United States v. Osama Awadallah

STRAUB, Circuit Judge,

concurring in the judgment on separate grounds.

I concur in the majority opinion in nearly all respects, including the holdings in Part I that the federal material witness statute, 18 U.S.C. § 3144 , permits the arrest and detention of grand jury witnesses and is constitutional and the holding in Part III that the District Court erred when it held, as one of its alternative rulings, that the statements and other evidence obtained from Awadallah on September 20 and 21 would have to be suppressed at Awadallah’s perjury trial. With respect to Part II of the majority opinion, I join the majority in concluding that Agent Plunkett’s personal knowledge of the relevant information made him a suitable affiant (Parts II.A through II.C.l) and that there is no basis in the record for concluding that Agent Plunkett intentionally misled the court by omitting or mis *76 stating relevant information in his affidavit (Part II.C.2).

The sole exception to my concurrence is my respectful disagreement with my colleagues’ conclusion, in Part II.C.B of the majority opinion, that the particular material witness arrest warrant at issue in this case was valid. Once the evidence that was unlawfully obtained from Awadallah on September 20 and 21 is excised from Agent Plunkett’s affidavit, the few strands of factual information that would have remained — while sufficient to satisfy the materiality prong of the federal material witness statute — would not have established probable cause to believe that it may have “become impracticable” to secure Awadal-lah’s presence before the grand jury by subpoena. See 18 U.S.C. § 3144 . To conclude otherwise, as the majority does, im-permissibly fuses the separate statutory materiality and impracticability requirements and has significant implications for Fourth Amendment jurisprudence. Moreover, the majority reaches this question unnecessarily, for we need not determine the validity of the warrant to reverse the District Court’s suppression decision. Accordingly, although I agree with the conclusion that the District Court’s decision to suppress Awadallah’s grand jury testimony must be reversed, I do so for separate reasons.

I.

Assuming, as my colleagues do, that our precedents regarding search warrants would apply in the context of a material witness arrest warrant, see ante at 69-70 & n. 21, I likewise evaluate the validity of the Plunkett affidavit after excising the statements and physical evidence unlawfully obtained from Awadallah on September 20 and 21. Unlike my colleagues, however, I believe that this stripped-down affidavit would not have contained sufficient information to support a finding of probable cause, under the impracticability prong of § 3144, to issue a warrant for Awadallah’s arrest as a material witness.

The majority opinion contains an enumeration of the facts that remain in our hypothetical affidavit once all of the tainted evidence collected on September 20 and 21 is excised. 1 See ante at 70. That list essentially boils down to the following set of facts upon which we must rest any probable cause finding:

• The FBI discovered a slip of paper bearing the name “Osama” and the telephone number “589-5316” in an abandoned car at Dulles Airport that belonged to one of the suspected September 11 hijackers, Nawaf Al-Haz-mi.

• The FBI discovered that one such telephone number (619-589-5316) was subscribed approximately eighteen months earlier to an Osama Awadal-lah in La Mesa, California, a city immediately to the east of San Diego. 2

• Other documents in the abandoned car linked Al-Hazmi and another sus *77 pected terrorist, Khalid Al-Midhar, to San Diego, California.

• FBI agents “located and interviewed Osama Awadallah in La Mesa, California” (emphasis added) and Awadal-lah was cooperative with the agents during the interview “in the sense that he responded to questions.” Ante at 69.

I agree with the majority’s conclusion that, based on the presence of Awadal-lah’s phone number in Al-Hazmi’s car (even though that phone number was eighteen months out of date) and the San Diego connection, the redacted affidavit would have “establish[ed] probable cause to believe that Awadallah’s testimony would be material to the grand jury investigating the September 11 attacks.” Ante at 70 (emphasis added). In the days immediately following the September 11 attacks, considering the scale of the devastation wrought by those attacks, the palpable fear of additional strikes and our unsettling lack of knowledge about the hijackers, almost any information about the suspected participants would have been material. Thus, in finding that Awadallah had material information, I do not make any judgment about the substance, extent or, perhaps, inculpatory nature of any information that Awadallah could provide. (Indeed, the limited facts remaining in the redacted affidavit make it impossible to do so.) Even if the most that Awadallah could tell the grand jury was that he did not know the suspected terrorists (and that they must have obtained his telephone number from another person or source) that information would still be material because it would likely close off one avenue of the grand jury investigation (and possibly open up others).

