Petition for Writ of Certiorari — Mohamad Jamal Khweis, Petitioner v. United States

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United States v. Khweis, Slip Copy (2017)

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United States District Court,

E.D. Virginia,

Alexandria Division.

UNITED STATES of America,

Mohamad Jamal KHWEIS, Defendant.

Criminal Action No. 1:16–cr–143

Signed 06/01/2017

Attorneys and Law Firms

Dennis Fitzpatrick, Raj Parekh, United States Attorney's

Office, Alexandria, VA, for United States of America.

Christopher Leibig, The Law Office of Christopher Leibig

LLC, John Kenneth Zwerling, Cary Jacob Citronberg, Law

Offices of John Zwerling, Alexandria, VA, for Mohamad

Jamal Khweis.

MEMORANDUM OPINION

I. Background

The Court makes the following factual findings relevant to the

Motion.1

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.

In 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 Attaché for

Iraq, Michael Connelly, learned about Defendant's detention

the same day.2

Liam O'Grady, United States District Judge

*1 This 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.

*2 The 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

United States v. Khweis, Slip Copy (2017)

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 health.

The 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 #1.3 Defendant was not handcuffed during the

interview and was brought into and out of the interview room

by Kurdish authorities.

Connelly 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 fighters.

Following 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.

Connelly 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.

*3 The 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.

During 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.

While the interviews were ongoing, Connelly and other

intelligence agents discussed Defendant's cooperation in

emails. On March 22, 2016, Connelly described the

United States v. Khweis, Slip Copy (2017)

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.

CTD 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.4 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.

*4 As 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.

During 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.

On 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. 5 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.

United States v. Khweis, Slip Copy (2017)

flight, Defendant reinitiated conversation with the agents.

The same day that the Mirandized interviews began, Connelly

commented to another FBI employee via electronic

messaging that he “really tee'd [Defendant] up for these guys

i think... that is the intel guys job. obliterate all his lies and get

him 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.

*5 Following 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.

On May 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

Defendant was subsequently arraigned in this Court.

Following discovery, Defendant filed the present Motion to

suppress his Mirandized statements and the searches of his

phones.

II. Legal Standard

The 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. 14 (1974).

III. Discussion

The 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.

A. Presentment Violation

Rule 5 of the Federal Rules of Criminal Procedure requires

that “[a] person making an arrest outside the United States

must take the defendant without unnecessary delay before a

magistrate judge, unless a statute provides otherwise.” Fed. R.

Crim. P. 5(a)(1)(B). “[A] confession must be suppressed if (1)

it was made prior to the arrestee's presentment to a magistrate

judge; (2) the presentment to a magistrate judge was

unreasonably or unnecessarily delayed; and (3) the confession

United States v. Khweis, Slip Copy (2017)

was made more than six hours after the arrest or detention.”

United States v. Claridy, 601 F.3d 276, 284–85 (4th Cir.

2010); see also 18 U.S.C. § 3501(c). This exclusionary rule

applies even if the confession is voluntary. McNabb v. United

States, 318 U.S. 332, 345 (1943); Mallory v. United States,

354 U.S. 449, 455 (1957). But the six hour time limitation

does not apply if the delay is found by the trial judge to be

reasonable considering the means of transportation and the

distance to be traveled to the nearest available magistrate

judge or other officer. 18 U.S.C. § 3501(c).

*6 Critically, the “prompt presentment guarantee applies only

to actions undertaken by domestic authorities.” United States

v. Abu Ali, 528 F.3d 210, 226 (4th Cir. 2008). Stated another

way, the “duty to present a person to a federal magistrate does

not arise until the person has been arrested for a federal

offense.” United States v. Alvarez–Sanchez, 511 U.S. 350,

358 (1994).

In this case, Defendant was not charged with a federal offense

until May 11, 2016. Dkt. No. 1. Prior to May 11, 2016, the

Government had not determined whether charges would be

brought. This hesitation was no secret to the Kurdistan

Regional Government or Defendant. Agent Connelly noted in

an April 8, 2016 email to other FBI agents involved in the

intelligence-gathering efforts that no charging decision had

been made. Gov. Exh. 60. Agent Connelly repeatedly advised

the Kurdish authorities that the United States had not made a

charging determination. See, e.g., Gov. Exh. 41 (“I told [the

Kurdish official] we can't make any decisions on charging

until our clean team comes in.”). Department of Justice

attorney Raj Parekh subsequently wrote a letter to a general

in the Kurdistan Region Security Council on April 28, 2016

advising that the United States “anticipated filing

terrorism-related and possibly other charges within the next

two weeks.” Gov. Exh. 70. Agent Connelly also repeatedly

advised Defendant during his interviews that no charging

decision had been made. Hearing Tr. 363:18–365:6.

Defendant was not formally handed over from Kurdish to

United States custody until June 8, 2016. See Gov. Exh. 28A,

B.6 Agent Connelly attributed the month-long delay between

charging and extradition to logistics challenges. These

challenges are reasonable in light of the evidence that

Defendant needed a new passport in order to complete

extradition, all of the agents participating in the extradition

were required to obtain visas to enter Iraq, and Erbil is near

an active warzone which is not easily accessed by United

States transport vessels.

The absence of federal charges ordinarily settles the

presentment challenge. See Alvarez–Sanchez, 511 U.S. at

358; Abu Ali, 528 F.3d at 226. Because there were no charges

filed until May 11 and the additional delay in extraditing

Defendant is justified, the presentment challenge fails.

