Opinion
No. 51 00 Cr. 15 (JFK).
October 25, 2000.
For the United States of America: MARY JO WHITE United States Attorney for the Southern District of New York. Of Counsel: Robin L. Baker David N. Kelley Assistant United States Attorneys.
For Defendant Abdel Ghani Meskini: The Legal Aid Society Federal Defender Division Of Counsel: Roland Thau, Esq.
OPINION and ORDER
Background
Defendants are jointly charged with conspiracy to violate 18 U.S.C. § 2339A and other crimes. Defendant Abdel Ghani Meskini moves to suppress statements that he made to law enforcement personnel on December 30, 1999. He argues that his post-arrest statements should be suppressed because (1) they were not voluntary, (2) his presentment some 30 hours after his arrest violated Rule 5(a) of the Federal Rules of Criminal Procedure and Title 18, United States Code, Section 3501, and (3) his presentment in the Southern District of New York, rather than the Eastern District of New York, violated Rule 40(a) of the Federal Rules of Criminal Procedure.
An evidentiary hearing was held on September 18, 2000.
The September 18, 2000 Hearing
Three witnesses testified at the hearing for the Government. They were: Special Agents Paul Sutherland and Francis J. Schulte, Jr., of the Federal Bureau of Investigation ("FBI") and New York City Police Detective Thomas Corrigan. Mr. Meskini also testified at the hearing. His testimony was consistent with that of the Government witnesses in many respects. In fact in his post hearing submission of October 17, 2000, defense counsel concedes that:
"Most facts relevant to Mr. Meskini's motion are not in dispute. They have been conceded and or unrefuted testimony has establishes them." (sic)
The following evidence was adduced at the hearing.
On December 30, 1999 Agent Paul Sutherland led a Special Weapons and Tactics ("SWAT") team that was assigned to arrest a man who Sutherland knew as "Eduardo Rocha" at 944 Newkirk Avenue, Apartment 3L, Brooklyn, New York. The team had seven other members (Tr. 9 10) and was carrying pistols, approximately four single-barreled rifles, ballistic bunkers or shields, and a one-man battering ram, standard SWAT equipment. (Tr. 11, 13, 14, 23-24).
Tr. refers to the page of the record of the September 18, 2000 hearing.
They entered the building at approximately 7:00 a.m. (Tr. 12) and "mov[ed] very slowly up the stairs" to Apartment 3L (Tr. 49), which is on the top floor of the building (Tr. 32-33). At the door of Apartment 3L, they knocked and said, "very loud[ly]" . . . "`FBI, open the door.'" (Tr. 12). No one answered the door, so they made the announcement a second time. (Tr. 12; and 223 (Meskini "heard screaming, saying, FBI, FBI")). About 20 seconds later, Sutherland directed a team member to break down the door. Using the battering ram on the door it was forced open after one strike. (Tr. 12-14)
Six members of Sutherland's SWAT team entered the Apartment. (Tr. 24). Sutherland saw Meskini, to whom he referred in his testimony as "Eduardo Rocha," in the apartment. (Tr. 14, 15-16, 223). In a "[v]ery loud, authoritative, commanding" voice, Sutherland "instructed him to get on the ground." (Tr. 14, 16, 223, 225). Mr. Meskini complied and lay on the floor "face down with his hands spread out over his head." (Tr. 15-16, 47). While lying on the floor, two agents had their weapons pointed at Meskini (Tr. 16-17), but he saw only one agent with a pistol. (Tr. 225-26)
While Meskini was lying on the floor, four other members of the team conducted a safety search or sweep of the apartment to make sure no one else was in the apartment. No one else was there. The defendant was handcuffed and searched. Nothing was recovered from his person. (Tr. 16-18, 47 and 226)
After being given shoes, Meskini was taken out of the apartment (Tr. 18, 227), down the stairs and out of the building. (Tr. 18, 235, 236). No member of the SWAT team ever advised Mr. Meskini of his constitutional rights. (Tr. 21). On the street, his custody was transferred to other agents. (Tr. 20).
