U.S. v. Awadallah

• Decision Date: 26 January 2006
• Docket Number: Docket No. 05-2566-CR.
• Citation: 436 F.3d 125
• Parties: UNITED STATES of America, Appellant, v. Osama AWADALLAH Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

436 F.3d 125

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

Docket No. 05-2566-CR.

United States Court of Appeals, Second Circuit.

Argued: December 12, 2005.

Decided: January 26, 2006.

Robin L. Baker, Assistant United States Attorney for the Southern District of New York, (David N. Kelley, United States Attorney for the Southern District of New York, Karl Metzner, Harry Sandick, Assistant United States Attorneys, on the brief) for Petitioner United States of America.

Robert J. Boyle; Law Office of Robert J. Boyle, New York, NY, for Respondent Osama Awadallah.

Lewis J. Liman, Catherine Sykes; Cleary Gottlieb Steen & Hamilton LLP Alexandra A.E. Shapiro, Rachel Hemani; Latham & Watkins LLP; for Amicus Curiae New York Council of Defense Lawyers.

Before: FEINBERG, B.D. PARKER, and CUDAHY, Circuit Judges.^*

B.D. PARKER, Jr., Circuit Judge.

On October 10 and 15, 2001, Osama Awadallah ("Awadallah") testified before a grand jury sitting in the Southern District of New York investigating the September 11, 2001 terrorist attacks. Awadallah was subsequently indicted on two counts of perjury. See 18 U.S.C. § 1623. Count One alleged that he falsely denied knowing the name Khalid Al-Mihdhar ("Al-Mihdhar"), who had been identified as one of the hijackers of the airplane flown into the Pentagon on September 11. Count Two alleged that, on October 15, after Awadallah was confronted with a handwritten examination booklet from one of his college courses containing Al-Mihdhar's name, he falsely denied that the handwriting was his own.

As the case proceeded to trial, it appeared that Awadallah's principal defense would be that the alleged false statements were not made knowingly, but were the result of exhaustion, confusion and intimidation stemming from the conditions of his pre-trial confinement. The Government indicated its intention to rebut this defense by calling grand jurors to testify about his appearance and manner during his testimony. On the eve of trial, the district court ruled that the Government could call grand jurors to testify about Awadallah's physical condition and the objective conditions surrounding his testimony, but would not be permitted to testify regarding their subjective impressions of his demeanor and appearance. For example, the Government would not be permitted to ask questions such as: "Did he appear confused when he testified?" The court concluded that such testimony was proscribed by Federal Rules of Evidence 606(b) and 403.¹ Specifically, the court ruled:

[T]he grand jurors may testify as to, e.g., the temperature, layout and occupancy of the room, or whether anyone raised their voice or made any threatening physical gestures, or whether Awadallah showed signs of physical injury. However, they may not testify as to their mental impressions: i.e., that Awadallah did or did not appear lucid or composed, or did or did not appear confused, or that the prosecutor did or did not appear to be intimidating.²

United States v. Awadallah, 401 F.Supp.2d 308, 320 (S.D.N.Y.2005).

On this interlocutory appeal, the Government challenges these restrictions and also seeks, on remand, to have the case assigned to a different district judge "to preserve the appearance of justice." Because we find that the district court's ruling fell well within the broad discretion afforded it on evidentiary questions, we affirm the ruling. In addition, because our examination of the record supplies no justification for the extraordinary step of remanding to a different district judge, we decline to do so.

BACKGROUND

Immediately following the terrorist attacks of September 11, the United States Attorney for the Southern District of New York initiated a grand jury investigation.³ Federal agents identified Nawaf Al-Hazmi ("Al-Hazmi") and Al-Mihdhar as two of the hijackers on American Airlines Flight 77, which crashed into the Pentagon.

A paper with the notation "Osama 589-5316" was found during the search of a car Al-Hazmi had abandoned at Dulles Airport in Virginia. Agents linked this telephone number to an address in the San Diego area at which Awadallah had lived approximately eighteen months earlier. Al-Hazmi and Al-Mihdhar had also lived in the San Diego vicinity around that time. In the fall of 2001, Awadallah was enrolled at Grossmont College in California in an "English as a Second Language" program (Arabic is his first language) and also was working as a security guard.⁴

Awadallah contends that he experienced consistent mistreatment at the hand of Government agents from the time he was first questioned, during his subsequent arrest and custody, and until the completion of his grand jury appearance. Because he alleges that this mistreatment cumulatively affected his behavior in the grand jury, we set out his contentions at some length.