Defendant endeavors to escape this conclusion by arguing

that a certain portion of the detention by Kurdish authorities

should be imputed to the United States because the two

countries were engaged in an illicit working arrangement to

undermine Defendant's presentment right. This argument is

not supported by the evidence elicited during the suppression

hearing.

It is well established that federal officials may not collude

with state officers to circumvent federal presentment

requirements. See, e.g., Anderson v. United States, 318 U.S.

350, 356, (1943) (“[T]he fact that the federal officers

themselves were not formally guilty of illegal conduct does

not affect the admissibility of the evidence which they secured

improperly through collaboration with state officers.”). The

Fourth Circuit Court of Appeals has applied this standard in

the context of a working arrangement between foreign and

domestic law enforcement. See Abu Ali, 528 F.3d at 226.

Under this doctrine, the defendant bears the burden of

presenting evidence of an illicit working arrangement. See

Alvarez–Sanchez, 511 U.S. at 359 (“[A] confession obtained

during such a period of detention must be suppressed if the

defendant could demonstrate the existence of improper

collaboration between federal and state or local officers.”)

(emphasis added); see also United States v. Bin Laden, 132

F. Supp. 2d 198, 209 (S.D. N.Y. 2001), affd sub nom. In re

Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d

177 (2d Cir. 2008) (“To satisfy their burden, the [d]efendants

must show that the Government made deliberate use of

[foreign] custody to postpone their presentment

requirements.”).

*7 To the Court's knowledge, only two courts have analyzed

the existence of a working arrangement in the context of a

foreign detention. The court in Abu Ali identified the elements

necessary to sustain a “working arrangement” claim: (1) the

foreign government lacked an independent interest in or

independent basis for detaining the defendant; (2) the foreign

government lacked its own interest in interrogating the

defendant; (3) the foreign government “held, or continued to

hold, the defendant so that United States officials could evade

their constitutional duties.” Id. at 227.

Based on this standard, the court in Abu Ali found that the

United States v. Khweis, Slip Copy (2017)

facts did not support the existence of a working arrangement

between Saudi Arabian and American authorities to avoid

presentment. Saudi authorities arrested the defendant in 2003

in Medina, Saudi Arabia, on suspicion of involvement in a

terrorist cell. Id. at 224. The Saudi authorities notified the FBI

that they had arrested the defendant but denied the FBI's

request to interview him. Id. at 225. Instead, the Saudi

government undertook interrogations without a probable

cause determination or Miranda warnings to the defendant.

Id. at 226. The defendant made a number of inculpatory

statements during the interrogations. Id. at 225. After

negotiations between the governments, the Saudi authorities

acquiesced to asking six questions provided by the FBI. Id.

Other than consular visits, the United States had no access to

the defendant during this period of Saudi Arabian detention.

Id. The defendant was ultimately indicted by a United States

grand jury in 2005 on terrorism-related offenses, handed over

to United States authorities, repatriated, tried, and found

guilty. Id. at 226. The defendant's statements during his Saudi

Arabian detention were used against him at trial. Id.

The defendant challenged the introduction of this evidence

during trial on, among other grounds, the failure to timely

present him before a magistrate judge. Id. As discussed

above, the court of appeals affirmed the district court's finding

that there was no evidence of an illicit working arrangement

between the United States and Saudi Arabia to bypass

presentment. Id. The court found that the defendant had failed

to challenge the district court's finding that the arrest and

detention was “pursuant to a Saudi government order” based

on Saudi Arabia's “own information and interest in

interrogating the defendant[.]” Id. at 227. The Court also

affirmed the district court's finding of no evidence that the

Saudis “held, or continued to hold [the defendant] so that

United States officials could evade their constitutional

duties.” Id. Accordingly, the court affirmed the district court

and rejected the presentment challenge.

In United States v. Bin Laden, the Southern District of New

York found that there was no improper working arrangement

between Kenyan and American authorities to prevent

presentment for two defendants on terrorism–related charges.

132 F. Supp. 2d at 211. The defendants were detained by

Kenyan authorities and interrogated for twelve days on

suspicion of involvement in bombings in Nairobi. Id. at 203.

Kenyan law permitted their detention for up to fourteen days

after arrest without presentment. Id. at 205. United States

authorities dominated the interrogations, asking the majority

of the questions put to the defendants, though Kenyan law

enforcement was present throughout. Id. at 209. The

American officials apprised the defendants of their Miranda

rights before undertaking the interrogations. Id. at 203. They

also advised one of the defendants that they were not

interested in any prior statements he made to Pakistani

officials before his detention in Kenya. After the twelve-day

interrogation, the United States government charged the

defendants. Id. at 204. Both defendants moved to suppress the

statements made in Kenya on the grounds that the United

States government failed to promptly present them before a

magistrate judge. Id. at 206.

*8 The court found that “early and significant involvement of

the Americans in the investigation of these Defendants makes

this case a closer ‘working arrangement’ call than many

others.” Id. at 209–210. Nevertheless, the court found that the

use of Kenyan interrogation and detention procedures, rather

than FBI practices, evinced Kenyan rather than United States

control of the interrogation. For example: the identification

parade was conducted in conformity with Kenyan law and at

the direction of Kenyan officials; the defendants were not

handcuffed when transported and interrogated; and they were

not fingerprinted until well into the interrogation process. Id.

