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United States v. Siraj

March 29, 2006


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


Defendant Shahawar Matin Siraj is charged with conspiracy to commit various offenses, arising from an alleged plot to bomb the New York City subway station at 34th Street in Manhattan. After he was arrested, defendant gave a statement to the government confessing to his role in the plot. On August 19, 2005, defendant moved to suppress his confession, arguing that it was obtained in violation of his rights under the Fifth and Sixth Amendments of the U.S. Constitution and under Miranda v. Arizona, 384 U.S. 436 (1966). A suppression hearing was held on January 24, and 25, and February 23, 2006. At the hearing, the government presented the testimony of Detective Michael O'Brien of the New York City Police Department and of Special Agent Robert L. Herrmann of the Federal Bureau of Investigation. Defendant presented his own testimony and that of Mona Shah, Esq. The following constitute my findings of fact and conclusions of law.


Defendant is an immigrant from Pakistan who, at the relevant time, was twenty-two years old*fn1 and lived with his parents in Queens, New York. On August 27, 2004, at approximately 3:00 p.m., in Bay Ridge, Brooklyn, defendant was walking from the Islamic bookstore where he worked to the 68th Precinct to obtain a document dismissing a pending state misdemeanor charge,*fn2 when he was arrested by NYPD Detectives Michael O'Brien and Robert Murphy. In executing the arrest, Detective O'Brien drew his weapon, pointed it at defendant, and told him not to move and to put his hands up. Defendant complied, and Detective Murphy searched and handcuffed defendant and informed him he was being placed under arrest.

Defendant testified that he was shocked and stressed that he was arrested because he believed that he was being arrested in connection with the state misdemeanor charge, and he was expecting to have that charge dropped. Detective O'Brien informed defendant that they could not talk to him regarding why he was being arrested. Defendant then asked to make a phone call. Detective O'Brien responded that defendant would be informed as to why he was being arrested, advised of his constitutional rights, and allowed to make a phone call, after they arrived at his office in Manhattan. During the approximately hour-long drive to the FBI office, defendant repeatedly asked why he was being arrested, and the detectives answered, in accordance with the instructions they had received from their supervisors, that they could not talk to him, but that someone would talk to him when they arrived at the office. The detectives did not advise defendant of his Miranda rights or ask him any questions at any time while transporting him to the office. However, defendant testified that he understood from the time of his arrest that he had the right to remain silent and that anything he said could be used against him. Defendant never asked to call a lawyer.

At approximately 4:00 p.m., they arrived at the FBI office, and defendant was placed in an empty room on the ninth floor. Detective O'Brien gave defendant, who had been fasting, water and let him use the bathroom. Defendant's request to call his parents was refused. Approximately twenty minutes later, Detective O'Brien took him to another room on the eighth floor, where defendant remained seated for about two hours. Although defendant testified he had to wait thirty minutes to use the bathroom, the credible evidence established that, while on the eighth floor, Detective O'Brien again gave defendant water and took him to the bathroom. Defendant was handcuffed while in the eighth-floor room, but his handcuffs were loosened when he complained that they were too tight. Defendant periodically asked Detective O'Brien what was going on; and the detective responded that he could not talk to him about the case, but that someone would talk to him shortly.

Sometime around 4:30 p.m., Special Agent Herrmann and Detective Joseph Nugent of the NYPD went into the eighth-floor room and told defendant that he should not say anything and that he should just listen. Detective Nugent then told defendant, "you need to tell the truth." When defendant tried to interrupt him, Detective Nugent told him, "don't say anything, just think about it." Special Agent Herrmann and Detective Nugent then left the room. Defendant's requests to call his mother were again refused. He never asked to speak to a lawyer.

At approximately 6:20 p.m., Detective O'Brien moved defendant to a small interview room on the ninth floor. Approximately ten minutes later, defendant was moved to a larger room, where he sat at one end of a six-foot conference table in the middle of the room. Two Assistant United States Attorneys were on defendant's right-hand side, and at the opposite end of the table was Detective Steve Andrews, an NYPD intelligence detective. Also present in the room were Detective Nugent and Special Agent Herrmann. According to standard procedure, defendant was uncuffed during the interview.

Before beginning the interview, the Assistants introduced themselves to defendant as "federal prosecutors from the United States Attorney's Office," and the detectives and the agent introduced themselves. Defendant's testimony that, upon being introduced to the Assistants, he believed one of the Assistants was his attorney is not credited.*fn3

After the introductions were made, one of the Assistants told defendant that he had been arrested for his involvement in the subway bombing plot. When defendant tried to speak, the Assistant stopped him so that he could be read his rights. Special Agent Herrmann then told defendant, "[b]efore we ask you any questions, you must understand your rights," and he proceeded to advise defendant of his Miranda rights. The agent read defendant his rights verbatim from an FBI advice of rights form, which states:

You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have a right to have a lawyer with you during questioning. If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.*fn4

Special Agent Herrmann's notes on the advice of rights form indicate that he read defendant his rights at 6:27 p.m. As Special Agent Herrmann was reading defendant his Miranda rights, he was glancing up at defendant, and defendant was nodding as if he understood what the agent was saying. Special Agent Herrmann then asked defendant whether he understood his rights, and, as defendant himself testified, defendant replied that he did. Defendant specifically testified that he knew about his right to remain silent, and he knew what that right meant. Special Agent Herrmann then gave defendant the advice of rights form, told defendant to read it to himself, to take his time, and to feel free to ask any questions. Defendant looked over the form for a couple of minutes and said that he understood everything. Defendant testified that he had no problem reading English. Special Agent Herrmann asked defendant whether he had any questions, and defendant replied that he did not.

After Special Agent Herrmann had advised defendant of his Miranda rights, he directed defendant to read the last sentence on the form, which was the only sentence the agent had not read to defendant. That sentence reads: "I have read this statement of my rights and I understand what my rights are. At this time I am willing to answer questions without a lawyer present." Special Agent Herrmann asked defendant, "Do you understand what that means? Do you understand your rights that are above the sentence? And you agree to talk to us at this time without your lawyer present?" Defendant's testimony that, although he was given an opportunity to read the Miranda form, he did not look at it closely, is not credited. The credible testimony established that he was indeed given an opportunity to read the Miranda form, and it is undisputed that defendant signed beneath the waiver clause. Indeed, defendant was eager to talk, and he never told any of the officers present that he wanted a lawyer or that he did not understand his Miranda rights.

After defendant was advised of his rights and signed the waiver form, he was interviewed by the Assistants for approximately two hours. Detective Nugent also asked a few questions. When defendant admittedly did not answer the government's questions truthfully, he was confronted with video and audio recordings, whereupon he gave truthful answers. While being questioned, defendant spoke fluent English. Defendant never indicated that he did not want to talk or that he had any trouble understanding what anyone was saying to him. During the course of the interview, no one ever yelled or raised his voice at ...

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