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United States v. Khweis

United States District Court, E.D. Virginia, Alexandria Division

June 1, 2017

United States of America,
v.
Mohamad Jamal Khweis, Defendant.

          MEMORANDUM OPINION

          LIAM O'GRADY, STATES DISTRICT JUDGE.

         This matter comes before the Court on the Defendant's Motion to Suppress. (Dkt. No. 105). A hearing was held in this matter on April 12-13, 2017. Defendant seeks to suppress statements made to United States agents while Defendant was detained in a Kurdish prison in Erbil, Iraq on the grounds that: (1) Defendant was not promptly presented to a United States Magistrate Judge; (2) his statements were the product of Government coercion; (3) his statements were obtained in violation of the his right against self-incrimination and right to counsel. Defendant also seeks to suppress the search of his cellular phones during the detention. For the reasons set forth below, the Court DENIES Defendant's Motion.

         I. Background

         The Court makes the following factual findings relevant to the Motion.[1]

         The Defendant, Mohamad Jamal Khweis, is a twenty-seven year old United States citizen. Prior to the events set forth below, Defendant was a resident of the state of Virginia.

         In December 2015, Defendant sold a number of his belongings and purchased a one-way ticket to London, United Kingdom. After spending a few days in London, Defendant traveled to the Netherlands, and from there to Turkey. After traveling in Turkey for a few days, Defendant crossed the Syrian border and ultimately traveled to Iraq. Three months after entering Syria, on March 14, 2016, Defendant was captured by Kurdish Peshmerga fighters near Sinjar Mountain in a Kurdish-controlled region of Iraq near the Syrian border. Following his capture by the Peshmerga, Defendant was transported to a Kurdish Counter-Terrorism Directorate ("CTD") detention center in Erbil, Iraq. The same day that Defendant was detained by the Peshmerga, Department of Defense employees learned that the Peshmerga had captured an American citizen and that the CTD would provide detailed information on the detainee the following day. The Federal Bureau of Investigations ("FBI") Assistant Legal Attache for Iraq, Michael Connelly, learned about Defendant's detention the same day.[2]

         The following day, March 15, 2016, United States Department of State Consular Officer Mark Jasonides visited Defendant. Jasonides inquired as to Defendant's well-being and provided Defendant with a fact sheet pertaining to his rights under the Iraqi legal system. The fact sheet advised among other things that, "[i]n Iraq, the usual expectations of presumption of innocence, the right to remain silent, and proof of criminal activity 'beyond a reasonable doubt' do not apply." Gov. Exh. 36. It also detailed that "[b]efore charges are filed, your period of detention depends on the maximum possible sentence for the crime. In any event, it should not exceed 6 months - but there are instances in which this has occurred." Id. Elsewhere the fact sheet advised that "the reality is that the detention can be open-ended and people can be detained up to a year without trial." Id. In conjunction with the fact sheet, Jasonides provided Defendant with a list of lawyers who practice in the Kurdistan region of Iraq. Jasonides also presented Defendant with a Privacy Act waiver. The Privacy Act waiver permitted the State Department to communicate with Defendant's family, friends, attorney (if retained), members of the media, his employer, and any other individuals he identifies. The Defendant signed the Privacy Act waiver and added only his parents to the waiver during the March 15, 2016 visit. Jasonides observed that Defendant was stressed and complained of gastrointestinal distress but was otherwise in good health.

         The same day, Connelly visited the CTD detention center to interview Defendant. Connelly testified that a presiding Kurdish general initially refused the FBI's request to access Defendant and the electronic devices he was carrying when arrested. The Kurdish general was disappointed by the Government's failure to provide military intelligence obtained from an earlier ISIS detainee held by the United States. Ultimately, the Kurdish general permitted Connelly to interview Defendant for one hour and to make copies of the contents of his electronic devices. The interview occurred in an office in the detention facility and was attended by State Department Regional Security Officer Eric Song, State Department Cultural Liaison Ahmed Wali, and Kurdish CTD Official #1.[3] Defendant was not handcuffed during the interview and was brought into and out of the interview room by Kurdish authorities.

         Connelly testified that because his access to Defendant might be limited, he made the decision with his supervisors to interrogate Defendant for intelligence purposes without providing him Miranda warnings. Connelly acknowledged that this approach might jeopardize any future United States criminal prosecution, but Connelly believed that Defendant could provide valuable intelligence about ISIS facilitation networks, organizational structure, and fighters.

         Following the initial one-hour interview, Connelly asked the Kurds for permission to continue interviewing Defendant. This request was granted. Connelly later noted in an email to other FBI agents "the difficulties that existed initially" but concluded that "[w]e now have unlimited access [to Defendant] and [CTD] welcome us there any day or night since we are collaborating with them. Sharing information with them going forward on [Defendant] is critical to success." Gov. Exh. 64.

