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In re Terrorist Bombings of U.S. Embassies in East Africa

November 24, 2008

IN RE TERRORIST BOMBINGS OF U.S. EMBASSIES IN EAST AFRICA (FIFTH AMENDMENTCHALLENGES),
UNITED STATES OF AMERICA, APPELLEE,
v.
MOHAMED SADEEK ODEH, ALSO KNOWN AS ABU MOATH, ALSO KNOWN AS NOURELDINE, ALSO KNOWN AS MARWAN, ALSO KNOWN AS HYDAR, MOHAMED RASHED DAOUD AL-'OWHALI, ALSO KNOWN AS KHALID SALIM SALEH BIN RASHED, ALSO KNOWN AS MOATH, ALSO KNOWN AS ABDUL JABBAR-ALI ABEL-LATIF, WADIH EL HAGE ALSO KNOWN AS ABDUS SABBUR, DEFENDANTS-APPELLANTS, KHALFAN KHAMIS MOHAMED, ALSO KNOWN AS KHALFAN KHAMIS, DEFENDANT.



SYLLABUS BY THE COURT

Defendants appeal from judgments of conviction entered by the United States District Court for the Southern District of New York (Leonard B. Sand, Judge) following a jury trial in which they were found guilty of offenses arising from their involvement in an international conspiracy-led by Osama Bin Laden and organized through the al Qaeda terrorist network-to kill American citizens and destroy American facilities across the globe. Defendants-appellants Al-'Owhali and Odeh contend, inter alia, that certain inculpatory statements should have been suppressed from their trial primarily because they were obtained in violation of the Fifth Amendment. We see no merit in this challenge and affirm their convictions for the reasons stated in this opinion and in In re Terrorist Bombings of U.S. Embassies in East Africa, __ F.3d __ (2d Cir. 2008) filed today.

The opinion of the court was delivered by: JOSÉ A. Cabranes, Circuit Judge

Argued: December 10, 2007

Before: FEINBERG, NEWMAN, and CABRANES, Circuit Judges.

Defendants-appellants Mohamed Rashed Daoud Al-'Owhali and Mohamed Sadeek Odeh challenge their convictions in the United States District Court for the Southern District of New York (Leonard B. Sand, Judge) on numerous charges arising from their involvement in the August 7, 1998 bombings of the American Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania (the "August 7 bombings").*fn1 In this opinion we consider their challenges to the District Court's rulings that denied, for the most part, their respective motions to suppress statements each of them made overseas to U.S. and non-U.S. officials. Other challenges and those of their co-defendant, Wadih El-Hage, are considered in two separate opinions filed today, In re Terrorist Bombings of U.S. Embassies in East Africa, __ F.3d __ (2d Cir. 2008), and In re Terrorist Bombings of U.S. Embassies in East Africa (Fourth Amendment Challenges), __ F.3d __ (2d Cir. 2008).

Al-'Owhali and Odeh contend that neither the "Advice of Rights" form ("AOR") that they received nor the subsequent oral warnings of an Assistant United States Attorney ("AUSA") satisfied Miranda v. Arizona, 384 U.S. 436 (1966). In addition, Al-'Owhali asserts that the conditions of his confinement made his statements involuntary and therefore inadmissible under the Fifth Amendment.*fn2

He also contends that the District Court abused its discretion by withdrawing its initial grant of his suppression motion and holding further hearings pursuant to the government's application. For his part, Odeh claims that his Fifth and Sixth Amendment rights were violated when the District Court permitted him to withdraw his initial suppression motion and his attorneys failed to renew that motion promptly thereafter.

As explained in greater detail below, all of these claims lack merit. The AUSA's oral warnings fulfilled, and the AOR substantially complied with, the government's obligations, insofar as it had any, under Miranda, and the admission of Al-'Owhali's and Odeh's statements did not otherwise run afoul of the Fifth Amendment. The District Court's decision to conduct further hearings on Al-'Owhali's suppression motion was well within its discretion, as was its decision to grant, without prejudice to renewal, Odeh's application to withdraw his initial suppression motion. Accordingly, the District Court's resolution of Al-'Owhali's and Odeh's respective motions did not violate any of their constitutional rights.

