The opinion of the court was delivered by: Charles J. Siragusa United States District Court Judge
The defendant, Mohamed Al Huraibi, stands accused of eight counts in a ten-count indictment charging him with crimes relating to money laundering. In the defendant's omnibus motion, he moved to suppress statements he purportedly made on February 24, 2007, as well as evidence seized on February 24, 2007 from 651 and 653 Jefferson Avenue.*fn1
In regard to the defendant's application, an evidentiary hearing was held on March 25, 2009. Special Agent Matthew Meyer ("Meyer") of the Department of Homeland Security Immigration and Custom Enforcement ("ICE"), Investigator Stephen Filipowicz ("Filipowicz") of the New York State Police and Hammad Mohamed Hammad ("Hammad"), an Arabic interpreter with the FBI, testified at the hearing.
The Court, having considered the testimony presented and exhibits received into evidence at the hearing, and having made evaluations regarding credibility, makes the following findings of fact and conclusions of law.
Meyer is currently employed by ICE as a special agent, and has been so employed since 1995. He presently is assigned to a unit that conducts child exploitation investigations. In 2007 he was assigned to the Joint Terrorism Task Force. On February 24, 2007, pursuant to his duties with ICE, Meyer participated in the execution of an arrest warrant on the defendant. He was accompanied by a number of other police officers, including Special Agent Siuda of ICE and Investigator Filipowicz of the New York State Police. Law enforcement had information that the defendant was working at his business, MoJoes Star Restaurant ("MoJoes") located 651 Jefferson Avenue in the City of Rochester. Above MoJoes, in the building in which it was located, was an apartment with access in the rear and with the address of 653 Jefferson Avenue. The team of officers went to MoJoes, and upon arriving at 5:45 p.m., only three, Meyer Siuda, and Filipowicz, went inside the restaurant. They were all in plain clothes and their weapons were concealed. Upon entering, Meyer observed the defendant behind the counter. Accompanied by Siuda, and Filipowicz, Meyer approached the defendant, identified himself as an immigration customs enforcement officer, and advised the defendant that he would like to speak to him about his identity, background, and military experience. Meyer spoke to the defendant in English. The defendant, who was then fifty years old,*fn2 responded in English words to the effect of "okay."
Meyer did not, at that time, execute the arrest warrant for the defendant. This was because law enforcement had information that the defendant had been a military intelligence officer. Therefore, prior to the execution of the arrest warrant, the defendant was questioned in English about his background as an intelligence officer and whether he knew of any other intelligence officers in the area. The defendant responded in English that he had been an intelligence officer in the Yemen military, which was like the C.I.A. , and he identified two other individuals who had held similar positions in Yemen, one who now lived in Buffalo and one who lived out of state. Meyer had no difficulty in understanding the defendant's responses.
Meyer proceeded to explain to the defendant in English that he and the other officers were conducting an investigation into people who were supporting Hezbollah, and he asked the defendant if he could show him some photographs. The defendant agreed, and, still at the front counter, Meyer showed him the first of sixteen color photographs. Upon viewing the initial photo, the defendant paused, nervously looked around, and asked Meyer and the other officers to come to the back of the business. At the defendant's direction, they all then moved to a back room at MoJoes, which contained a table and a cooler. There, Meyer continued showing the defendant the photographs. The defendant identified two of the individuals depicted in the photographs. With respect to the first photograph he was shown, he identified a person who he indicated he knew as Jamal. Meyer wrote down, "yes, he identified him," wrote down the name Jamal, and asked the defendant to initial the photograph, which the defendant did. The defendant was asked to initial all of the photographs that he was shown, regardless of whether he recognized anyone, which he did. The second individual that the defendant identified in the photographs was a person he said he knew as Kamal. Meyer asked the defendant how he knew Jamal and Kamal, and the defendant replied that he had met Jamal, as well as Kamal, at various social occasions. Meyer further asked the defendant if on any occasion when he was with Jamal and Kamal, there was any discussion of Hezbollah*fn3 or weapons, or if he had ever sent any money overseas for either one. The defendant responded that he did not recall any discussion of Hezbollah, but that he had taken money from Jamal and Kamal and sent it overseas. The defendant also indicated that the last time that he met Jamal and Kamal was approximately a week ago, at which time he was given $10,000, a portion of which he had not sent out of the country yet. The defendant was asked to clarify where that portion of the money was, and he indicated that he purchased some phone cards with some of the money and that the remainder, approximately $4,500 in cash, was in a paper bag behind the counter of another business, and not in MoJoes.
Meyer next asked the defendant if he would take them to the place where the money was located, which turned out to be 1930 Clifford Avenue, and the defendant agreed to do so. All this time, Meyer was speaking to the defendant in English, and the defendant responded appropriately to his questions and directions. Although occasionally the defendant indicated that he did not understand a particular word, Meyer would simply use another word and continue the conversation.
Meyer, accompanied by other officers and the defendant, then left MoJoes and proceeded to Meyer's vehicle, with the understanding that the defendant was going to take them to the place where the money was located. Upon arriving at the car, they got in, and, at that point, the arrest warrant for the defendant was executed. The defendant was advised that he was under arrest, and he was placed in handcuffs. At 6:20 p.m., after the defendant was arrested and while inside the car, Meyer advised the defendant of his constitutional rights by reading from Exhibit # 3, an Advice of Rights Form. Meyer first completed the top of Exhibit # 3 by writing down the location, "651 Jefferson, Roch, NY," the date, "2/24/07," and the time, "1820." Meyer read to the defendant verbatim in English the following portion of the Exhibit # 3:
Before we ask you any questions, you must understand your rights.
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 the right to have a lawyer with you during questioning.
If you can not afford a lawyer, one will be appointed for you before any questioning if you wish.
If you decide to answer any questions now without a lawyer present, you have the right to ...