The opinion of the court was delivered by: Shira A. Scheindlin, U.S. District Judge
It would indeed be ironic if, in the name of national
defense, we would sanction the subversion of one of
those liberties . . . which makes the defense of the
Designed in 1787 to create a strong federal government, the United
States Constitution now stands as the oldest living written constitution
in the world. Yet, when the Constitution was presented to the states for
ratification, the people viewed it as fundamentally flawed because it
failed to provide them protection from the government. Experience had
taught them that government officials would be prone to disregard civil
liberties in pursuit of their own goals. "Vivid in the memory of the
newly independent Americans," for example, "were those general warrants
known as writs of assistance under which officers of the Crown had so
bedeviled the colonists." Stanford v. Texas, 379 U.S. 476, 481 (1965).
Those general warrants were viewed "as the worst instrument of arbitrary
power, the most destructive of English liberty, and the fundamental
principles of law, that ever was found in an English law book, because
they placed the liberty of every man in the hands of every petty
officer." Id. (quotation marks omitted).
As a result, in December 1791, the Bill of Rights became "the supreme
Law of the Land." U.S. Const. art. VI cl. 2. The Fourth Amendment
U.S. Const. amend. IV. "These words are precise and clear. They reflect
the determination of those who wrote the Bill of Rights that the people
of this new Nation should forever `be secure in their persons, houses,
papers, and effects' from intrusion and seizure by officers acting under
the unbridled authority of a general warrant." Stanford, 379 U.S. at 481
On Friday, September 21, 2001, FBI agents in California arrested Osama
Awadallah as a material witness for a grand jury investigation of the
September 11th terrorist attacks.*fn1 Approximately three hours later,
an affidavit in support of an application for Awadallah's arrest under
section 3144 was submitted to a judge of this Court by an FBI agent and a
warrant was issued. Over the next twenty days, Awadallah was treated as a
high-security inmate, detained in various prisons across the country.
Awadallah was eventually flown to New York, where he was kept in solitary
confinement and shackled and strip-searched whenever he left his cell. He
was unable to have family visits or use the telephone because the prison
had no operating telephones and was on a high security alert prohibiting
socail visits. Awadallah was held as a material witness in a
grand jury investigation; he was not arrested based on probable cause to
believe that he had committed any crime.
The other rule that cross-references section 3144 also relates to
procedures in contemplations of a trial. Rule 15 states:
Fed. R. Crim. P. 15(a) (emphasis added). This Rule falls under the
general section of the Federal Rules entitled "Arraignment and
Preparation For Trial," and specifically refers to a prospective witness
of a party" which must be "taken and preserved for use at trial." Id.
There is no mention, whatsoever, of grand jury witnesses. Meanwhile, the
only Rule of Criminal Procedure that explicitly applies to the grand
jury, Rule 6 makes no mention of section 3144 or how and when courts may
detain grand jury witnesses.
3. The Statutory Scheme of The Bail Reform Act of 1984
Senate Hearings at 24 (emphasis added).
Indeed, all references
to the material witness statute indicate that members of Congress
and witnesses were solely focused on the problem of how to assure
the appearance of individuals in court or for a trial.
is not a single discussion about grand jury investigations.
The only reference to a grand jury in the legislative history is
contained in a scathing paper submitted to the Senate which argued "there
have been enough abuses of [material] witnesses . . . to make the matter
a serious one." Parle T. Blake et al., The Treatment of a Material
Witness in Criminal Proceedings, Senate Hearings at 302. In providing
"background," the paper stated:
Id. at 302 (citing People ex rel. Van Der Beek v. McCloskey,
238 N.Y.S.2d 676 (1st Dep't 1963) for the proposition that courts have
held that a "criminal proceeding" could include grand jury
Far from an endorsement, however, the paper argued that the material
witness statutes were constitutionally unsound. See id. at 300 ("It is
strange that a system of laws such as ours which exalts personal right
and individual liberties should even permit the incarceration . . . of
one who is not even suspected of having violated those laws."). After
discussing the prolonged detention of witnesses in prisons, the denial of
counsel and the lack of an appeal, see id. at 304-05, the paper
concluded: "The only entirely satisfactory reform of the present system
would be for every State and the Federal Government to return to the more
rational and equitable common law rule and require release of all
material witnesses on their personal recognizance." Id. at 306. "Should
such a sweeping reform prove too revolutionary, there are other
improvements which, although less satisfactory, nevertheless recommend
themselves highly." Id. Such improvement included: "[W]here the accused
is not known or has not been apprehended the witness should never be
detained, especially where he is the complaining witness." Id. at 307
Given that the legislative history of the Bail Reform Act of 1966 only
condones the detention of material witness pending trial, it is not
surprising that commentary published prior to the Act reflects an
understanding of the problems raised by detaining innocent people as
material witnesses only in this context. See Joshua Casula & Morgan
Dowd, "The Plight of the Detained Material Witness," 7 Cath. U. L. Rev.
