United States District Court, S.D. New York
November 26, 2013
UNITED STATES OF AMERICA,
SULAIMAN ABU GHAYTH, Defendant
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 Miranda warnings were given, are admissible under United States v. Quarles . All subsequent statements were made after the Miranda warnings were given and after Abu Ghayth agreed to answer questions.
Second, Abu Ghayth claims that he " asked if [he] could speak to a lawyer" shortly after the plane took off " and [that] Mike [Agent Butsch] told me that when we landed in the United States I could have a lawyer at that time."  The hearing witnesses, however, testified consistently that Abu Ghayth did not request a lawyer before questioning began or at any other point during the flight. Nevertheless, the subject of a lawyer came up late in the flight, and the evidence on what occurred is not entirely unambiguous.
Agent Butsch testified that he told Abu Ghayth late in the flight that there would be two options when the plane landed in New York. He said that Abu Ghayth would have the right to be presented to a judge and that the judge would appoint an attorney for him. Abu Ghayth said he wanted to think about it but would continue to answer questions, which he did.
Deputy McMugh's contemporaneous notes arguably vary somewhat from this account. The notes suggest that, at about 9 a.m. EST, during a discussion between Agent Butsch and Abu Ghayth about the latter's book, Abu Ghayth stated that " whether I have a lawyer or not, you can ask any question you like. I am being honest. If there are any misunderstandings, I can correct them."  In response, Agent Butsch explained how presentment would work: that Abu Ghayth would have the right to be brought before a judge and assigned an attorney. In such event, according to the notes, the FBI probably would not be able to speak to him again. Abu Ghayth responded that his " cooperation will be 100% with you whether or not I have a lawyer."  At that point, questioning resumed.
Somewhat later, the witnesses consistently testified (and Deputy McHugh's notes confirm), Agent Butsch read Abu Ghayth a waiver of presentment form. Abu Ghayth decided not to waive presentment, but he agreed to continue cooperating with the FBI.
In light of the foregoing, the only significant point of difference is whether the first mention of a lawyer after the Miranda warnings were read to Abu Ghayth was in a comment late in the flight, seemingly recorded in Deputy McHugh's notes in the context of a discussion of the book -- viz., that Abu Ghayth said he the agents could ask him anything they wished " whether I have a lawyer or not" -- or, instead, in Agent Butsch's description of the options with respect to presentment and the appointment of a lawyer at that time. But this ultimately is immaterial. Regardless of whether the word " lawyer" or " attorney" first came from the mouth of Agent Butsch or of Abu Ghayth, and regardless of Abu Ghayth's undisputed election to go forward with a presentment upon arrival in New York, the Court finds that he made no clear and unambiguous request for a lawyer and certainly said nothing that was " sufficiently clear that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney."  This is particularly true when the remark is considered alongside his subsequent assurance that he would cooperate with or without an attorney.
The Court credits the witnesses' testimony and written evidence. It finds that the government has demonstrated by a preponderance of the evidence that Abu Ghayth did not invoke his right to an attorney or to remain silent at any point during his transfer to the United States.
Next, Abu Ghayth argues that even if he did waive Miranda, any waiver and statements that he made to the FBI were not voluntary.
" The ultimate test" for whether a statement was compelled is " the test of voluntariness. Is the [statement] the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to [make his statement], it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his [statement] offends due process."  Whether a statement was voluntary depends not on a single factor, but upon an " examin[ation of] all of the circumstances surrounding the interrogation to see if police overreaching overcame a suspect's will and led to an involuntary" statement. " [T]hese circumstances include
1) the accused's characteristics, 2) the conditions of the interrogation, and 3) the conduct of the police."  The government bears the burden of demonstrating voluntariness by a preponderance of the evidence.
The government introduced substantial evidence of voluntariness during the hearing. First, the evidence overwhelmingly demonstrates that Abu Ghayth was treated humanely while aboard the airplane. Before the flight took off Agent McKinley, the physician's assistant present on board, conducted a medical evaluation. He took Abu Ghayth's medical history and measured his heart rate, respiratory rate, blood pressure, and oxygen saturation, all of which Agent McKinley reassessed periodically throughout the flight. He testified that although Abu Ghayth's heart rate, respiratory rate, and blood pressure were slightly elevated, at least intermittently, and his oxygen saturation level was slightly depressed, the measures were not " alarming" or " concern[ing]."  He further testified that he assessed Abu Ghayth's mental status and determined that the defendant was fully alert and oriented. Agent McKinley noted that Abu Ghayth reported having had a stroke approximately six years earlier, but testified that he observed no evidence of any stroke-related impairments during the flight. Nor did Abu Ghayth complain of any.
