US v. Yunis

• Decision Date: 23 February 1988
• Docket Number: Crim. No. 87-0377.
• Citation: 681 F. Supp. 909
• Parties: UNITED STATES of America v. Fawaz YUNIS.
• Court: U.S. District Court — District of Columbia

681 F. Supp. 909

UNITED STATES of America v. Fawaz YUNIS.

Crim. No. 87-0377.

United States District Court, District of Columbia.

February 23, 1988.

COPYRIGHT MATERIAL OMITTED

J. Ramsey Johnson, Karen A. Morrissette, Jennifer Gold, Asst. U.S. Attys., Washington, D.C., for plaintiff.

Francis D. Carter, Turner and Carter, Washington, D.C., for defendant.

PRETRIAL MEMORANDUM ORDER NO. 5

(Denying Motion to Dismiss Because of Illegal Arrest; Granting Motion to Suppress Statements)

BARRINGTON D. PARKER, District Judge.

This Memorandum Order addresses two of the remaining substantive pretrial motions filed on behalf of the defendant: (1) Motion to Dismiss the Indictment Based on the Illegal Arrest of the Defendant, and (2) Motion to Suppress Statements. Both motions concern fundamental legal principles that law enforcement officers must act in accordance with long recognized and established restraints embodied in the fourth, fifth and sixth amendments no matter who is the subject of arrest or where the arrest occurs. These constitutional principles should not be cast aside nor minimized merely by invoking "national security" or "the fight against terrorism".

Defendant, Fawaz Yunis, a citizen of Lebanon, was lured out of his homeland, arrested in international waters off the coast of Cyprus, and forcibly brought to the United States to face charges of hostage taking and aircraft piracy. His counsel argues that the arresting officers failed to respect the defendant's constitutional rights when he was arrested and that they unlawfully secured inculpatory statements from him while he was being brought back to the United States. He has moved to dismiss the indictment on grounds that the circumstances surrounding the arrest were outrageous and violated defendant's due process rights. Counsel has also moved to suppress his client's inculpatory statements and written confession claiming that his rights were not voluntarily or knowingly waived.

For the reasons discussed in part II below, the Court denies the motion to dismiss the indictment on grounds that the defendant was the subject of an illegal arrest. In part III, the Court states the grounds for suppressing the written confession secured from Fawaz Yunis.

The discussion of the two motions rests on the actual events which occurred during the course of and following the defendant's arrest. In part I, the Court states its findings, giving the background facts and circumstances surrounding the arrest. It then turns to and considers the motion to dismiss the indictment and the motion to suppress statements.

I. BACKGROUND FACTS

Operation "Goldenrod", the chosen name for the government's plan to abduct defendant Yunis, was a carefully devised and well executed effort to arrest and bring to trial the ringleader of the small band of men who hijacked and later blew up a Royal Jordanian aircraft at the Beirut International Airport.¹ Immediately following the hijacking, the United States Government sought to identify, locate and capture the responsible persons. After months of investigation, its efforts were focused on the defendant, Fawaz Yunis, identified as the ringleader. In this connection, the government secured and relied in large measure on the services of Jamal Hamdan, a one-time friend of Yunis who became a government informant.

With the help of Hamdan, the government developed an elaborate scheme to lure Yunis from Lebanon to a location in international waters of the Mediterranean sea off the coast of Cyprus. The bait was the promise of a lucrative narcotics deal.

A.

The full operation, including the defendant's arrest and return to the United States for trial, was conceived well in advance of its execution. In early 1987, Oliver Revell, Executive Assistant Director of the Federal Bureau of Investigation ("FBI"), together with representatives from other United States' agencies² began the task of devising a plan to abduct the defendant. While other agencies were involved, the record and testimony clearly showed that the FBI took the leadership role in formulating the plans. Trans. of test., Oliver Revell, Jan. 28, 1988 at 167, 168. As the actual date of execution grew nearer, the planning group met frequently to "iron out last-minute details." Id. at 168. Approximately three weeks before the operation actually commenced, the government settled on the logistical plans necessary for transporting the defendant from the point of his arrest in the Mediterranean Sea back to the United States. Id. at 175. The plan included arresting the defendant on a motor yacht in international waters off the coast of Cyprus and transferring him to a "recovery ship", the U.S.S. Butte. The Butte, a naval munitions ship assigned to the United States Sixth Fleet, was instructed to steam across the Mediterranean to a prearranged rendezvous point with the aircraft carrier, the U.S.S. Saratoga.³ Id. at 184. According to Joseph Davis, the Butte's captain, the government slated four days for this leg of the voyage. Trans. of test., Jan. 25, 1988 at 58, 89. From the Saratoga, the defendant was to be first tranquilized, then placed in a "Stokes" litter⁴ and flown in a twin engine S3 aircraft to Andrews Air Force Base, Maryland.⁵ All in all, the entire scenario from arrest to arrival in the United States was scheduled to be completed in five days.