According to Awadallah, on the afternoon of September 20, 2001, three FBI agents approached him as he emerged from his car outside his apartment in San Diego, and after he answered initial questions, approximately fifteen to twenty FBI agents encircled him. An FBI agent informed him that they needed to speak with him for about thirty minutes at the FBI office. The agents asked him to sign a consent form authorizing a search of his home and one of his two cars. Awadallah reported that he signed the form after the agents told him that they could secure a search warrant and "tear up his home." At the FBI office, he was presented with a consent form for the search of his other car. He refused to sign it and revoked the prior consent for the search of his first car.

The FBI interviewed him for approximately five and a half hours and told him to return for a polygraph test the next morning. Awadallah reported that the next morning, on September 21, he told the agents that he was in the process of obtaining counsel and would prefer to wait until his attorney was present. Awadallah claims that the agents said, "You don't have to have your lawyer with you." Awadallah complied and took the polygraph test the same day. The agent who performed the test told Awadallah that it showed he had lied about his lack of prior knowledge of the events of September 11. After the test, the FBI questioned Awadallah again for approximately two hours.

After the questioning on September 21, Awadallah was arrested on a material witness warrant, see 18 U.S.C. § 3144, and detained without bail based on judicial findings that he possessed information material to the grand jury's investigation of the September 11 attacks. Also on September 21, Awadallah was taken from the FBI office to the San Diego Metropolitan Correctional Center ("MCC"), where he was held until September 27. Subsequently, he was moved to the San Bernardino County Jail and then to a federal facility in Oklahoma City. On October 1, he was moved to the New York City MCC where he was held in solitary confinement. Awadallah contends that throughout this period, at the various facilities where he was incarcerated, he was subjected to extremely harsh treatment, including physical abuse.⁵

On October 10, 2001, Awadallah was called before the grand jury and questioned for most of the day. When he was shown a photograph of Al-Hazmi, Awadallah identified him as someone he had met in San Diego and testified that, when he met him, Al-Hazmi was with someone else, but that Awadallah did not know that person's name.

In the course of his testimony, Awadallah denied knowing "Khalid Al-Mihdhar" or "Khalid." The Government then showed Awadallah his college examination book, written in September 2001, which contained the following handwritten sentence: "One of the qui[e]test people I have met is Nawaf. Another one his name Khalid. They have stayed in S.D. for 6 months." Awadallah acknowledged that it was his examination booklet and that most of the writing in it was his own, but denied that "Khalid" and a few other words on the page were written in his handwriting. On October 15, 2001, Awadallah again appeared before the grand jury and recanted a portion of his prior testimony. He testified that his recollection of Khalid's name had been refreshed by his October 10 testimony and that the disputed writing was, in fact, his own.

Subsequently, Awadallah was indicted on two counts of perjury. The first count charged that he falsely denied knowing Khalid Al-Mihdhar, and the second count charged that he falsely denied that the handwriting in the examination book belonged to him. United States v. Awadallah, 173 F.Supp.2d 186, 191 (S.D.N.Y. 2001).

In December 2001, Awadallah moved to dismiss the indictment on a variety of grounds. He contended that (1) he had recanted his false testimony, (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. Awadallah also moved to suppress all physical evidence found by law enforcement officers who searched his home, computer, and cars, and all statements that he made to any Government agent from September 20, 2001 through October 3, 2001. In addition, he moved to dismiss the second perjury count as duplicative.

In an opinion dated January 31, 2002, the district court denied the motion on the grounds advanced by Awadallah, but raised two other possible bases for dismissal of the indictment. United States v. Awadallah, 202 F.Supp.2d 17 (S.D.N.Y. 2002). First, the court questioned whether Awadallah may have been the victim of a "perjury trap" because there appeared to have been no legitimate investigative purpose for the questions he allegedly answered falsely. Id. at 44. Secondly, the court questioned whether it might be appropriate in light of a constellation of factors surrounding his arrest — including the searches...