Shortly after the medical examination concluded and before asking any questions, Agent Butsch told Abu Ghayth " I know you have a lot of questions, so I'm going to start by telling you who we are,
where we're going, and why. . . . I'm from the F.B.I., we're going to New York, and we're going to New York because you've been charged with a crime in New York, conspiracy to murder U.S. nationals . . . ."  He assured Abu Ghayth that he would be treated well, and that he could ask for breaks to pray, eat, drink, or use the restroom at any time. According to the government's transfer log, Abu Ghayth was given water at 9:53 p.m., 10:55 p.m., 11:13 p.m., 1:42 a.m., 6:22 a.m., and 8:35 a.m. He was offered food at 10:57 p.m., which he declined, at 1:04 a.m., which he also declined, explaining that he was fasting, at 1:45 a.m. when he accepted an orange, and at 10:46 a.m., which he declined. He was given time to pray at 11:13 p.m. and 6:40 a.m. and was unshackled so that he could stretch at 11:53 p.m., 1:03 a.m., 6:23 a.m., 8:33 a.m., and 10:38 a.m. He took six bathroom breaks, a nap break, and was given a blanket when the plane stopped to refuel in Country Y.
During breaks, one of the agents charged with security placed blackout goggles -- essentially ski goggles with duct tape covering the plastic lenses -- over Abu Ghayth's eyes and ear plugs and " ear muffs," which are akin to the ear covers used at a shooting range, over his ears, both for security purposes. According to Agent Luciano, who was in charge of security, Abu Ghayth several hours into the flight complained that the ear muffs were digging into his jaw bone. From that point forward, the security agents left the ear muffs off, using only the goggles and ear plugs. Abu Ghayth never complained about claustrophobia. Moreover, Agent Luciano testified that there was one occasion in which Abu Ghayth urinated on the toilet seat but, contrary to Abu Ghayth's claim, testified that he did not yell at or degrade Abu Ghayth after this incident -- he merely handed Abu Ghayth some Clorox wipes in order to clean up.
No witness testified to having heard yelling at any point during the flight.
In an effort to convince the Court that the government has not sustained its burden, Abu Ghayth argues, first, that there were circumstances during the flight that compromised his ability to act voluntarily. He relies for this purpose on only his affidavit. The evidence presented during the suppression hearing, however, contradicts starkly Abu Ghayth's claims of harsh treatment and poor conditions. The Court credits the agents' testimony and gives diminished weight to the affidavit, which was not supported by other evidence or subject to cross examination. It thus finds that, considering the totality of the evidence, Abu Ghayth was not overcome by fear such that his will was overborne and his ability to act voluntarily was compromised.
Abu Ghayth relies also on testimony from Dr. Stephen Xenakis, a psychiatrist and previously a brigadier general in the United States Army. Dr. Xenakis testified in substance that the agents did not conduct a fully comprehensive mental status examination and that Abu Ghayth's vital signs were consistent with the possibility of stroke-related ailments. Accordingly, he stated the view that the government had not proven that Abu Ghayth was free from health complications that interfered with his voluntariness.
The Court affords minimal weight to Dr. Xenakis's testimony. Dr. Xenakis never examined or met Abu Ghayth, relying instead on hearsay concerning Abu Ghayth's time in Iran, Abu Ghayth's affidavit, witness testimony, and the FBI agents' transfer log in reaching his conclusions. He was obviously partisan and expressed opinions with little basis, relying predominantly on second-hand accounts and theoretical possibilities. Although Agent McKinley has fewer qualifications than Dr. Xenakis, his testimony was more credible. It was based on his observations of and interactions with Abu Ghayth throughout the 12 to 14 hour flight. Agent McKinley's sustained contact with Abu Ghayth allowed him to conclude that the latter was mentally competent and that his slightly elevated
vital signs could have been a consequence of any number of things and in any event were not troublesome.
Even if the Court were to accept Dr. Xenakis's testimony, it is not the government's burden to prove that Abu Ghayth suffered no conceivable malady. Indeed, it cannot be the case that where a criminal defendant allegedly has experienced past illness or mistreatment that theoretically could lead to disorientation, confusion, or other compromised medical states, the government must prove the negative -- that the illness or mistreatment in fact did not have any such effect. Accepting Dr. Xenakis's position here would require the rejection of Miranda waivers and the acceptance of otherwise largely unsupported claims of involuntariness by any person who has had a stroke or other perhaps serious past illnesses, has slightly elevated vital signs, and/or claims to have suffered past harm unless the government proves that such events did not affect the statements made. Such a position is simply untenable.
The government has offered consistent and credible testimony that Abu Ghayth was treated well and that he was competent to speak with the FBI throughout the flight. Abu Ghayth has offered scant evidence to the contrary. Accordingly, viewing the totality of the circumstances, the Court finds that the government has met its burden of proving by a preponderance of the evidence that Abu Ghayth acted knowingly and voluntarily when he waived his Miranda rights and spoke at length with the FBI.
Abu Ghayth argues also that his statements should be suppressed because he suffered a delay in presentment. He alleges that the government played a role in his Turkish detention before he was turned over to United States custody and that this conduct violated Federal Rule of Criminal Procedure 5(a)'s requirement that the police promptly present a criminal defendant to a judge. Abu Ghayth, however, has failed to present any evidence that the United States colluded with Turkey or was otherwise involved in his arrest or interrogation in that country in order to delay presentment.
For the foregoing reasons, the defendant's omnibus motion [DI 1263] is denied with respect to his motion to suppress. The balance of the motion is denied in an Order of even date.