552 F.3d 177 (2nd Cir. 2008), 01-1535, In re Terrorist Bombings of U.S. Embassies in East Africa

Docket Nº:Docket 01-1535-cr (L), 01-1550-cr (con), 01-1553-cr (con), 01-1571-cr (con), 05-6149-cr (con), 05-6704-cr (con).
Citation:552 F.3d 177
Party Name:In re TERRORIST BOMBINGS OF U.S. EMBASSIES IN EAST AFRICA (Fifth Amendment Challenges), v. Mohamed Sadeek Odeh, also known as Abu Moath, also known as Noureldine, also known as Marwan, also known as Hydar, Mohamed Rashed Daoud Al-'Owhali, also known as Khalid Salim Saleh Bin Rashed, also known as Moath, also known as Abdul Jabbar-Ali Abel-Latif, Wa
Case Date:November 24, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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552 F.3d 177 (2nd Cir. 2008)


United States of America, Appellee,


Mohamed Sadeek Odeh, also known as Abu Moath, also known as Noureldine, also known as Marwan, also known as Hydar, Mohamed Rashed Daoud Al-'Owhali, also known as Khalid Salim Saleh Bin Rashed, also known as Moath, also known as Abdul Jabbar-Ali Abel-Latif, Wadih El-Hage also known as Abdus Sabbur, Defendants-Appellants,

Khalfan Khamis Mohamed, also known as Khalfan Khamis, Defendant.

Docket Nos. 01-1535-cr (L), 01-1550-cr (con), 01-1553-cr (con), 01-1571-cr (con), 05-6149-cr (con), 05-6704-cr (con).

United States Court of Appeals, Second Circuit.

November 24, 2008

Argued: Dec. 10, 2007.

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David Raskin and Leslie C. Brown, Assistant United States Attorneys (Michael J. Garcia, United States Attorney, on the brief, Iris Lan, David O'Neil, Katherine Polk Failla, Celeste L. Koeleveld, Assistant United States Attorneys, of counsel), United States Attorney's Office for the Southern District of New York, New York, N.Y., for Appellee United States of America.

James E. Neuman, New York, N.Y., for Defendant-Appellant Mohamed Sadeek Odeh.

Frederick H. Cohn (Laura Gasiorowski, of counsel), New York, N.Y., for Defendant-Appellant Mohamed Rashed Daoud Al-'Owhali.

Joshua L. Dratel and Sam A. Schmidt (Erik B. Levin, Renita K. Thukral, Meredith S. Heller, of counsel), New York, N.Y., for Defendant-Appellant Wadih El Hage.

Before: FEINBERG, NEWMAN, and CABRANES, Circuit Judges.

JOSÉA. CABRANES, Circuit Judge:

Defendants-appellants Mohamed Rashed Daoud Al-'Owhali and Mohamed Sadeek Odeh challenge their convictions in the United States District Court for the Southern District of New York (Leonard B. Sand, Judge ) on numerous charges arising from their involvement in the August 7, 1998 bombings of the American Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania (the " August 7 bombings" ).1 In this opinion we consider their challenges to the District Court's rulings that denied, for the most part, their respective motions to suppress statements each of them made overseas to U.S. and non-U.S. officials. Other challenges and those of their co-defendant, Wadih El-Hage, are considered in two separate opinions filed today, In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93 (2d Cir.2008), and In re Terrorist Bombings of U.S. Embassies in East Africa (Fourth Amendment Challenges), 552 F.3d 157 (2d Cir.2008).

Al-'Owhali and Odeh contend that neither the " Advice of Rights" form (" AOR" ) that they received nor the subsequent oral warnings of an Assistant United States Attorney (" AUSA" ) satisfied Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In addition, Al-'Owhali asserts that the conditions of his confinement made his statements involuntary and therefore inadmissible under

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the Fifth Amendment.2 He also contends that the District Court abused its discretion by withdrawing its initial grant of his suppression motion and holding further hearings pursuant to the government's application. For his part, Odeh claims that his Fifth and Sixth Amendment rights were violated when the District Court permitted him to withdraw his initial suppression motion and his attorneys failed to renew that motion promptly thereafter.

As explained in greater detail below, all of these claims lack merit. The AUSA's oral warnings fulfilled, and the AOR substantially complied with, the government's obligations, insofar as it had any, under Miranda, and the admission of Al-'Owhali's and Odeh's statements did not otherwise run afoul of the Fifth Amendment. The District Court's decision to conduct further hearings on Al-'Owhali's suppression motion was well within its discretion, as was its decision to grant, without prejudice to renewal, Odeh's application to withdraw his initial suppression motion. Accordingly, the District Court's resolution of Al-'Owhali's and Odeh's respective motions did not violate any of their constitutional rights.


