U.S. v. Yunis

Citation859 F.2d 953,273 U.S. App. D.C. 290
Decision Date17 November 1988
Docket NumberNo. 88-3036,88-3036
PartiesUNITED STATES of America, Appellant, v. Fawaz YUNIS, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Robert J. Erickson, Atty., Dept. of Justice, with whom Jay Stephens, U.S. Atty., J. Ramsey Johnson, and Jennifer Gold, Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellant.

Francis D. Carter, Washington, D.C., appointed by the Court, for appellee.

Before MIKVA, BUCKLEY and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

Special concurrence filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

In this case, we examine whether the government protected familiar constitutional rights in highly unfamiliar circumstances. Appellee Fawaz Yunis is a citizen of Lebanon. In September 1987, agents of the Federal Bureau of Investigation (FBI) arrested Yunis in international waters off the coast of Cyprus for having allegedly led the 1985 hijacking of a Royal Jordanian Airlines jet in Beirut. American citizens were among the passengers on board that airplane, and thus the hijacking violated American law. See 18 U.S.C. Sec. 1203 (Supp.II 1984).

Yunis awaits trial in the district court, but the case comes before us for review of a pretrial order. In February of this year, the district court granted Yunis' motion to suppress the use of his confession as evidence at trial. The government appeals the suppression order under jurisdiction granted in 18 U.S.C. Sec. 3731 (1982).

The FBI obtained the disputed confession during part of Yunis' transit to the United States, aboard a naval war ship. The trial judge found that the government secured this statement in violation of the fifth and sixth amendments and of 18 U.S.C. Sec. 3501(c) (1982). The latter statute governs the use at trial of confessions obtained following arrests and prior to arraignment. Delays in transporting defendants to an arraigning magistrate must be "reasonable"; the district court held that the time taken to transport Yunis was not. We disagree with both the constitutional and the statutory rulings of the trial judge, and we therefore reverse the suppression order.

I. BACKGROUND

On June 11, 1985, five armed men boarded Royal Jordan Airlines Flight 402, shortly before its scheduled departure from Beirut, Lebanon. The hijackers ordered the pilot to fly to Tunis, where a conference of the Arab League was underway. They demanded "to meet with representatives of the Arab League and to secure the removal of all Palestinians from Lebanon." Appellant's Brief at 3. Tunisian officials, however, refused to allow the airplane to land; the airplane was forced, instead, to stop in Cyprus and Sicily before eventually returning--some 30 hours after it had been commandeered--to the Beirut airport. There, passengers were allowed to disembark, the hijackers held a press conference on the tarmac (reiterating their demands regarding the Palestinians), the airplane was blown up, and the hijackers disappeared into nearby neighborhoods of Beirut.

Investigation of this crime by American law enforcement officials eventually focused on Yunis as the probable leader of the hijackers. Accordingly, the FBI--in concert with other federal agencies--developed "Operation Goldenrod." With the aid of an informant in the Middle East, Operation Goldenrod sought to lure Yunis into international waters to effect his arrest. The plan succeeded on September 13, 1987, when Yunis boarded a yacht manned by FBI agents in the eastern Mediterranean--allegedly drawn there by the promise of a profitable drug transaction. Yunis was promptly arrested by means of a "take down": agents on either side of Yunis grabbed his arms and kicked his feet out from under him, so that he ended up face down on the deck of the boat. He was handcuffed and shackled and then told that he was under arrest and was being taken to America to stand trial for the 1985 hijacking. The yacht proceeded to a prearranged rendezvous with an American munitions ship--The USS Butte--of the United States' Sixth Fleet. Yunis and two agents on the yacht boarded a transfer boat, which was then hoisted up the side of the Butte. In the process, the mechanical hoist failed and the boat's occupants were left swaying in midair as the Butte's crew completed the operation by hand. During this time, Yunis evidently grew seasick and either experienced dry heaves or vomited over the side of the boat.