In addition, the FBI agent in charge of the investigation

testified that American agents did not conduct investigations

independent of the Kenyan authorities and that he believed he

had no authority to make arrests. Id. Finally, the court found

“[t]he assertion that the Americans secretly controlled the

whole investigation is significantly undermined” in part

because one defendant told the FBI agents that he would

admit his involvement in the terrorist acts if he would be tried

in the United States but the FBI made no guarantees about his

extradition. Id. at 210. The court found that “in the midst of

a time-sensitive investigation ... [i]f the American officials

had actually been in control ... they would most likely have

immediately guaranteed an American prosecution.” Id. For

these reasons, the court denied the motion to suppress the

statements made during the Kenyan detention.

Defendant contends that the collaboration between Kurdish

and American officials in this case exceeds the amount in Abu

Ali and Bin Laden and warrants the suppression of his

statements and the fruits thereof. Defendant argues that the

email communications between Agent Connelly and other

United States Government employees exposes the improper

extent of American influence over the Kurdish detention.

While acknowledging that the Government has an interest in

collaborating with foreign countries to collect intelligence,

Defendant contends that the Government's working

arrangement with the Kurds turned illicit near the end of

Connelly's interviews and continuing through the Mirandized

interviews. Defendant argues that, by this time, the

Government no longer had an intelligence interest in

interviewing him, the Kurdish authorities no longer had an

interest in detaining him without prosecution, and the FBI

United States v. Khweis, Slip Copy (2017)

improperly pressured the Kurdish authorities to continue his

detention to further the United States investigation. On

Defendant's reading, the Kurdish government acted as a mere

facilitator of the American investigation whereby the

Government could maximize its investigatory efforts and

delay its compliance with United States law.

employed as opposed to FBI procedures. Fourth, the

detention was a lawful exercise of the power of the foreign

sovereign. These substantial similarities reinforce the Court's

assessment, supra, that Defendant's presentment rights were

not violated. The Court addresses each of these considerations

in turn.

The Government counters that there was no illicit working

arrangement with the Kurdish authorities and this case falls

squarely within the facts and reasoning of Abu Ali and Bin

Laden. The Government represents that it had no role in

Defendant's apprehension by the Kurds and only began its

investigation of Defendant after it learned of the arrest. In

addition, Kurdish authorities were conducting their own

investigation under their own laws and also sought

counter-terrorism intelligence from Defendant. While the

Government acknowledges that it coordinated with Kurdish

authorities to conduct the intelligence-gathering interviews,

this coordination was not an attempt to violate United States

law; it was in furtherance of the FBI's counter-terrorism

mandate. The Government notes that it had to request

permission from Kurdish authorities to see Defendant on each

of the seventeen visits. Further, Kurdish officials controlled

the location, the date, the time of day, and the length of the

visits. None of the FBI's procedures were followed: e.g.

Defendant was transported to interrogation rooms from his

holding cell at CTD Erbil without restraints; Defendant was

not fingerprinted, DNA swabbed, or photographed pursuant

to FBI policy; and Kurdish authorities transferred Defendant

to and from interviews with FBI. The Government also

contends that a Kurdish document signed by the FBI

contemporaneous with the transfer of custody from the Kurds

to the FBI evinces the Kurds' knowledge of the custodial

rights they were relinquishing. Gov. Exh. 28A. The translated

document states that Defendant “was handed over to the

representative of the FBI” on June 8, 2016. Gov. Exh. 28B.

The Government acknowledges that certain emails

demonstrate that United States officials applied pressure on

Kurdish authorities. The Government contends that these

communications, at best, create “mere suspicion or

conjecture” of an improper collusion between the

governments to undermine the defendant's prompt

presentment rights. The Government maintains that Defendant

was at all times lawfully held pursuant to Kurdish law and in

furtherance of potential Kurdish prosecution.

First, Defendant's arrest was initially effected by foreign

authorities with their own interest in Defendant's detention

just as in Abu Ali and Bin Laden. See Abu Ali, 528 F.3d at

224 (“Abu Ali was arrested by the Mabahith” based on

suspected involvement in the al-Faq'asi terrorist cell.); Bin

Laden, 132 F. Supp. 2d at 202 (“Defendant Odeh was

detained by Pakistani immigration authorities .... The basis for

Odeh's detention by Pakistani authorities was his alleged use

of a false passport.”). Specifically, Defendant was detained on

investigation of participation in a terrorist organization and

traveling without proper documentation in violation of

Kurdish and Iraqi law. Hearing Tr. 112:3–8. The United

States was not notified that Defendant was in Kurdish custody

until after the arrest. Hearing Tr. 112:9–23; see Abu Ali, 528

F.3d at 225 (“Following Abu Ali's arrest by the Saudi

authorities, the FBI was notified of his suspected involvement

in the al-Qaeda cell in Saudi Arabia[.]”).

*9 The evidence elicited during the hearings places this case

substantially within the scope of Abu Ali and Bin Laden in

four important respects. First, the arrest was effected by

foreign authorities pursuant to the laws of the foreign nation.