A. Factual Overview

1. Al-'Owhali

Al-'Owhali was detained on August 12, 1998 by Kenyan authorities in " an arrest [that] was valid under Kenyan law." United States v. Bin Laden, 132 F.Supp.2d 168, 173 (S.D.N.Y.2001). Within one hour of his arrest, Al-'Owhali was transported to Kenyan police headquarters in Nairobi and interrogated by two members of the Joint Terrorist Task Force-an FBI Special Agent and a New York City police detective-operating out of New York City and two officers of Kenya's national police. Id. The New York police detective presented Al-' Owhali with an Advice of Rights form often used by U.S. law enforcement when operating overseas. The AOR, written in English, read in its entirety as follows:

We are representatives of the United States Government. Under our laws, you have certain rights. Before we ask you any questions, we want to be sure that you understand those rights.

You do not have to speak to us or answer any questions. Even if you have already spoken to the Kenyan authorities, you do not have to speak to us now.

If you do speak with us, anything that you say may be used against you in a court in the United States or elsewhere.

In the United States, you would have the right to talk to a lawyer to get advice before we ask you any questions and you could have a lawyer with you during questioning. In the United States, if you could not afford a lawyer, one would be appointed for you, if you wish, before any questioning.

Because we are not in the United States, we cannot ensure that you will have a lawyer appointed for you before any questioning.

If you decide to speak with us now, without a lawyer present, you will still have the right to stop answering questions at any time.

You should also understand that if you decide not to speak with us, that fact cannot be used as evidence against you in a court in the United States.

I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and

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answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

Id. at 173-74. Al-'Owhali told the American law enforcement agents that he could not read English and had a limited understanding of spoken English. Id. at 174. Accordingly, the police detective " read the AOR aloud in English, going slowly and checking for visual signs of comprehension. Al-' Owhali appeared to [the detective to] understand, replied that he understood when asked, and signed his alias at the bottom of the AOR in Arabic when requested to do so." 3 Id. A one-hour interrogation ensued, in which Al-'Owhali responded in " broken English." Id.

Finding their ability to communicate with Al-'Owhali limited by the end of that hour, the agents decided to continue Al-'Owhali's interrogation with the assistance of an interpreter. The special agent began this interview by reading the AOR in English, which the interpreter translated into Arabic. Id. Al-'Owhali stated that he " understood that the warning was the same one as from the morning session," " understood his rights as described therein," and " agreed to answer questions." Id. Al-'Owhali was then interviewed for about three hours and, thereafter, was questioned on eight other days: August 13, 14, 17, and 21-25.4 Id. At the start of each of the interviews on August 13, 14, 17 and 21, the agents showed Al-'Owhali the signed AOR, asked whether he remembered his rights, and whether he would continue to answer their questions. Id. at 175. Al-'Owhali consented on each occasion. Until August 21, he denied any involvement in the embassy bombings. Id.

During the August 21 interview, the U.S. agents described the inculpatory evidence they had gathered on Al-'Owhali, and " [a]fter acknowledging that the agents ‘ knew everything,’ Al-'Owhali said that he would tell the truth about his involvement in the bombing if he could be tried in the United States." Id. at 176. He explained that the reason he wanted to stand trial in the United States was " because the United States was his enemy, not Kenya." Id. The agents then terminated the interview in order to determine whether Al-' Owhali's request could be met. The next day, August 22, an AUSA, in the company of the two U.S. agents and two Kenyan police officers, provided Al-' Owhali with a document of understanding (" DOU" ), approved by the U.S. Department of Justice, stating:

I ... have been fully advised of my rights, including my right to remain silent and my right not to answer questions without a lawyer present. As I have been previously told, I understand that anything I say or have said can be used against me in court in the United States. I also understand that if I choose not to answer questions my refusal to answer questions cannot be held against me in court. I further understand that if I choose to answer questions, I can always change my mind and decide not to answer any further questions.

I understand that both Kenyan and American authorities are investigating

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the murder of the various American and Kenyan victims in and around the United States [E]mbassy in Nairobi.

I have a strong preference to have my case tried in an United States Court because America is my enemy and Kenya is not. I would like my past and present statements about what I have done and why I have done it to be aired in public in an American courtroom. I understand that the American authorities who are interviewing me want to know who committed the bombing of the embassy and how it was carried out.

I am willing to waive my rights and answer the...

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