The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
Defendants, Ramzi Ahmed Yousef, ("Yousef"), Abdul Hakim Murad ("Murad"), and Wali Khan Amin Shah, ("Shah"), are charged with conspiring and attempting to destroy aircraft in foreign air commerce within the special aircraft jurisdiction of the United States, in violation of 18 U.S.C. §§ 32(a)(1),(2),(7), and 371 (Counts Twelve, Thirteen, and Fourteen); conspiring to kill a national of the United States with malice aforethought, in violation of 18 U.S.C. § 2332(b) and (d) (Count Fifteen); conspiring to use a weapon of mass destruction in relation to the conspiracy charged in Count Fifteen of the indictment in violation of 18 U.S.C. § 2332a (Count Sixteen); and using and carrying an improvised explosive device in relation to the conspiracy charged in Counts Twelve and Fifteen, in violation of 18 U.S.C. § 924(c) and 2 (Counts Seventeen and Eighteen). Defendant Yousef is charged with placing and causing the detonation of a bomb aboard a Philippines airliner, in violation of 18 U.S.C. § 32(b) (Count Nineteen), and Defendant Shah is charged with attempting to escape from the custody of the United States in violation of 18 U.S.C. § 751(a) (Count Twenty).
All three Defendants initially were in the custody of foreign law enforcement officials before being rendered to United States' custody. Once in United States law enforcement custody, and while they were being transported via airplane to the United States, all three Defendants made lengthy statements to the law enforcement agents on board the plane. All Defendants have made pre-trial motions to suppress these statements, arguing that the Miranda warnings administered by the United States agents were defective and that they did not knowingly and voluntarily waive their Fifth and Sixth Amendment rights to have counsel present during questioning or their Fifth Amendment privileges against self-incrimination. A suppression hearing was held during the weeks of May 6, May 22, and May 28, 1996. All three suppression motions are now denied. The following constitutes my findings of fact and conclusions of law.
Agent Garrett then left the room for approximately one hour and eighteen minutes, during which time he spoke to other United States officials regarding the location of the explosives and the identification of Yousef. (Garrett Tr. at 96-97; 145; 155; Horton Aff. P 9). Agent Garrett returned to the room, identified himself as an FBI agent, and administered Miranda warnings in English to Yousef. (Garrett Tr. at 134). Yousef acknowledged that he understood his rights and Yousef signed a handwritten waiver-of-rights form. (Garrett Tr. at 97-98; Horton Aff. P 9). The handwritten waiver-of-rights form did not include the warning that anything the defendant said could be used against him in court in the United States. (GX G1). Agent Garrett does not know whether he orally administered that warning to Yousef. (Garrett Tr. at 98-99). During the course of this administration of the Miranda warnings and during all interviewing, Yousef spoke in English and acknowledged that he understood what was being said to him. (Garrett Tr. at 96). (I note that during all of the in court proceedings including the hearing, all three defendants and their counsel repeatedly had conversations without the aid of an interpreter and Defendant Yousef specifically understood questions posed to him by the court). (See, e.g., Hearing Tr. at 216).
After Yousef signed the waiver form and Agent Garrett determined that Yousef understood the waiver, Yousef acknowledged that he was willing to answer questions. (Garrett Tr. at 99; Horton Aff. P 9). Various other United States law enforcement agents and two Pakistani military agents were present at the site of this interview, but other than Agent Garrett, only an Assistant Regional security Officer asked Yousef any questions. (Garrett Tr. at 132). During the interview, Yousef never mentioned that he had been in Pakistani custody before that date or that he was tortured by the Pakistanis.
(Garrett Tr. 99-100; 168). The entire interview lasted approximately two hours, after which Yousef was again taken into custody by the Pakistani officials. (Garrett Tr. at 100).
Yousef was surrendered by Pakistani authorities to United States custody on February 8, 1995, pursuant to an extradition request by the United States. This transfer of custody occurred less than twenty-four hours after Yousef was originally arrested by Pakistani law enforcement agents. (Garrett Tr. at 94; 101) (the Pakistani officials entered Yousef's apartment at or about 10:00 a.m. on February 7, 1995 and Yousef was surrendered to United States custody at or about 7:00 am. February 8, 1995). Yousef was brought aboard a United States government plane by Agent Garrett, examined by a physician, photographed, and provided with clothing. (Stern Tr. at 159). A medical report was prepared wherein Yousef disclaimed any recent injuries or acute medical problems. (Stern Tr. at 161). Yousef was then transported by air to the Southern District of New York, arriving on February 8, 1995, New York time.
