United States District Court, E.D. Virginia, Alexandria Division
O'GRADY, STATES DISTRICT JUDGE.
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.
Court makes the following factual findings relevant to 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.
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.
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
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. Defendant was not handcuffed during
the interview and was brought into and out of the interview
room by Kurdish authorities.
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
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.
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.
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.
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.
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.
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. 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.
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.
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.
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. 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.
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.
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.
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
was subsequently arraigned in this Court. Following
discovery, Defendant filed the present Motion to suppress his
Mirandized statements and the searches of his
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.
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.