Second, the foreign authorities had an independent basis to

interview the defendant. Third, foreign police practices were

Second, the Kurdish authorities, like the Saudis in Abu Ali,

had their own continued interest in detaining and interrogating

Defendant and interrogated him outside of the presence of the

FBI. Hearing Tr. 141:3–142:20 (describing CTD Official #1's

March 14 interview of Defendant); 184:17–19 (“Q. How

many times after March 15 did you interrogate Mr. Khweis

out of the presence of the U.S. Agents? A. [CTD Official #1]

Maybe five, six times, more or less.”); see Abu Ali, 528 F.3d

at 224 (“Abu Ali was then flown from Medina to Riyadh,

where he was interrogated by the Mabahith.”). While CTD

Official #1 testified that his investigation basically ceased in

mid-April, Hearing Tr. 212:11–13, the evidence shows that

his superiors believed the investigation would be complete

only two weeks after April 28. See Gov. Exh. 69 (“Chancellor

[REDACTED] decided that Khweis will remain in the

custody of CTD for two more weeks ... after that point, since

logical investigation by the [Kurdistan Regional Government]

regarding exigent threats will be complete, he would likely be

transferred[.]”).7 Furthermore, CTD Official #1 expressly

testified that a trial date was not set for Defendant in criminal

court “because the investigation stages had not been

completed yet.” Hearing Tr. 200:14–17. Critically, Connelly

reported in an email to counsel for the Government that he

“was careful not to ask that Khweis be detained solely at our

request, but rather only if Kurdish law permitted it. They

assured me continued detention prior to transfer to the court

was permissible under their law.” Gov. Exh. 69. This answer

United States v. Khweis, Slip Copy (2017)

is consistent with CTD Official #1's testimony that all of the

Kurdish detention was permitted by law. Hearing Tr.

197:7–9. It is also consistent with the fact sheet provided to

Defendant when his detention began. See Gov. Exh. 36.

*10 Third, the investigation was governed by local customs

and procedures. The Kurdish authorities set the date,

duration, and logistics of FBI access to Defendant. See Bin

Laden, 132 F. Supp. 2d at 210 (finding lack of compliance

with FBI procedures probative of the lack of a working

arrangement); Abu Ali, 528 F.3d at 225 (limiting FBI

questioning of defendant). Agent Connelly testified that

Kurdish authorities would end interviews with Defendant

when they saw fit and routinely blocked Connelly's access to

Defendant. See, e.g., Hearing Tr. 302:6–303:13. The

defendant was not restrained when transported by Kurdish

authorities to and from the interview rooms and was not

fingerprinted, DNA swabbed, or photographed as he would be

if interviewed solely in FBI custody. Hearing Tr.

327:9–328:11; see Bin Laden, 132 F. Supp. 2d 198, 210

(“[T]he Court is persuaded of the Kenyans' control of the

investigation by several facts which evidence a departure

from traditional FBI practices [.]”). The fact that the FBI

exerted dominance over the substance of the meetings with

Defendant does not contravene the Kurdish control or warrant

the finding of a working arrangement. Compare Bin Laden,

132 F. Supp. 2d at 209, with Abu Ali, 528 F.3d at 225

(limiting the FBI to submitting six questions to be asked of

the detainee by Saudi authorities).

Fourth, the testimony elicited at the hearing revealed that

Defendant, just like the detainees in Abu Ali and Bin Laden,

was held pursuant to local law until he was handed over to

United States authorities. See Abu Ali, 528 F.3d at 227

(“[A]lthough he disputes the district court's finding that he

was held ‘pursuant to a Saudi government order,’ he offered

no credible evidence that the Saudis held, or continued to

hold, him so that United States officials could evade their

constitutional duties.”); see also Bin Laden, 132 F. Supp. 2d

at 205 (“Odeh was in incommunicado Kenyan custody from

August 14—August 27, 1998. Under Kenyan law, individuals

suspected of a capital offense may be held for fourteen days

after arrest.”).

CTD Official #1 testified that no one can be detained in

Kurdish custody without a court order. Hearing Tr. 97:9–10.

He further testified that because Defendant was brought to the

CTD detention center outside of the regular hours, his boss

notified an investigative court judge over the phone to

approve the detention, and formal paperwork was submitted

the next day. Hearing Tr. 109:20–111:14. The formal

paperwork permitted two weeks of detention after which CTD

Official #1 testified that Defendant was brought before an

investigative judge on March 27. Hearing Tr. 114:7–114:15.

CTD Official #1 testified that the practice required by law

was to send a memo to the investigative judge after each

two-week period of detention;8 the judge reviewed the file and

decided whether to reauthorize continued detention for an

additional two weeks, with detention renewals permitted in

this fashion up to a maximum of six months. Hearing Tr.

120:5–14, 121:10–15; see Gov. Exh. 36 at 2 (“[T]he period

of detention depends on the penalty for the crime. The reality

is that the detention can be open-ended and people can be

detained up to a year without trial.”), id. at 3 (“Before 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[.]”). CTD Official #1 testified that

reauthorization was obtained on March 29. Hearing Tr.

120:10–14. While CTD Official #1 testified that he could not

recall how many subsequent authorizations were obtained, he

stated that the entire term of detention from March 14 to June

8 was with permission of the court. Hearing Tr. 197:7–9.

The Court finds that CTD Official #1's testimony about

Defendant's detention is credible. CTD Official #1's inability

to provide Kurdish court documents evincing Defendant's

presentation before the Kurdish investigative judge or the

reauthorization of his detention does not undermine CTD

Official #1's credibility as a witness or, in the absence of

evidence to the contrary, call into question the legality of

Defendant's detention. CTD Official #1 provided detailed

information about the presentment process. See, e.g., Hearing

Tr. 114:9–11 (identifying the exact day that Defendant

appeared before a Kurdish investigative judge). Where CTD

Official #1 was unable to provide detailed information, e.g.,

about court records and the full name of the presiding judge,

he explained that Kurdish law prohibited these disclosures.

Hearing Tr. 185:7–22. The Court has no authority to compel

the production of Kurdish court documents and is in no

position to opine on the foreign law prohibiting disclosure.

