U.S. v. Hasan

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Citation: 747 F.Supp.2d 642
• Decision Date: 29 October 2010
• Docket Number: Criminal No. 2:10cr56.
• Parties: UNITED STATES of Americav.Mohammed Modin HASAN, Gabul Abdullahi Ali, Abdi Wali Dire, Abdi Mohammed Gurewardher, Abdi Mohammed Umar, Defendants.

747 F.Supp.2d 642

UNITED STATES of America
v.
Mohammed Modin HASAN, Gabul Abdullahi Ali, Abdi Wali Dire, Abdi Mohammed Gurewardher, Abdi Mohammed Umar, Defendants.

Criminal No. 2:10cr56.

United States District Court, E.D. Virginia,Norfolk Division.

Oct. 29, 2010.

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John S. Davis, Office of the U.S. Attorney, Richmond, VA, Benjamin Lucas Hatch, Joseph E. Depadilla, United States Attorney's Office, Norfolk, VA, Jerome Teresinski, U.S. Department of Justice, Washington, DC, for Plaintiff.James Richard Theuer, James R. Theuer, PLLC, Norfolk, VA, for Defendant, Mohammed Modin Hasan.

OPINION AND ORDER MARK S. DAVIS, District Judge.

This matter is before the Court on the following motions filed by defendants Mohammed

[747 F.Supp.2d 654]

Modin Hasan (“Hasan”), Gabul Abdullahi Ali (“Ali”), Abdi Wali Dire (“Dire”), Abdi Mohammed Gurewardher (“Gurewardher”), and Abdi Mohammed Umar (“Umar”) (collectively, the “Defendants”):

(1) Defendants' separately filed motions to suppress statements. Docket Nos. 73 (Ali), 79 (Hasan), 85 (Gurewardher), 87 (Dire), and 104 (Umar).

(2) Hasan's motions to dismiss the Indictment for lack of jurisdiction pursuant to the Federal Juvenile Delinquency Act. Docket Nos. 77 & 93.

(3) Defendants' joint motion to compel discovery. Docket No. 127.

(4) Ali's motions (Docket Nos. 72 & 111), and Hasan and Dire's joint motions (Docket Nos. 81 & 94), to dismiss Counts Nine, Ten, and Eleven of the Superseding Indictment for lack of jurisdiction.

(5) Ali and Hasan's separately filed motions to dismiss Counts Seven and Eight of the Superseding Indictment. Docket Nos. 114(Ali) & 98 (Hasan).

(6) Ali and Hasan's separately filed motions to dismiss Counts Thirteen and Fourteen of the Superseding Indictment. Docket Nos. 115(Ali) & 96 (Hasan).

(7) Ali and Hasan's separately filed motions to dismiss the Superseding Indictment pursuant to Rule 48(b) of the Federal Rules of Criminal Procedure and the Speedy Trial Act, 18 U.S.C. §§ 3161–74. Docket Nos. 117(Ali) & 107 (Hasan).

(8) Ali and Hasan's separately filed motions for change of venue. Docket Nos. 113(Ali) & 119 (Hasan).

(9) Ali and Hasan's motion in limine to preclude any use of any statements of co-defendants. Docket No. 135.

(10) Ali's motions to dismiss all Counts of the Superseding Indictment for destruction/spoliation of evidence. Docket Nos. 70 & 112.

(11) Ali's motion for additional peremptory challenges. Docket No. 74.

(12) Ali's Motion to Dismiss or Consolidate Counts in the Superseding Indictment As Being Multiplicitous in Violation of the Double Jeopardy Clause of the Fifth Amendment. Docket No. 141.

The motions have been fully briefed, and the Court held an evidentiary hearing with respect to certain of the motions on September 10–11, 2010. The motions are now ripe for decision.

I. FACTUAL ALLEGATIONS ¹

Sometime in March 2010, Defendants set off from Somalia in a seagoing vessel in search of a merchant ship to attack and plunder. Shortly after midnight on the morning of April 1, 2010, somewhere on the high seas between Somalia and the Seychelles, Defendants sighted what they believed to be a merchant ship. Defendants Hasan, Ali, and Dire thereafter boarded one of two small assault boats attached to the seagoing vessel and set out

[747 F.Supp.2d 655]

to attack the perceived merchant ship. To facilitate their attack, Hasan carried a rocket-propelled grenade (“RPG”), and Ali and Dire each carried an assault rifle. Defendants Gurewardher and Umar meanwhile remained on board the seagoing vessel to maintain the ship.

As the crew of the assault boat approached their target, Ali and Dire raised their assault rifles and opened fire on the vessel. To the surprise of Hasan, Dire, and Ali, what they had until then believed to be a merchant vessel quickly revealed itself to be the USS Nicholas, a United States Navy frigate. After the USS Nicholas returned fire, Hasan, Dire, and Ali attempted to flee in their small assault boat. The USS Nicholas gave chase, eventually capturing the boat, Hasan, Dire, and Ali. The USS Nicholas thereafter searched for, found, and captured the seagoing vessel, along with Gurewardher and Umar.