37, 37 (1958) ("Until recently the material witness who had been detained
in jail awaiting trial has received little or no consideration.")
(emphasis added); id. ("The inability of the state to produce a witness
at the trial. . . may often be fatal to the case. To ensure the presence
of the witness, states have adopted. detention until trial if the
recognizance cannot be met.") (emphasis added); Robert O. Coyle,
"Confining Material Witnesses in Criminal Cases," 20 Wash. & Lee L. Rev.
164, 164 (1963) ("Since the presence of a particular material witness may
be essential to the prosecution of a criminal case, some means must be
used to assure his attendance at the trial . . . . [T]he prosecution may
ask for his confinement or at least his giving of a bond. Then the
appropriate court will be confronted with the question of when a material
witness may be confined to await trial . . . .") (emphasis added);
Maximiliam Koessler, "Arrest as Material Witness," 69 Case & Comment 28,
30 (1964) ("It has been said that statutes conferring the power to arrest
a person as a material witness be justified by necessity, and are a means
reasonably to secure the appearance of key witnesses at criminal
trials.") (emphasis added). Indeed, one commentator referred to the rule
used in federal courts by stating:
Roger A. Lowenstein, "Detention of Material Witnesses in Criminal Cases,"
2 Harv. C.R.-C.L. L. Rev. 115, 118 (1966-67) (quoting United States v.
Durling, 25 Fed. Cas. 944 (No. 15010) (N.D. Ill. 1869)) (first two
emphases in original, last two emphases added).
Commentary published after the passage of section 3149 continued to
discuss the detention of material witnesses in the same vein: "Implicitly
the requirement of bail or detention assumes, either expressly or
covertly, that a subpoena backed by the threat of imprisonment for
contempt is inadequate to guarantee the attendance of a witness at
trial." Comment, "Pretrial Detention of Witnesses," 117 U. Pa. L. Rev.
700, 700 (1969) (emphasis added). See also Ronald L. Carlson, "Jailing
the Innocent: The Plight of the Material Witness," 55 Iowa L. Rev. 1, 5
(1969) ("Although the new federal law does not eliminate the possibility
that witnesses to federal crimes will be deprived of their freedom, it
does signal a shift in emphasis and contains significant provisions
designed to restrict pre-trial incarceration. . . .") (emphasis added);
id. at 15 ("Some of the courts approving detention of witnesses have
urged that if witnesses without funds were exempt from imprisonment until
trial, there would be nothing to insure the attendance of the witness
when required.") (emphasis added); Daniel W. Henry, "The Wetback as
Material Witness: Pretrial Detention or Deposition?" 7 Cal. W. L. Rev.
175, 180 (1970) ("In considering the advisability of incarceration of
witnesses in general, pending trial of the defendant, many arguments both
for and against such procedure may be made . . . . [including] [t]he
witness' presence at trial is essential `to prevent a failure of
justice.'") (quoting 18 U.S.C. § 3146) (emphasis added); Ronald L.
Carlson and Mark S. Voelpel, "Material Witness and Material Injustice,"
58 Wash. U. L.Q. 1, 9 (1980) ("The material witness detention process has
not always been used for its intended purpose — to secure live
testimony for trial.") (emphasis added).
3. The Bail Reform Act of 1984
In 1984, Congress amended the material witness statute by replacing
section 3149 with section 3144 (the current statute) as part of the
Comprehensive Crime Control Act of 1984, Pub. L. 98-473, 98 Stat. 1976
(1984). The statute was amended as follows:
Compare 18 U.S.C. § 3144 (1984) with 18 U.S.C. § 3149 (1966).