After Yousef had been examined by the physician, both FBI Special Agent Charles B. Stern and Secret Service Agent Brian Parr identified themselves to Yousef and advised him that he was under arrest for the World Trade Center bombing. (Stern Tr. at 161). Yousef was then read his Miranda warnings and read them himself in English before he signed a rights waiver form. (Stern Tr. at 161). Agent Stern paused after reading each paragraph of the Miranda warnings to give Yousef an opportunity to acknowledge that he understood. (Stern Tr. at 163). Again, the agent issuing the Miranda warnings did not perceive any language barrier and Yousef acknowledged that he understood everything that was said to him and everything he read. (Stern Tr. at 162). The warnings did not contain any statement with regard to anything Yousef may have said to the Pakistani authorities. (Stern Tr. at 190). Yousef signed a waiver of rights form and proceeded to answer questions posed to him by the agents. (Stern Tr. at 164; GX S2). In his brief in support of his suppression motion, but not in his own affidavit, Yousef disputes the fact that he signed this second waiver form. (2/1/ 96 Br. at 24). Yousef proceeded to answer questions, but refused to allow the agents to take contemporaneous notes. (Stern Tr. at 164-65). The entire interview lasted approximately six hours and included four breaks during which Agent Stern wrote notes about the interview. Eventually a twenty-one page FBI Report Form 302 was prepared from Stern's notes. (Stern Tr. at 167). Agent Stern did not use any information that Agent Garrett had obtained from Yousef's prior statements. (Stern Tr. at 164-64; 176). There is no evidence of any physical threat or other coercion on the part of the United States officials who administered the warnings, received the waiver of rights, and interviewed Yousef. At no point did Yousef request an attorney, or request to stop speaking to the agents. (Stern Tr. at 167).
Murad claims that he was in the custody of the Philippines authorities beginning December 26, 1994 until he was surrendered to the United States law enforcement authorities on April 12, 1995. During that time, Murad claims that he was physically and psychologically tortured by his Philippine captors, beaten, raped, had cigarettes extinguished on his hands and feet, and subjected to a procedure that simulated drowning.
The FBI was aware that Murad was in the custody of the Philippines government starting some time during the week of January 15, 1995. (Pellegrino Tr. at 662). However, no indictment was brought against defendant Murad until March, 1995. The United States made an official request to the Philippines government at or about the end of January 1995, to see and interview Murad, but that request was withdrawn when a case against Murad developed in the United States. (Pellegrino Tr. at 667-68). The United States in no way participated in or condoned Murad's incarceration in the Philippines and the alleged torture that occurred there. The United States role in Murad's custody was limited to negotiating the transfer of the custody from the Philippines government to the United States. Agent Pellegrino played an active role in those negotiations, and had regular contact with members of the Philippine National Police ("PNP") and the Philippine government. (Pellegrino Tr. at 663; 672).
The Philippines government surrendered Defendant Murad to United States custody on or about April 12, 1995 in Manila, Philippines. (Pellegrino Tr. at 674; Donlon Tr. at 17). Murad was then transported by air to the Southern District of New York, arriving on April 13, 1995. At the time Murad boarded the plane, members of the FBI Hostage Rescue Team, who were immediately responsible for Murad's custody, removed his blindfold, changed his clothes, and handcuffed him. (Pellegrino Tr. at 677). While this was being done, FBI Special Agent Frank Pellegrino informed Murad of the charges brought against him in the United States and read him Miranda warnings in English for the first time. (Pellegrino Tr. at 678; Donlon Tr. at 31). Agent Pellegrino testified that he stood very close to Murad at this time to insure that Murad heard what was being said. (Pellegrino Tr. at 679). Murad confirmed that Pellegrino stood close to him at this time. (Murad Tr. at 373).
Murad testified that he did not hear Pelligrino reading the Miranda rights, in part, due to the noise caused by the running engines and that he, Murad, was talking to himself at this time. (Murad Tr. At 378). Agent Pellegrino testified, however, that Murad was not talking to himself during this time, that Pellegrino did not recall the noise of plane engines being loud enough to make conversation difficult, and that Murad acknowledged that he understood everything Agent Pellegrino told him. (Pellegrino Tr. at 678-79).
