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January 31, 2002


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.:



Within days of the September 11th attacks against the United States, the U.S. Attorney's Office in the Southern District of New York and the FBI — working with numerous federal, state and local agencies — initiated a federal grand jury to investigate those attacks. The grand jury was investigating, among other offenses, the crimes of destroying and conspiracy to destroy aircraft, see 18 U.S.C. § 32, bombing and bombing conspiracy, see 18 U.S.C. § 844, and seditious conspiracy to levy war against the United States of America, see 18 U.S.C. § 2384.

To facilitate the investigation, the government issued subpoenas and warrants calling for material witnesses to testify before the grand jury.*fn1 On September 21, 2001, a material witness warrant was issued for Osama Awadallah. After Awadallah was detained and held for twenty days in various locations, he testified before the grand jury in New York on October 10 and October 15, 2001.

Three days after Awadallah finished testifying, the government issued a complaint charging him with two counts of knowingly making a false material declaration before the grand jury. See Complaint, United States v. Osama Awadallah, No. 01 Mag. 1833 (filed October 18, 2001) ¶¶ 1-2 (citing 18 U.S.C. § 1623(a)). Awadallah was arrested on October 21, 2001, and indicted on two counts of perjury on October 31, 2001. See Awadallah, 173 F. Supp.2d at 187. Bail with conditions was set on November 27, 2001, see id. at 192, and Awadallah satisfied those conditions on December 13, 2001. According to the government, "Awadallah faces a sentence of ten years' imprisonment (the combined statutory maximum on the two counts, pursuant to Section 3A1.4 of the United States Sentencing Guidelines)." 11/20/01 Letter from Assistant United States Attorney ("AUSA") Robin Baker to the Court at 3.

Awadallah now makes several motions related to the perjury charges. First, he moves to dismiss the Indictment on the grounds that (1) he properly recanted his false testimony, thereby barring prosecution, (2) the government violated the Vienna Convention on Consular Relations by not informing him of his rights as a foreign national, (3) the government interfered with his right to counsel, and (4) the government denied him due process while holding him in custody prior to his grand jury appearance as well as during his testimony. See 12/3/01 Notice of Motion ¶¶ 1-4. Second, Awadallah moves to suppress (1) all physical evidence found by law enforcement officers who searched his home, computer and cars, and (2) all statements that he made to any government agent from September 20, 2001 through October 3, 2001. See id. ¶¶ 7-8. Third, Awadallah moves to dismiss the second count of perjury because it is "immaterial, redundant and duplicative of Count One" and for "[a]n order striking certain prejudicial and improper material from the indictment and prohibiting the government from making any reference to such matters at trial." Id. ¶¶ 5-6.

Awadallah's final motion is for "[a]n order granting evidentiary hearings on the above motions" where applicable. Id. ¶ 9. For the reasons discussed below, these motions are denied in part and granted in part. An evidentiary hearing is scheduled for February 15, 2002.



The Federal Rules of Criminal Procedure "requir[e] the judge to receive evidence on any issue of fact necessary to the decision on a . . . motion to suppress." Charles A. Wright et al., 3 Federal Practice & Procedure § 675 (2d ed. Supp. 2001). Although suppression hearings are not always required, a court should hold a hearing when the motion alleges facts that, if proved, would require the suppression of evidence. See id.; see also United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992) (stating that an "evidentiary hearing on a motion to suppress ordinarily is required if the moving papers are sufficiently definite, specific, detailed and nonconjectural to enable the court to conclude that [there are] contested issues of fact going to the validity of the search." (citation and quotation marks omitted)).

A court should also hold a hearing when the defendant's allegations, if proven true, would result in dismissal of the indictment. See United States v. Toscanino, 500 F.2d 267, 281 (2d Cir. 1974) (holding that the district court was required to hold an evidentiary hearing when defendant's allegations, if proven, would result in dismissal); United States v. Orsini, 402 F. Supp. 1218, 1219 (E.D.N.Y. 1975) (holding that an evidentiary hearing was required because allegations of due process violations, if substantiated, would require dismissal of indictment).

For the sole purpose of determining whether an evidentiary hearing is required, I will assume that Awadallah's allegations are true. These allegations are taken directly from his attorney's affirmation in support of these motions, which have been adopted by Awadallah. See generally 12/3/01 Affirmation of Jesse Berman, Defendant's Attorney, in Support of Motion to Dismiss ("Berman Aff."); see also 12/26/01 Affidavit of Osama Awadallah, attached to the 12/28/01 Reply Affirmation of Jesse Berman ("Reply Aff.") (adopting all of the statements in Berman's Moving Affirmation).