"The provisions for material witnesses in the Bail Reform Act of 1984,
18 U.S.C.A. § 3144, are not significantly different from those in the
prior statute." Charles A. Wright, 3A Fed. Prac. & Proc. Crim. 2d ("Wright
& Miller Treatise ") § 776 (2002 pocket part). In fact, according to
the published legislative history, "[t]his section carries forward, with
two significant changes, current 18 U.S.C. [§] 3149 which concerns
the release of a material witness." S. Rep. No. 98-225, at 28 (1983),
reprinted in 1984 U.S.C.C.A.N. 3182, 3211 (emphasis added). "The first
change in current law is that, in providing that a material witness is to
be treated in accordance with section 3142, section 3144 would permit the
judicial officer to order the detention of the witness if there were no
conditions of release that would assure his appearance." Id. "This cured
the ambiguous language in the repealed statute which required the
conditional release of the witness in the same manner as a defendant
awaiting trial." "Material Witness Detention," 40 Wayne L. Rev, at 1538
n. 32 (emphasis added). See also 18 U.S.C. § 3149 (1966) (stating "a
judicial officer shall impose conditions of release pursuant to section
3146 . . . .") (emphasis added). "The other change . . . [was] to grant
the judicial officer not only the authority to set release conditions for
a detained material witness . . . but to authorize the arrest of the
witness in the first instance." 1984 U.S.C.C.A.N. at 3211. "To cure this
ambiguity," the Senate Committee "added to section 3144 (the successor to
18 U.S.C. [§] 3149) specific language authorizing the judge to order
the arrest of a material witness." Id. at 3212.
C. Conflicting Authority — Bacon v. United States
The Ninth Circuit's decision in Bacon v. United States, 449 F.2d 933
(9th Cir. 1971), is the only authority for the proposition that the
material witness statute permits a court to detain a witness for the
purpose of testifying before a grand jury.*fn22 Not surprisingly, the
government cites Bacon seven times for the proposition that its arrest of
Awadallah was lawful. See Gov't Mem. at 54, 61, 63 n. 63, 65 n. 65, 77
n. 69; Reply Mem. at 19, 22. However, Bacon does not determine the
outcome in this case for three reasons: (1) Bacon's holding is not
binding on this Court; (2) the propositions relied on by the government
are clearly dicta; and (3) Bacon is wrong.
1. The Facts and Holding of Bacon
The pertinent facts and outcome of Bacon are straightforward. "On April
22, 1971, the United States Attorney for the Western District of
Washington swore out a material witness complaint" before the district
court. Bacon, 449 F.2d at 934. The complaint alleged that Leslie Bacon
"had personal knowledge of matters material to a grand jury investigation
and that a subpoena would be ineffective in
securing her presence." Id.
"Relying solely on that complaint," the district court "issued an order
commanding the United States Marshal to arrest Bacon and to transport her
to Seattle in his custody unless she posted bail of $100,000.00." Id. at
934-35. On April 27, FBI agents "transferred [Bacon] to the custody of
the United States Marshal in lieu of bond in the amount set by the
[district court]." Id. at 935. Bacon subsequently filed a petition for a
writ of habeas corpus challenging the detention, which the district court
denied. See id.
On appeal, the Ninth Circuit reversed. "Such an arrest as we have
here," the Ninth Circuit stated, "has no history of judicial or public
acceptance." Id. at 942. The court concluded that the "writ was
erroneously denied" because there was no showing of "probable cause" to
support the finding that "Bacon could not practicably be brought before
the grand jury by a subpoena." Id. at 945. Accordingly, the court
reversed the order "with directions to quash the warrant of arrest,
including the order fixing bail." Id.
2. Bacon's Discussion of Detention Under the Material Witness Statute
Bacon is remarkable for its unnecessary discussion — much of
which is confused if not tortured — about whether grand jury
witnesses may be lawfully detained. Bacon had argued that "the government
has no power to assure the attendance of grand jury witnesses by arrest
and detention before disobedience of a subpoena." Id. at 936. First, she
claimed that neither section 3149 nor Rule 46 expressly granted to the
court the power to arrest or detain a witness because they only provided
for a witness' release. See Bacon, 449 F.2d at 939; see also
18 U.S.C. § 3149 (1966) ("a judicial officer shall impose conditions
of release . . . .") (emphasis added). Second, although "[b]oth §
3149 and Rule 46(b) apply expressly to `any criminal proceeding,'" Bacon
argued "that a grand jury investigation is not a "criminal proceeding'"
and therefore she could not be detained for having information allegedly
pertinent to a grand jury investigation. Bacon, 449 F.2d at 939. Third,
"Bacon further claim[ed] that arrest and detention of material
witnesses, not suspected of wrongdoing, is forbidden by the
Constitution." Id. at 941.
The court rejected each of these arguments and granted the petition on
another ground. Thus, all of Bacon's discussion as to the applicability
of the material witness statute to grand juries was unnecessary to the
court's holding and therefore dicta. See, e.g., United States v.
Henderson, 961 F.2d 880, 882 (9th Cir. 1992) (defining dicta as language
that is "unnecessary to [the court's] holding").*fn23
3. The Problems with Bacon's Statutory Interpretation
Careful scrutiny of the panel's statutory interpretation in Bacon
that it is fundamentally flawed for a simple reason: A court may
not rewrite legislation. The only job of a court is to interpret a
statute as it is written and assess its constitutionality. Under our
Constitution, it is the legislature that weighs the policy concerns for
and against enacting certain laws, which courts then construe and apply.
