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U.S. v. AL-MARRI

November 12, 2002

UNITED STATES OF AMERICA,
V.
ALI SALEH KAHLAH AL-MARRI, DEFENDANT



The opinion of the court was delivered by: VICTOR Marrero, United States District Judge

DECISION AND ORDER

Defendant Ali Al-Marri ("Al-Marri") is charged with unauthorized possession of access devices with intent to defraud in violation of 18 U.S.C. § 1029 (a)(3). Before the Court is Al-Marri's motion (the "Motion") to: (i) suppress evidence pursuant to Federal Rule of Criminal Procedure ("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. The Government opposes the Motion. On September 5, 2002, the Court conducted a suppression hearing and heard oral argument on the Motion with regard to exclusion of certain evidence that Al-Marri alleges was unlawfully seized. For the reasons set forth below, the Motion is DENIED.

I. BACKGROUND

In another case arising from the tragic events of September 11, 2001, this Court acknowledged the monumental challenges the courts will confront as the United States grapples to formulate an appropriate domestic response to the unique threats the nation has encountered in the wake of the terrorist attacks perpetrated on American soil. See United States v. Harrell, 207 F. Supp.2d 158, 161-62 (S.D.N.Y. 2002). This task, as the Court there noted, will test our ability to balance national security interests with the nation's profound reverence for order and freedom and its enduring defense of individual liberties. Thus, the Court is mindful that special times call for special vigilance, and bid us all to summon our best to function at higher grades of performance in the face of ever greater risks and larger stakes. Insofar as we do not exhaust our stores of courage and continue to pay unremitting respect to America's founding values, we honor the task, serve our traditions, and leave undiminished the legacy under which our nation has flourished over the years: that of freedom guaranteed and guarded by the rule of law.

Against these standards, the Court considers Al-Marri's challenge to the Government's conduct at issue here, to assess whether the Government has lived up to such heightened expectations in the case at bar. The Court is persuaded that the Government has met the test.

II. FACTS

Al-Marri arrived in the United States from Qatar on — September 10, 2001 to enroll in a graduate program in computer science at Bradley University in Illinois, from which he had received a bachelor's degree in 1991. In the wake of the September 11 attacks, the Federal Bureau of Investigation ("FBI") received calls reporting that Al-Marri may have been implicated in possible suspicious activity. In response, FBI agents visited Al-Marri twice at his home in Peoria, Illinois.

At the Court's September 5, 2002 evidentiary hearing on the Motion, Nicholas Zambeck ("Zambeck") and Robert Brown ("Brown"), the two FBI agents who conducted the interviews with Al-Marri and the search of his home and car, testified in person. They stated that during the first visit on October 2, 2001, they asked Al-Marri a series of questions concerning his background, travels, and eventual arrival in the United States. In addition, they inquired about a discrepancy between the date of birth he initially reported to Bradley University and the date he reported later on, asked about certain phone calls he made on his cellular phone, and questioned him as to why his social security number had been assigned to two other people. Al-Marri satisfactorily answered the agents' questions and consented to a search of his steamer trunk, which had been mentioned in one of the leads received by the FBI. The agents then ended the interview. Zambeck gave Al-Marri his business card with instructions to contact the Social Security office, resolve the confusion over his social security number, and then report back to Zambeck. The next day, Al-Marri contacted Zambeck to inform him that he had contacted the Social Security office and had resolved the issue. Zambeck independently confirmed this fact with the Social Security office.

Two months later, at about 4:00 p.m. on December 11, 2001, Zambeck and Brown returned to Al-Marri's home. At the door, Zambeck explained that they had additional questions regarding his date of birth and enrollment at Bradley. It is undisputed that the agents asked permission to enter Al-Marri's home and he agreed, but Al-Marri asked for a few minutes so he could move his wife, who was in an unveiled state and could not be viewed by men, into another part of the house. The agents allowed Al-Marri to do this, and then entered the house.

Once inside, the agents explained that they wanted to conduct the interview back at their office. They contend that Al-Marri agreed to this request. The agents then asked for permission to look around the house, to which they maintain Al-Marri consented. Al-Marri accompanied the agents as they conducted a search of the apartment room by room.

Upon seeing Al-Marri's laptop computer, which was located on a table in the master bedroom and turned on, the agents asked whether they could take it to their office "to take a look at it" because they did not have the skills nor the time to conduct such an examination at the house. According to the agents, Al-Marri agreed to this request, and proceeded to power the computer down. By the agents' account, as he turned the computer off, Al-Marri suggested that the agents carry the computer in his traveling carrying case. Al-Marri retrieved the case from a closet, placed the computer inside and handed it to the agents. On the table, the agents also saw several CDs and diskettes stored inside a container. They testified that they asked Al-Marri if they could take those as well and that Al-Marri agreed. In addition, the agents claimed that Al-Marri gave them permission to search his car, from which they seized additional items of evidence.

The agents then brought Al-Marri back to their office in order to question him further, and arrived at the office at approximately 4:30 p.m. They brought him to an unlocked interview room, offered him a refreshment, and began the interview by requesting that he sign a consent form indicating he had approved the search. Al-Marri declined to sign the form at that point, and asked the agents to set the form aside for the time being. Towards the end of the interview, the conversation grew contentious, and Zambeck reminded Al-Marri of the consequences of lying to an FBI agent. When the interview ended at approximately 10:00 p.m., the agents asked Al-Marri to return the next day to take a polygraph test to verify the information he had provided. Al-Marri agreed, and then was driven home by the agents. Before he left, Al-Marri asked Brown: "Do I get my computer back tonight?" Brown replied: "No, not tonight."

The next day, December 12, Al-Marri voluntarily returned to the FBI office for the polygraph test. He mentioned that he had spoken to either his lawyer or a representative from his country's embassy that morning. Once he arrived at the FBI office, he refused to take the polygraph test. Later that day, on orders of the United States Attorney for the Southern District of New York, Al-Marri was arrested as a material witness. He was held as a material witness until January 28, when the detention was dropped.

However, inspection of Al-Marri's computer and its carrying case, conducted from December 12 to December 23, revealed credit card numbers and other information and resources that, according to the Government charges, could be used to conduct credit card fraud. In examining the laptop, the FBI made several copies of the hard drive, analyzed the data on the computer to identify both current and deleted files, and scrutinized the internet search engine's bookmarks. These examinations revealed several files related to or — containing credit card numbers and expiration dates for those numbers, along with comments on whether such numbers were still valid. In addition, the FBI found bookmarks to several web sites that could be used to assist a person conducting credit card fraud.

The evidence taken from Al-Marri's computer, in conjunction with other information gathered by the FBI, led to Al-Marri's arrest on January 28, 2002 under an indictment charging Al-Marri with unauthorized possession of access devices with ...


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