Nonetheless, although the materiality prong would have been satisfied, the redacted affidavit does not contain sufficient facts to show that “it may become impracticable to secure [Awadallah’s] presence [before the grand jury] ... by subpoena.” 18 U.S.C. § 3144 . In excising the tainted evidence from the affidavit, all of the usual indicators of impracticability have been-stripped. The redacted affidavit no longer contains any information about Awadal-lah’s ties to San Diego or the length of time he has lived in the United States to show that he is a flight risk; nor any mention of Awadallah’s overseas family ties and connections to suggest that he might have a place to go; nor any “admitted connection to the hijackers” to give him an incentive to flee. Furthermore, the amended affidavit evaluated in the majority opinion contains the fact that Awadallah was cooperative with the FBI agents “in the sense that he responded to questions.” Ante at 69.

In finding that the impracticability prong is satisfied, my colleagues highlight that “in the wake of a mass atrocity and in the midst of an investigation that galvanized the nation, Awadallah did not step forward to share information he had about one or more of the hijackers, whose names and faces had been widely publicized across the country.” Ante at 70-71. The principal problem with this conclusion is that it is premised on several significant inferential leaps that do not find sufficient factual support in the redacted affidavit. My colleagues erroneously draw from the slip of paper not merely the easy and obvious inference that the suspected hijackers knew (or knew of) Awadallah but that (i) the hijackers’ possession of Awa-dallah’s 18-month-old phone number meant that Awadallah knew them; and (ii) Awadallah was sufficiently familiar with the hijackers that he should have promptly sought out the FBI once the suspected hijackers’ identities and pictures were published; and (iii) Awadallah’s failure to *78 come forward promptly and of his own volition establishes that he would likely flee if subpoenaed. I do not join my colleagues because, in my view, rebanee on such a tenuous and speculative chain of inferences effectively dispenses with the impracticability requirement. 3

From the redacted affidavit, we can draw almost no information about what Awadallah knew about the hijackers (even if we accept that whatever he knew would bkely be material). The fact that two of the suspected hijackers had a sbp of paper with Awadabah’s name and outdated telephone number on it, even taken together with the San Diego connection, does not demonstrate that Awadabah had any particular type of information about the hijackers. Without any facts that even remotely suggest the nature or extent of Awadabah’s “information,” we are in no position to ascertain whether he should have come forward to the FBI. 4

Since we do not know whether Awadal-lah should have been expected to come forward with this unspecified information about the suspected terrorists, in the absence of other, factors suggesting that Awadabah posed a flight risk, we cannot gauge whether his decision not to contact the FBI should be viewed — as the majority views it — in its most extreme bght: as probable cause to bebeve that he would be bkely to flee instead of complying with a grand jury subpoena. It is absolutely true that the acts of terrorism committed on September 11 were the equivalent of acts of war, and that the investigation that ensued “galvanized the nation.” Ante at 70. In such a climate, it is difficult to view Awadabah’s fabure to come forward with relevant information (again assuming that Awadallah had what he understood to be relevant information) without some degree of suspicion. At the same time, in bght of the waves of anti-Muslim sentiment that also fobowed September 11, as the majority acknowledges, even law-abiding and conscientious members of Musbm communities might, at least initially, have been reluctant to come forward of their own vobtion. See ante at 70 (“It is of course possible, even plausible, that Awadabah feared what might happen to him if he presented himself to the FBI in the days fobowing September 11.”).

