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U.S. v. AWADALLAH

November 27, 2001

UNITED STATES OF AMERICA
V.
OSAMA AWADALLAH, DEFENDANT.



The opinion of the court was delivered by: Scheindlin, District Judge.

OPINION AND ORDER

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.

I. BACKGROUND

A. The Government's Allegations

The government alleges the following: Khalid Al-Mihdhar and Nawaf Al-Hazmi were two of the terrorists involved in the September 11th Attacks.*fn1 See Indictment ¶ 3(b). Awadallah knew Al-Hazmi casually for some unspecified period of time because they worked at the same gas station and worshiped at the same mosque. See id. ¶ 11 (Count One). In the company of Al-Hazmi, Awadallah met Al-Mihdhar on several occasions. The government claims that Awadallah lied to a federal grand jury when he testified that he knew Al-Hazmi by name but not Al-Mihdhar. See id. The government also alleges that Awadallah lied to the grand jury when he denied that he wrote the name "Khalid" and certain other words in an exam booklet for his English language course. See id. ¶¶ 12-13 (Count Two).

B. Prior Bail Requests

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

C. The Bail Hearing

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 sentence.*fn10

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 family ...


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