United States District Court, S.D. New York
For Sulaiman Abu Ghayth, Defendant: John P. Cronan, Michael Ferrara, Assistant United States Attorneys, Preet Bharara, UNITED STATES ATTORNEY, Stanley L. Cohen, STANLEY COHEN & ASSOCIATES, LLC; Geoffrey S. Stewart, Zoe Dolan, Ashraf Nubani.
Lewis A. Kaplan, United States District Judge.
Sulaiman Abu Ghayth (" Abu Ghayth" ), reputedly a son-in-law of Usama bin Laden, stands indicted for conspiring to kill Americans in violation of 18 U.S.C. § 2332(b). The matter is before the Court on defendant's motion to suppress custodial statements made by him during a flight from Country X, where he was taken into federal custody, to New York. He contends that he was not given Miranda warnings, did not knowingly waive the rights of which those warnings advise, and that his statements in any case were not voluntary. These are the Court's findings and conclusions after a lengthy evidentiary hearing.
Abu Ghayth allegedly was in the company of Usama bin Laden in Afghanistan immediately after the World Trade Center attacks of September 11, 2001 and, while in bin Laden's company, made recorded statements threatening further harm to Americans. It appears that he soon thereafter fled Afghanistan, eventually arriving in Iran where he claims that he was held by Iranian authorities until some time in 2013 when he was permitted to depart Iran to Turkey. He then apparently was arrested in Turkey and held for about six weeks following which he was released to the custody of Country X. Country X surrendered him into the custody of a team of FBI personnel, accompanied by a deputy United States Marshal, at an airport where Abu Ghayth was placed on a U.S. government plane at about 9:32 p.m. Eastern Standard Time (" EST" ) and flown to New York (with a refueling stop in Country Y) with the FBI team and the deputy marshal.
" The purpose of the Miranda warning is to ensure that the person in custody has sufficient knowledge of his or her constitutional rights relating to the interrogation and that any waiver of such rights is knowing, intelligent, and voluntary."  A waiver of Miranda  must be " voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception . . . [and] made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it."  In determining whether a waiver was knowing, intelligent, and voluntary, a court must consider the " totality of the circumstances surrounding the interrogation." 
Pre- Miranda custodial statements generally are inadmissible, although there is an exception for statements made in response to so-called public safety questions, i.e., questions " the need for answers to [which] in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination."  In addition, a defendant may invoke Miranda at any point. In such an event, all questioning must cease. Any invocation of the right to remain silent or to an attorney must be " unambiguous." 
Abu Ghayth argues that the FBI agents violated his rights because they did not read him the Miranda warnings until well after questioning began and because the FBI disregarded his alleged requests to speak with a lawyer both early in and again towards the end of the flight. These factual assertions -- raised only in Abu Ghayth's affidavit -- are belied by the credible evidence.
First, Miranda warnings were read to Abu Ghayth early in the flight and before the vast bulk of the questioning began. Upon boarding the aircraft and before the Miranda warnings were read, Abu Ghayth was given a medical evaluation by an FBI agent, who also was a physician's assistant, and asked some public safety questions. Immediately thereafter, Agent Butsch read the Miranda warnings. Abu Ghayth replied that he understood them and would answer the agents' questions. Abu Ghayth's affidavit, in which he states that he was not advised of his right to an attorney or to remain silent during the " introductory talk" or " during ongoing questioning," is not persuasive except to the extent of addressing the brief period of the medical evaluation and the public safety questions. The statements made in response to the public safety questions, and thus before the Mi ...