U.S. v. Awadallah

• Decision Date: 07 November 2003
• Docket Number: Docket No. 02-1269.
• Citation: 349 F.3d 42
• Parties: UNITED STATES of America, Appellant, v. Osama AWADALLAH, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

349 F.3d 42

UNITED STATES of America, Appellant, v. Osama AWADALLAH, Defendant-Appellee.

Docket No. 02-1269.

United States Court of Appeals, Second Circuit.

Argued: April 10, 2003.

Decided: November 7, 2003.

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James B. Comey, Jr., United States Attorney for the Southern District of New York, New York, New York (Robin L. Baker, Karl Metzner, Celeste L. Koeleveld, and Christine H. Chung, Assistant United States Attorneys, on the brief), for Appellant.

Robert J. Boyle, New York, New York, for Defendant-Appellee.

Lawrence Mark Stern, New York, New York, for Defendant-Appellee (Jesse Berman, Of Counsel, on brief).

Diana D. Parker, New York, New York (Victor J. Rocco, President, New York Council of Defense Lawyers; Daniel J. Horwitz and Lorraine R. Doran, Carter, Ledyard & Milburn, on the brief), for the New York Council of Defense Lawyers as Amicus Curiae in Support of Defendant-Appellee.

Arthur N. Eisenberg, New York Civil Liberties Union Foundation, New York, New York (Laura W. Guthrie, New York Civil Liberties Union Foundation; Jethro M. Eisenstein, Profeta & Eisenstein; Steven R. Shapiro, Lucas Guttentag, and Robin L. Goldfaden, American Civil Liberties Union Foundation, on the brief), for the American Civil Liberties Union and the New York Civil Liberties Union as Amici Curiae in Support of Defendant-Appellee.

Before: JACOBS and STRAUB, Circuit Judges, and CARMAN, Chief Judge.¹

Judge STRAUB concurs in the opinion except as to Part II.C.3, and has filed a separate concurrence.

JACOBS, Circuit Judge.

This appeal, which arises from the government's investigation of the September 11, 2001 terrorist attacks, presents questions about the scope of the federal material witness statute and the government's powers of arrest and detention thereunder. See 18 U.S.C. § 3144. The district court (Scheindlin, J.) ruled that the statute cannot be applied constitutionally to a grand jury witness such as the defendant-appellee, Osama Awadallah, and dismissed the perjury indictment against him as fruit of an illegal detention. The court also suppressed his grand jury testimony as fruit of an illegal detention on the alternative ground that the affidavit in support of the arrest warrant included material misrepresentations.

We conclude that these rulings must be reversed and the indictment reinstated. We also reverse the district court's independent ruling that the FBI's unreasonable searches and seizures on September 20 and 21, 2001, before Awadallah was arrested as a material witness, require suppression at trial of certain statements and physical evidence.

BACKGROUND

In the days immediately following September 11, 2001, the United States Attorney for the Southern District of New York initiated a grand jury investigation into the terrorist attacks. Investigators quickly identified Nawaf Al-Hazmi and Khalid Al-Mihdhar as two of the hijackers on American Airlines Flight 77, which crashed into the Pentagon. The Justice Department released the identities of all nineteen hijackers on Friday, September 14, 2001, and news media around the country publicized their names and photographs the following day.

A search of the car Al-Hazmi abandoned at Dulles Airport in Virginia produced a piece of paper with the notation, "Osama 589-5316." Federal agents tracked this number to a San Diego address at which the defendant, Osama Awadallah, had lived approximately eighteen months earlier. Al-Hazmi and Al-Mihdhar also had lived in the San Diego vicinity around that time.

The district court made extensive factual findings concerning the ensuing events of September 20 and 21, 2001. See United States v. Awadallah, 202 F.Supp.2d 82, 85-96 (S.D.N.Y.2002) ("Awadallah IV"). With two minor exceptions, the court credited Awadallah's testimony over that of the FBI agents. See id. at 88 n. 9. The government states that it "strongly disagrees with the account of events accepted by the District Judge, and believes the agents testified truthfully and acted entirely properly in their dealings with Awadallah." (Appellant's Br. at 8.) However, the government "has elected not to appeal Judge Scheindlin's credibility findings and does not contest them here." (Id.) For purposes of this appeal, then, the government accepts and relies on the facts found by the district court, as does Awadallah. (Appellee's Br. at 1-2.) Our recitation of the facts conforms to the district court's findings.

