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Posted June 18, 2003 by publisher in Cuba-Canada Trade

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By STEVE ECKARDT | cnews.canoe.ca

PHILADELPHIA (CP) - A U.S. federal judge has granted a motion for a retrial for Canadian salesman James Sabzali, convicted last April for violating the U.S. embargo against Cuba, because of prosecutorial misconduct.

In a 31-page ruling, Justice Mary McLaughlin wrote she was “very concerned” by “inflammatory language . . . strewn throughout the (prosecutor’s closing) argument.” Declaring that “it is never proper to throw around such inflammatory language in a criminal trial,” McLaughlin wrote that a prosecutor’s “repeated” charges of defence lying served to “stir up the jury” and had “no place in the argument of an Assistant United States Attorney.”

While finding that prosecutorial misconduct required she set aside Sabzali’s convictions on one count of conspiracy and 20 counts of violating the U.S. Trading with the Enemy Act, the judge rejected a defence motion for acquittal, leaving the Hamilton native under indictment for 76 embargo violations and conspiracy.

Thirty-two of these charges are for sales of water purification supplies to Cuba that took place while Sabzali was living in Canada and employed by the Canadian company Bro-Tech.

The U.S. Justice Department undertook a five-year investigation that resulted in a three-week trial.

The case aroused an outcry in Canada and inspired two diplomatic protests by Ottawa to Washington over what many regarded as an “extraterritorial” effort to impose U.S. law upon Canada. Canadian law bars its citizens from complying with Washington’s 42-year-long embargo against Cuba.

The current ruling “doesn’t have a word to say about the issues that Canada was concerned about,” according to a U.S. federal official who asked not to be identified.

“Good news, but not great news,” Sabzali said Tuesday in an interview. “It’s a break in the case. When you have to start fabricating evidence and lying to secure a conviction, it shows something is wrong.”

Still, Sabzali said he remains “disappointed that the judge didn’t decide for acquittal.” In an electronic mailing to supporters, he wrote the ruling “suggests a negotiated settlement” might be in the offing.

Federal prosecutor Joseph Poluka said in an interview his office was reviewing Monday’s ruling, calling it “appealable.”

“We’re considering every option,” Poluka said. “The two key possibilities are an appeal (of this ruling) or a retrial.”

No date for a retrial has been set pending the review.

Sharon Moss, Sabzali’s wife, said, “I have no idea what’s next. I hate to think about going through this another time. We can only pray.”

Moss and Sabzali, 44, moved to suburban Philadelphia in 1996 along with their two children. The overturning of the verdicts against him and his two American co-defendants means the removal of his post-conviction electronic shackle and the lifting of his curfew.

However, the passports of Sabzali and his family remain in U.S. government hands, along with the deed to their house.

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