505 F.3d 161 (2nd Cir. 2007), 05-4148, Higazy v. Templeton

Docket Nº:05-4148-cv.
Citation:505 F.3d 161
Party Name:Abdallah HIGAZY, Plaintiff-Appellant, v. FBI Agent Michael TEMPLETON, Defendant-Cross-Claimant-Cross-Defendant-Appellee, Millenium [1] Hotel and Resorts, the Hilton Hotels and Corporation, Ronald Ferry, Stuart Yule, Defendants-Cross-Claimants-Cross-Defendants.
Case Date:October 19, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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505 F.3d 161 (2nd Cir. 2007)

Abdallah HIGAZY, Plaintiff-Appellant,


FBI Agent Michael TEMPLETON, Defendant-Cross-Claimant-Cross-Defendant-Appellee,

Millenium 1 Hotel and Resorts, the Hilton Hotels and Corporation, Ronald Ferry, Stuart Yule, Defendants-Cross-Claimants-Cross-Defendants.

No. 05-4148-cv.

United States Court of Appeals, Second Circuit.

October 19, 2007

Argued: June 23, 2006.

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[Copyrighted Material Omitted]

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JONATHAN ABADY, Emery Celli Brinckerhoff & Abady LLP (O. Andrew F. Wilson, of Emery Celli Brinckerhoff & Abady LLP, Earl Ward, on the brief) New York, NY, for Appellant.

SEAN LANE, Assistant United States Attorney (Heather McShain and Sean Cenawood, Assistant United States Attorneys, Michael Garcia, United States Attorney for the Southern District of New York, on the brief) New York, NY, for Appellee.

Before: JACOBS, Chief Judge, POOLER, Circuit Judges, KOELTL, District Judge.2

POOLER, Circuit Judge.

Plaintiff-appellant Abdallah Higazy ("Higazy") filed an amended complaint on December 12, 2002, in the United States District Court for the Southern District of New York (Buchwald, J.), against FBI Special Agent Michael Templeton ("Templeton"), the Millenium Hotel ("Millenium"), Millenium's corporate owner CDL (New York), LLC, Millenium's corporate operator Hilton Hotels Corp. ("Hilton"), and Millenium employees Stuart Yule

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("Yule") and Ronald Ferry ("Ferry"). Every defendant except Ferry moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. On September 30, 2004, the district court granted summary judgment for defendants, except on the claim against Yule, where summary judgment was denied in part and granted in part. See Higazy v. Millennium Hotel & Resorts, 346 F.Supp.2d 430 (S.D.N.Y. 2004). On May 4, 2005, Higazy's remaining claims against the hotel defendants were dismissed with prejudice when the parties reached a settlement agreement, memorialized in a stipulation and order. Judgment was entered on June 29, 2005, dismissing Higazy's claims against Templeton pursuant to the September 30, 2004 memorandum and order, and dismissing the claims against the remaining defendants, pursuant to the parties' May 4, 2005 stipulation and order. Higazy appeals from this judgment, excluding the parties' stipulation and order. Because the district court improperly dismissed part of Higazy's Fifth Amendment claim, we affirm in part, reverse in part, and remand the case to the district court for further proceedings.


Higazy is a citizen of Egypt. His father once served as a diplomat in Washington, D.C., and Higazy received part of his high school and elementary school education in Virginia. Higazy arrived in New York from Cairo in late August 2001, to study computer engineering at Polytechnic University in Brooklyn, New York. His studies were sponsored by the United States Agency for International Development and the Institute for International Education. These institutions arranged for him to stay at the Millenium Hotel, which was across the street from the World Trade Center ("the Center"), in New York City.

On September 11, 2001, Higazy awoke in a corner room on the fifty-first floor of the hotel.3 The first hijacked airliner hit the Center at 8:46 a.m., approximately forty-five minutes after Higazy awoke, and while he was still in his room. After the second plane hit the second tower, at 9:03 a.m., Higazy was evacuated with the other hotel guests. Higazy left most of his belongings in the hotel room, taking only one hundred dollars in cash, his wallet, and the clothing he was wearing.

In late September or early October, hotel employees, including Yule, Millenium's chief security officer, and Ferry, a Millenium security employee, instituted a plan for retrieving and inventorying guest property. On October 11, 2001, Ferry retrieved a radio, which he said he had found in room 5101. Ferry told Yule that a passport, yellow medallion, and Koran were found with the radio in the room's safe. In late November, another hotel employee was performing a second inventory of guest property and brought the radio to Yule's attention. This time, Yule found the circumstances to be "sinister" and called the FBI to tell them that he had found "something of interest they should see." Higazy, 346 F.Supp.2d at 438. FBI agents Vincent Sullivan ("Sullivan") and Christopher Bruno ("Bruno") came to examine the radio, which they determined was an air-band transceiver capable of air-to-air and air-to-ground communication.