I. BACKGROUND

A. Factual Overview

1. Al-'Owhali

Al-'Owhali was detained on August 12, 1998 by Kenyan authorities in "an arrest [that] was valid under Kenyan law." United States v. Bin Laden, 132 F. Supp. 2d 168, 173 (S.D.N.Y. 2001). Within one hour of his arrest, Al-'Owhali was transported to Kenyan police headquarters in Nairobi and interrogated by two members of the Joint Terrorist Task Force-an FBI Special Agent and a New York City police detective-operating out of New York City and two officers of Kenya's national police. Id. The New York police detective presented Al-'Owhali with an Advice of Rights form often used by U.S. law enforcement when operating overseas. The AOR, written in English, read in its entirety as follows:

We are representatives of the United States Government. Under our laws, you have certain rights. Before we ask you any questions, we want to be sure that you understand those rights. You do not have to speak to us or answer any questions. Even if you have already spoken to the Kenyan authorities, you do not have to speak to us now.

If you do speak with us, anything that you say may be used against you in a court in the United States or elsewhere.

In the United States, you would have the right to talk to a lawyer to get advice before we ask you any questions and you could have a lawyer with you during questioning. In the United States, if you could not afford a lawyer, one would be appointed for you, if you wish, before any questioning.

Because we are not in the United States, we cannot ensure that you will have a lawyer appointed for you before any questioning.

If you decide to speak with us now, without a lawyer present, you will still have the right to stop answering questions at any time.

You should also understand that if you decide not to speak with us, that fact cannot be used as evidence against you in a court in the United States.

I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

Id. at 173-74. Al-'Owhali told the American law enforcement agents that he could not read English and had a limited understanding of spoken English. Id. at 174. Accordingly, the police detective "read the AOR aloud in English, going slowly and checking for visual signs of comprehension. Al-'Owhali appeared to [the detective to] understand, replied that he understood when asked, and signed his alias at the bottom of the AOR in Arabic when requested to do so."*fn3 Id. A one-hour interrogation ensued, in which Al-'Owhali responded in "broken English." Id.

Finding their ability to communicate with Al-'Owhali limited by the end of that hour, the agents decided to continue Al-'Owhali's interrogation with the assistance of an interpreter. The special agent began this interview by reading the AOR in English, which the interpreter translated into Arabic. Id. Al-'Owhali stated that he "understood that the warning was the same one as from the morning session," "understood his rights as described therein," and "agreed to answer questions." Id. Al'Owhali was then interviewed for about three hours and, thereafter, was questioned on eight other days: August 13, 14, 17, and 21-25.*fn4 Id. At the start of each of the interviews on August 13, 14, 17 and 21, the agents showed Al-'Owhali the signed AOR, asked whether he remembered his rights, and whether he would continue to answer their questions. Id. at 175. Al-'Owhali consented on each occasion. Until August 21, he denied any involvement in the embassy bombings. Id.

During the August 21 interview, the U.S. agents described the inculpatory evidence they had gathered on Al-'Owhali, and "[a]fter acknowledging that the agents'knew everything,' Al-'Owhali said that he would tell the truth about his involvement in the bombing if he could be tried in the United States." Id. at 176. He explained that the reason he wanted to stand trial in the United States was "because the United States was his enemy, not Kenya." Id. The agents then terminated the interview in order to determine whether Al-'Owhali's request could be met. The next day, August 22, an AUSA, in the company of the two U.S. agents and two Kenyan police officers, provided Al-'Owhali with a document of understanding ("DOU"), approved by the U.S. Department of Justice, stating:

I... have been fully advised of my rights, including my right to remain silent and my right not to answer questions without a lawyer present. As I have been previously told, I understand that anything I say or have said can be used against me in court in the United States. I also understand that if I choose not to answer questions my refusal to answer questions cannot be held against me in court. I further understand that if I choose to answer questions, I can always change my mind and decide not to answer any further questions.

I understand that both Kenyan and American authorities are investigating the murder of the various American and Kenyan victims in and around the United States [E]mbassy in Nairobi.

I have a strong preference to have my case tried in an United States Court because America is my enemy and Kenya is not. I would like my past and present statements about what I have done and why I have done it to be aired in public in an American courtroom. I understand that the American authorities who are interviewing me want to know who committed the bombing of the embassy and how it was carried out.

