The problems raised in Varela are not an issue here. See Ceccolini, 542
F.2d at 143 ("[T]his is not a case, such as Raftery or Turk, in which an
immunized witness was aware of an illegal search and thereupon made use
of that knowledge to perjure himself with impunity . . . . [and] we
disagree with the Government's contention that the exclusionary rule
serves no purpose here."). First, the perjury charges against Awadallah
arise directly out of the FBI's investigation. The seizures were not so
remote from the crime with which Awadallah was eventually charged that no
deterrence value would be served. When the police are investigating a
material witness (as opposed to an alleged criminal), perjury is always
foreseeable. The one thing that the police can expect from a witness is
for him to testify before a grand jury, which in turn may result in
Second, no court has determined whether the agents did, in fact,
illegally seize Awadallah's property. When Awadallah appeared before the
grand jury, he had every incentive to testify truthfully and in a manner
consistent with his prior interviews. The possibility of suppression does
not give anyone a "license to commit perjury" just as the possibility of
suppression (based on the hope that the police will act illegally) does
not give anyone an incentive to commit a crime. Indeed, unlike the
defendant in Varela, Awadallah testified consistently with his statements
to the agents, not inconsistently.
D. Should the Grand Jury Testimony Be Suppressed?
Defendant has urged, albeit somewhat generally, that this Court
exercise its supervisory power. See Berman Aff. ¶¶ 13, 28. The next
question, then, is whether the exercise of that power would permit
suppression of the grand jury testimony resulting in the effective
dismissal of the perjury charges. See United States v. Jacobs,
547 F.2d 772, 774-76, 778 (2d Cir. 1976) (exercising supervisory power to
suppress perjured grand jury testimony and dismissing the indictment for
Although "[a] grand jury's investigation is not fully carried out until
every available clue has been run down and all witnesses examined,"
United States v. Stone, 429 F.2d 138, 140 (2d Cir. 1970), "the powers of
the grand jury are not unlimited and are subject to the supervision of a
judge." Branzburg v. Hayes, 408 U.S. 665, 688 (1972). "Judicial
supervision of the administration of criminal justice in the federal
courts implies the duty of establishing and maintaining civilized
standards of procedure and evidence." McNabb, 318 U.S. at 340.
"[G]uided by considerations of justice, and in the exercise of
supervisory powers, federal courts may, within limits, formulate
procedural rules not specifically required by the Constitution or the
Congress." Hasting, 461 U.S. at 505 (quotation marks and citation
omitted). "The purposes underlying use of the supervisory powers are
threefold: to implement a remedy for violation of recognized rights; to
preserve judicial integrity by ensuring that a conviction rests on
appropriate considerations validly before the jury; and finally, as a
remedy designed to deter illegal conduct." Id. (citations omitted).
In their totality, Awadallah's allegations might require this Court to
exercise its supervisory power. Awadallah may be able to prove that he
was unlawfully arrested, unlawfully searched, abused by law enforcement
officials while in prison, denied access to his lawyer and family, and
denied an acceptable diet. In addition, his grand jury testimony may have
had an illegitimate purpose and may have been
conducted under unusually harsh conditions — testifying while shackled
to a chair.
All of this occurred while Awadallah was held as a material witness
— not as a defendant accused of criminal conduct. Even putting to
one side the other allegations previously mentioned, Awadallah's
twenty-day detention deserves further scrutiny because the government may
have failed to comply with the statute that grants it the authority to
detain a material witness. Section 3144 provides in pertinent part:
No material witness may be detained because of
inability to comply with any condition of release if
the testimony of such witness can adequately be
secured by deposition, and if further detention is not
necessary to prevent a failure of justice. Release of
a material witness may be delayed for a reasonable
period of time until the deposition of the witness can
be taken pursuant to the Federal Rules of Criminal
18 U.S.C. § 3144 (emphasis added). Under the plain language of the
statute, the government must show why the witness should not be
released, with or without the taking of his deposition.*fn36 The record
as developed thus far shows no indication that the government attempted
to take Awadallah's deposition or offered to explain why it would not
have been feasible — even though Awadallah's counsel made the offer
to have Awadallah deposed. See 9/25/01 Det. Tr. at 52. A hearing is
therefore required to determine whether such efforts were made or the
reasons why they were not.
In sum, whether Awadallah's allegations are true and whether the
resulting grand jury testimony may now be used against him is a question
that must be considered.
VII. REMAINING MOTIONS THAT DO NOT REQUIRE A HEARING
Awadallah has made two final motions should this case proceed to trial.