I cannot join Part III.C.3 of the majority opinion because, in my view, there simply would not have been a sufficient factual basis, in the redacted affidavit, to show that the government had probable cause to bebeve that it would be impracticable to secure Awadabah’s testimony before the *79 grand jury by subpoena. In finding that there is a sufficient basis, I fear that the majority opinion may have the effect of weakening the impracticability requirement — traditionally the more difficult of the two § 3144 prongs to satisfy 5 — by resting its impracticability finding entirely on a slender materiality showing and a number of suppositions (not supported by any facts in the redacted affidavit) about the significance of Awadallah’s failure to come forward. Other courts have rejected much stronger impracticability showings. In Bacon, for example, a case that features prominently in our analysis of the federal material witness statute, see ante at 50, 53-54, the Ninth Circuit found the government’s impracticability showing insufficient, despite the fact that it included proof that (i) the witness “had personal contact with fugitives from justice”; (ii) she had access to money to facilitate any escape effort; and (iii) she was captured on a rooftop adjoining the residence where she was believed to be staying (leading the court to infer that she “wished to avoid apprehension”). Bacon, 449 F.2d at 944-45 (refusing to draw additional inferences that were not adequately supported by the record). Later, in Arnsberg v. United States, 757 F.2d 971 (9th Cir.1985), the Ninth Circuit rejected another impracticability showing, finding the warrant at issue in that case invalid even where the facts showed that the witness was “somewhat obstinately insisting upon his right to refuse to appear before a grand jury until personally served.” Id. at 976 . According to the Amsberg court, the government failed to make a showing that the witness “was a fugitive or that he would be likely to flee the jurisdiction,” the types of factors that are generally required for a showing of impracticability. Id.

Under the view adopted by my colleagues, if an individual with any unspecified level of material information about the persons suspected of perpetrating a crime fails to come forward to the FBI with that information, that failure will serve as proof that he would not abide by a grand jury subpoena and may justify his arrest as a material witness. Even if the majority’s holding is viewed to be limited to the obviously unique context of the aftermath of the September 11 attacks, it seems to suggest that any individual with a documented connection to the suspected hijackers — including, e.g., anyone from a neighbor or colleague to a less familiar acquaintance at their mosque 6 — could, without any additional showing, have been arrested as a material witness if he failed (for whatever reason) to come forward in the days following the publication of the suspected hijackers’ names and photographs.

II.

I am further troubled by my colleagues’ willingness to decide this thorny Fourth Amendment question despite the availability of a much more straightforward (and *80 less controversial) means to the same end. See Alexander v. Louisiana, 405 U.S. 625, 633 , 92 S.Ct. 1221 , 31 L.Ed.2d 536 (1972) (describing the Court’s “usual custom of avoiding decision of constitutional issues •unnecessary to the decision of the case before us”); Ashwander v. TVA 297 U.S. 288, 347 , 56 S.Ct. 466 , 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (“The court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”); see also Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 343-44 , 119 S.Ct. 765 , 142 L.Ed.2d 797 (1999) (same); United States v. Ajlouny, 629 F.2d 830, 840 (2d Cir.1980) (declining to “adjudicate the [constitutional question of the] lawfulness of the surveillance” at issue in the case because the court did “not believe it would be appropriate to apply the exclusionary rule in this case, even if the surveillance were unlawful and did lead to any trial evidence”), cert. denied, 449 U.S. 1111 , 101 S.Ct. 920 , 66 L.Ed.2d 840 (1981).