Furthermore, CTD Official #1 was forthright in his testimony

even though he did not appear to fully understand the

differences between American and Kurdish law. See, e.g.,

Hearing Tr. 210:13–212:5 (explaining CTD Official #1's

confusion about attenuation and Miranda requirements).

Finally, other than Connelly's misstatement about Kurdish

court to which the Defendant would be subjected, which the

Court regards as a misstatement born of Connelly's

unfamiliarity with Kurdish criminal procedure, see supra n.

7, Defendant mustered no evidence contradicting CTD

Official #1's testimony about the detention or the rules

prohibiting him from disclosing Kurdish court documents. For

these reasons, the Court finds CTD Official #1's testimony

credible.

United States v. Khweis, Slip Copy (2017)

*11 Taking into consideration the foregoing, Defendant's

presentment challenge fails. Defendant's presentment right did

not attach until he was formally charged by the United States

on May 11, 2016 and the delay of his extradition until June 8,

2016 was reasonable under the circumstances. Furthermore,

there is no factual basis to conclude that the United States

engaged in an illicit working arrangement to deprive

Defendant of his right to prompt presentment. Consequently,

the Court finds that there was no violation of the presentment

requirement which would warrant suppression of Defendant's

statements or the fruits thereof.

B. Voluntariness

Defendant contends that even if his presentment right was not

violated, the statements made to Agents Martinez and

Czekala, and the fruits of those statements, should be

suppressed because they were involuntary.

“[I]n cases involving involuntary confessions, [the Supreme

Court] enforces the strongly felt attitude of our society that

important human values are sacrificed where an agency of the

government, in the course of securing a conviction, wrings a

confession out of an accused against his will.” Schneckloth v.

Bustamonte, 412 U.S. 218, 225 (1973) (citations omitted). “A

statement is involuntary within the meaning of the Due

Process Clause when it is ‘extracted by ... threats or violence’

or ‘obtained by ... direct or implied promises' or ‘the exertion

of ... improper influence.’ ” United States v. Ayesh, 702 F.3d

162, 168 (4th Cir. 2012) (omissions in original) (quoting

Hutto v. Ross, 429 U.S. 28, 30 (1976)). “The test for

determining whether a statement is involuntary under the Due

Process Clause is whether the defendant's will has been

‘overborne’ or his ‘capacity for self-determination critically

impaired’ because of coercive police conduct.”United States

v. Cristobal, 293 F.3d 134, 140 (4th Cir. 2002) (quotations

and citations omitted). “To determine whether a defendant's

will has been overborne or his capacity for self-determination

critically impaired, courts must consider the ‘totality of the

circumstances,’ including the characteristics of the defendant,

the setting of the interview, and the details of the

interrogation.” Id.

Defendant argues that he was particularly susceptible to

coercion and, based on the totality of the circumstances, the

confessions were involuntary. He was held far from home for

more than two months, in a place where he did not speak the

language, and desperately wanted to return home.9 As a result,

Defendant was easy prey for the Government's representations

during interviews that he could only be charged by the United

States, and thereby extradited, after the Government had

gotten all of the information and confirmed that Defendant's

story was consistent. During the suppression hearing,

Defendant sought to elicit testimony that the terms of his

confinement were coercive because he was not able to

regularly access the bathroom, lacked air conditioning in his

cell, and the prison was infested with bugs.

The Government counters that the totality of the

circumstances does not support a finding of coercion. For all

three April 2016 Mirandized interviews, the Government and

Kurdish attendees wore casual clothes and did not visually

display weapons. The interviews were conducted in a well-lit

conference room and the door remained open for the duration

of the interviews. In addition, the Government inquired as to

Defendant's well-being during the interviews, provided him

snacks and cigarettes, and afforded him breaks during the

questioning.

*12 Defendant counters that “a well-lit room, no visible

injuries, drinks, snacks, laughter, and cigarettes—are trivial

compared with the threat of never again returning home,

never again seeing family, and an entirely unknown fate

resting in the hands of captors.” Dkt. No. 118 at 20. In

Defendant's view, these latter concerns were caused by the

Government and created the coercive environment. Defendant

argues that he was not prevented from understanding the

words in the Miranda warnings but that he “would have

signed anything to go home.” Id.

Defendant concedes that the objective circumstances of his

detention “a well-lit room, no visible injuries, drinks, snacks,

laughter, and cigarettes” do not support an involuntariness

argument. Defendant's other allegations about the coercive

effect of his conditions were not supported by the evidence.

CTD Official #1 testified that Defendant was provided private

restroom facilities whereas many defendants were held in

rooms without the same private facilities. Hearing Tr.

133:15–22. He further testified that Defendant was moved to

a different cell because the first cell had air conditioning

issues. Hearing Tr. 132:9–15. Finally, the bug “infestation”

amounted to one cockroach which appeared during an

interview between Defendant and Agent Martinez. Hearing

Tr. 585:16–586:5. No witness testified to any other evidence

of bugs in the prison. Defendant failed to muster any evidence

contrary to this testimony. The evidence of Defendant's

confinement does not support the argument that the testimony

United States v. Khweis, Slip Copy (2017)

was involuntarily coerced.

Defendant's alternative reliance on the fact that he feared he

would never return home and would suffer an unknown fate

in Kurdish custody in no way renders his statements

involuntary. An involuntariness challenge “requir[es] some

sort of ‘state action’ to support a claim[.]” Colorado v.

