U.S. v. Awadallah

• Decision Date: 31 January 2002
• Docket Number: No. 01 CR 1026(SAS).,01 CR 1026(SAS).
• Parties: UNITED STATES of America v. Osama AWADALLAH, Defendant.
• Court: U.S. District Court — Southern District of New York

202 F.Supp.2d 17

UNITED STATES of America v. Osama AWADALLAH, Defendant.

No. 01 CR 1026(SAS).

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

January 31, 2002.

COPYRIGHT MATERIAL OMITTED

Robin Baker, Karl Metzner, Assistant United States Attorneys, United States Attorney's Office, Southern District of New York, New York, New York, for the Government.

Jesse Berman, New York, New York, for Defendant.

OPINION AND ORDER

SCHEINDLIN, District Judge.

I. INTRODUCTION

Within days of the September 11th attacks against the United States, the U.S. Attorney's Office in the Southern District of New York and the FBI—working with numerous federal, state and local agencies —initiated a federal grand jury to investigate those attacks. The grand jury was investigating, among other offenses, the crimes of destroying and conspiracy to destroy aircraft, see 18 U.S.C. § 32, bombing and bombing conspiracy, see 18 U.S.C. § 844, and seditious conspiracy to levy war against the United States of America, see 18 U.S.C. § 2384.

To facilitate the investigation, the government issued subpoenas and warrants calling for material witnesses to testify before the grand jury.¹ On September 21, 2001, a material witness warrant was issued for Osama Awadallah. After Awadallah was detained and held for twenty days in various locations, he testified before the grand jury in New York on October 10 and October 15, 2001.

Three days after Awadallah finished testifying, the government issued a complaint charging him with two counts of knowingly making a false material declaration before the grand jury. See Complaint, United States v. Osama Awadallah, No. 01 Mag. 1833 (filed October 18, 2001) ¶¶ 1-2 (citing 18 U.S.C. § 1623(a)). Awadallah was arrested on October 21, 2001, and indicted on two counts of perjury on October 31, 2001. See Awadallah, 173 F.Supp.2d at 187. Bail with conditions was set on November 27, 2001, see id. at 192, and Awadallah satisfied those conditions on December 13, 2001. According to the government, "Awadallah faces a sentence of ten years' imprisonment (the combined statutory maximum on the two counts, pursuant to Section 3A1.4 of the United States Sentencing Guidelines)." 11/20/01 Letter from Assistant United States Attorney ("AUSA") Robin Baker to the Court at 3.

Awadallah now makes several motions related to the perjury charges. First, he moves to dismiss the Indictment on the grounds that (1) he properly recanted his false testimony, thereby barring prosecution, (2) the government violated the Vienna Convention on Consular Relations by not informing him of his rights as a foreign national, (3) the government interfered with his right to counsel, and (4) the government denied him due process while holding him in custody prior to his grand jury appearance as well as during his testimony. See 12/3/01 Notice of Motion ¶¶ 1-4. Second, Awadallah moves to suppress (1) all physical evidence found by law enforcement officers who searched his home, computer and cars, and (2) all statements that he made to any government agent from September 20, 2001 through October 3, 2001. See id. ¶¶ 7-8. Third, Awadallah moves to dismiss the second count of perjury because it is "immaterial, redundant and duplicative of Count One" and for "[a]n order striking certain prejudicial and improper material from the indictment and prohibiting the government from making any reference to such matters at trial." Id. ¶¶ 5-6.

Awadallah's final motion is for "[a]n order granting evidentiary hearings on the above motions" where applicable. Id. ¶ 9. For the reasons discussed below, these motions are denied in part and granted in part. An evidentiary hearing is scheduled for February 15, 2002.

II. SUMMARY

These motions collectively raise the question of whether the evidence against Awadallah should be suppressed and the Indictment dismissed. There are essentially three grounds offered in support of this result. First, if the government lacked probable cause to detain Awadallah thereby unlawfully arresting him, then everything flowing from that unlawful arrest must be suppressed. Second, if the consent that he gave to search his home and cars as well as to speak with investigating agents was involuntary, then everything flowing from that consent must be suppressed. Third, if the government's conduct from the inception of the investigation through its presentation before the Grand Jury violated Awadallah's rights under the Constitution and the material witness statute, then all of the evidence must be suppressed, which would effectively result in the dismissal of the Indictment. For these reasons, an evidentiary hearing must be held.