I am willing to waive my rights and answer the questions of American authorities upon the condition that the undersigned law enforcement authorities make all best efforts to see that I am brought to the United States to stand trial. I understand that the undersigned prosecutor is only empowered to make recommendations to the Attorney General of the United States and other executive officials of the United States Government and I further understand that the United States Government only intends to act with the mutual agreement of the Kenyan government.

No other agreements or promises have been made other than as set forth in this document.

Id. at 176.

After being shown this document, but before it was read to him, Al-'Owhali indicated that "he might wish to have an attorney review the DOU to make sure it was enforceable." Id. In response, the AUSA, through a translator, advised Al-'Owhali of his Miranda rights, "recited entirely from [the AUSA's] memory of a domestic Miranda warning" and without "reference to the AOR utilized on the first day of interrogation." Id. Specifically, the AUSA informed Al-'Owhali: that he had the right to remain silent; that he had the right "to have an attorney present during this meeting;" that even if Al-'Owhali decided to talk he could always change his mind later; that Al-'Owhali's statements could be used against him in court, though the fact of his silence could not. AUSA [redacted] also said that he was an attorney for the U.S. government, not for Al-'Owhali. It was repeatedly stressed to Al-'Owhali that he was the "boss" at all times as to whether he wished to answer questions without a lawyer present.

Id. at 176-77 (redaction signal in original). The AUSA further explained that no American lawyer was available at that time in Kenya. Id. at 177. After Al-'Owhali stated that he understood his rights, the AUSA read the DOU to Al-'Owhali, through a translator, verifying after each paragraph that Al'Owhali understood the contents of the document. Id. Al-'Owhali did not "assert his rights" or object to any provision of the DOU except for the "uncertainty associated with [the paragraph indicating that U.S. officials would make] just a'recommendation' that he be brought to the United States." Id. The AUSA agreed to investigate the possibility of accommodating Al-'Owhali's request, and before exiting the room to consult with his superiors at the Department of Justice, verified (twice) that Al-'Owhali was willing to proceed without counsel. Id.

During the AUSA's absence, Al-'Owhali withdrew his request, stating that "he would be willing to talk even without a full guarantee because he trusted the U.S. officials to do the best they could to bring him to the United States." Id. The AUSA then returned to the interview room, verified again that Al-'Owhali was willing to proceed without counsel and, upon Al-'Owhali's request, handed him the DOU to sign. Id. Al-'Owhali signed the statement, after explaining that the document would have to be amended to include his true name and nationality. Id. He was then interrogated for the next three-and-a-half hours; after that, he was interrogated for three hours on August 23 and 24, and for nine hours on August 25. Id. During these interviews, Al-'Owhali admitted his participation in the bombing of the American Embassy in Nairobi. Id.

During the August 25 interrogation, Al-'Owhali claimed that he possessed "time-sensitive information regarding an issue of public safety" and would disclose this information only if he was guaranteed a trial in the United States rather than Kenya. Id. Accordingly, the AUSA, after obtaining the necessary approvals, prepared a second document of understanding ("second DOU"), which read:

I... have been fully advised of my rights, including my right to remain silent and my right not to answer questions without a lawyer present. As I have been previously told, I understand that anything I say or have said can be used against me in court in the United States. I also understand that if I choose not to answer questions my refusal to answer questions cannot be held against me in court. I further understand that if I choose to answer questions, I can always change my mind and decide not to answer any further questions.

I have answered a number of questions of the American authorities and have provided truthful information after initially providing incorrect information. However, I have also indicated that there is additional information that I have which I stated I would share with the United States authorities upon my arriving in America and obtaining an attorney. I have also indicated that the information concerns a public safety issue. Because I would otherwise not make this disclosure before arriving in the United States and speaking to an attorney, but because American authorities do not wish to take the risk that the delay concerning the information I intend to impart later will cause loss of life, it is hereby agreed that I will tell the United States authorities about this information prior to returning to America. In turn, the American authorities agree not to use the fact that I disclosed this particular information against me as evidence in the Government's case in chief if I should demand a trial of the charges that will be filed against me. I understand that the United States intends to pursue appropriate investigative leads based upon this information I am now agreeing to provide. I also understand that the United States is free to use any evidence gained in following up the investigative leads but will not advise any jury that hears my case of the fact that I revealed this particular information to the United States government, unless: (1) I testify falsely (or otherwise elicit false or misleading evidence or testimony) and revealing this fact will serve to correct false or misleading evidence; or (2) I request that the jury be advised of the fact that I disclosed this particular information and the Court overrules objection, if any, by the Government. The Government hereby agrees that if the Defendant is convicted, the Government will disclose the fact that I provided this information to the judge or jury determining or imposing sentence if requested to do so by the defendant. There is no promise that providing such information will affect my sentence.

