The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.:
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
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
IV. FACTUAL BACKGROUND AND ALLEGATIONS
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
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.
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.
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.
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.
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?
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.
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
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?
Q: Were you there first when Nawaf and the other
person arrived or were they there when you
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
Q: Who was the other person who was with Nawaf
[Al-Hazmi] that day?
Q: Had you ever seen that person before?
Q: I take it that it was a man?
Q: Do you know what country he was from?
A: No. Nawaf or the other guy?
Q: The other man who was with Nawaf.
Q: Did you ever learn any part of that man's name?
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
Q: Did Mohdar speak with the other person who was with
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?
Q: Before this day at the gas station, had you ever
seen Nawaf before?
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
Q: Were you ever on any later occasion introduced to
this other man by name?
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.
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
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
Q: Do you remember whether he ever had anyone with him
at the gas station besides the other people who
Q: On the first day that you met him, you are talking
about the other man who was with him that day?
Q: Were there other days when that same man was with
him at the gas station?
Q: Did you come to have any understanding of what the
connection was between Nawaf and this other man?
Q: Do you know, for example, whether they were good
A: Well, it seems to me they are good friends. When
they are always together, that means they are good
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
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?
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, ...