The opinion of the court was delivered by: Scheindlin, District Judge.
Osama Awadallah was arrested in San Diego on September 21,
2001, and was held as a material witness in the investigation of
the September 11th terrorist attacks on the World Trade Center
and the Pentagon (the "September 11th Attacks"). The government
subsequently transported Awadallah to New York to meet with
prosecutors. Afterwards, Awadallah testified on two occasions —
October 10 and October 15, 2001 — before a federal grand jury.
On October 18, 2001, the government issued a Complaint charging
Awadallah with two counts of making false declarations before a
federal grand jury in violation of 18 U.S.C. § 1623. See
Complaint ¶¶ 1-2. Awadallah was re-arrested on October 21, 2001
on the Complaint and has been held in custody continuously since
September 21, 2001. He was indicted on October 31, 2001.
Awadallah now seeks bail pending trial.
A. The Government's Allegations
Bail was denied by Magistrate Judge Ruben Brooks in California
on September 25, 2001, and again by Magistrate Judge Gabriel
Gorenstein in New York on October 19, 2001.*fn2 On both
occasions, the judges concluded that there was no condition or
combination of conditions that could be set that would
reasonably assure defendant's return to court.*fn3
At defendant's request, this Court held a bail hearing on
November 21, 2001. See generally November 21, 2001 Transcript
of Bail Hearing ("Bail Tr."). The only witness at that hearing
was defendant's half-brother, Jamal Awadallah. In addition, the
Court received a letter from defendant's teacher, Mimi Pollack,
stating in substance that she has known defendant for one year,
believes him to be a nonviolent person, and supports his
application for pre-trial release.
The testimony was followed by a lengthy argument. Defense
counsel argued that his client is not a flight risk because he
is a permanent resident who has resided and gone to school in
this country since April, 1999. See Bail Tr. at 32-33, 43-44.
Counsel further argued that defendant has significant family
ties in this country, including his oldest half-brother
Jamal,*fn4 who is a United States citizen and has resided in
this country with his wife and children for twelve years. See
id. at 13; 10/19/01 Tr. at 14. Jamal is self-employed,
supporting his family by owning and operating an icecream truck.
See Bail Tr. at 24. Awadallah's father is also a United States
citizen and several of his half-brothers reside and work in this
country as permanent residents. See id. at 17, 36; 10/19/01
Tr. at 14. Finally, defense counsel argued that the case against
his client is not particularly strong, see Bail Tr. at 47, 53,
he believes his client will be exonerated and that even if
convicted the prison term he faces is not as long as the
government projects. See id. at 53, 56.
The Pretrial Services Report ("PSR") confirms that defendant
has no prior arrests or convictions. See PSR at 2. It also
reports that defendant has held several jobs in this country,
including gas station attendant, security guard, and janitor. He
has studied English at Grossmont College in California. Id.
The government, in turn, argued that defendant poses a risk of
flight because he has was raised in Jordan*fn5 (having left
when he was 18), has a Jordanian passport, much of his family
remains in Jordan*fn6 (including several sisters), and his
birth-mother lives in Egypt.*fn7 See Bail Tr. at 16, 38. In
addition, the government also argued that defendant's savings of
approximately $3,000 provide him with the means to flee. See
id. at 72. Finally, the government argued that if defendant is
convicted, he will serve a significant prison term and then face
deportation.*fn8 See id. at 44, 69. In view of that
possibility, which the government believes is strong, the
government argued that there is no condition or combination of
conditions that can assure defendant's return to court.*fn9
See id. at 59-60.
On November, 20, 2001, the government submitted a detailed
letter in opposition to the bail application. The letter
attached the transcript of the bail argument before Judge
Gorenstein, the Complaint, the Indictment and a photocopy of the
exam booklet which is the focus of the charges. The letter also
cited United States v. Suleiman, 208 F.3d 32 (2d Cir. 2000),
to support the government's view of the defendant's potential
At the hearing, defense counsel asked the Court to review
defendant's entire grand jury testimony. The prosecutor
submitted the testimony to the Court on November 23, 2001 and I
have reviewed it.*fn11 Finally, the government submitted a
letter dated November 26, 2001 ("Nov. 26 Ltr."), in further
opposition to the bail application. In this letter, the
government conceded that if defendant failed to appear that
might have a negative impact on the pending visa applications of