"While the judicial function in construing legislation is not a
mechanical process from which judgment is excluded, it is nevertheless
very different from the legislative function." Addison v. Holly Hill
Fruit Products, Inc., 322 U.S. 607, 618 (1944). "Construction is not
legislation and must avoid `that retrospective expansion of meaning which
properly deserves the stigma of judicial legislation.'" Id. (quoting
Kirschbaum Co. v. Walling, 316 U.S. 517, 522 (1942). The court in Bacon
disregarded this fundamental principle.
(a) The Power to Arrest or Detain a Witness
The Bacon court began its analysis by noting that neither section 3149
nor Rule 46(b) expressly granted the power to arrest or detain a material
witness. See Bacon, 449 F.2d at 937. Nonetheless, the court looked to the
"legislative history of the Bail Reform Act of 1966" as well as the "the
legislative and statutory history of Rule 46(b)" to "support the
proposition that a power to arrest should be implied." Id. at 937-38. It
reasoned that, because "[t]he uninterrupted existence from 1789 to 1948
of legislative authority to arrest and detain material witnesses does not
appear to have been broken" by subsequent statutory developments, "a grant
of power to arrest material witnesses can fairly be inferred from Rule
46(b) and from § 3149 as well." Id. at 937.
(b) "Criminal Proceeding"
In response to Bacon's argument "that a grand jury investigation is not
a `criminal proceeding'" under section 3149 and Rule 46(b), the court
disregarded the plain language and legislative history of the statute to
extend the material witness statute to grand jury proceedings. Id. at
939. To begin, the court noted that "the term `criminal proceeding,'
absent a clear context, is ambiguous." Id. This observation is
unremarkable, and it is only to be expected that "[a]mong the courts that
have wrestled with its meaning in various contexts, there is a division
of opinion as to whether grand jury investigations are included [as part
of "criminal proceedings"]." Bacon, 449 F.2d at 939 (citing United States
v. Thompson, 319 F.2d 665, 668 (2d Cir. 1963) (collecting cases))
(emphasis added). See also supra note 11.
But Bacon was paying lip service to the theory that words take their
meaning from their context, because the court never actually examined the
context of section 3149 or Rule 46(a). Instead, the court analyzed
section 3771 of Title 18 and held that "the Statutory authorization for
the Rules extends to the promulgation of rules governing the grand jury."
Bacon, 449 F.2d at 940. Having stated this self-evident proposition, the
court went on to explain that "[t]here remains the question whether the
Supreme Court has exercised to the fullest the authority granted. The
Rules themselves indicate that the Court did." Bacon, 449 F.2d at 940.
The court based this conclusion on the fact that:
Rule 2 states that "[t]hese rules are intended to
provide for the just determination of every criminal
proceeding." (Emphasis added.) Rule 6 authorizes the
summoning of grand juries and establishes procedures
to govern their operation, thereby evidencing the
Court's belief that grand jury investigations are
criminal proceedings properly cognizable by the Rules
of Criminal Procedure. Finally, Rule 17, which governs
the subpoena power in criminal proceedings, was
clearly intended to apply not only to criminal trials
but to grand jury investigations as well.
Id. (alterations in original)
This reasoning is specious. Rule 2 does not define the phrase "criminal
proceeding" as it is used throughout the Rules of Criminal Procedure; nor
does it help determine whether a grand jury is (or is not) a proceeding
that necessarily comes before the initiation of a "criminal proceeding"
as used in Rule 46. Rule 6 may establish the procedures that control
grand jury proceedings, but this cuts against the court's argument that
Rule 46 should also apply to the summoning of grand jury witnesses. Rule
17 may apply to grand juries, but it does not mention "criminal
proceedings". Rather, it states: "A subpoena shall be issued by the clerk
under the seal of the court. It shall state the name of the court and the
title, if any, of the proceeding, and shall command each person to whom
it is directed to attend and give testimony at the time and place
specified therein." Fed. R. Crim. P. 17(a) (emphasis added).