         Connelly conducted ten additional interviews over the next month. A second interview occurred on March 15 followed by interviews on March, 17, 18-19, 20, 23, 26, 31 and April 7 and 10. Connelly testified that Kurdish officials periodically prevented him from accessing Defendant, which resulted in the breaks in the interview schedule. The Kurdish authorities brought Defendant to and from each meeting without restraints. Connelly did not collect booking photos, fingerprints, or DNA samples from Defendant directly or from the Kurdish authorities. Connelly testified that on at least one occasion, CTD Official #1 ended the interview early. All of the interviews were conducted at the CTD detention center in Erbil and were attended by Connelly, CTD Official #1, and RSO Song. The meetings were occasionally attended by Department of Defense officials. None of the participants were visibly armed. Defendant was not shackled during the interviews and the Government provided Defendant soft drinks, snacks, and cigarettes. Connelly testified that no interview lasted more than half a day and Defendant was given the option to take breaks when he needed.

         The Government did not advise Defendant of his Miranda rights before any of these interviews. Electronic communications between Connelly and another FBI employee on March 22, 2016 indicate that the FBI asked 99% of the questions during the interviews. The FBI and the CTD shared information obtained during the interviews and the FBI asked questions of Defendant at the behest of the Kurdish authorities. Connelly testified that Defendant repeatedly admitted to not being fully truthful at various stages of the interviews, resulting in a "reset" of the interview process. Over the course of the interviews, Defendant described his efforts to join ISIS, identified other ISIS members he encountered while in the organization, and explained his understanding of the ISIS operations in the region. The Government does not seek to admit the statements made during these interviews in their case-in-chief.

         During Connelly's interviews, Defendant asked whether he would be charged and extradited to the United States. Defendant expressed a desire to return to the United States for prosecution rather than remain in the Kurdish or Iraqi justice system. Connelly advised Defendant during a number of the interviews that no promises could be made by the FBI about prosecutions because those decisions could only be made by the United States Department of Justice and the United States courts. Connelly told Defendant that the charging process was dependent on the FBI's evaluation of the evidence. Connelly also advised Defendant that his story had to be consistently truthful in order for investigators to determine if a crime had been committed.

         While the interviews were ongoing, Connelly and other intelligence agents discussed Defendant's cooperation in emails. On March 22, 2016, Connelly described the interviews as "a textbook case of getting a guy from a complete lie to a confession ... he will not let me down[.]" Gov. Exh. 58. In an email on March 26, 2016, Connelly stated that Defendant "is now very comfortable talking about everything... [h]e wants to cooperate fully with the US." Def. Exh. A. Connelly also "told him again today that a decision has not been made whether to charge and/or extradite him." Id. Connelly explained that "[t]his was time very well spent because the extensive time we took getting him comfortable with telling the truth will make it far easier for subsequent interviews here and in the US." Def. Exh. A. In a March 31, 2016 email, a Department of Defense employee informed Connelly that the Department would attend the upcoming interview, did not have any specific inquiries to discuss, but opined that a final session of familiar faces would keep Defendant's story consistent. On April 7, 2016, Connelly reported to other FBI agents that during the most recent interview "[Defendant] would not stop talking in an attempt to fill in gaps he previously created. He is going to be very easy to deal with from a clean team perspective." Gov. Exh. 41. Finally, on April 8, 2016, shortly before the culmination of his interviews, Connelly commented to other intelligence agents via email that "[Defendant] is lined up perfectly for the clean team." Gov. Exh. 60. Connelly's interviews ended on April 10, 2016 and neither he nor any other Government officials involved in those interviews contacted Defendant after that date.

         CTD Official #1 testified that his office conducted its own investigation at the same time as the United States interviews. Pursuant to Kurdish law, CTD Official #1 contacted an investigative court as soon as Defendant arrived at the CTD detention center to authorize Defendant's detention on alleged violations of Iraqi and Kurdish law.[4] The investigative court provided authorization for detention. CTD Official #1 testified that on March 27, he presented Defendant to the investigative court, at which point Defendant was advised of his right to an attorney, which he declined. CTD Official #1 testified that he could not provide any documentation of the court visit or the full name of the presiding judge because this information was protected under the law. The investigative court subsequently re-authorized Defendant's continued detention. CTD Official #1 testified that the detention authorization had to be renewed approximately every fifteen days and that renewals were obtained for the duration of Defendant's time in the CTD detention center.

         As Connelly's interviews were coming to a close, on April 7, 2016, he advised other agents via email that he was receiving pressure from the Kurds to "get the clean team piece working." Gov. Exh. 41. Connelly expressed concern that if Defendant was transferred from CTD custody to the Kurdish court system, the FBI's ability to communicate with him would be extremely difficult. See Id. The next day, Connelly followed up that a Kurdish Judge may order the CTD to "produce [Defendant] in court and then we are screwed." Gov. Exh. 60. Connelly advised that "The [FBI] needs to interview him with a clean team ASAP, complaint him immediately, extradite him, follow up with all the ... [further inquiries] in the US, and stop the Kurds from having to do what they legally have to do" by prosecuting him. Id. Connelly indicated in the same email that the "[FBI] will not commit to charging him" at this point. Id.