The second group of agents who took custody of the defendant were FBI Agents Rachel Katz, Francis J. Schulte, Jr. and ATF Special Agent Sal Emilio. (Tr. 54, 56, 57, 328). After they took custody of Meskini, they walked him to their car and put leg irons on him and placed Meskini in the rear seat of the car on the passenger's side. Katz sat in the back on the driver's side, Schulte sat in the front passenger seat, and Emilio drove. (Tr. 56, 239-40)
Following standard practice of the Joint Terrorism Task Force ("JTTF") (Tr. 57), the agents took Meskini to the FBI office at 26 Federal Plaza in Manhattan "[t]o interview him and to process and fingerprint him and photograph him." (Tr. 56-57).
Schulte testified:
After [they]got in the car, Special Agent Katz started reading Mr. Meskini his rights from the FD 395 advice of rights form. [Schulte] interrupted her and asked Mr. Meskini if he could read, [and] he stated he could. Mr. Meskini thereafter read the advice of rights form out loud to [the agents]. (Tr. 57, 60, 86-89)
This is confirmed by the defendant who testified that he read out loud from the rights form after being asked if he spoke and read English. (Tr. 242, 243). When he finished reading, he was asked, in substance, whether he understood the contents of the form. (Tr. 60). Meskini "responded yes, he did understand his rights." (Tr. 60). He was asked, in substance, whether he was willing to answer questions, and "[h]e responded that he would answer questions." (Tr. 61). This advice of rights occurred at approximately 7:42 a.m. (Tr. 58, 60, 65; GX 1).
GX refers to Government Exhibit at the hearing.
Schulte testified that, after Meskini was advised of his rights, while en route to 26 Federal Plaza, Katz asked Meskini for "background, descriptive information," and the agents "asked him some questions concerning his association with individuals in Seattle, Washington." (Tr. 61). Schulte testified that he believed that the agents "might have mentioned . . . the possibility of substantial jail time if he was involved with the Seattle case," but no one referred to any specific number of years' imprisonment (Tr. 61-62).
They arrived at 26 Federal Plaza at approximately 7:56 a.m., and the agents took Meskini to an interview room on the 28th floor. Schulte and Katz took Meskini into the room, and Schulte removed the handcuff from Meskini's right wrist and connected it to the restraining bar so that Meskini's left wrist was handcuffed to the bar. The leg irons were left on him. (Tr. 62, 63, 245-46)
The agents asked Meskini if he needed to use the bathroom and if he was hungry and thristy. Then "or shortly thereafter," he asked for, and was given, water or soda. He declined food because it was Ramadan. (Tr. 63).
Mr. Meskini testified that during Ramadan, he fasted from one hour before sunrise until sunset each day. His last meal before his arrest was at about 12:00 a.m. on December 30, 1999, in accordance with his practice of eating a meal late at night so that he would not have to wake up very early to cook. (Tr. 232-34, 263-64). He did not miss a meal on December 30, 1999, but claimed that the day was "different" because he was questioned by the agents whereas he usually "sleep[s] all day long" and "do[es]n't feel it when [he's] fasting." (Tr. 264-65, 297).
The agents
"again provided him with the advice of rights form which he had read in the car. He looked at it again [Schulte] asked him if he wished to sign the form, which he did. At that time he signed the form and advised that he understood his rights." (Tr. 64).
Meskini signed the rights form, with Schulte and Katz as witnesses, at approximately 8:05 a.m. (Tr. 64-66; GX 1). In his testimony, Meskini acknowledged that an agent read him this rights form, that he read it and then signed it, and that he understood it. (Tr. 255, 258-62). After Meskini signed the form, he was asked, in substance, whether he was willing to answer questions, and "[h]e responded that he was willing to answer questions." (Tr. 66). In response to the Court's questions at p. 255 and 256 of the record: he said that he made admission of his own free will and that ". . . nobody forced me."