After Murad's clothes were changed, he was examined by a physician, and a medical report was compiled. (Pellegrino Tr. at 682; Donlon Tr. at 20). The report indicates that Murad "denied any current health problems or injuries." (GX D3).
Murad was then brought to the middle of the plane. (Donlon Tr. at 32). Agent Pellegrino and FBI Special Agent Thomas Donlon introduced themselves as FBI agents, told Murad the reason he was in United States custody, and told Murad that they were going to interview him. (Pellegrino Tr. at 683; Donlon Tr. at 20). Both agents and the Arabic interpreter testified that Murad had no difficulty understanding English and that Murad advised them he did not need the assistance of the Arabic interpreter. (Pellegrino Tr. at 683-84; Donlon Tr. at 21; Eid Tr. at 72). Murad also testified that he can read and understand English. (Murad Tr. at 487).
Agent Pellegrino then read the advice of rights form to Murad in English once again, and the Arabic translator read the Arabic form to Murad. (Pellegrino Tr. at 683; Donlon Tr. at 22; Eid Tr. at 71). While he was testifying during the suppression hearing, Murad had no difficulty reading the original advice of rights form in English. (Murad Tr. at 485). It was only when he was interrupted and asked if he was having any difficulty reading the form that Murad claimed that the form was unclear and that he had told Agent Pellegrino that aboard the plane: (Murad Tr. at 486). When Agent Pellegrino administered the warnings to Murad, Agent Pellegrino paused after reading each paragraph to give Murad an opportunity to acknowledge that he understood each of the rights. (Donlon Tr. at 22).
Murad was then shown written advice of rights form in both English and Arabic. (Pellegrino Tr. at 683; Eid Tr. at 71; GX D1, D2). Before the Arabic version of the form was given to Murad, the Arabic interpreter hand wrote on the form the warning that anything the accused said could be used against him in court.
(Pellegrino Tr. at 699-700; Eid Tr. at 69). Both versions of the advice of rights form included statements to the effect that Murad was in the custody of the United States, that he was no longer in the custody of the PNP, and that nothing said to Murad by the PNP was binding on the United States and that he should not rely on any promises or representations made to him by any Philippine authority. (Donlon Tr. at 25; GX D1, D2). This warning with regard to the Philippine authorities was also included in the waiver of rights section on the form. (Donlon Tr. at 26). This insertion was made into the standard advice of rights of form to alert Murad to the fact that once he was within the custody of the United States, these rights were in place regardless of what the Philippine authorities had told him. (Pellegrino Tr. at 690; Donlon Tr. at 43).
The interview lasted approximately five hours, including numerous breaks. (Donlon Tr. at 26). At no point during the interview on the plane did Murad request to stop the interview or request a lawyer. (Pellegrino Tr. at 700-01; Donlon Tr. at 27). Agent Pellegrino took notes of the interview from which an eighteen page FBI Report Form 302 was prepared. Murad did request to stop talking to the agents once they had returned to the New York FBI Office. (Pellegrino Tr. at 700; Donlon Tr. at 27). At that time, the agents did not ask any more questions of Murad. (Id.)
There is some dispute as to whether Murad in fact read the Arabic advice of rights form once or twice, since Agent Pellegrino's log contains an entry that states that "the suspect re-read his rights." This would only be of import if Murad was shown an incomplete Miranda rights form. Three witnesses testified that the Arabic form which was handed to Murad was edited and complete before Murad ever saw it.
Agent Pellegrino testified that in January and February of 1995 he was aware of Murad's incarceration in the Philippines, and that at the end of March he became aware of the fact that he was being interrogated. (Pellegrino Tr. at 664; 669). Agent Pellegrino in fact received copies of transcripts of certain of the interrogation sessions. (Pellegrino Tr. at 670). Agent Pellegrino never knew the identity of any of Murad's interrogators. (Pellegrino Tr. at 664). However, Agent Pellegrino never received a transcript of the tape of January 7, 1995, the only tape which contains any evidence of the possibility of mistreatment of Murad by the Filipinos. (Pellegrino Tr. at 671). None of the transcripts which Agent Pellegrino reviewed contained any indication that Murad was being beaten or tortured by anyone in the Philippines. (Pellegrino Tr. at 672). After an in camera review of those transcripts which Agent Pellegrino had access to, I conclude that nothing in those transcripts remotely indicates the presence of any torture.