Indeed, I am particularly hesitant to engage such an issue when it has not been squarely addressed by either the District Court below or the parties on appeal. The District Court did not consider the impact of excising the illegally seized evidence from Agent Plunkett’s affidavit — presumably because, by finding the arrest unlawful on several other grounds (that we have now rejected), it had no need to reach this issue. And, although the government indicated at oral argument that the scrap of paper, standing alone, could furnish probable cause for Awadallah’s arrest as a material witness, only two pages at the end of its 83-page reply brief were devoted to this possibility. Awadallah, likewise, asserted the invalidity of a redacted affidavit only in passing. Unlike the applicability of the federal material witness statute, then, which was carefully and methodically examined in the parties’ briefs, as well as in the submissions from amici curiae, see ante at 49, the sufficiency of the Plunkett affidavit once the evidence unlawfully obtained on September 20 and 21 is excised has not been “squarely presented” by the parties.

III.

The District Court, having determined that Awadallah’s arrest was invalid (on several alternative theories) in Awadallah III and Awadallah TV, held that his allegedly perjurious testimony before the grand jury must be suppressed as the “fruit” of that unlawful arrest and detention. United States v. Awadallah, 202 F.Supp.2d 55, 79-82 (S.D.N.Y.2002) (‘Awadallah III”) (rejecting the government’s “independent source” and “inevitable discovery” arguments); United States v. Awadallah, 202 F.Supp.2d 82, 100 (S.D.N.Y.2002) ("Awadallah IV”) (holding that Awadallah’s grand jury testimony, “which occurred after twenty days of continuous wrongful detention,” must be suppressed). The majority holds that the District Court erred in suppressing Awadallah’s grand jury testimony because the majority finds that the warrant, even after excising the tainted evidence and amending the alleged misstatements, would have contained sufficient factual information to support a finding of probable cause to arrest Awadallah. See ante at 68-70. Although I disagree with the majority’s conclusion that there was probable cause for Awadallah’s arrest as a material witness, I share the view that the District Court- erred in suppressing Awadallah’s grand jury testimony as the fruit of his unlawful arrest and detention. Even if we were to hold, as I suggest in Part I of this concurrence, that the warrant for Awadallah’s arrest was invalid, *81 that would not bar prosecution of his subsequent perjury.

We review the District Court’s factual findings on Awadallah’s motion to suppress for clear error and its legal conclusions— including the question of whether Awadal-lah’s testimony was a “fruit” of his unlawful arrest and detention — de novo. See United States v. Thompson, 35 F.3d 100, 103 (2d Cir.1994); Howard v. Moore, 131 F.3d 399, 409 (4th Cir.1997) (explaining that whether appellant’s confessions were “‘tainted fruits’ is a question of law reviewed de novo”), cert. denied, 525 U.S. 843 , 119 S.Ct. 108 , 142 L.Ed.2d 86 (1998).

Even if we assume, for the reasons set forth above, that Awadallah’s arrest and detention were unlawful, it does not follow that his allegedly perjurious testimony 7 before the grand jury was the fruit of that illegality. This Court has long recognized that it would be “an unwarranted extension of [the fruit of the poisonous tree] doctrine to apply it ... to a new wrong committed by the defendant.” United States v. Remington, 208 F.2d 567, 570 (2d Cir.1953), cert. denied, 347 U.S. 913 , 74 S.Ct. 476 , 98 L.Ed. 1069 (1954). In Remington , we considered and rejected the argument (similar to the one proffered by Awadallah) that the defendant’s perjury could be suppressed as the “fruit” of the government’s misconduct:

We do not see how this theory can be applied in the present case. Here we have a separate crime of perjury committed after the illegal conduct by the government .... [T]o call the perjury a fruit of the government’s conduct here, is to assume that a defendant will perjure himself in his defense. It is difficult to see any causal relation otherwise between the government’s wrong and the defendant’s act of perjury during the trial. If this assumption is a premise of the defendant’s argument, we cannot accept it for it involves a disregard of the defendant’s oath and an assumption that perjury, although a crime, is an inevitable occurrence in judicial proceedings .... We do not preserve justice by allowing further criminal activity to take place.

Id.