After Meskini signed the rights form GX1 and agreed to answer questions (Tr. 66), Schulte and Katz questioned Meskini about "his associates in the New York area, his contacts in Seattle," "his activities" (Tr. 63), "his travels, where he was from, what kind of work he did," "telephones that he might have used," "names or telephone numbers in [his] address book," and "pieces of identification" in his possession. (Tr. 71). "Sometime during the interview . . ., [Schulte] explained the procedure to Mr. Meskini, that following [the agents] interviewing him and fingerprinting him and photographing him he would be taken before a magistrate for an initial appearance." (Tr. 76). There was a "general" discussion of the nature of the charges against Meskini, "that it involved credit card fraud and also some support of terrorism." (Tr. 76).
At approximately 10:20 a.m., Special Agent Grathwohl of the Immigration and Naturalization Service came to speak to Meskini. Grathwohl. "asked [Meskini] if he had been advised of his rights, to which Mr. Meskini advised that he had." Grathwohl then "summarized [Meskini's constitutional rights without reading from a form." Grathwohl then questioned Meskini for approximately ten minutes. (Tr. 72).
Schulte and Katz interviewed Meskini from approximately 8:05 a.m. (Tr. 66), until approximately 10:50 a.m. (Tr. 72-73, 75, 77). During that time, Meskini used the bathroom at least once. (Tr. 73, 107). Meskini testified that he did not use the bathroom, nor did he ask to do so, from the time he entered the interview room until 3:15 p.m. (Tr. 249-50). Meskini never asked for an attorney, nor did he ever indicate that he wished to discontinue the interview. (Tr. 75).
At approximately 10:50 a.m., FBI Special Agent John Cloonan and NYPD Detective Thomas Corrigan, members of the JTTF, arrived to interview Meskini. Cloonan asked Meskini if he understood English and Meskini said that he did. (Tr. 155).
"[Cloonan] advised [Meskini] that (the agents) understood that he had been read his rights and that he signed an advice of rights form earlier in the day, but that we wanted to do the procedure over again.
Mr. Cloonan advised Mr. Meskini that at any time that he wanted to stop the interview or stop the process he would be able to do so. If he wanted an attorney, he would be able to do so at any time.
At that point, Mr. Cloonan read for Mr. Meskini from the advice of rights form each statement. At the conclusion of each statement, Mr. Cloonan asked Mr. Meskini if he understood that. Mr. Meskini verbally answered that he did.
After that process was completed, Mr. Cloonan asked Mr. Meskini to read each statement from the advice of rights form and at the conclusion of each statement to answer whether he understood those rights."
(Tr. 157). Meskini read the form aloud and said that he understood. (Tr. 157). At approximately 10:50 a.m., he signed the form, with Cloonan and Corrigan as witnesses. (Tr. 158-60; GX2). Meskini agreed to be interviewed. (Tr. 161). In his testimony, Meskini acknowledged that an agent read him this rights form, that he read it and then signed it, and that he understood it. (Tr. 255, 258-62)
"[E]arly on" in the interview, Cloonan and Corrigan told Meskini that he could take a break at any time to have food or soda. (Tr. 162). Meskini said that he was observing Ramadan and "couldn't take any food or water until the first sign of dark[ness]." (Tr. 162). Corrigan also said that Meskini could take bathroom breaks "or stop to make salat, or prayer." Corrigan testified that in the Muslim practice there are prayers five times per day. (Tr. 163).
The interview by Cloonan and Corrigan had "two main topics": "how he made his living by engaging in credit card fraud," (charges in the indictment) and "his trip to Seattle." (Tr. 168). Meskini referred to Mokhtar in Canada and "Abu Reda" (Tr. 168), and Meskini "described his relationship with Mokhtar and Mokhtar's relationship with Abu Reda in Seattle." (Tr. 169).