Moreover, according to the logic of Bacon, if the term "criminal
proceeding" includes grand juries under Rules 2, 6 or 17, then the
reference to "criminal proceeding" in Rule 46 must also include grand
juries. That assumption is preposterous because it would lead to the
conclusion that all the Rules of Criminal Procedure, which "apply to all
criminal proceedings," Fed. R. Crim. P. 54, extend to grand juries.*fn24
The Bacon court next confronted the legislative history of Rule 46. The
court conceded that "the Advisory Committee Note to Rule 46(b) expressly
states that the Rule is `substantially a restatement of existing
[statutory] law.'" Bacon, 449 F.2d at 940. The former material witness
statute, 28 U.S.C. § 659, stated:
Any judge of the United States, on the application
of a district attorney, and on being satisfied by
proof that the testimony of any person is competent
and will be necessary on the trial of any criminal
proceeding in which the United States are parties
or are interested, may compel such person to give
recognizance, with or without sureties, at his
discretion, to appear to testify therein . .
28 U.S.C. § 659 (1928) (repealed 1948) (emphasis added).
However, the court was "unable to accept" the legislative history
because it "should . . . be hesitant to say that the Supreme Court
intended Rule 46(b) to be so designed that federal law-enforcement
agencies can be frustrated by the flight of a prospective witness whose
testimony is indispensable to the securing of an indictment." Bacon, 449
F.2d at 940 (emphasis added). When there is clear evidence about the
intent of the drafters, there is no reason to be "hesitant" as to what
the drafters intended. Id. (recognizing that the Advisory Committee Note
"expressly states that the Rule is `substantially a restatement of
existing law'") (emphasis added). The court's concern about the
"indispensable" nature of witness testimony to the grand jury is
irrelevant. "Whatever merits these and other policy arguments may have,
it is not the province of [the courts] to rewrite the statute [or Rules]
to accommodate them." Artuz v.
Bennett, 531 U.S. 4, 10 (2000).
To further support its decision to ignore the clear intent of
Congress, the court insisted that "the disavowal by the Advisory
Committee of any intent to alter existing law does not foreclose a
consideration of what they did in fact." Bacon, 449 F.2d at 940.
However, this approach to statutory construction — namely, the text
of a statute always trumps legislative intent — is only applicable
if a statute has a plain meaning. See Caminetti v. United States,
242 U.S. 470, 485 (1917) ("It is elementary that the meaning of a statute
must, in the first instance, be sought in the language in which the act
is framed, and if that is plain . . . the sole function of the courts is
to enforce it according to its terms."). But, having insisted that the
ambiguity in the statute required an examination of legislative history,
the court should not have then turned around and ignored that
Given its poor reasoning, Bacon's conclusion that Rule 46 allows courts
to detain witnesses for grand jury investigations deserves no respect.
Indeed, its conclusion is particularly troubling because the court never
mentioned section 3149, the statute under which Bacon was arrested.
(c) The Constitutional Question in Bacon
After judicially expanding the reach of the material witness statute,
the Bacon court turned to the constitutionality of the statute. Faced
with the "claim that arrest and detention of material witnesses, not
suspected of wrongdoing, is forbidden by the Constitution," the court
ducked the issue. Bacon, 449 F.2d at 941. "[Bacon] does not . . . cite us
to any provision of the Constitution which supports her claim, nor does
she refer to any case authority."*fn26 Id. "Because this issue has been
presented in a perfunctory manner, without adequate
briefing and argument, we decline to rule upon it at this time."
Whether a statute survives constitutional scrutiny cannot be brushed
aside because of insufficient briefing. Determining whether a statute is
constitutional is not only the exclusive province of the courts, it is
also their exclusive duty. See Marbury v. Madison, 5 U.S. (1 Cranch)
137, 177 (1803). Indeed, in Marbury, the Supreme Court held that a
statute was unconstitutional, even though the issue was not raised by the
parties.*fn27 When cast in this light, the Bacon court abdicated its
judicial responsibility to assess the constitutionality of its own
interpretation of the statute.
In any event, the Bacon court was not as ignorant about the
Constitution as it claimed. On the same page of the opinion where the
court declined to address the constitutionality of the statute, the court
discussed the Fourth Amendment, the most obvious amendment that might be
violated. Bacon, 449 F.2d at 942 n. 7 ("The Supreme Court has held that
arrest of suspects by law enforcement officers are seizures of the person
within the meaning of the Fourth Amendment."). Because Leslie Bacon was
seized upon being arrested, the Fourth Amendment's mandate "against
unreasonable . . . seizures" was undoubtedly triggered. U.S. Const.
amend. IV (emphasis added). Yet, the reasonableness of imprisoning a
witness and transporting her across the country in order to facilitate a
grand jury investigation was completely ignored.
IV. AWADALLAH WAS UNLAWFULLY DETAINED AND HIS GRAND JURY TESTIMONY MUST
A. "Criminal Proceeding" Has a Plain Meaning in the Context of Section
"In U.S. Nat. Bank, the Supreme Court emphasized that it has over and
over . . . stressed that [i]n expounding a statute, [the court] must not
be guided by a single sentence or member of a sentence, but look to the
provisions of the whole law, and to its object and policy." Oregon v.
