutenant Parker of the Metropolitan Police Department, who was standing outside the gates of the Center. Dr. Hamoud asked Lieutenant Parker to take his officers into the mosque and break up the disturbance. After Lieutenant Parker radioed for assistance, *fn10 Dr. Hamoud conferred again with Hassan-Bey in the courtyard in order to assess the situation. According to Dr. Hamoud, Hassan-Bey informed him that they had to keep the situation under control until the rest of the police officers arrived. *fn11

In arriving at a decision on how to handle the situation, Dr. Hamoud consulted with various sources. In addition to discussing the matter with Hassan-Bey, Dr. Hamoud had a conversation with Deputy Chief Connors and Lieutenant Parker about how to handle the situation. He concluded that the police and security officers would have to clear the Mosque and that the service would be restarted later. *fn12 Dr. Hamoud testified that this was his decision to make because the Board of Governors had given him "the authority to run the security operation, and if necessary, to have people evicted from the Mosque . . . ." *fn13

Upon making the decision to have the Mosque cleared, Dr. Hamoud instructed Hassan-Bey to go into the Mosque and warn those inside that if they did not leave peacefully, arrests would have to be made. *fn14 Hassan-Bey testified that he gave the warnings in a "clear and distinct" voice at around 9:00 a.m., and that he specifically warned appellant Al Asi to have his people leave or they would be arrested. Dr. Hamoud, from about thirty feet away, heard Hassan-Bey give the warnings and recite the Code provisions over the bullhorn. Lieutenant Parker also heard the warnings from fifteen feet away. *fn15 Special Police Officer Diggs testified that after he heard the warnings, the people inside the Mosque continued chanting and locked arms. After three warnings had been issued by Hassan-Bey, and no one left the Mosque, Dr. Hamoud asked the police to enter the Mosque and assist with the arrests. *fn16

Most of the appellants who testified claimed that they never heard the warnings to leave the Mosque. Specifically, Appellant Asi testified that he "definitely" did not hear the announcement by Hassan-Bey; he attributed this to the fact that about sixty people were chanting the takbiraat at the time and that they were located a distance from the speaker. In addition, most of the appellants who testified claimed that they were operating under a belief that they had the right to remain in the Mosque because no one had the authority to interfere with a religious service.

Regarding their right to remain, appellant Asi explained:

My belief was that the services . . . the prayer services at the Islamic Center and the Islamic Center, itself, was a place of worship for all Muslims. And that no one, no group of people whatever their characterization might be, had the right to interfere in the religious services designated for this place of worship . . . the Mosque or the Mosjid.

This belief was based on a "fatwa," *fn17 which appellant Asi had obtained from the Al-Azhar University in Cairo, Egypt, and circulated and discussed with fellow Muslims in the community. *fn18 The fatwa stated:

Once (a piece of) land is endowed for the purpose of constructing a mosque upon it, then it is not permissible for anyone to own that mosque nor to claim an ownership of the mosque. It remains in the ownership of God forever. No one -- Muslim or non-Muslim -- may ban anyone from praying within the mosque. And no individual, organization or group may exercise control of admission for prayers in it, nor may restrict prayers.

The jury found appellants guilty of unlawful entry.

II.

In appealing their convictions of unlawful entry, appellants first contend that their prosecutions violated the Free Exercise and Establishment Clauses of the First Amendment. Second, they maintain that because they had the lawful authority to remain in the Mosque, the government failed to meet its burden of proof to sustain the unlawful entry convictions. Third, they assert that even if the elements of unlawful entry were proven beyond a reasonable doubt, their convictions cannot be upheld because they had a bona fide belief in their right to remain in the Mosque.

A.

Appellants' Free Exercise Clause and Establishment Clause argument is based on the proposition that the invocation of the unlawful entry statute was an impermissible government intrusion upon resolution of a religious controversy. Specifically, they maintain that in order to reach a guilty verdict the jury had to resolve several contentious principles of the Islamic religion such as whether anyone can "own" a mosque, whether ...


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