8

Ten years later, in United States v. Winter, 348 F.2d 204 (2d Cir.), cert. de *82 nied, 382 U.S. 955 , 86 S.Ct. 429 , 15 L.Ed.2d 360 (1965), we reaffirmed Remington , holding that the government’s failure to advise a defendant of his right to counsel did not give the defendant “a defense to a charge that he thereafter gave false testimony while under oath in response to a material question directed to him by a competent tribunal.” Id. at 210; see also United States v. Mandujano, 425 U.S. 564, 582 , 96 S.Ct. 1768 , 48 L.Ed.2d 212 (1976) (plurality) (“In any event, a witness sworn to tell the truth before a duly constituted grand jury will not be heard to call for suppression of false statements made to that jury ....”) (rejecting defendant’s argument that Fifth Amendment required suppression where Miranda warnings were not given); United States v. Wong, 431 U.S. 174, 180 , 97 S.Ct. 1823 , 52 L.Ed.2d 231 (1977) (holding that “perjury is not a permissible way of objecting to the Government’s questions”); Wheel v. Robinson, 34 F.3d 60, 67 (2d Cir.1994) (“[I]t is well settled that even constitutional deficiencies in the underlying proceeding do not prevent prosecution for perjury.”); United States v. Weiss, 752 F.2d 777, 785 (2d Cir.1985) (same).

These cases make clear that suppression of Awadallah’s grand jury testimony would not be an appropriate remedy for his unlawful arrest and detention. Awadallah’s arguments to the contrary — that Remington is outdated and factually distinguishable and that this case is properly governed by Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975), and its progeny — are unavailing. In Brown , the Supreme Court evaluated the applicability of the exclusionary rule where the petitioner had been convicted of murder based, in part, on inculpatory statements that he made to police after being unlawfully arrested. See id. at 602 , 95 S.Ct. 2254 . For the statements to be admissible, “the causal chain, between the illegal arrest and the statements made subsequent thereto, [must] be broken,” such that the statements were “ ‘sufficiently an act of free will to purge the primary taint.’ ” Id. (quoting Wong Sun v. United States, 371 U.S. 471, 486 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963)). Our subsequent cases have explained that “[t]o determine whether a defendant’s actions are a product of free will, a court should consider how close in time the illegal search occurred to the defendant’s actions, the presence of intervening circumstances and the purpose and flagrancy of the official misconduct.” United States v. Trzaska, 111 F.3d 1019, 1027 (2d Cir.1997) (citing Brown, 422 U.S. at 603-04 , 95 S.Ct. 2254 ); see also United States v. Oguns, 921 F.2d 442, 447-48 (2d Cir.1990). Even if we were to apply the Brown analysis, as Awa-dallah suggests, his testimony before the grand jury cannot reasonably be viewed as the product of his arrest and detention.

The government has identified a number of intervening circumstances that demonstrate that Awadallah’s grand jury testimony cannot properly be viewed as the fruit of his unlawful arrest and detention. Awadallah consulted with counsel on multiple occasions during the twenty days between his arrest and his first grand jury appearance, including on the morning he testified. See United States v. Wellins, 654 F.2d 550, 555 (9th Cir.1981). Awadal-lah also appeared before judicial officers on at least two occasions during this time. *83 See Johnson v. Louisiana, 406 U.S. 356, 365 , 92 S.Ct. 1620 , 32 L.Ed.2d 152 (1972). Before he testified, Awadallah was advised of his rights — including his right to leave the grand jury room to consult with his attorneys — and warned about the consequences of perjury. Cf. Oguns, 921 F.2d at 447-48 (emphasizing the importance of the fact that the defendant was advised of his rights). Although Awadallah indicated at the hearing before the District Court that he was “under pressure” and “scared” during his grand jury appearance, he tied those emotions principally to the fact that his attorneys were not in the room with him. He did not suggest that his statements before the grand jury were anything but the product of his own “free will.” 9 Trzaska, 111 F.3d at 1026 (“Evidence obtained as a result of the defendant’s ‘intervening independent act of free will’ serves to ‘purge the primary taint of the unlawful invasion.’ ”) (quoting Wong Sun, 371 U.S. at 486 , 83 S.Ct. 407 ). Awa-dallah’s conclusory assertion, in his brief, that his grand jury testimony was “involuntary” cannot be reconciled with these facts. In addition, although the District Court seemed to believe that Awadallah’s grand jury testimony would have been different if he had not been incarcerated, see Awadallah III, 202 F.Supp.2d at 81-82, the gravamen of the perjury charge — that Awadallah claimed that he did not recall the name of Al-Hazmi’s companion, Khalid AI-Midhar — was part of Awadallah’s statements to the agents who questioned him twenty days earlier, on September 20.