No other agreements or promises have been made other than as set forth in this document and the prior agreement dated August 22, 1998.

I have decided to sign this document because I have been advised by the undersigned that I am now scheduled to be removed to the United States within the next 24 hours, travel conditions permitting, and the undersigned is aware of no objections from either the United States or Kenya governments to such removal.

Id. at 177-78. The AUSA read the second DOU to Al-'Owhali, through a translator, and then Al'Owhali signed it. Id. at 178. After the Kenyan police left the room, at Al-'Owhali's request, he disclosed the time-sensitive information to the U.S. agents. Id. The next morning, Al-'Owhali was flown from Kenya to the United States and, during the flight, was again advised of his Miranda rights. Al-'Owhali "stated that he knew his rights, signed the advice of rights form, and invoked his right to appointed counsel." Id.

2. Odeh

On August 7, 1998, Pakistani immigration officials detained Odeh, following his arrival at the Karachi airport on a flight from Kenya, on the ground that he used a false passport. United States v. Bin Laden, 132 F. Supp. 2d 198, 202 (S.D.N.Y. 2001). Odeh was held in Pakistani custody until August 14, during which time he was interrogated by Pakistani officials. Id. On August 14, Odeh was transported to Nairobi, Kenya, and transferred from Pakistani custody to Kenyan custody. Id. The next day, he was interrogated by two special agents of the FBI, an AUSA, and three Kenyan police officers. Id. at 203. Odeh communicated with his interrogators, without difficulty, entirely in English. Id. The U.S. officials explained to Odeh that whether or not he spoke with Pakistani authorities during his detention in Karachi had no bearing on his decision to speak to them. Id. "Thereafter, when Odeh raised the issue of his admissions to the Pakistani authorities, he was told that the Americans did not know or care about what had transpired in Pakistan." Id. One of the FBI special agents read Odeh an AOR similar in all material respects to the one read to Al-'Owhali:

We are representatives of the United States Government. Under our laws, you have certain rights. Before we ask you any questions, we want to be sure that you understand those rights. You do not have to speak to us or answer any questions. Even if you have already spoken to the Pakistani authorities, you do not have to speak to us now.

If you do speak with us, anything that you say may be used against you in a court in the United States or elsewhere.

In the United States, you would have the right to talk to a lawyer to get advice before we ask you any questions and you could have a lawyer with you during questioning. In the United States, if you could not afford a lawyer, one would be appointed for you, if you wish, before any questioning.

Because we are not in the United States, we cannot ensure that you will have a lawyer appointed for you before any questioning.

If you decide to speak with us now, without a lawyer present, you will still have the right to stop answering questions at any time.

You should also understand that if you decide not to speak with us, that fact cannot be used as evidence against you in a court in the United States.

I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

Id. As the FBI special agent read the AOR, Odeh asked about the availability of a lawyer but did not specifically request one. Id. After further discussion of the AOR and Odeh's willingness to speak to U.S. officials, the interview temporarily ceased so that the AUSA could investigate whether Kenyan counsel was available to Odeh. Id. at 204.

Believing that Odeh lacked financial resources, the AUSA inquired into the availability of appointed-but not privately retained-Kenyan counsel. Id. A "high-ranking" Kenyan law enforcement officer informed the AUSA that under Kenyan law, appointed counsel was not provided at the investigative stage and it was their "practice to continue questioning a person who requests an appointed attorney." Id. The AUSA informed Odeh of what he had learned from the Kenyan police officer, verified that Odeh had not already retained an attorney, and then orally informed him of his rights under Miranda:

Odeh was told that he had the right to remain silent and that invocation of the right to silence could not be used against him in court. He was also told that if he did speak to the American officials, statements that he made could be used against him. With respect to the right to counsel, AUSA [redacted] told Odeh that he was entitled to have an attorney present and to have an attorney appointed if he could not afford one. However, AUSA [redacted] informed Odeh that no American attorney was currently available to represent him in Kenya. AUSA [redacted] emphasized that Odeh was "the boss" with respect to answering questions without an attorney present.

