The opinion of the court was delivered by: Dearie, District Judge.
Defendant Adis Medunjanin awaits trial on numerous charges for allegedly conspiring with Najibullah Zazi and Zarein Ahmedzay to carry out coordinated suicide bombings in the New York City subway system on behalf of al-Qaeda. Defendant moves to suppress the statements he made to law enforcement agents after he was arrested on January 7, 2010. Defendant does not dispute that he signed three written waivers of his Miranda rights. Instead, he argues that the statements were taken in violation of his Fifth Amendment right to counsel because he had implicitly invoked his right to counsel prior to his arrest. In addition, defendant contends that the government's interference with his relationship with his attorney constituted a violation of his Fifth Amendment substantive due process rights and Sixth Amendment right to counsel.
On March 7, 8 and 9, 2011, this Court held a suppression hearing during which the government called seven witnesses, including six law enforcement officials, and the defendant called five witnesses, including two law enforcement agents and defendant's father and sister. Nine government exhibits and ten defense exhibits were also received into evidence. In addition, defendant and his lawyer, Robert Gottlieb, each submitted an affidavit in support of the motion.
Defendant did not testify at the hearing. Upon consideration of the parties' written submissions, including post-hearing supplemental briefs, and the hearing testimony and evidence, the Court denied the defendant's motion to suppress his post-arrest statements on September 8, 2011. The Court's findings of fact and conclusions of law follow.
The government's presentation is credible, convincing, and for the most part uncontroverted. Defendant and his coconspirators, Najibullah Zazi and Zarein Ahmedzay, traveled to Peshawar, Pakistan at the end of August 2008, intending to fight with the Taliban against American forces in Afghanistan. When their plans were thwarted, they instead trained at an al-Qaeda camp and were recruited to return to the United States to plot a coordinated suicide attack on the New York City subway system. Defendant was targeted as a potential terrorist and became the subject of an ongoing investigation by the New York Joint Terrorism Task Force ("JTTF") comprised of Federal Bureau of Investigation ("FBI") agents and New York City Police Department ("NYPD") detectives.
On January 7, 2010, when agents seized defendant's passports and he realized that he likely would soon be arrested, defendant sought to commit a final act of jihad by crashing his car on the Whitestone Expressway in Queens, hoping to cause a spectacular explosion that would kill others. As made plain by the recording of the 911 call that he made from his speeding car, he was committed to and prepared to die for the cause. His attempt failed, however, and he was arrested at the scene after he intentionally collided with another car. While defendant stood on the side of the highway with an agent, waiting for the ambulance that police had called to arrive, he asked the agent whether he was Jewish and immediately began to lecture him on problems with Judaism. Thereafter, throughout the balance of the day and the next day, he knowingly and voluntarily waived his Miranda rights three times and gave detailed information to law enforcement about his trip to Pakistan with Zazi and Ahmedzay and his al-Qaeda training. Defendant did not invoke his Sixth Amendment right to counsel until after he was indicted.
B. Defendant's Pre-Indictment Contact with JTTF
On September 14, 2009, JTTF agents executed multiple search warrants in Queens, New York, in pursuit of raw materials and plans for making improvised explosive devices. One of the warrants was for the apartment where defendant lived with his parents. During the search warrant execution, defendant agreed to speak with FBI Special Agent Farbod Azad and NYPD Detective Angel Maysonet of the JTTF. (Tr. 61.) The agents drove him a short distance away from his residence to conduct the interview in order to avoid the distraction of the ongoing search. (Tr. 62.) The conversation with Agent Azad and Detective Maysonet took place entirely outside the car on the street, and defendant, free of restraint, could easily have walked home.
Defendant spoke with Agent Azad and Detective Maysonet for about two and a half hours. (Tr. 63, 151.) The agents explained that the interview was completely voluntary, and that defendant was not under arrest. The conversation was calm and flowing. Defendant eagerly spoke about Islam, American-Israeli and American-Islamic relations and the 9/11 attacks on New York City. He said that he had traveled to Pakistan with Zazi and Ahmedzay to find a wife but that the dowry was too high. Defendant vouched for Zazi's character and said that Zazi and he were very close and in touch with each other about once a month. When the agents reminded defendant that they could check his phone records, however, he admitted that they spoke about fifteen times a month. (Tr. 65-67.) Defendant initially agreed to take a lie detector test, but when the agents told him they could arrange for a test immediately, he declined, saying that he was not willing or ready. (Tr. 68.) At the end of the interview, defendant agreed to speak with the agents again. (Tr. 68.)