As to the “purpose and flagrancy of the government’s misconduct,” Trzaska, 111 F.3d at 1027 , for the reasons set forth in the majority opinion, I reject Awadallah’s repeated assertions that the “aim” of the government in arresting and detaining him was to get him to testify falsely before the grand jury. See ante at 75 (“[I]n light of all the circumstances, we think it is untenable to say that the FBI agents ... sought to elicit perjury rather than truthful information.”). On these facts, Awadallah’s argument that his grand jury testimony should be suppressed as the fruit of his unlawful arrest and detention is unavailing. Finally, Awadallah’s other argument for suppression of his grand jury testimony — his claim of a perjury trap — was properly rejected by the District Court.

*84 In summary, I join Part I, Parts II.A through II.C.2 and Part III of the Court’s opinion and I join my colleagues in reversing the judgment - of the District Court, reinstating the indictment and remanding for additional proceedings. As set forth above, however, I depart from my colleagues in their conclusion, in Part II.C.3, that a properly redacted and amended affidavit would be sufficient to satisfy the impracticability requirements of 18 U.S.C. § 3144 .

. In addition to excising the information obtained unlawfully on September 20 and 21, the majority elects to correct the alleged misstatements and omissions contained in the affidavit to demonstrate that "even with ... [such] emendations,” see ante at 68, the Plunkett affidavit contained sufficient evidence to establish probable cause for Awadal-lah's arrest. As such, their modified affidavit contains two additional facts that favor Awa-dallah — namely (i) that the telephone number linking him to the slip of paper found in Al-Hazmi’s car was 18 months out of date and (ii) that Awadallah was cooperative when interviewed on September 20 by FBI agents.

. While the proximity of La Mesa to San Diego is not spelled out in the affidavit, that fact seems easily and independently verifiable.

. Of course, the materiality and impracticability prongs of the § 3144 probable cause inquiry do not always require entirely independent analyses. In many cases, the facts that are used to show what a particular witness knows (materiality) are relevant to the question of whether he" will comply with a subpoena (impracticability). Indeed, in this case, prior to the redaction of the affidavit, Awadallah’s admitted connection to the hijackers functioned just that way — -it was sufficient to satisfy the materiality prong of § 3144 and it was also relevant to (but not dispositive of) the question of impracticability. The facts in the redacted affidavit, however, that support the materiality finding are very thin, yielding virtually no information about the nature or extent of Awadallah’s relationship with the suspected hijackers. Thus, those facts provide little guidance as to the potential impracticability of securing his grand jury testimony by subpoena.

. In reality, of course, we know from Awadal-lah's tainted statements to the police and from his subsequent grand jury testimony that Awadallah’s actual contacts with the hijackers were more memorable and perhaps should have compelled him to come forward. None of that appears in the redacted affidavit, however, and our probable cause assessment may not be predicated on evidence that was illegally gathered.

. While it could be argued that Awadallah’s connection to the hijackers is more significant than the relationships referenced above because his phone number was found in a car that the hijackers abandoned just prior to the attacks, such an argument would seem to be significantly undercut by the fact — also contained the majority's amended affidavit — that Awadallah had not been associated with that phone number for eighteen months. See ante at 69.