On December 17, 2001, Higazy returned to the hotel to pick up his belongings. He went in the morning because he had a university final examination that afternoon. He was approached by three FBI agents: Sullivan, Bruno, and Adam Suits

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("Suits"). The three agents had been told that Higazy would be coming. The agents asked Higazy about the radio, and Higazy told them that it was not his. When the agents told him that the radio was found in his room's safe, he replied, "[T]hat's impossible." Higazy initially told the agents that he had never seen a radio like this one before, but he later told the agents that he was once a lieutenant in the Egyptian Air Force and had knowledge of radio communications. The FBI questioned Ferry twice while Higazy was being interviewed. Each time, Ferry asserted that he found the radio in the safe on top of the passport. At the end of the interview, the FBI detained Higazy as a material witness, pursuant to the federal material witness statute. See 18 U.S.C. § 3144. Higazy later explained that he was worried about the effect this could have on his scholarship: "I remember amongst the things that I told the scholarships people, 'I apologize. I've been arrested. I'm going to miss my final exam today.' I just want to put that on record. And I remember the detective looking at me and saying, 'You're being arrested as a material witness for 9/11 and the only thing you're worried about is missing your final exam?' I said, 'Yes.' "

Higazy was taken from the hotel to the FBI building, where he was, in his words, "in shock, in disbelief." Higazy voluntarily waived his right to counsel, spoke with agents, and then changed his mind and asked for an attorney. The interrogation stopped. Higazy spent the night of December 17, 2001, in detention. Because of the contradiction between what Higazy said and what the hotel employees told the FBI, Bruno swore out an affidavit where he concluded that Higazy might have given false statements to federal law enforcement agents. Bruno completed the affidavit, dated December 18, 2001, in support of a material witness warrant, "so that [Higazy] may be produced for testimony before a grand jury in the Southern District of New York." According to this affidavit, the grand jury was "investigating various felony offenses, including, among others, the destruction of and conspiracy to destroy aircraft (18 U.S.C. § 32); bombing and bombing conspiracy (18 U.S.C. § 844); racketeering and racketeering conspiracy (18 U.S.C. § 1962); and seditious conspiracy to levy war against the United States (18 U.S.C. § 2384)."

Later that day, Higazy was brought before the United States District Court for the Southern District of New York (Rakoff, J.), on Bruno's material witness warrant. This warrant alleged that Higazy was a witness who might have information related to the terrorist attacks of September 11. Judge Rakoff summarized the government's theory: "the suggestion that the government is making is based on the fact that a cooperating witness, based on other Al Qaeda activities, suggests that the hijackers may have placed a beacon or other device in the form of this transceiver in or near the World Trade Center in advance of an attack to help direct the pilots to their targets." Higazy's attorney told the court that Higazy denied owning the radio and was "urgently desirous of taking a lie detector test." Judge Rakoff noted, with regard to the subject of bail, "I want to reemphasize that this is not perhaps the most overwhelming showing on the part of the government," but he decided that "the witness will be detained through, but on the present showing not beyond, December 28." Judge Rakoff scheduled another hearing on December 28 "to see where things stand." Judge Rakoff also said, "[t]he government clearly is suggesting that it might have further applications to make on the 28th, but it is representing, as I understand it, its expectation that the witness would be presented to the grand jury before the close of business

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on the 28th. Is that right?" The government replied: "[t]he witness will be presented --it is our expectation that that will happen."

The government expressed its doubt that a polygraph of Higazy would be useful and opposed Higazy's request to take one. They explained that if Higazy was a member of al Qaeda, he could pass it. Nevertheless, on December 27, Templeton--who up until this point was not involved in the investigation--conducted a polygraph examination of Higazy. Templeton began the test by asking Higazy background questions on subjects such as Higazy's scholarship, homeland, family in Egypt, brother in upstate New York, and girlfriend. He also asked Higazy whether he had anything to do with the attacks of September 11, 2001. The first round of testing allegedly suggested that Higazy's answers to the questions relating to the September 11 attacks were deceptive. As the second series of questioning was ending, Higazy requested that Templeton stop. He testified that he began "feeling intense pain in my arm. I remember hearing my heartbeat in my head and I just couldn't breathe. I said, 'Sir, sir, please, stop. It hurts. Please stop. Please take it off.' " Templeton unhooked the...

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