A few days later, on September 17, 2009, defendant agreed to accompany Agent Azad and Detective Maysonet to the United States Attorney's Office in Brooklyn to be interviewed again. (Tr. 69, 153.) The interview lasted approximately ten hours, with breaks for defendant to eat, use the bathroom and pray. (Tr. 70, 72, 155.) Defendant went voluntarily and was not restrained at any time. (Tr. 70.) He was again cooperative and spoke freely about religion, Islam, his background and how he became more religious, but he remained "defensive and evasive" when the discussion focused on his trip to Pakistan with Zazi and Ahmedzay. (Tr. 73.) He denied that he had engaged in any kind of weapons training there (Gov. Ex. 2 at 4.), and reiterated that he had traveled to Pakistan for an arranged marriage to a relative of Zazi's, but the wedding did not take place because the dowry demanded was too high. (Tr. 72.) Defendant signed a consent to search for a DNA swab, fingerprints, a voice exemplar and shoe prints, and when the interview ended, he agreed to speak with the agents again. (Tr. 75-76.)
Two days later, on September 19, 2009, Zazi was arrested. (Tr. 157.) On September 25, 2009, defendant met with attorney Robert Gottlieb, and on September 28, 2009, retained Gottlieb to act as his attorney in connection with the investigation. (Tr. 361.) Mr. Gottlieb notified Agent Azad and Assistant United States Attorney Jeffrey Knox that he was representing defendant and asked that his client not be interviewed unless he was present. (Gottlieb Aff. dated 4/10/11 at ¶ 8-9; Tr. 140-41; 361; 409-10.) The agents made no further attempts to question defendant. (Tr. 76-77).
Defendant and his family hoped that by retaining counsel, they could avoid further contact with law enforcement and limit press coverage of them. (Tr. 385-86.) It did not, however, work out that way. Agents spoke with defendant's father, and tried to speak to defendant's mother (Tr. 368-70), and agents continued to have contact with defendant's family members as they returned various items of personal property that had been seized on September 14, 2009, during their first visit to the Medunjanin home. (Tr. 162-63; 367-70; 379.) Defendant's name also continued to appear in the press. (Tr. 386.) By the end of December 2009, the initial $7,500 retainer paid to Mr. Gottlieb had been used up, and defendant's father paid an additional $520. (Tr. 363-65.)
C. Seizure of Defendant's Passports
On January 7, 2010, Agent Azad and Detective Maysonet executed a search warrant*fn1 at defendant's residence for the seizure of his United States and Bosnian passports. (Tr. 77.) Defendant asked Agent Azad whether his attorney had been contacted, and Azad replied that he had not and that defendant could do so if he wished. (Tr. 80.) Defendant's sister, Alisa, who had been sleeping in another room after working a night shift, retrieved the passports, and defendant signed a receipt for them. (Tr. 82; 370.) He was visibly shaken when Detective Maysonet asked whether he had signed his "true name" or "Muhammad," his al-Qaeda alias or kunya. (Tr. 83-84, 181; 416.)
As soon as the agents left, defendant tried to call Mr. Gottlieb. (Tr. 371.) He was upset when he looked up the violations listed on the warrant on the internet and saw that one section referred to homicide. (Def. Ex. A & B, Tape 18265470.) Mr. Gottlieb returned defendant's call at 2:24 p.m. and asked that he immediately email a copy of the search warrant and Agent Azad's business card. (Id.) Mr. Gottlieb assured defendant that he would "check" the statutes listed on the warrant and call Agent Azad. (Tr. 371.)
When Mr. Gottlieb and Agent Azad spoke, Agent Azad confirmed that a search warrant had been executed and that defendant's passports had been seized. (Tr. 87, 184.) Agent Azad referred Mr. Gottlieb to the United States Attorney's Office for additional information about the investigation. (Tr. 87, 185.) Mr. Gottlieb was unable to reach AUSA Knox by telephone but left a message for him. (Gottlieb Aff. dated ...