. To the extent that Awadallah is suggesting that his mere presence before the grand jury was the fruit of his unlawful arrest, I reject that assertion. The Supreme Court has established, in analogous cases, that a defendant "cannot claim immunity from prosecution simply because his appearance in court was precipitated by an unlawful arrest.” United States v. Crews, 445 U.S. 463, 474 , 100 S.Ct. 1244 , 63 L.Ed.2d 537 (1980) (“An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction.”); see also Ker v. Illinois, 119 U.S. 436, 440 , 7 S.Ct. 225 , 30 L.Ed. 421 (1886) ("[F]or mere irregularities in the manner in which he may be brought into custody of the law [in Ker’s case, forcible abduction -], we do not think [defendant] is entitled to say that he should not be tried at all for the crime with which he is charged in a regular indictment."); Frisbie v. Collins, 342 U.S. 519, 522 , 72 S.Ct. 509 , 96 L.Ed. 541 (1952) (same); Brown v. Doe, 2 F.3d 1236, 1243 (2d Cir.1993). These cases foreclose any argument that Awadallah's presence before the grand jury is somehow a suppressible fruit of the unlawful arrest. Cf. Crews, 445 U.S. at 474 , 100 S.Ct. 1244 (explaining that a defendant "is not himself a suppressible fruit”).

. Other circuits have likewise held that the fruit of the poisonous tree doctrine does not apply to new crimes committed by an individual who has been unlawfully detained. See, e.g., United States v. Pryor, 32 F.3d 1192, 1195-96 (7th Cir.1994) (giving false social security number to police officers); United States v. Smith, 7 F.3d 1164, 1167 (5th Cir.1993) (threatening the President); United States v. Mitchell, 812 F.2d 1250, 1253 (9th Cir.1987) (same); United States v. Garcia-Jordan, 860 F.2d 159, 161 (5th Cir.1988) *82 (making false statements to border patrol officials); United States v. Bailey, 691 F.2d 1009, 1017 (11th Cir.1982) (fleeing from police and resisting arrest), cert. denied, 461 U.S. 933 , 103 S.Ct. 2098 , 77 L.Ed.2d 306 (1983); cf. United States v. King, 724 F.2d 253, 256 (1st Cir.1984) (treating shooting at police officers (new crime) as an intervening act that breaks the chain of causation in the fruit of the poisonous tree analysis).

. To be clear, the District Court made no factual findings regarding the voluntariness of Awadallah's grand jury testimony and, instead, determined that suppression of his testimony was appropriate because “[n]o one will ever know how Awadallah would have testified had he been subpoenaed rather than imprisoned.” Awadallah III, 202 F.Supp.2d at 82 (rejecting the government’s inevitable discovery argument); see also Awadallah IV, 202 F.Supp.2d at 100. In so holding, the District Court reviewed the conditions of Awadallah’s confinement and the circumstances of his testimony before the grand jury and concluded that, if he had been subpoenaed before the grand jury (and not unlawfully arrested and detained prior to his testimony), he "would have been well-fed and well-rested, well-prepared and probably less frightened.” Awadallah III, 202 F.Supp.2d at 82. The most that this "finding,” see ante at 70-71 n. 24, and Awadallah’s testimony at the hearing, see supra, may be read to suggest is that Awadallah’s grand jury testimony may have been the product of confusion or error, which will, of course, be a proper consideration for the jury when it evaluates whether Awadallah knowingly made false statements to the grand jury. Cf. United States v. Awadallah, 202 F.Supp.2d 17, 37 (S.D.N.Y.2002) ("Awadallah II ”) (noting, in rejecting Awadallah’s recantation defense, that "the questions of whether he was 'confused' or 'forgot' may be relevant to the issue of whether he knowingly lied to the grand jury”). The District Court’s findings and Awadallah's recollection of the grand jury proceedings, however, do not show that Awadallah’s testimony was not the product of his free will.