A. The Defendant

Awadallah is a lawful permanent resident of the United States and a citizen of Jordan. See November 21, 2001 Transcript of Bail Hearing ("11/21/01 Bail Tr.") at 40. In April 1999, at the age of eighteen, he entered this country with the goal of becoming a United States citizen. See Grand Jury Transcript 10/10/01 ("10/10/01 GJ Tr.") at 8-9. While residing in this country, Awadallah has only lived in California, where his father and three of his brothers reside.*fn2 See Bail Tr. at 15-22.

Over the last two and a half years, Awadallah has been employed as a gas station attendant, flower deliverer, janitor and, most recently, licensed security guard. See Awadallah, 173 F. Supp.2d at 188; see also 10/10/01 GJ Tr. at 27-28. He has never been convicted of any crime or ever been arrested. See Awadallah, 173 F. Supp.2d at 188. Awadallah's main reason for moving to the United States was to attend college and work here. See 10/10/01 GJ Tr. at 8; see also 9/22/01 FBI Form 302 ("FBI 302"). In the autumn of 2001, he began his second year at Grossmont College where he mainly studied "English as a Second Language." See 10/10/01 GJ Tr. at 20.

B. Events Prior to Awadallah's Grand Jury Testimony

On the afternoon of September 20, 2001, approximately twenty FBI agents surrounded Awadallah on the street outside his home in San Diego. See Berman Aff. ¶ 14. The FBI agents ordered Awadallah to come to their office. See id. None of the agents advised Awadallah of his rights under Miranda, his right to refuse searches of his home or cars, or his right to contact the Jordanian consulate. See id. When Awadallah asked to phone his brother Jamal, the agents refused him permission. See id. When Awadallah asked to enter his own home, the agents told him he could not go inside.*fn3 See id. Awadallah also asked if he could drive in his car to the FBI office but the FBI agents insisted that he go in an agent's car. See id.

Although the FBI agents told Awadallah that his interview at the San Diego office would last around thirty minutes, he was questioned until midnight. See id. ¶¶ 14-15. At some point during the interview, the agents explained that while searching a car that belonged to Nawaf Al-Hazmi, a suspected terrorist in the September 11th attack on the Pentagon, agents had found a piece of paper with the words "Osama 589-5316." See 10/10/01 GJ Tr. at 76. This number matched Awadallah's home phone number when he lived in La Mesa, California, two years earlier. See id. at 74. The agents also told Awadallah to sign forms stating that he consented to their searches of his home and cars.*fn4 See Berman Aff. ¶ 15. Awadallah signed the forms, but he now claims that the agents did not explain their meaning and that he never understood them. See id. The agents never advised Awadallah of his Miranda rights. See id. ¶ 14. The agents constantly reminded Awadallah that he was not a United States citizen. See id. ¶ 15.

The agents returned Awadallah to his home after midnight. See id. Less than six hours later, at six o'clock in the morning, some of the FBI agents returned and told him he had to go back to the office to take a lie detector test.*fn5 See id. Prior to taking a series of three polygraph tests, the agent who administered the test covered the lens of a surveillance camera, which prevented the procedure from being filmed. See id. ¶ 16.

When the lie detector tests ended, the FBI agents accused Awadallah of lying although the record does not indicate any basis for this accusation. See id. The agents then handcuffed, fingerprinted and photographed him. See id. When Awadallah asked to call his brother, the FBI agents told him that he could not make any calls until he was taken to the San Diego Metropolitan Correctional Center ("San Diego MCC"). See id. Awadallah arrived at the San Diego MCC around 4:00 p.m. and was permitted to call his brother at approximately 6:00 p.m. See id.

The same day, Awadallah's family hired a lawyer, Randall Hamud, to represent Awadallah. See id. Hamud went to the San Diego MCC that evening but was told that Awadallah was not there. See id. After an hour and a half of insisting that Awadallah was being detained there, a correctional officer sent Hamud to the attorney interview room, but Awadallah was never produced. See id. Instead, another inmate was produced after which Hamud was instructed to leave the facility. See id. Hamud's first meeting with Awadallah occurred the next day. See id.

