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U.S. v. PARACHA

August 24, 2004.

U.S.
v.
UZAIR PARACHA Defendant.



The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION AND ORDER

Uzair Paracha, a Pakistani citizen, was indicted by a grand jury in November 2003 and charged with, inter alia, providing material support to a terrorist organization in violation of 18 U.S.C. § 2339B. Paracha moved pursuant to Rule 12(b)(3)(C) of the Federal Rules of Criminal Procedure to suppress certain oral statements he made from March 28-30, 2003 during interviews with members of the Joint Terrorism Taskforce and to suppress items seized during a search of his belongings at his residence in Brooklyn in the early morning of March 29, 2003. He contends that his oral statements should be excluded because they were obtained involuntarily and in violation of his Fifth Amendment right not to incriminate himself. Paracha also seeks exclusion of the evidence seized during the search of his belongings as fruits of an unreasonable search because his consent to that search had been obtained involuntarily.

A factual hearing was held on this motion on May 10 and 11, 2004, at which time FBI Special Agent Janelle Miller, New York Police Department ("NYPD") Detective Thomas Fitzgerald, retired NYPD Detective Brendan Finn, and FBI Special Agent Anthony Bivona testified for the government. Those individuals were all members of the Joint Terrorism Taskforce (the "Joint Taskforce"), a collaborative effort between the FBI, the NYPD, and other agencies. The defense also called Agent Miller to testify on its case. After reviewing the evidence presented at the suppression hearing and for the reasons set forth below, Paracha's motion is denied.

  BACKGROUND:

  The following facts are either not in dispute or accepted as credible witness testimony from the suppression hearing.

  Paracha entered the United States in early February 2003, after graduating from a business college in Pakistan, and resided in Brooklyn with members of his extended family His father Saiffulah Paracha is a businessman in Pakistan and is also a part owner of Chanco Buying Agents, a trading company with an office in midtown Manhattan. After he arrived in New York, Paracha worked in the Chanco office from time to time.

  On Friday, March 28, 2003, Agent Miller received notification that Paracha and his father might have information relating to the terrorist network known as Al Qaeda, the focus of Agent Miller's unit. (Transcript of Suppression Hearing at 7:9-25). As part of a preliminary investigation, she and other Joint Taskforce agents discovered Paracha's link to Chanco and proceeded to pursue that. (Id. at 8:1-15) In the late afternoon, Agent Miller and Detective Fitzgerald met the co-owner and manager of Chanco, Charles Anteby, at his residence in Brooklyn and sought information on how to get in contact with Paracha. (Id. at 9:7-10:14) They were told that Paracha's contact information was in Chanco's office and decided to go there with Anteby.

  Shortly after Agent Miller and Detective Fitzgerald arrived at Chanco's office, they found out that Paracha was there as were several other Joint Taskforce agents who had just arrived as well. (Tr. at 204:1-8) Miller and Fitzgerald approached Paracha and asked to speak with him. (Id. at 11:5-13:12) He agreed and was interviewed for approximately 45 minutes in a room inside Chanco's office. The topics addressed during that interview included Paracha's background and his business in the United States. (Id. at 13:18-15:17)

  Detective Fitzgerald then asked Paracha if he would be willing to continue the interview in the FBI office instead of Chanco's office. (Tr. at 143:2-6) Paracha agreed to that request as well and was driven to the FBI office in downtown Manhattan in a government vehicle with Miller and Fitzgerald. (Id.) Upon arriving at the FBI office, Paracha was taken to an interview room, where he was told to wait for the agents. (Id. at 144:12-18) While Paracha was waiting, a member of the Joint Taskforce was posted in or immediately outside the interview room. This was, according to Agent Miller, pursuant to standard Joint Taskforce regulations regarding the presence of non-FBI personnel inside the FBI office. (Id. at 19:1-8)

  After consulting briefly with their supervisors, Miller and Fitzgerald resumed their interview with Paracha at approximately 8 p.m. After further questions about Paracha's business in the United States, the interview focused on his interaction with an individual named Majid Khan, also known as "Adnan," before Paracha left Pakistan to come to the United States. (Tr. at 21:22-26:8) Paracha stated that he had accepted certain documents from Khan or "Adnan" and agreed to help Khan carry out a personal errand and that those papers were kept with Paracha's other belongings in Brooklyn. (Id.) At some point in the early stage of that interview, when neither Miller nor Fitzgerald was in the interview room with Paracha, Miller overheard Paracha asking a Joint Taskforce agent "if he needed a lawyer?" (Id. at 82:9-12) The record does not reveal, however, what response Paracha was given to that question.

