United States v. Khweis, No. 17-4696

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: RUSHING, Circuit Judge
• Citation: 971 F.3d 453
• Docket Number: No. 17-4696
• Decision Date: 11 August 2020
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Mohamad Jamal KHWEIS, Defendant - Appellant.

971 F.3d 453

UNITED STATES of America, Plaintiff - Appellee,
v.
Mohamad Jamal KHWEIS, Defendant - Appellant.

No. 17-4696

United States Court of Appeals, Fourth Circuit.

Argued: May 29, 2020
Decided: August 11, 2020

ARGUED: John Mann Beal, Chicago, Illinois, for Appellant. Daniel Taylor Young, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States Attorney, Raj Parekh, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before DIAZ, FLOYD, and RUSHING, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Rushing wrote the majority opinion, in which Judge Diaz joined. Judge Floyd wrote a dissenting opinion.

RUSHING, Circuit Judge:

In December 2015, Mohamad Jamal Khweis, a twenty-six-year-old American citizen, sold a number of his possessions and, through a series of one-way tickets, traveled to territory in Syria and Iraq controlled by a foreign terrorist organization known as the Islamic State of Iraq and the Levant (ISIL).¹ Khweis spent the next several months training with and supporting ISIL fighters and leaders. On March 14, 2016, Khweis was captured by Kurdish Peshmerga fighters and transported to a Kurdish Counter-Terrorism Directorate (CTD) detention center in Erbil, Iraq.

At the detention center, the Federal Bureau of Investigation (FBI) Assistant Legal Attaché for Iraq, Michael Connelly, interviewed Khweis to gather intelligence about ISIL without providing him Miranda warnings. See Miranda v. Arizona , 384 U.S. 436, 467–473, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Ten days after Connelly's interviews concluded, a different team

971 F.3d 456

of FBI agents interviewed Khweis for purposes of a potential United States criminal prosecution. This second team advised Khweis of his Miranda rights before each interview. Khweis waived his rights and made inculpatory statements that the Government later introduced at his trial for conspiring to provide material support or resources to ISIL in violation of 18 U.S.C. § 2339B, providing material support or resources to ISIL in violation of 18 U.S.C. § 2339B, and possessing, using, and carrying firearms during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). The jury convicted Khweis on all counts, and he was sentenced to 240 months’ imprisonment.

Khweis now appeals the admission of his statements to the second team of FBI agents, contending that the midstream Miranda warnings he received were ineffective. We affirm because, even assuming the FBI deliberately used a two-step interview strategy, the agents undertook sufficient curative measures to ensure that a reasonable person in Khweis's position would understand the import and effect of the Miranda warnings and waiver. However, we must vacate Khweis's Section 924(c) conviction in light of United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), because Khweis's conspiracy offense is not a predicate crime of violence. Therefore, we affirm in part, vacate in part, and remand for resentencing.

I.

A.

Before trial, Khweis moved to suppress his Mirandized statements. After a multiday hearing, the district court denied the motion, therefore we view the evidence in the light most favorable to the Government. See United States v. Abdallah , 911 F.3d 201, 209 (4th Cir. 2018). We accept the district court's factual findings, which Khweis does not contest on appeal. Br. of Appellant 21.

Evidence at the suppression hearing showed that Kurdish forces held Khweis in custody for violations of Kurdish and Iraqi law, namely joining a terrorist organization and crossing the border without proper documentation. Khweis's detention was authorized by the local court, and he was offered counsel to represent him in the local court system, which he declined.

On March 15, 2016, the day after Khweis's capture, United States Department of State Consular Officer Mark Jasonides visited him. Jasonides inquired about Khweis's well-being and provided him with a fact sheet about the Iraqi legal system. The fact sheet advised, among other things, that, "[i]n Iraq, the usual expectations of presumption of innocence, the right to remain silent[,] and proof of criminal activity ‘beyond a reasonable doubt’ do not apply." J.A. 882. In conjunction with the fact sheet, Jasonides provided Khweis with a list of lawyers who practice in the Kurdistan region of Iraq. Jasonides also presented Khweis with a Privacy Act waiver, which authorized the State Department to communicate with Khweis's identified designees. Khweis signed the waiver, identifying only his parents.