Ashcroft, 192 F. Supp. 2d 1077, 1088 (D. Or. 2002) 01 Civ. 1647, 2002 WL
562198, at *10 (D. Or. April 17, 2002) (quoting U.S. Nat. Bank of Or.
v. Indep. Ins. Agents, 508 U.S. 439, 455 (1993)) (quotation
marks omitted). When construed in context, the phrase "criminal proceeding"
in section 3144 could not be clearer: Section 3144 only allows the detention
of material witnesses in the pretrial (as opposed to the grand jury)
context. Detaining Awadallah solely for the purposes of a grand jury
investigations was therefore unlawful.
B. Interpreting Section 3144 to Include Grand Juries Raises a Serious
Even if the statute could be interpreted, in the alternative, to
include grand jury investigations, cardinal rules of statutory
construction would preclude this Court from adopting such a
constitutionally precarious interpretation. As the Supreme Court has
explained: "[I]f an otherwise acceptable construction of a statute
would raise serious constitutional problems, and where an alternative
interpretation of the statute is `fairly possible,' [courts] are
obligated to construe the statute to avoid such problems." INS v. St.
Cyr, 533 U.S. 289, 299-300 (2001) (citations omitted). "This cardinal
principle has . . . for so long been applied by [our courts] that it is
beyond debate." Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and
Constr. Trades Council, 485 U.S. 568, 575 (1988) (citations omitted).
Imprisoning a material witness for a grand jury investigation raises a
serious constitutional question under the Fourth Amendment, which
prohibits "unreasonable . . . seizures." U.S. Const. amend. IV. Because
imprisonment constitutes a seizure, a key question is whether detaining
grand jury witnesses is constitutional:
To determine the constitutionality of a seizure we
must balance the nature and quality of the intrusion
on the individual's Fourth Amendment interests against
the importance of the governmental interests alleged
to justify the intrusion. We have described the
balancing of competing interests as the key principle
of the Fourth Amendment. Because one of the factors is
the extent of the intrusion, it is plain that
reasonableness depends on not only when a seizure is
made, but also how it is carried out.
Tennessee v. Garner,
, 8 (1985) (citations and quotation marks
omitted) (emphasis added).
The only legitimate reason to detain a grand jury witness is to aid in
"an ex parte investigation to determine whether a crime has been
committed and whether criminal proceedings should be instituted against
any person."*fn28 United States v. Calandra, 414 U.S. 338, 343-44
(1974). "Such an investigation may be triggered by tips, rumors, evidence
proffered by the prosecutor, or the personal knowledge of the grand
jurors." Branzburg, 408 U.S. at 701. But even when such detentions might
be useful, it must be balanced against a witness's fundamental right to
liberty. As the Rhode Island Supreme Court explained when discussing a
material witness who had been unlawfully detained:
Quince v. State, 179 A.2d 485, 487 (R.I. 1962).
The grand jury already has the ability to ask a court to subpoena an
individual who must then testify or face criminal sanctions. See Fed. R.
Crim. P. 17. While this infringes on an individual's liberty, it is
nonetheless a reasonable measure to secure information about a potential
crime because the extent of the intrusion on the witness's liberty is
minimal. A subpoenaed witness, for example, would not be repeatedly
strip-searched, shackled whenever he is moved, denied food that complies
with his religious needs, or prohibited from seeing or even calling his
family over the course of twenty days and then testifying while
handcuffed to a chair.
Indeed, the need to respect individual liberty was a major concern of
legislators who drafted the material witness statute. After many years of
studying the issue, Congress attempted to strike a reasonable balance
among the three competing interests that are at stake when a defendant is
prosecuted: Society's interest in enforcing the law, a defendant's Sixth
Amendment right to confront the witnesses against him, and a witness's
liberty interest. See Comment, "Pretrial Detention of Witnesses," 117 U.
Pa. L. Rev, at 702-03. In Congress's view, a reasonable balance was to
require that "[n]o 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 . . ." 18 U.S.C. § 3144. This
solution allows the prosecution to obtain testimony for use at trial,
permits the defendant to confront the witness as the Constitution
requires, and only intrudes on the witness's liberty for the time that is
necessary to obtain his testimony.