II. PROCEDURAL HISTORY

On April 20, 2010, a federal grand jury returned a six-count Indictment against Defendants. Docket No. 1. The Indictment charged all five Defendants with: (1) Piracy under the Law of Nations, in violation of 18 U.S.C. §§ 1651 and 2; (2) Attack to Plunder Vessel, in violation of 18 U.S.C. §§ 1659, 3238, and 2; (3) Assault with a Dangerous Weapon in the Special Maritime Jurisdiction of the United States, in violation of 18 U.S.C. §§ 113(a)(3), 3238, and 2; (4) Conspiracy to Use Firearms During a Crime of Violence, in violation of 18 U.S.C. §§ 924( o ) and 3238; and (5) two counts of Use of a Firearm During a Crime of Violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 3238, and 2. Defendants were arraigned on April 30, 2010, at which time they pled not guilty, and trial was set for July 6, 2010.

On May 20, 2010, the Court held a hearing pursuant to motions filed by the government to certify the case as complex under the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(B)(ii), and for a pretrial conference pursuant to § 2 of the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3 §§ 1–16, to address potentially discoverable classified information involved in the case. See Docket Nos. 23 & 44. After hearing argument from the parties, the Court granted the government's motions, certifying the case as complex on the basis of logistical difficulties in obtaining evidence from the crew of the USS Nicholas, the possibility of classified information being involved in the case, and the novel and complex issues involved in the case. Accordingly, the Court continued the trial date to September 8, 2010. Written orders memorializing these rulings were entered by the Court later that same day and filed by the Clerk of this Court on the following day. Docket Nos. 58 & 59.

Thereafter, on July 7, 2010, a federal grand jury returned a Superseding Indictment charging Defendants with a total of fourteen counts. Docket No. 63. The Superseding Indictment comprised the six counts of the original Indictment plus eight additional counts: (1) Acts of Violence Against Persons on a Vessel, in violation of 18 U.S.C. §§ 2291(a)(6), 2290(a)(2), 3238, and 2; (2) Conspiracy to Perform an Act of Violence Against Persons on a Vessel, in violation of 18 U.S.C. §§ 2291(a)(9), 2290(a)(2), and 3238; (3) Assault with a Dangerous Weapon in a Special Maritime Jurisdiction of the United States, in violation of 18 U.S.C. §§ 113(a)(3), 3238, and 2; (4) two counts of Assault with a Dangerous Weapon on Federal Officers and Employees, in violation of 18 U.S.C. §§ 111(a)(1), 111(b), 3238, and 2; (5) Using, Carrying, and Possessing a Destructive Device in Relation to a Crime of Violence, in violation of 18 U.S.C. §§ 924(c)(1)(A),

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924(c)(1)(B)(ii), 3238, and 2; (6) Carrying an Explosive Device During the Commission of a Felony, in violation of 18 U.S.C. §§ 844(g)(2), 3238, and 2; and (7) Conspiracy to Carry an Explosive During the Commission of a Felony, in violation of 18 U.S.C. §§ 844(m) and 3238.

On July 16, 2010, Dire moved to continue the trial date on the Superseding Indictment to November 9, 2010, representing that no other defense counsel opposed the continuance. Docket No. 69. Hasan filed a response to Dire's motion, explaining that although Hasan did not object to the continuance, he explicitly reserved his objections to the timeliness of the Superseding Indictment itself under the Speedy Trial Act and the Federal Rules of Criminal Procedure. Without other objection, this Court granted Dire's motion to continue by order dated July 27, 2010, continuing the trial date to November 9, 2010.

III. DISCUSSION A. the motions to suppress

Defendants move to suppress and exclude from evidence several statements made to authorities following Defendants' capture, arguing that the statements at issue were taken in violation of Defendants' rights under the Fifth Amendment to the United States Constitution. Defendants contend that they were never adequately advised of their trial rights, and that, even if they had been, they did not understand or comprehend the nature of those rights such that they could knowingly and intelligently waive those rights. Defendants further contend that such statements were involuntary, and are inadmissible because they result from coercion and undue influence.

In response, the Government argues that Defendants were sufficiently advised of their Fifth Amendment rights and knowingly waived those rights prior to making the statements at issue, thus rendering the statements admissible at trial. The Government also represents that at no time were Defendants physically threatened or otherwise coerced, such that their statements could be deemed involuntary. For the reasons outlined below, and on the basis of the totality of the evidence presented at the evidentiary hearing, this Court GRANTS Gurewardher's motion to suppress the statements he made on April 2, 2010 and DENIES Defendants' motions to suppress the statements they made on April 4, 2010.

1. Applicable Law

The Fifth Amendment to the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself....” U.S. Const. amend. V. In Miranda v. Arizona, the United States Supreme Court declared that a suspect in custody must be advised of such constitutional rights under the Fifth Amendment prior to any interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); accord Dickerson v. United States, 530 U.S. 428, 444, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (reaffirming Miranda as a “constitutional rule that Congress may not supersede legislatively”). The Fifth Amendment rights implicated by Miranda have been held to apply to citizens and non-citizens alike. See, e.g., ...