Cloonan and Corrigan interviewed Meskini from approximately 10:50 a.m. until approximately 6:50 p.m. (Tr. 164, 175, 177). Meskini did not ask to pray, but he did take three or four breaks during that time. (Tr. 163). In addition, there was a dinner break at approximately 5:30 p.m., at which time Meskini was given pizza and soda in accordance with his request. (Tr. 163-64). By this time, the Ramadan fast was no longer in effect.
There were no promises or threats to Meskini and he made no inquiry of Corrigan or Cloonan about the procedure whereby he would be brought to court and obtain a lawyer. (Tr. 164). Meskini never asked or suggested that he wished to terminate the interview. (Tr. 165). There were two times during the interview when Corrigan and Cloonan told him that they would terminate the interview "if he didn't continue or didn't tell [them] the truth." In response, Meskini provided more details (Tr. 165-66), and "got a little more serious." (Tr. 175). At another point, "[they] were kind of joking around" and Meskini made a reference to the television program "NYPD Blue," which Corrigan took to mean that Meskini "felt that [Corrigan and Cloonan] were treating him fairly decently as opposed to some of the characters on that show." (Tr. 166). Meskini never complained about how he was treated or that he had been coerced or threatened. (Tr. 175-76).
Near the end of the interview, Cloonan and Corrigan asked Meskini "if he would be willing to make a consensually monitored telephone call to Mr. Mokhtar," and Meskini "said that he would." (Tr. 169). A consent form was read to Meskini, which he also read and signed at approximately 6:40 p.m. (Tr. 170-71, 174-75; GX 3). In his testimony, Meskini acknowledged that an agent read him the consent form, he understood it, and he signed it of his own free will. (Tr. 282-83). Several calls were made and recorded. (Tr. 171-72). While the calls were made, a translator and three other agents were in the room with Cloonan, Corrigan, and Meskini (Tr. 172); the translator was there because Meskini had said that he would speak to Mokhtar in Arabic. (Tr. 172). The three other agents had started to fingerprint Meskini and were waiting to finish fingerprinting and photographing him and then to transport him to the Metropolitan Correctional Center ("MCC"). (Tr. 172-73, 176)
At the end of the calls . . . [Meskini] was taken two floors below at 26 Federal Plaza "and continued to be fingerprinted and photographed." (Tr. 176; see Tr. 106 (there is a stipulation that fingerprinting and photographing took place at approximately 6:15 p.m. on December 30, 1999, at FBI offices at 26 Federal Plaza)). Meskini was then taken to the MCC. (Tr. 177).
Another agent and Assistant United States Attorney David N. Kelley came into the interview room at the end of the interview, but they were not present during any questioning or the consensual telephone calls, and AUSA Kelley was not consulted about the conduct of the interview. (Tr. 173-74).
During his testimony, Mr. Meskini admitted that he was "a thief, I do credit card scams" and that he felt no pressure to talk to the agents — "Not at all." (Tr. 263).
The Court finds that all of Mr. Meskini's statements made after the initial Miranda v. Arizona, 384 U.S. 436 (1966), warning administered to him in the automobile and his reading of it aloud (p. 5 supra) were made voluntarily. Nothing about his Ramadan fast suggests otherwise.
Agent Schulte testified that it was not unusual to arrest a defendant in Brooklyn on a Southern District warrant and to arraign him in the Southern District and that "there was no difference in the way I interviewed him." (Tr. 93, 94, 114). That there was an arrest warrant issued in the Southern District of New York is not contested here. (see also Tr. 39). The Court credits Agent Schulte's testimony that there was nothing unusual about the proceeding or interviewing of Mr. Meskini.
No Unnecessary Delay in Presentment
Rule 5(a) of the Federal Rules of Criminal Procedure states that a defendant be taken "without unnecessary delay" for presentment before the "nearest available federal magistrate judge." In deciding whether to suppress a defendant's post-arrest statement because of an alleged delay in presentment Title 18, United States Code 3501 is controlling. That section reads, in pertinent part, as follows:
(a) In any criminal prosecution brought by the United States . . ., a confession . . shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.
(b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.
The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession.