The government vigorously argues that the deposition provision of
section 3144 cannot apply to grand jury proceedings. See Gov't Mem. at
66-68. For example, while depositions require that both the prosecution
and defense counsel be present, counsel for the target or the witness are
prohibited from being in the grand jury room during the witness's
testimony. See Fed. R. Crim. P. 6(d). Likewise, while Rule 15 requires
"the taking of depositions on notice to the opposing party [,] no such
`opposing party' exists until criminal charges against a defendant have
been filed." Gov't Mem. at 67. Although the government's explanation of
Rule 15 is correct, its interpretation of section 3144 is not. The
inapplicability of Rule 15 to grand jury proceedings only means that
interpreting section 3144 to cover grand jury investigations would
eviscerate the limitation that Congress carefully placed upon the
government's power to detain uncharged witnesses.
Moreover, the government's interpretation of section 3144 would
contradict well-established Supreme Court precedent. In Terry v. Ohio,
392 U.S. 1 (1968), the Supreme Court considered the question of how far
law enforcement officers could intrude on a person's liberty given their
interest in "effective crime prevention and detection," the same
interests that underlie grand jury investigations. Id. at 22.
Investigating criminal behavior is a government interest and, as Terry
explains, this interest may justify a temporary seizure. But the Court
emphasized that the detention must be "reasonably related in scope to the
circumstances which justified the interference in the first place." Id.
at 20. In order to be deemed a reasonable seizure, as the Fourth
Amendment requires, "[t]he scope of the detention must be carefully
tailored to its underlying justification." Florida v. Royer,
460 U.S. 491,
501 (1983) (emphasis added). "In our society liberty is the norm, and
detention . . . without trial is the carefully limited exception." United
States v. Salerno, 481 U.S. 739, 755 (1987) (emphasis added). A review of
the legislative history of the Bail Reform Acts of 1966 and 1984 shows
that when Congress enacted both of those laws there was "careful
delineation of the circumstances under which detention [would] be
permitted. . . ." Id. at 750. The imprisonment of Awadallah as a
high-security inmate for twenty days illustrates that the limitations in
section 3144 are meaningless if the statute applies to grand jury
witnesses. Such an interpretation poses the threat of making detention
the norm and liberty the exception.*fn29
If Congress chooses to enact a law that permits the detention of a
witness material to a grand jury investigation, the law will undoubtedly
reflect the same level of deliberation and Congressional concern for
balancing the government's interest in grand jury proceedings against a
person's liberty interest. If such a law is enacted, the only role of the
courts will be to interpret the statute as it is written and determine
whether it survives constitutional scrutiny. But section 3144 is not that
Courts have a "traditional responsibility to guard against [government]
conduct which is over-bearing or harassing, or which trenches upon
personal security . . . ." Terry, 392 U.S. at 15. "When such conduct is
identified, it must be condemned by the judiciary and
its fruits must be
excluded from evidence in criminal trials." Id. See also Awadallah II,
2002 WL 123478, at *25. Awadallah's testimony before the grand jury was
undoubtedly the product of an unlawful seizure because the government
lacked the statutory authority to detain him under section 3144.*fn30
1. The Government's Argument
The government argues that Awadallah's grand jury testimony should not
be suppressed because "[it] is not causally connected to his arrest on
the material witness warrant." Gov't Mem. at 83. According to the
government, "`[our] cases make clear that evidence will not be excluded
as `fruit' unless the illegality is at least the `but for' cause of the
discovery of the evidence.'" Id. (quoting Segura v. United States,
468 U.S. 796, 815 (1984)). The prosecution asserts that its conduct was
not the "but for" cause of Awadallah's testimony because "[a]ssuming that
the Government had not sought a material witness warrant, Awadallah still
would have been served with a subpoena to appear before the grand jury in
New York, and would have been questioned on the same subjects." Gov't
Mem. at 83.
The government misses the point. In Segura, the Court held that, where
the police initially conducted an illegal search and then subsequently
searched the same area pursuant to a valid warrant, the "independent
source" doctrine permits the admission of evidence discovered for the
first time during the second (lawful) search. 468 U.S. at 804. In doing
so, the Court explained that "the exclusionary rule reaches not only
primary evidence obtained as a direct result of an illegal search or
seizure, but also evidence later discovered and found to be derivative of
an illegality or "fruit of the poisonous tree. Id. (quoting Nardone v.
