interviews he had with the agents prior to his arrest, and therefore that
all such statements should be suppressed because they were obtained in
violation of his constitutional right to remain silent.
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court
enumerated a set of warnings required to be given to suspects prior to
the commencement of custodial interrogation. The Court defined "custodial
interrogation" to mean situations in which a person being questioned "has
been taken into custody or otherwise deprived of his freedom of action in
any significant way." Id. at 444. In order to assess the custodial
quality of an interrogation for Miranda purposes, the Court "must
consider `the circumstances surrounding the interrogation; and . . .
given those circumstances, would a reasonable person have felt he or she
was not at liberty to terminate the interrogation and leave.'" United
States v. Romaszko, 253 F.3d 757, 760 (2d Cir. 2001) (quoting Thompson
v. Keohane, 516 U.S. 99 (1995)).
With these considerations in mind, the Court finds no evidence here
that the FBI's interviews of Al-Marri were conducted in a hostile or
custodial atmosphere, and further finds that the agents did not create
the impression that Al-Marri was unable to terminate the interview at
will and leave. It is undisputed that Al-Marri's first discussion with
Zambeck and Brown on October 2, 2001 was friendly and
nonconfrontational. Indeed, Al-Marri's rapport with the agents was strong
enough that he contacted Zambeck the next day to provide further
information. (Tr. at 27-28.) Consequently, it is logical to assume that
when the agents returned to speak to Al-Marri two months later, without
any other contact having occurred in the interim, there was no reason for
Al-Marri to feel threatened by their appearance at his doorstep.
The agents testified that the second conversation at Al-Marri's home
was also friendly, and that they asked Al-Marri to accompany them to the
FBI office in order to further clarify his answers to some of the
questions they asked him in October. (Tr. at 33-34.) As opposed to being
rushed to the FBI office, Al-Marri was allowed first to change his
clothes and pray. (Tr. at 44.) At no time was Al-Marri handcuffed. The
agents never drew their weapons, and Al-Marri rode in the front seat with
one of the agents. (Tr. at 12, 46.) The interview room at the FBI office
did not lock from the inside, allowing Al-Marri to leave at any time
during the interview. (Tr. at 47-48.)
These details do not indicate that Al-Marri was being forcibly held or
restrained in his freedom of movement. While the interview eventually
became more contentious at one point later in the evening, (Tr. at
103-04), the fact that Al-Marri voluntarily went back to the FBI office
the next morning demonstrates that Al-Marri was not being held in a
situation against his will. These facts persuade this Court that a
reasonable person would not have understood either of the two interviews
of Al-Marri to be a "custodial" experience, and thus, any statements
provided prior to Al-Marri being arrested and read his Miranda rights
should not be suppressed.
E. MOTION TO DISMISS INDICTMENT
Al-Marri argues that his indictment should be dismissed in its entirety
because his detention as a material witness was illegal, and that it was
during this illegal detention that the Government built its case against
him. Without addressing the still-debated question of the function of
the material witness statute, (compare United States v. Awadallah,
202 F. Supp.2d 55 (S.D.N.Y. 2002) with In re the Application of the
United States for a Material Witness Warrant, No. 01 M. 1750 (MBM)
(2002)), this Court finds that the question of whether or not Al-Marri's
detention under the material witness statute was legal is irrelevant to
the matter at hand. The pertinent evidence that forms the crux of the
Government's case was seized from Al-Marri before his arrest on December
12, and thus this evidence cannot be considered the fruit of unlawful
police conduct. See Segura v. United States, 468 U.S. 796, 815 (1984)
("[O]ur 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.") Moreover, Al-Marri is no longer being held as a material
witness — he has been charged with a federal crime for which the
Government has put forth sufficient evidence to secure an indictment.
Thus, Al-Marri's motion to dismiss the indictment is denied.
For the reasons set forth above, it is hereby ORDERED that Al-Marri's
pre-trial motion to: (i) suppress evidence pursuant to F.R.C.P. 12(b)(3);
(ii) compel additional discovery pursuant to F.R.C.P. 12(b)(4); and (iii)
dismiss the indictment in its entirety, is DENIED.