I also conclude that the testimony given by Defendant Murad regarding his torture and forced cooperation with the Philippine authorities is not credible. I observed the defendant testify for two days and heard many inconsistencies in his testimony which lead to the conclusion that this testimony is not credible.
Murad testified that during the alleged "drowning" procedure, he was handcuffed behind his back, forced to lie down on his back, and then one interrogator would sit on his knees and two others would hold back his two hands. (Murad Tr. at 333). Of course, this is physically impossible.
Murad testified that the torture began on the day he was abducted, December 26, 1994, and that the worst part of his torture occurred during the first three days of his captivity. (Murad Tr. at 407-08). However, the only objective evidence that remotely supports Murad's allegations of torture is a taped interrogation session dated January 7, 1995, the day the Philippines authorities state that Murad was arrested. The actual statements contained on that tape are somewhat unclear, and the only transcript of this taped session available is one that was prepared by the defense for the purposes of this motion. (Murad Ex. A; Tr. at 346).
Although Murad claims that he was subject to torture the entire time he was in custody of the Philippines authorities, he also testified that his captors began treating his alleged wounds about five days after he was abducted. (Murad Tr. at 411).
Murad testified that the torture included extinguishing cigarettes on both his hands and his feet, yet he was unable to show any burn scars to the court when requested to do so. (Murad Tr. at 443). According to Murad, his captors began treating him well during the last month of captivity so that they could turn him over to the FBI; he alleges that they used a balm on his hands, which removed the burn scars.
Murad's account of his arrival and detention in the Philippines similarly is not credible. Murad testified that he arrived in Manila on December 26, 1994, and, following Yousef's instructions, he met a man named Yunis at the airport. (Murad Tr. at 398). According to Murad, Yunis and two other men took him in a car and drove for two and a half hours outside of Manila to a villa where he was eventually abandoned by Yunis and abducted by Philippine captors. (Murad Tr. at 399-402). Murad testified that he never saw Yousef in the Philippines and that he never checked into the Las Palmas Hotel. (Murad Tr. at 409-10; 417-18). Contrary to this testimony Murad attested in his affidavit that he was arrested in Manila. (Murad Aff. P 3). When questioned about this inconsistency at the hearing, Murad tried to distinguish the term "arrest" from "abduction" or "apprehension." However, other than this original alleged abduction, Murad does not mention any other time when he was transferred from his original captors' custody to that of other Filippino authorities. Since he asserted that he was blindfolded for the majority of his time of captivity, Murad could not have known whether he was transported to Manila at some point for a more formal arrest procedure. (Murad Aff. P 6).
Moreover, the government produced a registration card from the Las Palmas Hotel that shows that a "Saeed Ahmed" checked into the hotel on December 26, 1994. (M1, p. 5). Murad testified that it is his handwriting and his signature on this card. (Murad Tr. at 414-15). Murad appears to include this card as one of the items which he was forced to write out by the Philippine authorities during his captivity. (Murad Tr. at 444). However, also part of the same exhibit is a "Las Palmas Daily Arrival Report", which lists the names of all those who checked into the hotel on December 26, 1994. (M1, p. 3). Such a log is kept in the course of the hotel's regularly conducted business activity. The twelfth of twenty-five entries on that log shows that a Saeed Ahmed arrived at the Las Palmas Hotel on that date. Since such a complete log is inherently credible, it refutes Murad's testimony that he never checked into the hotel, and that he was abducted by Philippine captors outside of Manila on that date.
Murad also testified that his captors forced him to rehearse responses to certain questions; however, his testimony as to when, how long and with whom this practicing occurred is inconsistent. He testified that the practicing started before the January 7, 1995 tape was made. (Murad Tr. at 463-64). Certain portions of that tape were played during the hearing, which Murad claims reflect his condition immediately following an episode of the drowning procedure which he allegedly suffered. When questioned why he would resist telling his captors the practiced material, and thereby insuring that he would be tortured again, Murad testified that a different interrogator was present at that time so he thought he could deny their allegations. (Murad Tr. at 466-67). Murad apparently was able to distinguish this interrogator from the others even though he, Murad, was blindfolded and could not know who was in the room with him. (Murad Tr. at 467).
Murad's testimony that the rehearsal of answers began prior to January 7, 1995 conflicts with his other testimony to the effect that the practicing did not begin until the last month of his captivity when it became clear to Murad that the Filipinos were preparing him for something. (Murad Tr. at 493).