Once on board the Butte, Yunis was taken to a small room that was to be his living quarters for the next four days, as the Butte made its way westward across the Mediterranean. The room was small--eight by ten feet--and poorly ventilated, as a malfunctioning vent evidently blew hot air into the room; the room's estimated temperature was 85 degrees. Although there were no windows, a hatch door (which at all times remained open) gave out onto a deck area, with some exposure to the ocean. In this room, a naval doctor examined Yunis and found him to be in good health, aside from his seasickness. During the examination, an FBI agent who was fluent in Arabic served as interpreter, since Yunis speaks very little English. The doctor did not notice any problem with Yunis' wrists, and Yunis did not complain about them at this time. However, it was later established by x-rays (after Yunis reached the United States) that both wrists had been fractured, apparently when the FBI agents first arrested him by means of the "take down."

When the doctor concluded his exam, he prescribed rest and clear liquids to alleviate Yunis' seasickness. The doctor then left Yunis' room, and FBI Special Agent Thomas Hansen, who was in charge of investigating the 1985 hijacking, began to talk to Yunis--communicating through the FBI interpreter. At the outset, Yunis was told that when he reached the United States he "would be appointed an attorney and would be formally charged ... [and then] would go through a number of legal proceedings which may terminate in a trial." Transcript of Suppression Hearing (hereinafter "Trans.") of 1/28/88 at 106. Agent Hansen further informed Yunis that "from this point forward, he would be afforded all the rights of a citizen of the United States [a]nd that he didn't have to be concerned with the fact that he wasn't an American, that now those rights would apply to him." Id. at 107. The agents then gave Yunis a form, on which the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 69 (1966), were written in Arabic. Yunis was asked to read these warnings; thereafter, agent Hansen read the warnings aloud in English and the FBI interpreter translated each warning orally into Arabic. Both agents subsequently testified that Yunis was repeatedly asked whether he understood what had just been read to him and that Yunis answered affirmatively. Trans. of 1/28/88 at 109-15; Trans. of 1/26/88 at 122.

After thus informing Yunis of the constitutional rights that are afforded American citizens, agent Hansen asked Yunis "whether he was, knowing these rights, was he willing to talk to Agent Droujinsky [the interpreter] and myself about the hijacking.... He said yes. And then I requested that he sign the form." Trans. of 1/27/88 at 115. Between the time that agent Hansen initiated the conversation and the time that Yunis agreed to answer questions about the hijacking, nine minutes elapsed.

Yunis did sign the form and then, in response to agent Hansen's questions, began to recount the hijacking--how he was assigned to lead the 1985 hijacking by officials of Lebanon's Amal militia (of which he was then a member), how he and his accomplices arrived at Beirut Airport and boarded the Royal Jordanian airliner, and so on. After about half an hour of interrogation, Yunis said he felt sleepy, and agent Hansen proposed that they go out on the deck for some fresh air. Once outside, however, Yunis felt nauseous. Accordingly, agent Hansen told Yunis he could lie down in his room, and the first interrogation session ended.

In the afternoon, Yunis again experienced seasickness and vomited once. The naval doctor returned to examine Yunis in the early evening. During the examination, Yunis experienced dry heaves; the doctor once again prescribed clear liquids and rest. Not long thereafter, agent Hansen and the interpreter asked Yunis if he wished to resume talking, and Yunis consented. Neither at this time nor during any of the seven subsequent interrogation sessions on board the Butte did agent Hansen readminister the Miranda warnings. This second period of questioning was conducted out on the deck, rather than in the room. After talking for about forty minutes, Yunis indicated that he was again feeling seasick, and the session ended. Before Yunis went to sleep, he was given a scopolamine patch, which gradually releases medication through the skin behind the ear to mitigate nausea.

Early the following morning, Yunis ate a substantial breakfast but again became sick to his stomach and experienced dry heaves. The naval doctor again examined him, and on this occasion Yunis specifically complained that his wrists were bothering him. The doctor found Yunis' wrists "mildly swollen and ... [t]he right wrist had a bit of a bruise on th[e] inner part of the wrist." Trans. of 1/20/88 at 38. The injury was treated with ice packs and by keeping the wrists elevated. Id. at 40.

Later that morning, agent Hansen and his interpreter returned, and Yunis agreed to resume the narrative of the hijacking. After half an hour, however, Yunis again complained that he was dizzy, and the session ended. By afternoon, the scopolamine patch had evidently begun to work. For the remainder of his journey on the Butte, Yunis appeared more animated and did not noticeably suffer from motion sickness. Accordingly, the interrogation sessions grew longer.

All told, Yunis...

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