United States, 308 U.S. 338, 341 (1939)) (emphasis added) (citation
"[I]n the classic independent source situation, information which is
received through an illegal source is considered to be cleanly obtained
when it arrives through an independent source." Murray v. United States,
487 U.S. 533, 539 (1988) (quoting United States v. Silvestri, 787 F.2d 736,
739 (1st Cir. 1986)). Here, there was no "independent source" through
which Awadallah's grand jury testimony was, in fact, obtained. Because
Awadallah's testimony was obtained as a direct result of his unlawful
detainment, rather than from any independent source, it must be
2. Inevitable Discovery Doctrine
The "inevitable discovery doctrine" is similarly unavailing. "The
inevitable discovery doctrine allows evidence procured as a result of an
illegal [seizure] to be introduced if `the prosecution can establish by a
preponderance of the evidence that the information ultimately or
inevitably would have been discovered by lawful means.'" United States
62 F.3d 470, 472 (2d Cir. 1995) (quoting Nix v. Williams,
467 U.S. 431, 444 (1984)). This argument fails for two reasons.
First, the Second Circuit has indicated that the inevitable discovery
exception does not apply when the government took no steps to obtain the
evidence through lawful means. See id. ("[T]he extent of completion [in
obtaining a lawful warrant] relates directly to the question of whether a
warrant would in fact have issued . . . ."); United States v. Roberts,
852 F.2d 671 (2d Cir. 1988) ("The government contends that it inevitably
would have discovered the documents under a subpoena that it had issued
several months before the search of the premises. The mere fact that the
government serves a subpoena, however, does not mean that it will obtain
the documents it requests.").*fn31 In this case, the government never
took any steps at any time to secure a subpoena requiring Awadallah to
testify before the grand jury.
Second, while the doctrine of inevitable discovery may apply in the
context of physical evidence, it makes little sense to apply it to
statements that are obtained while the defendant is unlawfully seized.
See Brewer v. Williams, 430 U.S. 387, 407 n. 12 (1977) ("While neither
[the defendant's] incriminating statements themselves [obtained during an
unlawful interrogation] nor any testimony describing his having led the
police to the victim's body can constitutionally be admitted into
evidence, evidence of where the body was found and of its condition might
well be admissible on the theory that the body would have been discovered
in any event, even had incriminating statements not been elicited from
[the defendant].") (emphasis added). "The doctrine of inevitable
discovery allows for the admission of evidence derived from a defendant's
unconstitutional inculpatory statement, provided that the evidence would
inevitably have been discovered by independent legal means." United
States v. Polanco, 93 F.3d 555, 561 (9th Cir. 1996) (emphasis in
original) "The inevitable discovery doctrine does not, however, allow
admission of the unconstitutional inculpatory statement itself." Id.
The rationale behind this distinction is self-evident. Absent
intentional spoliation, physical evidence is tangible and fixed. While it
is movable, it is not transmutable. The same can never be said of
statements. "A tangible object is hard evidence, and absent its removal
will remain where left until discovered. In contrast, a statement not yet
made is, by its very nature, evanescent and ephemeral. Should the
conditions under which it was made change, even but a little, there could
be no assurance the statement would be the same." United States v.
Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir. 1998) (holding that
statements acquired as a result of an illegal stop were not admissible
under inevitable discovery doctrine).
Indeed, the distinction between physical evidence and statements is
particularly relevant in this case. While it is true that had Awadallah
not been arrested he could have been subpoenaed to appear in the grand
jury, and it is also true that he might well have been asked the same
questions by the prosecutors, it cannot be said that he would have given
testimony. No one will ever know how Awadallah would have
testified had he been subpoenaed rather than imprisoned.
If Awadallah had been subpoenaed, he would have testified at liberty
and not after twenty days in custody. Nor would he have been required to
testify while handcuffed to a chair. He would have had continued access
to counsel during the time between service of the subpoena and his
appearance before the grand jury. He might have consulted with more than
one counsel. He might have discussed the matter with family, friends, or
even his teacher, Ms. Pollack. He might have reviewed the examination
booklet. Indeed, while legally insufficient to rise to the level of
recantation, he corrected his alleged perjured testimony on October 15,
2001, after having the opportunity to review the examination booklet.
Moreover, Awadallah would have been well-fed and well-rested,
well-prepared and probably less frightened.
The assumption that his testimony before the grand jury would have
"inevitably" produced the same testimony is raw speculation. The
"inevitable discovery" doctrine is not based on speculation and is
therefore inapplicable. Accordingly, the grand jury testimony must be
If the government has probable cause to believe a person has committed
a crime, it may arrest that person. Indeed, if the government suspects a
person may have committed a crime, regardless of the reasons that motivate
that suspicion, it may use all of its resources to confirm that suspicion
by gathering evidence to establish probable cause that the person
committed a crime.
But since 1789, no Congress has granted the government the authority to
imprison an innocent person in order to guarantee that he will testify
before a grand jury conducting a criminal investigation.*fn32 A proper
respect for the laws that Congress does enact — as well as the
inalienable right to liberty — prohibits this Court from rewriting
the law, no matter how exigent the circumstances.
Because Awadallah was unlawfully detained, his grand jury testimony
must be suppressed. The indictment is therefore dismissed.