The government also obtained a material witness warrant for Awadallah's arrest on September 21, although it is unclear whether this occurred before or after Awadallah was incarcerated. That warrant, issued by a judge of this Court pursuant to the material witness statute, 18 U.S.C. § 3144, was based on a sworn affidavit by an FBI agent and relied in large part on the previous day's interview of Awadallah and searches of his home and cars. The affidavit also stated that the FBI had found Awadallah's telephone number in the car belonging to Nawaf Al-Hazmi. The agent who signed the affidavit stated: "I believe, based on the facts set out above, that there is no condition or combination of conditions that would reasonably assure the appearance of the Witness. Accordingly, I respectfully submit that the Witness be detained upon being produced for presentment, to ensure that the grand jury will receive the Witness's testimony."

As a devout Muslim, Awadallah does not eat non-halal food (e.g., swine/pork or its by-products). See Berman Aff. ¶ 17. For the first five days that he was detained as a material witness, the correctional facility only served him non-halal meals, which affected his ability to eat a sufficient amount of food. See id. ¶ 18. He was not given toilet paper or soap for two days and, for three to four days, he was not allowed to shower. See id. ¶ 17. In addition, the floor of his cell was flooded with water when a toilet backed up. See id.; see also 9/25/01 Transcript of Detention Hearing Before Magistrate Judge Ruben Brooks ("9/25/01 Det. Tr."), at 51.*fn6 The correctional facility did not fix the problem for at least two days. See Berman Aff. ¶ 17.

On September 25, Magistrate Judge Brooks held a detention hearing for Awadallah.*fn7 See 9/25/01 Det. Tr. at 45-61, 74-88, 106-24, 130-32. At the hearing, Hamud argued, among other things, that Awadallah had never evaded process and the government had not served Awadallah with a subpoena. See id. at 48. Hamud offered to turn in Awadallah's passport and "work out whatever deal we need to make with the U.S. Attorney's Office to have him testify either by deposition here or testify in New York." Id. at 52.

After hearing the testimony of various witnesses brought on Awadallah's behalf, the Magistrate Judge noted that the material witness statute directs a court to consider the factors described in the statute pertaining to the release or detention of a defendant pending trial. The Magistrate Judge then stated that "the charges are such that it is a factor that will be treated as weighing in favor of detention." 9/25/01 Det. Tr. at 130.

Based on a consideration of the factors set forth in the statute, the Magistrate Judge rejected Hamud's offer of "an own recognizance bond or a modest bond in the amount of $1,000" and concluded "I don't feel that either of these proposals would assure his attendance at proceedings that are the subject of this hearing." 9/25/01 Det. Tr. at 132. Hamud then offered any bail "that would, in [the court's] mind, help to ensure Mr. Awadallah's appearance." Id. at 134. The Magistrate Judge answered:

I considered that while I was in chambers and asked myself if I put a $100,000 figure down, if I put a $200,000 figure down, would my decision be any different. And that by itself is not enough to change the decision because bail frequently involves, at least in my mind, items more than money. . . . So an abstract number is — is not enough to change the balances.

9/25/01 Det. Tr. at 135. The Magistrate Judge did not, however, determine whether there were any conditions of release that would "reasonably assure the appearance" of Awadallah before the grand jury as required by 18 U.S.C. § 3142(g). See id. at 138-39.

"The defendant spent two more days at the San Diego MCC, then a night at a jail in San Bernardino." 1/4/02 Ltr. at 6. At the San Bernardino County jail, Awadallah was denied permission to make any phone calls. See Berman Aff. ¶ 18. The guards there also forced him to strip naked before a female officer. At one point, an officer twisted his arm, forced him to bow and pushed his face to the floor. See id. Because he was only provided one meal that contained non-halal meat, Awadallah only ate an apple the entire day. See id.

The government transferred Awadallah to a federal facility in Oklahoma City on September 28. See 1/4/02 Ltr. at 6. While in Oklahoma, a guard threw shoes at his head and face, cursed at him and made insulting remarks about his religion. See Berman Aff. ¶ 19.

