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United States v. Abdallah

United States Court of Appeals, Fourth Circuit

December 18, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
NADER ABDALLAH, Defendant-Appellant.

          Argued: September 25, 2018

          Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Raymond A. Jackson, District Judge. (4:15-cr-00018-RAJ-LRL-3)

         ARGUED:

          Kim Michelle Crump, Norfolk, Virginia, for Appellant.

          Kevin Patrick Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

         ON BRIEF:

          Dana J. Boente, United States Attorney, Alexandria, Virginia, Eric Hurt, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

          Before GREGORY, Chief Judge, WYNN and HARRIS, Circuit Judges.

          WYNN, CIRCUIT JUDGE

         A jury convicted Defendant Nader Abdallah ("Defendant") of several offenses related to his alleged distribution of controlled substances. On appeal, Defendant raises numerous grounds for setting aside his convictions.

         For reasons that follow, we conclude that the district court reversibly erred in refusing to suppress inculpatory statements Defendant made during a custodial interrogation. We further hold that the district court erred in failing to conduct an in camera review of confidential law enforcement records requested by Defendant, when Defendant established the confidential records plausibly contained materially favorable information. Accordingly, we reverse and remand the case to the district court for further proceedings consistent with this opinion.

         I.

         A.

         In June 2012, law enforcement officers began investigating the sale and distribution of unlawful synthetic cannabinoids (known as "spice") in Newport News, Virginia and the surrounding area. During the investigation, the officers received complaints that spice was being sold at a local Red Barn gas station and convenience store that was owned and operated by Defendant and his son. The officers conducted multiple controlled purchases of spice at the Red Barn, the last of which occurred on September 16, 2014.

         Two days after the last purchase, the officers executed a search warrant at the Red Barn. Inside, they found and seized cardboard parcels filled with packages of spice; a digital scale; $109, 308 in cash; and two keys. One of the keys opened a storage unit containing more spice and the other key opened Defendant's safe deposit box. After obtaining another warrant, the officers seized an additional $701, 450 in cash from the safe deposit box.

         Thereafter, the United States Customs and Border Protection sent Defendant notice that it had confiscated his property and that he could file an administrative petition for its return. Defendant filed two sworn petitions to recover the two sums of cash that had been confiscated from the Red Barn and the safe deposit box. Each petition stated: "I maintain my earnings in cash form for religious reasons. I am a Muslim and I strictly adhere to the tenets of my faith. One of these is the law against usury. I, therefore, do not maintain a bank account and whenever possible keep my money in cash . . . and other tangible forms that do not accrue interest." J.A. 777-79. But Defendant had multiple bank accounts and had conducted bank transactions on the same day.

         After the search, Defendant sold the Red Barn and bought another building at the former Newport Video location. Thereafter, Defendant's son emailed Michael McMahon-the owner of a spice distribution company-and informed McMahon that he and Defendant wanted to use the Newport Video location to sell spice wholesale. The officers intercepted these emails and began to track the location's packages. On April 20, 2015, the officers executed a search warrant at the Newport Video location, during which they found additional spice, a revolver, crack cocaine, drug paraphernalia, and $10, 000.

         B.

         Five days before the Newport Video search, a federal grand jury returned its first indictment against Defendant and, that same day, a federal court issued an arrest warrant for Defendant. The officers arrested Defendant at the Newport Video location and took him to the Newport News Police Headquarters for interrogation.

         Three officers were present for Defendant's interrogation: (1) Special Agent Lewis of the Department of Homeland Security, (2) Inspector Sylvester of the United States Postal Inspection Service, and (3) Detective Calhoon of the Newport News Police Department. Special Agent Lewis and Inspector Sylvester later recounted Defendant's interrogation during a suppression hearing before the United States District Court for the Eastern District of Virginia. Defendant exercised his right not to testify, and the district court ultimately adopted the officers' recitation of events. See United States v. Abdallah, 196 F.Supp.3d 599 (E.D. Va. 2016).

         The officers chose not to record the interrogation. Instead, Inspector Sylvester took notes and Detective Calhoon observed while Special Agent Lewis interrogated Defendant. According to the officers, Special Agent Lewis started the interrogation by reading Defendant his Miranda rights. Defendant purportedly interrupted "approximately halfway" through to inform the officers that he "wasn't going to say anything at all." J.A. 79; see also Abdallah, 196 F.Supp.3d at 600. Agent Lewis responded by stating, "Well, just let me finish your Warning first." J.A. 79. Immediately after the warning, Agent Lewis asked, "Do you even know why you're under arrest[?]" Defendant responded, "No, tell me." J.A. 79. Agent Lewis then repeated the Miranda warning. This time, Defendant did not interrupt, and Defendant indicated that he understood his rights. Defendant subsequently made multiple inculpatory statements.

