Argued: September 25, 2018
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)
Michelle Crump, Norfolk, Virginia, for Appellant.
Patrick Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Newport
News, Virginia, for Appellee.
J. Boente, United States Attorney, Alexandria, Virginia, Eric
Hurt, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Newport News, Virginia, for Appellee.
GREGORY, Chief Judge, WYNN and HARRIS, Circuit Judges.
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.
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.
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.
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.
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.
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.
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.
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).
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
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.
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
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.
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.
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.
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.
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.
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 ...