First, he claims that the perjury counts are duplicative and, therefore,
the second one should be dismissed.
Second, he argues that certain material from the Indictment should be
stricken as highly prejudicial and inflammatory.
A. Are the Perjury Counts Duplicative?
Awadallah claims that the allegedly false statements underlying Count
Two, which charges that he lied about his handwriting in the exam
booklet, are "immaterial, and . . . a redundant and duplicative
repetition of what is alleged in Count One." Berman Aff. ¶ 32. The
contention that the allegedly false statements are immaterial is a
question of fact for the jury to decide. See Johnson v. United States,
520 U.S. 461, 465 (1997); see also Leonard B. Sand et al., Modern Federal
Jury Instructions (Criminal), Inst. 48-10 and comment and Inst. 48-24. In
contrast, the claim that the charges are duplicative may serve as a
ground for dismissing Count Two.
When the proof required to convict on one count "necessitate[s] the
establishment of different facts," the charges are not multiplicitous.
United States v. Doulin, 538 F.2d 466, 471 (2d Cir. 1976). In this case,
to prove defendant's guilt on Count Two, a jury would be required to find
that Awadallah wrote all of the words in his
exam booklet. Because such proof is not required to prove defendant's guilt
on Count One, the counts may not be dismissed on the ground that they are
B. Motion to Strike Surplusage
Awadallah moves to strike, as surplusage, certain material contained in
the "Background" section of the Indictment because it is highly
prejudicial and inflammatory. Defendant argues that this material has no
probative value whatsoever and it will inflame the jury's passion. See
Berman Aff. ¶ 33. The government responds that courts should not
"tamper with indictments" and should only strike allegations that "are
not relevant to the crime charged and are inflammatory and prejudicial."
Gov't Mem. at 57 (quoting United States v. Bin Laden, 91 F. Supp.2d 600,
621 (S.D.N.Y. 2000) and United States v. Mulder, 273 F.3d 91, 99 (2d Cir.
First, Awadallah seeks to strike almost all of the "Background" section
of the Indictment, which explains the initiation of a federal grand jury
investigation into the terrorist attacks of September 11, 2001. See
Berman Aff. ¶ 35. Because the Government bears the burden of proving
the materiality of defendant's allegedly false statements, the background
of the grand jury's investigation is relevant to the charge and is not
surplusage. See United States v. Carey, 152 F. Supp.2d 415, 429
(S.D.N.Y. 2001) ("Without discussing the purpose of the various
interrogations, it would be impossible to determine whether [the
defendant's] allegedly false testimony was material.").
Awadallah's other two requests have more merit. He asks the Court to
strike the references to three videotapes found in his car and to certain
computer-generated photographs found in his apartment, both of which are
found at paragraph six of the Indictment. Two of the videotapes concern
the 1993 war in Bosnia and the other concerns the Koran. The photographs
are of Osama bin Laden. It is beyond cavil that this material is highly
inflammatory when our country is currently engaged in a war against
terrorism in Afghanistan, a prime purpose of which is to arrest Osama bin
Laden. Moreover, the material has no relevance to the narrow perjury
charges of this Indictment.
The government has not specifically addressed this material. Rather, it
asserts the general proposition that the information known to the grand
jury at the time defendant testified is relevant to the charges. See
Gov't Mem. at 57-58. The trial jurors, however, have no power to upset
the grand jury's decision to return an indictment and they need not pass
on whether the grand jury had sufficient information before it to warrant
the return of an indictment. Thus, as a general proposition, the trial
jury does not need to know all of the information that was before the
grand jury at the time defendant testified.*fn38 Because the challenged
material is not relevant to the crime charged, and it is inflammatory and
prejudicial, it is hereby stricken.
1. The motion to dismiss the Indictment on the ground of
recantation is denied.
2. The motion to dismiss the Indictment on the ground
that the government violated the Vienna Convention on
Consular Relations is denied.
3. The motion to dismiss the Indictment on the ground
that the government interfered with defendant's
right to counsel is denied.
4. Defendant's motion to dismiss the second count of
perjury as duplicative is denied.
5. Defendant's motion to strike portions of the
Indictment as surplusage is denied in part and granted
6. Defendant's motion for a suppression hearing is
7. Defendant's motions to dismiss the Indictment for
violations of due process as well as under this Court's
supervisory power is reserved until after the hearing.
A suppression hearing is scheduled for February 15, 2002, at 10:00 a.m.