On the morning of September 20, 2001, federal agents went to Awadallah's current residence in San Diego. When the agents arrived at the apartment, Awadallah was attending a course in English as a second language at nearby Grossmont College, where he was enrolled. The agents interviewed Awadallah's roommate in their apartment for several hours.

When Awadallah came home at around 2:00 p.m. that afternoon, several agents approached him as he entered the parking lot and got out of his car (a gray Honda).² They questioned him in the parking lot for a few minutes and then told him that he had to accompany them to the FBI office for questioning. Awadallah insisted on returning to his apartment first to observe the afternoon Muslim prayer, which he did as the agents watched. When Awadallah went into the bathroom, the agents insisted that the bathroom door be left open.

Before leaving for the FBI office, an agent asked Awadallah to sign a consent form allowing them to search his apartment and car. Otherwise, the agent told him, they would get a warrant and "tear up" his home. Believing he had no choice, Awadallah signed the form without reading it. See Awadallah IV, 202 F.Supp.2d at 89 & n. 13. The agents then put him in their car and drove him to the FBI office. Awadallah told them that he had to return in time for a 6:00 p.m. computer class; they told him that would be no problem.

At the FBI office, agents offered Awadallah a drink, but he declined because he was fasting. They asked him to sign another consent form for the search of his second car, an inoperative white Honda in the parking lot of his apartment building. This time, Awadallah read the form and learned that he had a right to refuse consent; and though he signed the consent form for his second car, he explicitly revoked his consent for the search of the first car. An agent tried to reach the agents at the apartment building by cell phone, but did not reach them until fifteen minutes later, after the search of the first car had been completed. The agents at the scene then searched the apartment and the second car. The search of Awadallah's home produced several computer-generated photographs of Osama bin Laden; the searches of his cars produced two videotapes on Bosnia and one on Islam and a retractable razor which could be described as a box-cutter or a carpet knife.

Awadallah was alone in a locked interview room for a while, until agents arrived to question him. They did not advise him of his rights or tell him that he could leave. They asked him about the September 11 hijackers and about his life and acquaintances. He told the agents that he knew Al-Hazmi, and that he had frequently seen another man with him, whose name he did not know.

The district court found that Awadallah was "cooperative" throughout this questioning. See Awadallah IV, 202 F.Supp.2d at 92. We construe this finding to mean that he responded to questions, not that he necessarily responded truthfully or completely.

When 6:00 p.m. approached, the agents told Awadallah that they had called his school and that it was alright for him to miss class. They told him he would "have to stay" with them until they were finished. The entire interview lasted approximately six hours, ending at nearly 11:00 p.m. Before allowing Awadallah to leave, the agents scheduled a polygraph examination for the next morning. The record does not show whether an agent was posted at Awadallah's apartment building overnight, but the district court stated that "[h]e was not guarded or surveilled overnight." Awadallah IV, 202 F.Supp.2d at 99.

At 6:30 a.m. the following day, September 21, 2001, Awadallah called the FBI and refused to come in for the polygraph test until he had a lawyer. The agent told him they would get an arrest warrant. Believing he had no choice, Awadallah went with two agents who picked him up at his apartment at 7:00 a.m.

At the FBI office, agents advised Awadallah of his rights and he signed an advice-of-rights acknowledgment form. The polygraph exam lasted one-and-a-half to two hours. Afterward, the agents told Awadallah that the polygraph registered lies in response to two questions: whether he had advance knowledge of the September 11 attacks and whether he had participated in them in any way. It is unclear whether these were in fact the results.³ The conversation became heated as the agents accused Awadallah of being a terrorist. They refused Awadallah's requests to call a lawyer and his brother, and did not release him in time for Friday prayer.

Throughout the questioning that day, the FBI agents in San Diego had been in contact with an Assistant United States Attorney ("AUSA") in New York. At approximately 2:00 p.m. Eastern time, the AUSA instructed the agents to arrest Awadallah as a material witness. The agents handcuffed Awadallah and took him to the San Diego correctional center for booking.

Meanwhile, prosecutors and agents in New York prepared an application for a material witness warrant. In the supporting affidavit, FBI Special Agent Ryan Plunkett recounted how the FBI found the phone number in Al-Hazmi's car, Awadallah's admission that he knew Al-Hazmi, and the results of the agents' searches, including the "box-cutter" and the photographs of bin Laden. Agent Plunkett stated that it might become difficult to secure Awadallah's grand jury testimony because he had extensive family ties in Jordan and might be a flight risk. The affidavit did not say when Awadallah said he had last seen Al-Hazmi (over a...