III. LEGAL STANDARD

The Federal Rules of Criminal Procedure "requir[e] the judge to receive evidence on any issue of fact necessary to the decision on a ... motion to suppress." Charles A. Wright et al., 3 Federal Practice & Procedure § 675 (2d ed. Supp. 2001). Although suppression hearings are not always required, a court should hold a hearing when the motion alleges facts that, if proved, would require the suppression of evidence. See id.; see also United States v. Pena, 961 F.2d 333, 339 (2d Cir.1992) (stating that an "evidentiary hearing on a motion to suppress ordinarily is required if the moving papers are sufficiently definite, specific, detailed and nonconjectural to enable the court to conclude that [there are] contested issues of fact going to the validity of the search." (citation and quotation marks omitted)).

A court should also hold a hearing when the defendant's allegations, if proven true, would result in dismissal of the indictment. See United States v. Toscanino, 500 F.2d 267, 281 (2d Cir.1974) (holding that the district court was required to hold an evidentiary hearing when defendant's allegations, if proven, would result in dismissal); United States v. Orsini, 402 F.Supp. 1218, 1219 (E.D.N.Y.1975) (holding that an evidentiary hearing was required because allegations of due process violations, if substantiated, would require dismissal of indictment).

For the sole purpose of determining whether an evidentiary hearing is required, I will assume that Awadallah's allegations are true. These allegations are taken directly from his attorney's affirmation in support of these motions, which have been adopted by Awadallah. See generally 12/3/01 Affirmation of Jesse Berman, Defendant's Attorney, in Support of Motion to Dismiss ("Berman Aff."); see also 12/26/01 Affidavit of Osama Awadallah, attached to the 12/28/01 Reply Affirmation of Jesse Berman ("Reply Aff.") (adopting all of the statements in Berman's Moving Affirmation).

IV. FACTUAL BACKGROUND AND ALLEGATIONS

A. The Defendant

Awadallah is a lawful permanent resident of the United States and a citizen of Jordan. See November 21, 2001 Transcript of Bail Hearing ("11/21/01 Bail Tr.") at 40. In April 1999, at the age of eighteen, he entered this country with the goal of becoming a United States citizen. See Grand Jury Transcript 10/10/01 ("10/10/01 GJ Tr.") at 8-9. While residing in this country, Awadallah has only lived in California, where his father and three of his brothers reside.² See Bail Tr. at 15-22.

Over the last two and a half years, Awadallah has been employed as a gas station attendant, flower deliverer, janitor and, most recently, licensed security guard. See Awadallah, 173 F.Supp.2d at 188; see also 10/10/01 GJ Tr. at 27-28. He has never been convicted of any crime or ever been arrested. See Awadallah, 173 F.Supp.2d at 188. Awadallah's main reason for moving to the United States was to attend college and work here. See 10/10/01 GJ Tr. at 8; see also 9/22/01 FBI Form 302 ("FBI 302"). In the autumn of 2001, he began his second year at Grossmont College where he mainly studied "English as a Second Language." See 10/10/01 GJ Tr. at 20.

B. Events Prior to Awadallah's Grand Jury Testimony

On the afternoon of September 20, 2001, approximately twenty FBI agents surrounded Awadallah on the street outside his home in San Diego. See Berman Aff. ¶ 14. The FBI agents ordered Awadallah to come to their office. See id. None of the agents advised Awadallah of his rights under Miranda, his right to refuse searches of his home or cars, or his right to contact the Jordanian consulate. See id. When Awadallah asked to phone his brother Jamal, the agents refused him permission. See id. When Awadallah asked to enter his own home, the agents told him he could not go inside.³ See id. Awadallah also asked if he could drive in his car to the FBI office but the FBI agents insisted that he go in an agent's car. See id.

Although the FBI agents told Awadallah that his interview at the San Diego office would last around thirty minutes, he was questioned until midnight. See id. ¶¶ 14-15. At some point during the interview, the agents explained that while searching a car that belonged to Nawaf Al-Hazmi, a suspected terrorist in the September 11th attack on the Pentagon, agents had found a piece of paper with the words "Osama 589-5316." See 10/10/01 GJ Tr. at 76. This number matched Awadallah's home phone number when he lived in La Mesa, California, two years earlier. See id. at 74. The agents also told Awadallah to sign forms stating that he consented to their searches of his home and cars.⁴ See Berman Aff. ¶ 15. Awadallah signed the forms, but he now claims that the agents did not explain their meaning and that he never understood them. See id. The agents never advised Awadallah of his Miranda rights. See id. ¶ 14. The agents constantly reminded Awadallah that he was not a United States citizen. See id. ¶ 15.

The agents returned Awadallah to his home after midnight. See id. Less than six hours later, at six o'clock in the morning, some of the FBI agents returned and told him he had to go back to the office to take a lie detector test.⁵ See id. Prior to taking a series of three polygraph tests, the agent who administered the test covered the lens of a surveillance camera,...