Connelly, 479 U.S. 157, 165 (1986). Defendant imposed

upon himself the very coercive circumstances which he now

blames on the Government. See United States v. Mashburn,

406 F.3d 303, 310 (4th Cir. 2005) (“Any coercion that

Mashbum may have felt was not the product of official action,

but rather the consequence of the severity of the offenses he

chose to commit.”). Defendant chose of his own accord to sell

his belongings and travel to Syria and Iraq.10 His conduct

strongly suggests that he did not expect to return home to see

his family. While Defendant protests that he had a change of

heart about his desire to return home, the Government cannot

be blamed for Defendant's initial detention in a foreign land,

far removed from family and friends. See United States v.

Wolf, 813 F.2d 970, 975 (9th Cir. 1987) (“There was nothing

exceptional about the duration or location of the questioning

[in Mexico by Mexican authorities], and it certainly is not

unusual for a suspect to have no family or friends present.”).

Connelly's only remaining allegedly coercive acts were

representations that Defendant could not be promised

repatriation to the United States and that he needed to be

truthful in his statements. But “government agents may

validly make some representations to a defendant or may

discuss cooperation without rendering the resulting confession

involuntary.” United States v. Shears, 762 F.2d 397, 401 (4th

Cir. 1985). There was nothing improper about Connelly's

truthful statement that he could not promise extradition. That

decision could only be made by federal prosecutors.

Furthermore, Connelly did not render the interrogation

involuntary by encouraging Defendant to be truthful.

*13 Accordingly, the Court finds that Defendant's oral

statements and written acknowledgment of rights and

authorization to search electronic devices was not the product

of Government coercion.

effectiveness of Miranda warnings.

“Recognizing that the pressure and isolation inherent in

custodial interrogation could overcome the resilience of a

suspect otherwise not inclined to incriminate himself, the

Supreme Court in Miranda ‘conditioned the admissibility at

trial of any custodial confession on warning a suspect of his

rights: failure to give the prescribed warnings and obtain a

waiver of rights before custodial questioning generally

requires exclusion of any statements obtained.’ ” United

States v. Mashburn, 406 F.3d 303, 306 (4th Cir. 2005)

(quoting Missouri v. Seibert, 542 U.S. 600, 608 (plurality

opinion)). While a simple failure to administer Miranda

warnings may not “so taint the investigatory process that a

subsequent voluntary and informed waiver is ineffective”, a

deliberate two-step questioning technique—non-Mirandized

interrogation followed by Mirandized interrogation—may

warrant suppression. Seibert, 542 U.S. at 620 (Kennedy, J.,

concurring) (quoting Oregon v. Elstad, 470 U.S. 298

(1985)).11 “If that strategy is deliberately employed,

postwarning statements related to the substance of prewarning

statements must be excluded unless curative measures are

taken before the postwarning statements are made.”

Mashburn, 406 F.3d at 309. “Curative measures should be

designed to ensure that a reasonable person in the suspect's

situation would understand the import and effect of the

Miranda warning and of the Miranda waiver. For example, a

substantial break in time and circumstances between the

prewarning statement and the Miranda warning ...

[a]lternatively, an additional warning that explains the likely

inadmissibility of the prewarning custodial statement may be

sufficient.” Seibert, 542 U.S. at 622 (Kennedy, J.,

concurring).

Defendant argues that the Miranda warnings in this case were

undermined by the use of a two-step interview process

consisting of intentionally non-Mirandized interviews to set

up Defendant to confess in subsequent Mirandized interviews.

Defendant points to electronic communications between

Connelly and other Government agents which suggest that a

purpose of the non-Mirandized interviews was lining up

Defendant's story for the subsequent Mirandized interviews.

Defendant also contends that the delay between the two sets

of interviews aggravated, rather than attenuated, his sense of

isolation and desire to make inculpatory statements in order

to secure return to the United States.

C. Miranda Violation

Defendant also contends that the inculpatory statements, and

the fruits thereof, should be suppressed because they were

obtained through a direct attempt to undermine the

The Government does not dispute that Defendant was subject

to two phases of interviews—before and after he was apprised

of his Miranda rights. However, the Government argues that

United States v. Khweis, Slip Copy (2017)

the two-step interview process was not deliberately used to

undermine the Miranda warning. Rather, it was used to

demarcate the intelligence-gathering efforts of the FBI from

the subsequent, Mirandized criminal-investigation efforts. In

addition, the Government contends that even if the process

risked undermining the warnings, the Government took

sufficient steps to attenuate any possible adverse impacts.

Those curative steps included: a ten day attenuation period

between the two sets of interviews; no overlap in Kurdish or

American participants in the interviews; the relocation of the

Mirandized interrogations to a different interview room in the

Erbil CTD detention center; and the Government expressly

advised Defendant during the Miranda warnings that they

were not interested in the substance of his prior statements.

*14 The evidence presented in the hearing establishes that the

FBI did not engage in an intentional scheme to undermine the

effectiveness of subsequent Miranda warnings. The decision

to not Mirandize Defendant before the first interview was

driven by intelligencegathering needs, Connelly's later

braggadocio about the success of the interviews did not

overturn the original justification or affect the later

Mirandized interviews, and Connelly had good reason to

continue interviewing Defendant even after obtaining

substantial intelligence. The Court explores these issues in

detail below.

The FBI learned that a United States citizen was arrested on

suspicion of terrorism, in an active war zone, near

ISIS-controlled territory. These facts present unique

intelligence opportunities for the United States. Connelly

acknowledged during the hearing that there were risks to not

Mirandizing Defendant before beginning interviews but that

he had to make a split-second decision. Hearing Tr. 274:4–18.

