U.S. v. Awadallah

• Decision Date: 30 April 2002
• Docket Number: No. 01 Cr. 1026(SAS).,01 Cr. 1026(SAS).
• Citation: 202 F.Supp.2d 82
• Parties: UNITED STATES of America, v. Osama AWADALLAH, Defendant.
• Court: U.S. District Court — Southern District of New York

202 F.Supp.2d 82

UNITED STATES of America, v. Osama AWADALLAH, Defendant.

No. 01 Cr. 1026(SAS).

United States District Court, S.D. New York.

April 30, 2002.

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Robin Baker, Karl Metzner, Celeste Koeleveld, Rosemary Nidiry, Assistant United States Attorneys, United States Attorney's Office, Southern District of New York, New York City, for U.S.

Jesse Berman, New York City, for Defendant.

SECOND OPINION AND ORDER

SCHEINDLIN, District Judge.

I. INTRODUCTION

In a companion Opinion issued today, this Court held that the federal material witness statute, 18 U.S.C. § 3144 ("section 3144"), does not authorize the detention of material witnesses for a grand jury investigation. See United States v. Awadallah ("Awadallah III"), 202 F.Supp.2d 55, ___ (S.D.N.Y.2002). Because Awadallah was unlawfully detained under that statute, this Court suppressed his grand jury testimony as the product of an unlawful seizure and dismissed the perjury charges stemming from that testimony. See id. at ___.

This Opinion, filed simultaneously, decides the remaining motions in this case. Although the first opinion is dispositive, these motions are nonetheless decided at this time for two reasons. First, from February 15-18, 2002, this Court held a four-day hearing, and the facts related to that hearing should be decided while the witnesses' testimony is still fresh. Second, if a higher court interprets the material witness statute differently and holds that Awadallah's indictment was improperly dismissed, the remaining motions will necessarily have to be decided before proceeding to trial. Neither judicial efficiency nor the defendant's interest in a prompt adjudication of the charges would be served by deciding these motions at a later date with possible piecemeal appellate review over the course of months, if not years.

For the reasons explained below, I conclude that the indictment must be dismissed because of material omissions and misrepresentations in the application for the arrest warrant. I also grant Awadallah's motion to suppress all evidence and statements obtained on September 20-21, 2001.

II. FINDINGS OF FACT

The prosecution and the defendant agree as to the general events of the two days before Awadallah was formally arrested. In the afternoon of September 20th, a group of FBI agents obtained Awadallah's consent to search his home and cars, which he partially revoked later that day. That same day, two agents interviewed Awadallah for approximately six hours at the FBI's San Diego office. The next day, September 21st, Awadallah took a lie detector test during which the examiner asked Awadallah if he had personal knowledge about the September 11th attacks. Awadallah denied ever having such knowledge. The polygraph examiner accused him of lying and the agents challenged Awadallah to confess, but Awadallah maintained that he was telling the truth. The agents discussed these facts with an Assistant U.S. Attorney from the Southern District of New York who instructed the agents to arrest Awadallah as a material witness in the grand jury's investigation of the September 11th attacks. Several hours later, the government obtained a warrant for Awadallah's arrest as a material witness.

Here, the devil is in the details. Awadallah claims that the agents did not ask him if he would agree to be interviewed — rather, the agents told him he must come to their office and that he could not drive on his own—they would drive him. He further claims that he did not voluntarily agree to the interview, freely sign the consent forms or agree to take the polygraph exam of his own volition. According to Awadallah, the agents threatened and coerced him into doing so. The government sharply contests these accusations. In addition, the parties disagree about the timing of various events that occurred over those two days. Because the parties dispute the specifics of the events of September 20-21, it is necessary to make the following findings of fact.

A. September 20, 2001

At nine o'clock on the morning of Thursday, September 20, 2001, FBI agents and other law enforcement personnel met at the FBI's field office in San Diego. See Tr. at 6-7, 168-69.¹ These agents were members of a team that had been formed to assist in the investigations of the September 11th attacks. The group was led by FBI Special Agent Alberto Cortes and included, among others, the following Special Agents from the FBI: Aurelia Alston, David Anthony, Andrew Bedell, David Crawford, William Dayhoff, Anthony Davis, Bradlee Godshall, Steven Kozma, Greg McNutt, Brian Rielly, and Frank Teixeira. In addition, Richard Latulip, a Special Agent with the Secret Service, and Teofilo Weston, a Detective with the San Diego police, were assigned to the team.²

That morning, eight agents were dispatched to Awadallah's home in order to interview him and his roommates. See id. at 7, 37. The agents were also instructed to obtain consent from Awadallah and his roommates to search their property.³ See id. at 7, 37, 109. Awadallah was a subject of the investigation because agents had found a scrap of paper with the words "Osama 589-5316" inside a car abandoned by Nawaf Al-Hazmi, one of the hijackers of American Airlines Flight 77, at Washington Dulles International Airport on the afternoon of September 11th. See id. at 111-12, 247, 698-99. The FBI had subsequently matched this number to a phone at a residence where Awadallah had briefly lived nearly two years earlier. See id. at 946.

