United States Of America v. Osama Awadallah

349 F.3d 42 (2nd Cir. 2003)

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Nature of the Case

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Facts

A grand jury investigation into the 9/11 terrorist attacks quickly identified Nawaf Al-Hazmi and Khalid Al-Mihdhar as two of the hijackers on American 10 Airlines Flight 77, which crashed into the Pentagon. A search of the car Al-Hazmi abandoned at Dulles Airport in Virginia produced a piece of paper with the notation, “Osama 589-5316.” Federal agents tracked this number to a San Diego address at which the defendant, Osama Awadallah, (D) had lived approximately eighteen months earlier. Al-Hazmi and Al-Mihdhar also had lived in the San Diego vicinity around that time. Federal agents went to D's home. They questioned him in the parking lot for a few minutes and then told him that he had to accompany them to the FBI office for questioning. D wanted to do afternoon prayers and when using the toilet agents insisted the door be kept open. Before leaving for the FBI office, D was asked to sign a consent form allowing them to search his apartment and car. D was told that if he did not, they would get a warrant and tear up his place. D signed the form without reading it. When he arrived, he signed a search consent form for his second car. This time D read the form and learned he had the right to refuse consent. He signed the second form and revoked the consent on the first car. An agent tried to reach the agents at the apartment building by cell phone but did not reach them until fifteen minutes after the search of the first car had been completed. The search of Awadallah’s home produced several computer-generated photographs of Osama bin Laden; the searches of his cars produced two videotapes on Bosnia and one on Islam and a retractable razor which could be described as a box-cutter or a carpet knife. Awadallah was alone in a locked interview room for a while, until agents arrived to question him. They did not advise him of his rights or tell him that he could leave. They asked him about the September 11 hijackers and his life and acquaintances. He told the agents that he knew Al-Hazmi and that he had frequently seen another man with 1 him, whose name he did not know. This interrogation lasted for six hours before D was allowed to leave. They scheduled a polygraph examination for the next morning. D called the next day and refused to come in until he had a lawyer. The agent told him they would get an arrest warrant. D went with them thinking he had no choice. D was advised of his rights and signed a form to that effect. The agents told D he lied about advance knowledge of the 9-11 attacks. D was accused of being a terrorist. D’s requests to call a lawyer and his brother were refused. The agents were instructed to arrest D as a material witness. A material witness warrant application was presented to Chief Judge Mukasey of the United States District Court for the Southern District of New York. Judge Mukasey issued a warrant to arrest D as a material witness pursuant to 18 U. S. C. § 3144. The court was unaware that D had already been arrested as a material witness three hours earlier. A Magistrate Judge Ruben B. Brooks declined to release D on bail and ordered that he be removed to New York. D arrived in New York, and appeared before Chief Judge Mukasey for a second bail hearing. Chief Judge Mukasey also declined to release D on bail, finding his continued detention to be “reasonable under the circumstances.” D spent most of his time in solitary confinement; at times lacked access to his family, his lawyer, or a phone; and was repeatedly strip-searched. On October 10, 2001, twenty days after his arrest as a material witness, D before the grand jury in the Southern District of New York. D denied knowing anyone named Khalid Al-Mihdhar or Khalid. The government then showed D an examination booklet he had written in September, which the government obtained from his English teacher in San Diego. The booklet contained the following handwritten sentence: “One of the qui[ e] test people I have met is Nawaf. Another one his name Khalid. They have stayed in S. D. [San Diego] 10 for 6 months.” D denied that he wrote the name Khalid and a few of the other words on the page. When D again appeared before the grand jury, he stated that his recollection of Khalid’s name had been refreshed by his October 10 testimony and that the disputed writing in the exam booklet was in fact his own. The United States Attorney for the Southern District of New York filed charges against D on two counts of making false statements to the grand jury in violation of 18 1 U. S. C. § 1623. D’s bail application was granted. D moved to dismiss the indictment on four grounds: (1) recantation; (2) mistreatment in violation of his due process rights; (3) interference with his right to counsel; and (4) violation of the Vienna Convention on Consular Relations.