On October 1, 2001, Awadallah was shackled in leg irons and flown to New York City. He arrived at approximately 9:00 p.m. See 1/4/02 Ltr. at 6. At the New York airport, the United States marshals threatened to get his brother and cursed "the Arabs." Berman Aff. ¶ 20. The marshals then transported him to the Metropolitan Correctional Center in New York ("New York MCC") where he was placed in a room so cold that his body turned blue. See id. ¶ 21. Awadallah was then taken to a doctor. After being examined, a guard caused his hand to bleed by pushing him into a door and a wall while he was handcuffed. See id. The same guard also kicked his leg shackles and pulled him by the hair to force him to face an American flag. See id. ¶ 21.

The next day, October 2, 2001, the marshals transported Awadallah to this Court. With his hands cuffed behind his back and bound to his feet, the transporting marshals pinched his upper arms so hard that they were bruised.*fn8 See id. In the elevator, the marshals made his left foot bleed by kicking it and the supervising marshal threatened to kill him. See id.

The New York MCC did not provide Awadallah any halal meals for the first fifteen to twenty-five days that he was detained. See id. The correctional facility also placed him in solitary confinement. See id. Every time Awadallah was moved off of his floor, the guards strip searched and videotaped him with a hand-held camera. See id. From his arrival on October 1 until the time he testified to the grand jury on October 10, the MCC did not permit any family members to visit Awadallah or allow him to telephone Berman.*fn9 See id. During this entire time, Awadallah was held only as a material witness, not as a defendant.

C. October 10, 2001: Awadallah's Grand Jury Testimony

When the government presented Awadallah to the grand jury as a material witness on October 10, he was dressed in prison clothes and escorted into the room by FBI agents. See id. ¶ 23. The agents kept him handcuffed to the witness chair throughout his testimony.*fn10 See id. He was questioned by two prosecutors rather than one. See id. ¶ 24. During his testimony, one of the prosecutors interrupted him, spoke in a very loud voice, argued with him and made inappropriate judgmental remarks before the grand jurors.*fn11 See id. ¶¶ 24-26.

After a colloquy, Awadallah entered the grand jury room at 10:57 a.m. and began his testimony. Because his English skills are limited, an Arabic translator was available in case he needed help. AUSA Baker introduced herself and the other prosecutor, George Toscas. Baker then stated to Awadallah: "I want you to understand that if you knowingly and intentionally provide information that is false or misleading, you could be charged with . . . perjury, false statements before the Grand Jury, and obstruction of justice, all of which are felonies under federal law." 10/10/01 GJ Tr. at 5. Awadallah responded that he understood. See id.

AUSA Baker began by asking Awadallah to describe where he had worked since he had entered the United States, what he had studied, where he had lived, and the approximate time periods for each. See id. at 6-13. Awadallah was also asked to name those people who lived with him. See id. at 14-17, 23-27. Over the course of several dozen questions, Awadallah named at least seventeen individuals with whom he had lived.*fn12 See id. He could only remember the full first and last names of five but, on some of the occasions when he forgot an individual's name, he attempted to remember their nationality. See id. at 17, 25.

When Awadallah forgot a name that he had mentioned in his previous interviews with the FBI or other government officials, the prosecutors attempted to refresh his memory. For example, at one point, the following exchange took place:

Q: Let's start with the people who lived with you. You mentioned Yazid. What's Yazid's last name?

A: Yazid Al-Salmi.

Q: And then you mentioned two people both Samir. What are their last names?

A: One is Samir Kawaraia. I don't know the other one.

Q: Do you remember telling us the other day that the other Samir's last name was Abdoun?

A: Yes, maybe, Samir Abdoun. That is true.

Q: Did someone named Tilal also stay in the apartment?

A: Yes, that is true. He stayed one month. Not a long time. That is why I didn't remember.

Id. at 25-26.

After Awadallah answered questions about his time in the United States, the government handed him twenty pictures and asked him to state whether he recognized the person in each photograph. See id. at 30. The first picture that Awadallah recognized was the fourteenth shown to him, a picture of Nawaf Al-Hazmi. See id. at 31. At this point, the government began to ask Awadallah about when he first meet Al-Hazmi and Awadallah stopped looking at the pictures. See id.

According to the testimony, Awadallah explained that he first met Al-Hazmi in the spring of 2000, a year and a half earlier, while Awadallah was working at a gas station. See id. After Awadallah named everyone he could remember working at the gas station,*fn13 the following exchange (which relates to the first charge of perjury) took place:

Q: So let's go back to when you first met Nawaf Al-Hazmi. You said you were at the Texaco. Do you remember who else was there that day?
A: As far as I know, until now, Mohdar, and he was with another one.