Based on this connection to Al-Hazmi, the FBI began an investigation of Awadallah. For example, "several days prior" to September 20th, Agent Teixeira interviewed an individual who told him where Awadallah "had previously worked," that Awadallah had been fired from one of those jobs, and informed him that Awadallah knew "one of the suspected hijackers from September 11th." Id. at 244. On September 19th, Agents Rielly and Crawford went to Awadallah's apartment complex at 7200 Saranac Avenue in order to determine who lived in the complex and to record license plate numbers of cars in the parking lot. See id. at 72. Later that day, an agent at the FBI field office ran the license plate numbers through the motor vehicles records database and determined which cars in the parking lot were owned by Awadallah.⁴ See id. at 104; see also GX 3507-A (9/19/01 FBI 302 Report). Agents Rielly and Crawford also interviewed at least one of Awadallah's neighbors that day. See Tr. at 104-08. By September 20th, the FBI knew which apartment Awadallah lived in, which cars he owned, the people who lived with him, his neighbors, the various parking spots and cars associated with the apartment, Awadallah's legal status in the country, and the fact that he and his roommates were students at Grossmont College.

At 9:30 a.m., a lead squad of eight agents left the FBI office and re-assembled in a parking lot near Awadallah's apartment complex. See id. at 67, 170. At the same time, Agents Dayhoff and Davis were assigned to go to Grossmont College to interview one of Awadallah's roommates.⁵ See id. at 200. Agent Rielly and Detective Weston were assigned to interview one of Awadallah's neighbors and her husband at their respective workplaces.⁶ See id. at 73-74. The agents were dressed in business attire and, while all of the agents were armed, they concealed their weapons beneath their clothes. See id. at 49, 81.

After meeting in a nearby parking lot for about twenty minutes, the agents drove to the apartment complex. See id. at 170. They arrived at approximately 10:15 a.m. See id. at 9; see also GX 3509-D. Once at the apartment complex, two agents were posted at the bottom of the stairs "to provide crowd control" and "to keep other people from coming up the stairs who weren't involved." Tr. at 170. Agent Kozma and the other agents then knocked on the door of Awadallah's second floor apartment. See id. at 170-71. When no one answered, the agents walked back down the stairs and waited in the parking lot. See id. at 171.

Around 11:30 a.m. Awadallah's roommate, Yazeed Al-Salmi, drove into the parking lot. See id. at 9, 42-43, 53. The agents recognized Al-Salmi when he drove into the complex. As Al-Salmi got out of the car, Agent Alston and another agent approached him. See id. at 9, 18, 43-44. The agents identified themselves, showed their FBI credentials and asked for Al-Salmi's identification, which he provided. See id. at 45-47. The agents asked Al-Salmi to answer some questions. See id. at 46. The agents then accompanied Al-Salmi into the apartment where they questioned him for the next two to three hours.⁷ See id. at 10-11, 18-22, 53.

While the agents were interviewing Al-Salmi, Awadallah was attending his "English as a Second Language" class at Grossmont College.⁸ See id. at 896, 899. After the class ended at 1:30 p.m., Awadallah drove home to "[t]ake a rest and pray," id. at 899, and arrived at the apartment complex around 2:00 p.m. See id. at 75 (Agent Rielly testifying that "it was approximately 2:00, maybe 2:30, [when] Mr. Awadallah arrived."). See also id. at 139-40. When Awadallah drove into the parking lot he noticed three men standing together as well as a number of cars that were not parked in any particular parking space. See id. at 903.⁹ The agents recognized Awadallah and his gray Honda as he drove into the parking lot. See id. at 75. Agent Rielly and Detective Weston (who had been instructed to go to the apartment complex when they were at Grossmont College) and another agent approached the gray Honda. At least two FBI agents were also nearby, see id. at 83, 155, 179-80, 904, 1034, and about two or three others were elsewhere in the parking lot. See id. at 83, 120, 179-80.

Detective Weston introduced himself to Awadallah and said that he wanted to ask him some questions. See id. at 79, 904. After Detective Weston asked questions for a few minutes,¹⁰ Agent Rielly identified...