  About midnight — after the interview had gone on for approximately four hours — Paracha was asked whether he would permit the Joint Taskforce to search his belongings in his residence in Brooklyn. (Tr. at 26:10-21) Once again, he consented. After Agent Miller read him the contents of a standard FBI "Consent to Search" form, he signed that form. (Id.) Paracha also provided the key to his residence to Agent Miller. (Id. at 30:5-17)

  A group of Joint Taskforce agents were dispatched to conduct the search. (Tr. at 21:21-26:8) While those agents were in transit, the interview continued and dealt with Paracha's intended assistance to Khan as well as Saiffulah Paracha's political beliefs and activities. (Id. at 36:8-37:18) After the agents arrived at Paracha's residence, they requested Paracha to call his house in order to ensure "that [Joint Taskforce agents] would not scare anybody if [they went] in." (Id. at 34:3-12) He obliged. After the search was conducted, Paracha and Miller were informed that two bags had been located and the items belonging to Khan, which Paracha had described as being there, were found in those bags. (Id. at 34:13-19)

  Approximately one hour after the search had concluded, Paracha told Agent Miller that he wanted to revoke his consent. (Tr. at 34:20-36:7) Miller explained, in essence, that it was too late to revoke consent because the items had already been found and seized. (Id.) Also around that time, Paracha again asked the question, addressed directly to Miller this time, if he "should get a lawyer." (Id. at 38:22-39:9) Miller told Paracha that it was he, and not Miller or any other agent, who must make that decision. (Id.) Miller then tried to explain the consequences of obtaining a lawyer — telling Paracha that if he were under arrest and had requested counsel, then she and other government agents would not be able to speak to him outside the presence of counsel. (Id. at 39:1-9) Paracha did not further pursue this line of questions and the interview concluded at approximately 4 a.m. (Id. at 40:2-11)

  At the conclusion of the interview, Miller and Fitzgerald asked Paracha if he would be willing to stay in a hotel room arranged for by the Joint Taskforce, in order "to continue the conversation." (Tr. at 40:5-41:21) Paracha agreed and a room was found for him in a nearby hotel. (Id.) Miller and Fitzgerald then left Paracha with two other Taskforce members, Detectives Finn and Ward, who took Paracha to his hotel room. (Id. at 113:10-117:5) Those detectives remained in the room while Paracha slept. According to Detective Finn, it was standard Joint Taskforce procedure to have an agent accompany a witness in a hotel room for ensuring the safety and continuing cooperation of that witness. (Id.)

  Paracha was escorted back to the FBI office at around 2 p.m. on Saturday, March 29, 2003 by Joint Taskforce members. (Tr. at 42:7-44:15) While waiting for the interview to begin, Paracha inadvertently activated an alarm. (Id. at 45:10-46:2) The interview resumed at about 4 p.m., after the agents were able to shut off the alarm. (Id.)

  Miller then read the FBI's "advice of rights" form to Paracha. (Tr. at 45:10-19) This was the first time that Paracha was informed of his rights under Miranda v. Arizona, which include "the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires prior to commencing custodial interrogation." See id., 384 U.S. 436, 478-79 (1966). Agent Miller explained that although Paracha had been advised of his rights, he was not being placed under arrest and that the information was provided for his protection. (Id. at 46:7-47:12) After Paracha signed the advice of rights form,*fn1 the interview continued and focused on Paracha's interaction with Khan as well as certain investments his father had accepted from members of Al Qaeda. (Id. at 53:1-57:14) During a break in the interview at approximately 5:15 p.m., Agent Miller left the interview room to go to the office of the United States Attorney, where she helped an Assistant United States Attorney prepare a material witness warrant for Paracha's arrest pursuant to 18 U.S.C. § 3144. (Tr. at 98:17-22, 99:5-13) That warrant was signed by a judge of this Court at approximately 7 p.m. (Id.) It was not immediately served upon Paracha, however. Instead, after his interview concluded on Saturday evening at approximately 9 p.m., Paracha once again agreed to stay in a hotel room arranged by the Joint Taskforce. (Id. at 57:15-23)

  Paracha's interview with Miller and Fitzgerald resumed at approximately 10 a.m. on Sunday, March 30. (Tr. at 58:13-60:7) The interview went on for approximately four hours and explored Paracha's interaction with Khan and his knowledge about Khan's background. (Id. at 60:23-61:1) After it concluded in the early afternoon, Paracha was again taken to a hotel room by Joint Taskforce agents. (Id. at 61:2-13) The ...


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