         During this same time period, Defendant's parents sought legal representation for their son. On April 7, 2016 they retained John Zwerling, present defense counsel, for Defendant. Because Mr. Zwerling was not listed on Defendant's Privacy Act waiver (signed on March 15, 2016), the State Department was initially unable to give Mr. Zhwerling any information about the location or status of his client. The State Department Consular Office scheduled to meet with Defendant on April 18, 2016 but was told by United States law enforcement that CTD official #1 objected that the proposed visit date was not good for the Kurds. The Consular Office responded that Saturday or Sunday of that week would be fine too. The State Department Consular Office ultimately visited with Defendant on April 23, 2016 at which point Mr. Zhwerling was added to Defendant's Privacy Act waiver. Two days later, Mr. Zhwerling was contacted by the State Department regarding Defendant's location.

         On April 20, 2016, FBI Special Agents Victoria Martinez and Brian Czekala and a Kurdish translator met with Defendant. This interview was conducted in a different interrogation room in the CTD Erbil detention center than Connelly's interviews and none of the Kurdish officials present at Connelly's interviews participated. The agents advised Defendant of his Miranda rights orally and in writing before the interview. The advice of rights form stated that "[y]ou do not need to speak with us today just because you have spoken with others in the past." Gov. Exh. 53. Agent Martinez testified that Defendant was further advised that his family had retained counsel in the United States on his behalf.[5] The Defendant waived his Miranda rights before the interview orally and in writing. Defendant also consented to the search of his cellphones and other electronic equipment. Gov. Exh. 49. Agents Martinez and Czekala conducted two further interviews on April 21 and 23. The agents advised Defendant of his rights before each interview and Defendant again waived his rights orally and in writing. The Defendant made a number of inculpatory statements during these interviews which the Government seeks to admit as evidence in its case-in-chief.

         The same day that the Mirandized interviews began, Connelly commented to another FBI employee via electronic messaging that he "reall tee'd [Defendant] up for these guys i think... that is th intel guys job. obliterate all his lies and get hijm comfortable with the truth." (grammar and spelling original). Gov. Exh. 59. However, the agents had no access to any information obtained during Connelly's interviews. Connelly testified that his only interaction with the Martinez and Czekala was assisting them with logistics into and out of Erbil.

         Following further status requests from the Kurdish authorities during the Mirandized interviews, counsel for the Government provided a letter to a general in the Kurdistan Regional Government Security Council dated April 28, 2016. Gov. Exh. 72. The letter explained that the United States anticipated filing terrorism-related and possibly other charges within the next two weeks. The same day, Connelly informed Government counsel that he provided the letter to the chief of staff of the general and CTD agreed to provide any assistance required. Gov. Exh. 69. Connelly reported that he was careful not to request Defendant's detention solely on the United States' behalf but only if Kurdish law permitted it. Connelly stated in the email that he received assurances that continued detention prior to transfer to the court was permissible under the law. Connelly added that the Chancellor of the Kurdistan Regional Government Security Council endorsed the continued detention but impressed upon Connelly that after two more weeks the Kurdish investigation would be complete and transfer to Kurdish court would be likely.

         On May 11, 2016, the Government filed a sealed Complaint against Defendant in the Eastern District of Virginia. Consular Officers met with Defendant to assist him in completing an application for a new passport because he no longer possessed the one he had used to leave the United States. The application was completed on May 19, 2016. Owing to delays in obtaining visas for the pilots who would transport Defendant out of Erbil, Defendant was not formally handed over to United States custody until June 8, 2016. During the flight back to the United States on June 8, Defendant initiated conversation with Agent Martinez and another FBI agent on board. The agents apprised Defendant of his Miranda rights and the advice of rights form orally and in writing. Defendant waived those rights and spoke with the agents. During this conversation, Defendant made a number of inculpatory statements which the Government seeks to admit as evidence in its case-in-chief. At some point during the conversation, Defendant invoked his right to remain silent. At this point, the agents ceased questioning. Later during the flight, Defendant reinitiated conversation with the agents.

         Defendant was subsequently arraigned in this Court. Following discovery, Defendant filed the present Motion to suppress his Mirandized statements and the searches of his phones.

         II. Legal Standard

         The burden of proof in a motion to suppress is on the party who seeks to suppress the evidence. United States v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981). Once the defendant establishes a basis for the motion, the government bears the burden of proving the admissibility of the challenged evidence by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 n. 14(1974).

         III. Discussion

         The Defendant has advanced four grounds for suppression of some or all of his statements and the fruits thereof. First, the Government unreasonably withheld Defendant's presentment before a magistrate judge in order to elicit a confession. Second, Defendant's confessions were the involuntary product of Government coercion. Third, the Government violated Defendant's right against self-incrimination by intentionally circumventing the Miranda warnings with a two-stage interrogation process. Fourth, Defendant's right to remain silent and right to counsel were violated during the June 8 interview on the flight back to the United States. The memorandum addresses each of these grounds in turn.

         A. ...


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