(c) In any criminal prosecution by the United States . . ., a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate or other officer empowered to commit persons charged with offenses against the laws of the United States . . . if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention; Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate or other officer.
Meskini was first advised of his Miranda rights minutes after being taken into custody. He voluntarily and knowingly waived those rights in writing at the beginning of the interview, and later acknowledged to an INS agent that he had been advised of his rights. He was again advised of his Miranda rights when the third FBI agent and the detective took over the interview, and he again voluntarily and knowingly waived those rights.
The interview began a little more than an hour after Meskini's arrest and ended about twelve hours after his arrest. Over the intervening approximately eleven hours, the authorities appropriately questioned Meskini about a matter potentially affecting national security and public safety. Meskini voluntarily answered questions. By the time the interview was over and the proceeding and consensually monitored telephone calls were completed, it was about 6:50 p.m. It was then too late for Meskini to be processed by the Marshal's Service, interviewed by the Pretrial Services Agency, and presented in either the Southern District of New York, had it not been a court holiday which it was, or the Eastern District of New York. He was therefore lodged overnight and promptly presented the next morning in the Southern District.
Section 3501(c) permits admission of the statements Meskini voluntarily made to the first agents who interviewed him because they were made within six hours of his arrest. The law under Section 3501 likewise precludes suppression of statements made to the third FBI agent and detective who joined the interview of Meskini, because that interview was merely a continuation of the interview begun by the first agents and, in any event, the FBI agent and detective also began their questioning well within the six hour period. United States v. Yong Bing-Gong, 594 F. Supp. 248, 257 (N.D.N.Y. 1984), aff'd as United States v. Bing-Nam, 788 F.2d 4 (2d Cir.), cert. denied, 479 U.S. 818 (1986) (holding that delay caused by additional questioning "used for the legitimate purpose of pursuing a line of questioning initiated earlier" was reasonable).
The Second Circuit accepts the concept that the time spent interviewing a defendant and transporting and processing him is not unnecessary or unreasonable delay under Rule 5(a) and Section 3501. United States v. Collins, 462 F.2d 792, 796 (2d Cir.), cert. denied, 409 U.S. 988 (1972). In Collins, defendant was arrested at 3:00 p.m., lodged overnight (after being transported and processed), questioned starting at about 10:00 a.m. the next day, confessed over a period of about five and a half hours beginning at about 11:50 a.m., and was presented at about 5:45 p.m. The Second Circuit held that "[n]o part of these detention periods was unnecessary." 462 F.2d at 796.
Any delay in arraigning Meskini was not unreasonable and will not result in the suppression of his statements.
Federal Rule of Criminal Procedure Rule 40(a)Rule 40(a) provides, in relevant part:
If a person is arrested in a district other than that in which the offense is alleged to have been committed, that person shall be taken without unnecessary delay before the nearest available federal magistrate judge, in accordance with the provisions of Rule 5.
There is no dispute that at the time of Meskini's arrest in Apartment 3L of 944 Newkirk Avenue at approximately 7:10 a.m. on December 30, 1999 the Eastern District Magistrate's Court was not open nor was it open at 7:56 a.m. when the agents and Meskini arrived at 26 Federal Plaza in Manhattan. The Court takes judicial notice that the earliest possible time for the opening of the Magistrate's Court would have been 9:00 a.m. In any event since Meskini suffered no prejudice and since there is no authority to suppress a post-arrest statement under Rule 40(a) the alleged, but not established, violation of Rule 40(a) is not grounds to suppress the statements.
In United States v. Morrison, 153 F.3d 34 (2d Cir. 1998), the defendant was arrested in the District of New Jersey, but presented in the Southern District of New York. He later moved to dismiss the indictment because of the alleged violation of Rules 5(a) and 40(a). The Second Circuit rejected this motion holding that the district court did not err in denying the motion to dismiss.
Mr. Meskini's statements were rendered voluntarily and were all made in accord with his constitutional rights. The motion to suppress is denied in all respects.
SO ORDERED.