B.

Operation "Goldenrod" was carried out exactly as planned. On the morning of September 13, 1987, Hamdan and Yunis boarded a small motor boat off the coast of Cyprus, were carried to a prearranged point into international waters, where they then rendezvoused with the motor yacht. The motor boat then returned to shore.

The record is clear that the motor yacht, named the "Skunk Kilo" was anchored in international waters. Captain Davis testified that his navigation officers used radar and tracking equipment to monitor the location of the motor yacht and maintained continuous radio contact with the agents on board the yacht to ensure that it did not stray beyond international waters. Id. at 49-52. The Butte's Quartermaster, John Espinosa, also prepared a chart, GX 12, which clearly showed that the yacht was anchored in international waters south of Cyprus. Trans. of test., Jan. 25, 1988 at 132-133.

Immediately upon boarding the yacht, defendant was greeted, given a routine pat down⁶ and then offered a beer by one of the FBI agents. S.A. George Gast, who assumed the role of one of the narcotic contacts, escorted Yunis to the stern of the boat where he and Yunis joined S.A. Donald Glasser. At a prearranged signal — a slight nod — the two agents, who were then positioned alongside Yunis, engaged in a "take down." Together, they grasped the defendant's arms, "kicked his feet out from underneath him, and took him down to the deck and put handcuffs on him." Trans. of test., Gast and Glasser, Jan. 29, 1988, at 33-35 and 63 respectively. After reviewing all of the motion's hearing testimony, the Court finds that the agents' "take down" caused fractures to the defendant's wrists, infra, p. 922. Defendant was then carried to the front of the ship where he was strip searched, placed in a harness, re-handcuffed and shackled with metal leg irons. At this point, the defendant complained that his legs and wrists were throbbing with pain; and the agents responded by loosening the cuffs. Trans of test., Dimitry Droujinsky, Jan. 26, 1988, at 29, 104.

The method of arrest had been prearranged and rehearsed several times by the agents to ensure a smooth execution. They developed a specific plan based on prior information that defendant was approximately 6'2", over 205 pounds, "a good athlete, a good swimmer and with the possibility of a struggle taking place." Trans. of Gast, at 43. As it turned out, the defendant was much smaller in stature, only 5'9" and approximately 175 pounds.⁷ Yunis never made an aggressive gesture toward the agents. Indeed, Agent Gast testified that he was "very compliant." Id. at 64.

After defendant was handcuffed, S.A. Droujinsky, who was quite fluent in Arabic, advised Yunis that he was being arrested by United States authorities for his involvement in the 1985 hijacking of the Royal Jordanian aircraft flight 402. While he told defendant that he was under arrest for the hijacking incident, he never advised him of his rights at that time.

Agent Droujinsky played a key role in Operation "Goldenrod." He served as the interpreter for the four days that Yunis was confined to the Butte. Because the defendant had very little if any ability to understand or speak the English language, Droujinsky's services were most crucial, serving as the principal means of communicating with the defendant.

Immediately following the arrest, the yacht resumed power and slogged for over an hour through extremely rough and choppy seas with 4' to 5' waves, to a prearranged rendezvous point with the Butte. Upon reaching that ship, the defendant and the agents then boarded a small launch vessel which was to be electronically hoisted on board the Butte. Trans of test., David Johnson, Jan. 19, 1988 at 47. However, due to mechanical problems with the winching equipment, naval personnel had to manually hand crank the equipment to allow the party to go aboard. Due to the mechanical difficulty, Yunis and the others were left "swinging and swaying from side to side with the rock and roll of the ship." Id. at 88. This movement exacerbated a nauseous condition which defendant had developed. Indeed, he suffered from dry heaves at least twice while the vessel was being lifted alongside the Butte. Id. at 47-48; Trans. of test., Thomas Hansen, Jan. 28, 1988, at 46.

C.

Once aboard the Butte, Yunis was escorted to his 8' by 10' "state room", a room normally used to store mail. It had no windows nor a functioning ventilation system. Dr. Clarence Braddock, a naval medical internist aboard the ship solely for Operation "Goldenrod," described the room as "uncomfortably...