United States v. Elsheikh
Citation | 578 F.Supp.3d 752 |
Decision Date | 04 January 2022 |
Docket Number | Criminal Action No. 1:20-cr-239 |
Parties | UNITED STATES of America v. El Shafee ELSHEIKH, Defendant. |
Court | United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia) |
Aidan T. Grano, John T. Gibbs, Raj Parekh, Dennis Fitzpatrick, US Attorneys, Alicia H. Cook, United States Attorney's Office, Alexandria, VA, for United States of America.
Edward B. MacMahon, Law Offices of Edward B. MacMahon Jr., Middleburg, VA, Jessica Nicole Carmichael, Carmichael Ellis & Brock, Nina J. Ginsberg, Zachary Andrew Deubler, DiMuroGinsberg PC, Alexandria, VA, for Defendant.
UNCLASSIFIED MEMORANDUM OPINION
On October 6, 2020, a grand jury in the Eastern District of Virginia returned an Indictment charging Defendant El Shafee Elsheikh and Co-Defendant Alexanda Amon Kotey1 with hostage-taking and criminal conspiracy while allegedly acting as members of the Islamic State of Iraq and Syria ("ISIS") in Syria between 2012 and 2015. The Indictment sets forth the following eight counts:
This criminal prosecution is before the Court on Defendant's Motion to Suppress incriminating statements made by Defendant while in the custody of the Syrian Democratic Forces (SDF) in Syria in 2018 and 2019. Specifically, Defendant seeks to exclude from use at trial statements made by Defendant to Federal Bureau of Investigation (FBI) interviewers on March 27, 2018 and to journalists from various media outlets in 2019.2 With respect to the former set of statements, although the FBI interviewers provided Miranda warnings on March 27, 2018, Defendant asserts that any statements offered during that interview must be suppressed because the Government utilized an impermissible two-step interrogation procedure to undermine Miranda ,3 in violation of Missouri v. Seibert , 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). And with respect to the 2019 media statements, Defendant contends that those statements constitute the involuntary products of torture by SDF personnel.
The parties’ positions on Defendant's Motion to Suppress have been fully briefed and orally argued at a hearing on December 10, 2021. In addition, a pre-trial evidentiary hearing was held on November 16–18, 2021, during which the Government presented testimony from a number of witnesses. Five witnesses, including four from the Department of Defense (DOD), offered classified testimony in a closed courtroom on the first day of the hearing.4 During the second and third days of the hearing, the following witnesses offered unclassified testimony: three SDF officials with authority over or within prisons where the SDF held ISIS detainees, FBI Special Agents John Chiappone and Julius Nutter, who conducted Mirandized interviews of Defendant on March 27 and 28, 2018, documentary filmmaker Sean Langan, who interviewed both Defendant and Co-Defendant Kotey in July 2019, and FBI Agent Daniel O'Toole. The parties also submitted a substantial volume of evidence, both as attachments to their briefing and as exhibits during the evidentiary hearing, including reports documenting Defendant's statements during the DOD and FBI interviews, communications to and from various DOD and FBI interviewers and other officials, video clips from Defendant's media interviews, and other relevant documentary evidence.
A Motion in Limine by the Government is also pending before the Court (Dkt. 97). That motion seeks to establish the admissibility of false identifying statements provided by Defendant and Co-Defendant Kotey to DOD officials soon after Defendant's capture by the SDF. Although those statements were made by Defendant and Kotey prior to the provision of any Miranda warnings, the Government contends that they are admissible pursuant to the routine booking exception. Finally, also before the Court are portions of Defendant's Motion to Compel for which ruling was deferred in a previous Order entered on November 15, 2021. See Dkt. 158. For the reasons stated in this Memorandum Opinion, Defendant's Motion to Suppress and the remaining portions of the Motion to Compel must be denied and the Government's Motion in Limine must be granted.
The testimony of the witnesses at the November 16–18, 2021 hearing as well as the documentary and video evidence submitted by the parties, establishes convincingly the following facts pertinent to disposition of the pending motions:
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