Q: You are saying that Nawaf was with someone else?

A: Yes.

Q: Were you there first when Nawaf and the other person arrived or were they there when you arrived?

A: I think I was there when they arrived.

Q: And did someone introduce you to Nawaf?

A: I don't think so. Because we are Arab, we introduced ourselves to each other. We don't need somebody to introduce. We just see somebody, "Oh, hi, how are you doing?" And we speak to each other.
Q: Who was the other person who was with Nawaf [Al-Hazmi] that day?

A. I don't know.

Q: Had you ever seen that person before?

A: No.

Q: I take it that it was a man?

A: Yes.

Q: Do you know what country he was from?

A: No. Nawaf or the other guy?

Q: The other man who was with Nawaf.

A: No.

Q: Did you ever learn any part of that man's name?

A: No.

Id. at 35-36; see also Indictment ¶¶ 11 and 11(a)-(e) (quoting the Grand Jury testimony). A few moments later, Awadallah testified:

Q: So you saw Mohdar and Nawaf speak with each other that day?

A: Yes.

Q: Did Mohdar speak with the other person who was with Nawaf?

A: I'm not sure. I can't remember.

Q: When you and Nawaf were talking to each other, where was the other man who had been with Nawaf?

A: I didn't pay attention.

Q: Was he standing right near you when you were talking to Nawaf?

A: He was standing near to Nawaf.

Q: And you and Nawaf spoke to each other but this other man didn't say anything?

A: No, I said like "Hello. How are you doing?" That is it.

Q: Did he say what his name was?

A: Maybe he said, but I can't remember. I'm not sure.

Q: Before this day at the gas station, had you ever seen this other man before?

A: No.

Q: Before this day at the gas station, had you ever seen Nawaf before?

A: No.

Q: After this day at the gas station, did you ever see the other man again?

A: I saw him with him, with Nawaf. They usually were together.

Q: Were you ever on any later occasion introduced to this other man by name?

A: No.

Q: So as you sit here today, you don't know if you ever knew his name?

A: Maybe he mentioned his name and I didn't catch it or something. Something like that. But after that I didn't take his name or catch his name again.

Id. at 39-40.

A: Like, "Hi, how are you doing?" Then he told me "I'm leaving to LA." I told him, "What are you going to do there?" He said "I'm going to flying school."

Q: Did you and he say anything else this day?

A: No. I'm not sure, I think we were eating, breaking our fast that day or something, and there is a lot of people.

Id. at 43.

Awadallah testified that, over the six to seven months that Awadallah knew Nawaf Al-Hazmi, they saw each other about thirty-five to forty times — mostly at the mosque (about twenty times) or gas station (about fifteen to twenty times). See id. at 46-47, 51. The government then asked:

Q: Do you remember whether he ever had anyone with him at the gas station besides the other people who worked there?

A: The one I mentioned.

Q: On the first day that you met him, you are talking about the other man who was with him that day?

A: Yes.

Q: Were there other days when that same man was with him at the gas station?

A: Yes.

Q: About how many times?

A: Five to ten times?

Q: Did you come to have any understanding of what the connection was between Nawaf and this other man?

A: No.

Q: Do you know, for example, whether they were good friends?

A: Well, it seems to me they are good friends. When they are always together, that means they are good friends.

Id. at 48-49.

Beside seeing Al-Hazmi at the mosque or gas station, Awadallah also testified that he saw him on two other occasions. First, they went with some other individuals to a restaurant for dinner once after attending mosque. See id. at 46, 62. Second, on one occasion Awadallah went to Al-Hazmi's house after Al-Hazmi asked him how to change the text on his computer from English to Arabic and also how to listen to music on the web. See id. at 43, 53-54. Awadallah had previously explained how to do these things, but when Al-Hazmi was unable to make it work, Awadallah offered to help him. See id. at 54. Awadallah testified:

Q: What did you and Nawaf do there at his house that day?

A: He make tea for us and I tried to do the computer. I stayed around 15 minutes trying to do the computer, change it, but it doesn't work. Then we left.

Q: When you say trying to change it, what were you trying to change?

A: The language, from English to Arabic.

Q: And you were not successful?

A: No.

Q: Did you do anything else with the computer while you were there that day?
A: We tried to go on to the Internet, but the Internet was very bad. He didn't have a good Internet. So one time it fail, one time it doesn't work. So we left it. I mean, ...

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