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United States v. Awan

November 6, 2006

UNITED STATES OF AMERICA
v.
KHALID AWAN, DEFENDANT.



The opinion of the court was delivered by: Sifton, Senior Judge

MEMORANDUM OPINION AND ORDER

On October 30, 2006, defendant, Khalid Awan entered a plea of not guilty in response to a superseding indictment charging him with (1) one count of conspiring to provide material support and resources, knowing and intending that such support would be used in preparation for and in carrying out a conspiracy to murder, kidnap or maim a person or persons outside of the United States, in violation of 18 U.S.C. § 2339(A) and 18 U.S.C. § 956(a), (2) one count of actually providing material support and resources, knowing and intending that such support would be used in preparation for and in carrying out a conspiracy to murder, kidnap or maim a person or persons outside of the United States, in violation of 18 U.S.C. § 2339(A) and 18 U.S.C. § 956(a), and (3) one count of knowingly and intentionally transporting, transmitting and transferring monetary instruments and funds from a place in the United States to a place outside the United States, with the intention of promoting an offense against a foreign nation, involving murder and destruction of property by means of explosive or fire in violation of 18 U.S.C. § 1956(c)(7)(B)(ii). Now before the Court are defendant's motions (1) to suppress evidence and*fn1 (2) to suppress statements. A hearing was held on this motion on September 18, 2006. On the basis of the findings of fact and conclusions of law and for the reasons set forth below, defendant's motions to suppress evidence and statements are denied.

BACKGROUND

Initial Arrest and Collection of Physical Evidence

On October 25, 2001, FBI agents conducting an investigation into the events of September 11, 2001 arrested Khalid Awan at a house in Garden City, New York on a charge of credit card fraud. During the course of that arrest, defendant signed a consent to search at the request of Agent Anthony Jackson for the Garden City location. When it became apparent to the agents that the defendant might be staying at a house in Floral Park, New York, owned by Iftikhar Mian, who was present at the Garden City residence at the time of defendant's arrest but was not himself arrested, Agent Jackson requested and received defendant's verbal consent to search any of his personal property found there. Agents then followed Mian to the house at 38 Whitney Place, Floral Park, New York, and, after obtaining Mian's written consent to a search, found several bags belonging to defendant pointed out by Mian. The bags were thereafter removed from the Floral Park residence and brought to the F.B.I. office where defendant, having waived his Miranda rights, was undergoing questioning. Defendant was then presented with a written consent to search the bags found at the Floral Park house, which he signed. The bags were then searched.

As a result of the search of the bags the government has in its custody and intends to offer into evidence at trial (1) credit cards and ID cards in the name of Khalid Awan; and (2) a CD labeled "Khalid Awan Document Copies." The prosecution also intends to offer a document entitled, "United States Department of Justice, Federal Bureau of Investigation, receipt of Property Received," dated October 25, 2001, listing property taken from the residence at Floral Park. No search warrant was obtained prior to the search of the Floral Park residence.*fn2

Material Witness Warrant and Credit Card Fraud

Subsequent to his initial arrest, defendant was held for a period of time pursuant to a material witness warrant in connection with an investigation concerning the events of September 11, 2001. On November 6, 2001 defendant testified in front of a federal grand jury as a material witness. However, he was not thereafter released from custody, but continued to be held in connection with the charge of credit card fraud. On November 14, 2001 defendant was arraigned on that charge before United States Magistrate Judge Lindsey in this District. At the conclusion of that proceeding, defendant was ordered detained pending trial.

Defendant thereafter retained counsel to handle his criminal case. He was indicted on credit card fraud charges on December 4, 2001; a superseding indictment was filed on May 7, 2002. On March 17, 2003 defendant pleaded guilty to one count of credit card fraud in violation of 18 U.S.C. § 1029. Defendant was sentenced on October 28, 2004 to sixty months incarceration. A judgment of conviction reflecting that sentence was entered on November 8, 2004.

Defendant's Incarceration and Statements

During May 2004, defendant was being held at the Metropolitan Detention Center ("MDC") in Brooklyn, New York. Defendant there encountered Harjit Singh, another inmate who was awaiting sentencing. During their conversations, defendant told Harjit Singh that he knew a Pakistani terrorist named Paramjit Singh Panjwar ("Panjwar") leader of the Khalistan Commando Force ("KCF"), a Sikh terrorist organization which had conducted violent attacks against people and property in India. Harjit Singh brought these conversations to the attention of the FBI. To corroborate Harjit Singh's reports, between May 14 and May 16, 2004 the FBI arranged for Harjit Singh and defendant to be placed together in the detention facility and directed Harjit Singh to engage in recorded conversations with defendant, which he did. Thereafter, on November 10, 2004, inmate Alejandro Gonzalez-Lupi initiated and engaged in recorded conversations with defendant at the direction of the government at the federal prison in Allenwood, Pennsylvania. On neither occasion was defendant informed of the fact that the prisoners were cooperating with law enforcement.

On January 27, 2006 defendant, then serving his federal prison sentence in Allenwood, was transferred to the MDC pursuant to a subpoena to testify at grand jury hearings which led to the current indictment. On February 17, 2006, defendant was brought to the U.S. Attorney's Office for a pre-grand jury interview with FBI agents and investigators with the U.S. Attorney's Office; the interview was conducted by Investigator John Ross. At the U.S. Attorney's Office, defendant was given Miranda warnings in English and Urdu and signed waivers, agreeing to answer questions without an attorney present. At some point during the interview agents played a tape of defendant speaking with Panjwar and informed him that he was the target of an investigation regarding his association with a terrorist group in India. At the end of the interview, the government indicated that they would like to speak with defendant again and defendant agreed.*fn3 On February 20, 2006 defendant was brought back to the same office. He again signed Miranda waivers and the government continued the interview.

The Current Indictment

Defendant was scheduled to be released from his 2004 sentence in March, 2006. However, on March 8, 2006 he was again indicted. A superseding indictment was filed August 1, 2006 and a second superseding indictment filed October 23, 2006. The three-count indictment second superseding reads as follows:

Count One:

In or about and between 1998 and February 2005, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendant KHALID AWAN, together with others, did knowingly and intentionally conspire to provide material support and resources, to wit: currency, monetary instruments, financial services and personnel, knowing and intending that they were to be used in preparation for, and in carrying out, a conspiracy to commit at a place outside the United States an act that would constitute the offense of murder, kidnapping or maiming ...


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