The same day, Connelly visited Khweis. Connelly testified that the presiding Kurdish general initially denied the FBI's request to access Khweis but ultimately permitted Connelly to interview him for one hour and to copy his electronic devices. The interview occurred in an office in the CTD detention facility and was attended by two State Department officials and a Kurdish CTD official. Khweis was not handcuffed during the interview. Connelly testified that he decided to interview Khweis for intelligence purposes without providing Miranda warnings because his access to Khweis was controlled by Kurdish

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authorities and might be limited. Connelly believed the risk to any future United States criminal prosecution was worth the valuable intelligence that Khweis could potentially provide about ISIL facilitation networks, organizational structure, and fighters.

After this initial interview, Connelly requested permission from the Kurdish authorities to continue interviewing Khweis, which they granted. Connelly interviewed Khweis a second time on March 15 and then on March 17, 18, 19, 20, 23, 26, and 31 and April 7 and 10. Connelly testified that the breaks in the interview schedule occurred when Kurdish officials periodically prevented him from accessing Khweis. Each of the eleven interviews lasted no longer than half a day. The interviews were conducted at the CTD detention center and were attended by a Kurdish CTD official, a State Department official, and occasionally Department of Defense officials. Khweis was not shackled and was provided snacks, cigarettes, and breaks. The Government did not advise Khweis of his Miranda rights before any of the interviews.

During the interviews, Khweis described his efforts to join ISIL, identified other ISIL members, and explained his understanding of ISIL operations in the region. Khweis frequently admitted that he had not been fully truthful during prior sessions, resulting in multiple resets of the interview process. In these instances, Connelly would "go all the way back to the beginning and start walking through ... every single detail of the facilitation network all over again" in order to obtain accurate intelligence. J.A. 487, 492, 2262. Khweis repeatedly expressed a desire to return to the United States for prosecution rather than remain in the Kurdish or Iraqi justice system, and he asked Connelly whether he would be charged and extradited. Connelly advised Khweis that he could not make any promises because the Department of Justice and United States courts made those decisions. Connelly also advised Khweis that his story had to be consistently truthful in order for investigators to determine whether a crime had been committed.

While the interviews were ongoing, Connelly discussed Khweis's cooperation with other intelligence agents. On March 22, Connelly described the interviews as "a textbook case of getting a guy from a complete lie to a confession ... he will not let me down[.]" J.A. 892. Connelly testified that a confession during an intelligence interview is "a good step" because it signals "more full disclosure," but it was not "the goal," as evidenced by the fact that Connelly continued to interview Khweis after this date. J.A. 518. In an email on March 26, Connelly wrote that "[t]his was time very well spent because the extensive time we took getting him comfortable with telling the truth will make it far easier for subsequent interviews here and in the US." J.A. 913. On April 7, Connelly reported that "[Khweis] would not stop talking in an attempt to fill in gaps he previously created. He is going to be very easy to deal with from a clean team perspective." J.A. 885. Finally, on April 8, Connelly commented to other intelligence agents via email that "[Khweis] is lined up perfectly for the clean team." J.A. 894. Connelly's interviews ended on April 10, and neither he nor any other government officials involved in those interviews contacted Khweis after that date.

Ten days later, on April 20, a second team of interviewers met with Khweis for the purpose of a potential United States prosecution. This team consisted of FBI Special Agents Victoria Martinez and Brian Czekala, along with a Kurdish official who had not attended the previous interviews. Martinez and Czekala were walled

971 F.3d 458

off from the intelligence team: they did not read Connelly's interview memoranda, did not receive his electronic communications about the interviews, did not speak to him about the substance of Khweis's previous interviews, and did not...