         The officers also described Defendant's demeanor during the interrogation. Both Special Agent Lewis and Inspector Sylvester testified that Defendant was "lucid," "very upbeat, jovial, [and] very animated." J.A. 79, 112, 127. During cross-examination, Agent Lewis agreed with defense counsel that Defendant was "very cooperative," not difficult, "very forthcoming," and was not "the type of person that had an attitude." J.A. 96-97. Finally, Agent Lewis acknowledged that Defendant's demeanor "[s]urprisingly" did not "change at all during the course of the interview." J.A. 82.

         C.

         On April 1, 2016, Defendant filed a motion to suppress all statements made during his custodial interrogation. Defendant first argued that by stating that he "was not going to say anything at all," he unambiguously requested to remain silent. Because the officers failed to scrupulously honor Defendant's request, Defendant maintained his statements were inadmissible. The district court denied Defendant's suppression motion, finding his invocation to be "ambiguous, especially given the fact that he voluntarily waived his Miranda rights minutes later once informed of the charges against him and the subject of the interrogation." Abdallah, 196 F.Supp.3d at 604.

         Defendant also sought suppression because "it is not clear what if any Miranda warnings were given." J.A. 46. Defendant noted the officers did not record the interrogation and only Inspector Sylvester took notes. Inspector Sylvester's handwritten notes first state, "Miranda from DHS form-understood," and, on the next line, Defendant was "Not going to say anything at all." J.A. 154. Inspector Sylvester's contemporaneous notes nowhere suggest that Defendant interrupted his Miranda warnings.

         After the interrogation, Agent Lewis drafted a report from his memory. Agent Lewis emailed that draft to Detective Calhoon and Inspector Sylvester, which prompted "some modifications." J.A. 92. Eight days after the interrogation, Agent Lewis issued a final typewritten report indicating that Defendant interjected halfway through the first set of Miranda warnings. Claiming inconsistencies between Inspector Sylvester's contemporaneous notes and the final report, Defendant requested production of the officers' emails pertaining to the drafting of the report. The district court denied Defendant's production request, relying on Agent Lewis's representation that he had not removed a request for counsel or a request to remain silent.

         On October 2, 2016, Defendant moved for the district court to reconsider his motions requesting production of the drafting exchange and for suppression of his statement. In support, Defendant asserted that, after reviewing a copy of Agent Lewis's grand jury testimony, Defendant found what he considered to be additional inconsistencies among Agent Lewis's grand jury testimony, his suppression hearing testimony, and the final report.

         In particular, during the suppression hearing, Agent Lewis testified that he did not obtain a written Miranda waiver from Defendant because he did not want to "interrupt the flow" of the interrogation. J.A. 101-02. Agent Lewis also testified that Defendant was "moving a mile a minute" and he "did not want to stifle the statements that [Defendant] was making." J.A. 101-02. By contrast, Agent Lewis testified to the grand jury that Defendant had waived his Miranda rights "both orally and in writing" prior to the interrogation. J.A. 1256. Furthermore, Agent Lewis told the grand jury that Defendant "started off slow" after receiving the Miranda warning-contrary to Agent Lewis's suppression hearing testimony that Defendant was "moving a mile a minute." J.A. 1264. Finally, Agent Lewis did not testify before the grand jury that Defendant interrupted his Miranda warnings to say he "wasn't going to say anything at all." On March 16, 2017, the district court again denied Defendant's production and suppression motions.

         D.

         Beginning October 4, 2016, Defendant was tried by jury before the district court. During Defendant's trial, the government introduced much of Defendant's confession through Inspector Sylvester's testimony. For example, Inspector Sylvester informed the jury that Defendant had provided a detailed explanation of his spice distribution relationship with McMahon. Defendant also told the officers that he sold spice to "pretty much everybody" and had sold approximately 10, 000 grams of spice. When asked about the crack cocaine and paraphernalia found during the Newport Video search, Defendant admitted that he used crack cocaine and had smoked crack cocaine two days prior. Defendant also stated that he would give prostitutes crack cocaine as a "bonus." Regarding the safe deposit box, Defendant told the officers that he had a second safe deposit box that the officers were "too late" to seize. From that box, Defendant escaped with $150, 000. Finally, Inspector Sylvester testified that Defendant "said his understanding was that [spice] was illegal under federal law." J.A. 343. Relying on that statement in Defendant's confession, the government emphasized during closing arguments that Defendant "told agents [spice] was illegal." J.A. 1148.

         After twelve days of trial, the jury convicted Defendant of (1) one count of conspiring to distribute Schedule I controlled substances and controlled substance analogues (i.e., spice), in violation of 21 U.S.C. § 846; (2) one count of possessing a Schedule I controlled substance (i.e., spice) with intent to distribute, in violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); (3) one count of distributing and possessing with intent to distribute a Schedule II controlled substance (i.e., crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and 18 U.S.C. § 2; and (4) two ...


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