Connelly noted that at the time he believed he might only

have limited access to Defendant because he was in Kurdish

custody.12 Hearing Tr. 273:17–23. Connelly also expressed

concern that Defendant had traveled from the United States to

Iraq without U.S. detection, possibly through the use of a

hitherto unknown facilitation network. Hearing Tr.

274:15–21. Connelly testified that he did not take the decision

to undertake un-Mirandized interviews lightly. He

acknowledged that there was substantial risk in his approach

that the inadmissibility of the information he obtained,

coupled with the limited access to Defendant, might scupper

any subsequent prosecution. Agent Connelly balanced future

criminal prosecution against the need for intelligence dictated

the interrogation strategy and determined that the latter was

a higher priority. This subjective intent is highly probative of

whether Miranda was intentionally undermined. See United

States v. Moore, 670 F.3d 222, 230 (2d Cir. 2012) (“There is

no subjective evidence of intent here—no testimony, for

example, by any officer of an intent to use a two-step

technique, nor any evidence that such intent was reflected in

a police report.”); United States v. Thomas, 664 F.3d 217,

223 (8th Cir. 2011) (“[T]he district court credited Grunder's

testimony that he did not believe he had probable cause to

arrest Thomas at the time law enforcement arrived at the

house ... Grunder asked questions to establish probable cause,

not to circumvent Miranda warnings.”).

Connelly's subsequent emails about how he “tee'd up”

Defendant, “obliterate[d] his lies”, and “lined him up” for the

clean team do not disturb this conclusion. Connelly testified

that he sent the aforementioned emails to other members of

the FBI intelligence team—not the Mirandizing team.

Hearing Tr. 341:1–345:11. Similarly, Connelly never shared

the reports of his intelligence-gathering interviews with the

Mirandizing team. The absence of any shared personnel,

information, or impressions of the interviewee between the

first and second interview teams substantially undermines the

claim of a coordinated effort to circumvent Miranda. See

Missouri v. Seibert, 542 U.S. at 621 (Kennedy, J., concurring)

(finding a Miranda violation where the same officer

conducted both sets of interrogations and “relied on the

defendant's prewarning statement to obtain the postwaming

statement used against her at trial”); see also United States v.

Sweets, 526 F.3d 122, 130 (4th Cir. 2007) (finding no

Miranda violation where “Detective Glenn, who had not been

involved in the earlier process of finding and arresting

[defendant]” conducted the Mirandized interview); United

States v. Capers, 627 F.3d 470, 477 (2d Cir. 2010)

(recognizing the rule that the police have not engaged in a

deliberate two-step to circumvent Miranda “where different

officers questioned the suspect at different locations ... and

the second officer was not aware of the suspect's previous

inculpatory statement”).

*15 Finally, Connelly testified that his statements about teeing

up Defendant and that Defendant was lined up for the clean

team were his assessments of Defendant's present truthfulness

rather than statements of intent about the purpose of the

un-Mirandized interviews. Hearing Tr. 378:13–379:21. The

Court is convinced that Connelly had reason to doubt

Defendant's credibility because of the numerous times that

Defendant revised his story during the interviews. Taking into

consideration the course of Defendant's interrogation,

Connelly and the Department of Defense's persistent

interviewing to be sure that Defendant's story was consistent

and truthful is a sign of careful tradecraft, not malicious

intent.

Because Miranda was not deliberately undermined, the

United States v. Khweis, Slip Copy (2017)

“subsequent administration of Miranda warnings should

suffice to remove the conditions that precluded admission of

the earlier statement.” Oregon v. Elstad, 470 U.S. 298, 314

(1985). Special Agents Martinez and Czekala provided

Defendant a Miranda warning orally and in writing before

each of the interviews conducted in Erbil on April 20, 21, and

23. Hearing Tr. 522:3–4. The Agents also advised Defendant

that his parents had retained a United States-based attorney on

his behalf. Hearing Tr. 522:5–17. The Agents also explained

that their appearance was independent of any earlier

investigation by the FBI or Kurdish authorities and they

reviewed an advice of rights/Miranda form with Defendant

which stated the same. Hearing Tr. 522:20–524:24.

Defendant signed the form before each of the three

interviews. Gov. Exh. 46–48. In light of Agents Martinez and

Czekala's extensive warnings “the finder of fact may

reasonably conclude that the suspect made a rational and

intelligent choice whether to waive or invoke his rights.”

Elstad, 470 U.S. at 314. Consequently, the Court finds that

there has been no violation of the Fifth Amendment right

against self-incrimination and suppression is not warranted.

D. Suppression of the June 8 Interview

During the hearing, Defendant argued for the first time that

the June 8 interview conducted on a military transport plane

en route to the United States was improperly undertaken and

his statements during the flight should be suppressed.

Specifically, Defendant notes that by June 8, the Government

was aware that Defendant had been formally charged and that

his counsel had advised the Government not to interrogate

him anymore.

The parties filed supplemental briefing to address this issue.

In their briefing, the Government counters that the June 8

interview was proper and Defendant's argument is squarely

foreclosed by Moran v. Burbine, 475 U.S. 412 (1986).

In Moran, the defendant's sister obtained legal assistance for

her brother while he was detained by the police. Id. at 416.