Id. (redaction signals in original). The AUSA explained that Odeh could (1) exercise his right to remain silent; (2) invoke his right to have an attorney present, in which case the Americans would leave the room and he could then decide whether or not to speak with the Kenyan police; or (3) speak to both the American and Kenyan authorities without the presence of an attorney. Id. Odeh suggested a fourth possibility: "speaking with the American officials outside the presence of the Kenyans." Id. While the U.S. and Kenyan authorities were investigating the viability of Odeh's proposal, Odeh changed his mind and decided to speak to both the U.S. and Kenyan officials. Id. Odeh then signed the AOR. Id. Odeh never stated a desire to hire an attorney, and "[i]n fact, he asked the officials what would happen if he subsequently decided that he did not want to speak without a lawyer present." Id. In response, the AUSA "informed him that he always had the right to stop talking with the American officials." Id. at 204-05.

After signing the AOR on August 15, Odeh was interviewed for about seven hours. Id. During the interrogation the next day, the AUSA again informed Odeh that he had the right to the presence of an attorney at the interview, even though no American attorney was available, and that if Odeh wanted an attorney, the Americans would not interrogate him. Id. at 205. Odeh expressed his willingness to answer questions and did not request an attorney, but he did make inquiries into the status of property confiscated upon his arrest. Id. Odeh was interrogated on a daily basis from approximately 9:00 a.m. to 6:00 p.m. until he was taken to the United States on August 27, 1998. Id. During these sessions, "Odeh admitted that he was a member of al Qaeda but denied any participation in (or foreknowledge of) the embassy bombings." Id. When Odeh was transferred to American custody on August 27, he was given the standard Miranda warnings. Id.

B. Al-'Owhali's and Odeh's Pretrial Suppression Motions

On June 20, 2000, Odeh filed a motion to suppress, inter alia, statements that he made to U.S. officials in Kenya and to Pakistani law enforcement agents in Pakistan, on the grounds that the statements were made involuntarily and, with respect to the statements made to U.S. officials, pursuant to an inadequate Miranda warning.*fn5 See Bin Laden, 132 F. Supp. 2d at 201. In support of this motion, Odeh filed a sworn affidavit. Id. Shortly thereafter, Odeh expressed reservations about this motion in letters to the District Court and the government. Id. at 201 & n.3. In response, the District Court held a sealed and ex parte hearing on August 1, 2000 at which "it became clear that Odeh wished to withdraw his affidavit on grounds relating to his religious beliefs." Id. at 201. The District Court permitted Odeh to do so and "deem[ed] as similarly withdrawn the motion to suppress itself, but... granted [leave] for Odeh's counsel to renew the suppression motion in a way that did not rely on Odeh's own affidavit." Id. Odeh's counsel did not renew the suppression motion for over five months.

In the interim, Al-'Owhali moved to suppress, inter alia, statements that he made to U.S. officials while held in the custody of Kenyan authorities, on the ground that the statements were obtained in violation of the Fifth Amendment.*fn6 See Bin Laden, 132 F. Supp. 2d at 171-72. In a sealed opinion dated January 9, 2001, the District Court granted Al-'Owhali's motion because of its determinations that the AOR presented to Al-'Owhali did not satisfy the requirements of Miranda and, under the circumstances, Al-'Owhali's statements were not made voluntarily. The next day, January 10, Odeh re-filed his previously withdrawn motion to suppress the statements that he made in Kenya and, on January 18, moved to suppress the statements that he made in Pakistan. Bin Laden, 132 F. Supp. 2d at 201. Both motions were supported by sworn affidavits executed by Odeh.*fn7 Id. At the same time, the government moved for (1) reconsideration of the District Court's January 9 ruling granting Al'Owhali's motion and (2) reopening of the suppression hearing on that motion. Bin Laden, 132 F. Supp. 2d at 172. The District Court granted the government's motions and withdrew its opinion granting Al'Owhali's motion because ...


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