The retained counsel contacted the police and advised that his

client should not be interviewed further. Id. At no point was

the defendant aware that his sister had obtained representation

for him. Id. The Supreme Court held that the police's failure

to inform the defendant of his attorney's telephone call did not

deprive him of information essential to his ability to

knowingly waive his Miranda rights. Id. at 421–22.

Furthermore, the Court held that the police did not violate

respondent's Sixth Amendment right to counsel. Id. at

428–29. That right had not attached because the challenged

police conduct occurred prior to respondent's arraignment. Id.

Defendant counters that Moran should not be applied to the

unique facts of this case. Specifically, Defendant contends

that the delays in notifying Defendant of his available counsel

“appears too convenient to be coincidental” and that the

Government was able to unilaterally prohibit Defendant's

counsel from reaching him. Dkt. No. 138. at 3–4.

*16 This case falls squarely within the facts and reasoning in

Moran. The Government was not obliged to pass on Defense

counsel's message to his client. Even without this information,

Defendant was capable of and did waive his right to remain

silent or consult with an attorney before the June 8 interview.

See Moran, 475 U.S. at 421–22. The Supreme Court has

“never read the Constitution to require that the police supply

a suspect with a flow of information to help him calibrate his

self-interest in deciding whether to speak or stand by his

rights” and the police in Moran did not even tell the

defendant that counsel had been retained on his behalf.

Moran, 475 U.S. at 422. Here, the FBI agents on the flight

advised Defendant that a United States-based lawyer had been

retained on his behalf. The additional information provided to

Defendant is the only substantial difference between the case

at bar and Moran and it only strengthens the finding that the

right was voluntarily waived.

For these reasons, the Court concludes that Defendant

voluntarily waived his right to remain silent and to speak with

counsel during the June 8 hearing.

IV. Conclusion

For the foregoing reasons, the Court DENIES Defendant's

Motion.

All Citations

Slip Copy, 2017 WL 2385355

United States v. Khweis, Slip Copy (2017)

Footnotes

“Motions to suppress fall into the class of issues that are decided by the court and not the jury” and “[i]n the course of deciding a

motion to suppress, the district court may make findings of fact.” United States v. Stevenson, 396 F.3d 538, 541 (4th Cir. 2005).

The Kurdistan Region Security Council publicized Defendant's detainment in Erbil two days after his arrest. The Council released

a statement over social media on March 16 announcing that Defendant is in the Kurdistan Region being questioned by relevant

security authorities and was being provided the care afforded to him under international and local law. The Defendant was also

interviewed at the detention center by a Kurdish news channel on March 17. The statement and the interview noted that Defendant

was apprehended attempting to enter Kurdistan from the ISIS stronghold of Mosul, Iraq. The publications further noted that

Defendant was accompanied in his travels through Turkey and Syria by an unnamed Iraqi woman.

CTD Official #l's name has been redacted in compliance with the Classified Information Procedures Act.

CTD Official #1 testified that Defendant was detained on two offenses: participating in a terrorist organization (a violation of Kurdish

law) and traveling in the region without adequate documentation (a violation of Iraqi law).

This specific advice is not reflected on the “advice of rights” form. The form does state that “an American-trained attorney is available

to you. However, our ability to provide you access to him may be limited by the decisions of the local authorities.” Gov. Exh. 53.

The translation of the Kurdish document lists the date of transfer as June 8, 2016. However, the same date is translated from the

Kurdish elsewhere as June 7, 2016. Compare Gov. Exh. 27A, B. The difference of a day is immaterial to the Court's finding so the

Court relies on the parties' representation that the handover occurred on June 8.

Connelly goes on to state that Defendant “would likely be transferred to the Investigative Court.” Gov. Exh. 69. This statement is

facially inconsistent with CTD Official #1's testimony that Defendant had already been presented to the Investigative Court but would

subsequently be presented to the Criminal Court. The Defendant reads this as an error evincing that Defendant was never presented

to any Kurdish court. But a more plausible explanation is that Connelly misstated the name of the court out of unfamiliarity with the

intricacies of the Kurdish court system. See, e.g., Hearing Tr. 409:8–10 (“So when they say court to me, I know there is like an there

is [sic] Investigative Court, there is a Criminal Court. So I am not versed in their system.”).

CTD Official #1 later clarified on cross-examination that “[i]t's 15 days. Sometimes it's 12 or 13 depending upon what day of the

week or the weekends it falls on. But it can't be more than 15, but it could be 15, 13, or 12.” Hearing Tr. 196:14–16.

The Defendant also alleges that the International Red Cross had expressed concern about unsafe conditions and abusive practices

in Iraqi and Kurdish prisons. Whatever the veracity of these accusations, Defendant advised the Government and the State Department

Consular Office that he was not abused and the Government contemporaneously remarked that Defendant was in good spirits during

interviews.

The Court makes no factual findings as to Defendant's entry into Iraq. Whether Defendant made this trip in the company of a woman

with family in Mosul, Iraq, see Gov. Exh. 31 (describing these events to a Kurdish TV station) or because he was seeking to join ISIS

in Syria and was ultimately transferred to Iraq for training, his presence in Iraq is a product of his decisions and not those of any

government involved in his interrogation.

The Seibert decision divided the Supreme Court and Kennedy's concurrence in the judgment represents the holding of the Court.

Mashburn, 406 F.3d at 309.

The facts bear out this concern. The Kurdish authorities rebuffed Connelly's initial interview request, subsequently limited Connelly

to only an hour-long interview of Defendant, and only after receiving actionable intelligence did the Kurdish authorities permit

Connelly to continue his interrogations at their discretion.

End of Document

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