United States v. Bary

978 F.Supp.2d 356

UNITED STATES of America,

v.Adel Abdel BARY, Defendant.

No. S7 98 Crim. 1023(LAK).

United States District Court, S.D. New York.

Oct. 23, 2013.

Sean S. Buckley, Rachel P. Kovner, Stephen J. Ritchin, Assistant United States Attorneys, Preet Bharara, United States Attorney.

Andrew G. Patel, Lauren Kessler, Law Offices of Andrew G. Patel, Linda Moreno, Law Office of Linda Moreno, Ahmed Ghappour, Law Offices of Ahmed Ghappour, for Defendant Adel Abdel Bary.

MEMORANDUM OPINION

LEWIS A. KAPLAN, District Judge.

Defendants Kahlid Al Fawwaz and Adel Abdel Bary were indicted in this Court in 2000 for, among other things, conspiring with Usama Bin Laden and others to kill Americans abroad by, among other means, bombing the United States embassies in Nairobi, Kenya, and Dares Salaam, Tanzania, bombings in which 224 people reportedly were killed and many more injured.

This case is now before the Court on motions by defendant Abdel Bary to dismiss the indictment as violative of the First Amendment and to suppress statements he made to U.K. law enforcement in 1998.

Facts

Al Fawwaz and Abdel Bary are charged on the same superseding indictment (S7), and the government plans to try them jointly. The superseding indictment contains 308 counts. Counts One through Six charge defendants with conspiracies to murder, bomb, and maim. Al Fawwaz is charged in Count 1 (Conspiracy to Kill United States Nationals), Count Three (Conspiracy to Murder); Count Five (Conspiracy to Destroy Buildings and Property of the United States), and Count Six (Conspiracy to Attack National Defense Utilities). Abdel Bary is charged in Counts One and Counts Four through Six. Counts Seven through Two–Hundred and Eighty–Six charge Abdel Bary and others, ¹ but not Al Fawwaz, with substantive crimes related to the U.S. embassy bombings. Neither defendant is charged in the remaining counts.

Abdel Bary moves (1) to dismiss the indictment as violative of the First Amendment and (2) to suppress statements he made to United Kingdom officials while he briefly was in custody in the United Kingdom in 1998.

Discussion

A. Dismissal of the Indictment

The Indictment charges, inter alia, that defendants Abdel Bary and Al Fawwaz “together with other members and associates of al Qaeda, Egyptian Islamic Jihad and others ... conspired to kill nationals of the United States.” ² These defendants were charged also with participation in a conspiracy to destroy buildings and property of the United States, which had as one object to “bomb American facilities anywhere in the world.” ³ Notably, for purposes of this motion, the Indictment describes the history of al Qaeda and explains that al Qaeda “opposed the United States for several reasons,” the first of which is that “the United States was regarded as an ‘infidel’ because it was not governed in a manner consistent with the group's extremist interpretation of Islam.” ⁴

Mr. Abdel Bary takes issue with the Indictment's use of the phrase “extremist interpretation of Islam.” He contends that “[u]nder the First Amendment of the Constitution, the Government does not have the right to decide what forms of religion are ‘normal’ versus ‘extreme.’.... The Government's labeling of the defendant's belief in Islam as ‘extremist’ is disapproving of an infringes on Mr. Abdel Bary's religious freedoms.” ⁵ Thus, he argues, the Indictment violates that Establishment Clause and the Free Exercise of the First Amendment.

Abdel Bary's argument is unpersuasive. Accordingly, the motion to dismiss the Indictment is denied, substantially for the reasons stated in the government's memorandum.

B. Suppression of Statements Made to U.K. Officials1. Whether Abdel Bary's Statements to U.K. Officials Were Voluntary

a. The Arrest and the Interviews

Abdel Bary was arrested by British police on September 23, 1998.⁶ During brief periods on the next three days, Abdel Bary was questioned at a London police station by two British detective constables.⁷ Before the interview began on the first day, Abdel Bary was given an opportunity to consult with his lawyer,⁸ who remained present throughout the questioning.⁹ Adbel Bary's lawyer explained to him: “my job here is to look after your legal rights. And what that basically means I obtain information from the police officers which then I discuss with you.” ¹⁰ He explained also that “at this stage I can say that I only have very limited disclosure and consequently my advice is extremely limited based on that disclosure. And consequently should there be introduction of any fresh evidence or information, I will seek to intervene, and try to explain and advise you on how best to deal with information.” ¹¹

The detective constable who conducted the interview advised Abdel Bary that he had “[t]he right to free and independent legal advice. You can speak to a solicitor in private at any time of day or night and this legal advice is free. You can speak to a solicitor in person. If you do not want to speak to a solicitor in person, you can speak on the telephone. If you do want legal advice the interview can be delayed unless certain exceptions apply. As there is a solicitor present already, I will carry on with this interview. Do you understand everything that I have said to you?” ¹²

Abdel Bary responded that he did.¹³ The detective constable then informed Abdel Bary: “You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Do you understand what that caution means?” Abdel Bary said that he did.¹⁴

The detective constable then questioned Abdel Bary for 45 minutes, at which point there was a break of approximately an hour during which Abdel Bary was given a cup of coffee and a “headache pill” and was permitted to consult with his lawyer again.¹⁵ When questioning resumed, the detective constable again advised Abdel Bary that he did “not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.” ¹⁶ Abdel Bary confirmed that he understood.¹⁷ The questioning resumed for 46 minutes.

Abdel Bary was interviewed three more times over the next two days. His lawyer was present for each interview. No interview lasted more than 46 minutes.¹⁸ At the start of the interview on the second day, Abdel Bary's lawyer made clear that he had “grave concerns” regarding a disclosure of materials made to him by the British police.¹⁹ He said that

“some of the material is unrelated. Some of the material ... is wrongly translated ... which obviously limits my job and ... furthermore ... what concerns me is that we have to go into this interview when I'm not able to discharge my duty to protect my client's rights. So in the light of that, my advice to my client this stage is to give no comment. He has co-operated fully hitherto, however in the light of the current disclosure, which is troubling me a great deal, I am unable to advise him and consequently it is on my advice that he is going to give a no comment interview.” ²⁰

After the lawyer repeated his concerns, the detective constable replied: “Okay. As you have already said sir, he has every right not to answer any of my questions, but as you appreciate I also have a right to ask them.” ²¹ Abdel Bary proceeded to answer “no comment” in response to every question posed to him during that interview, as well as the two remaining ones.²²

Abdel Bary was released on or about September 27, 1998.

b. Voluntariness

The Fifth Amendment provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself....” ²³ “It guarantees ‘the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence,’ ” ²⁴ and it applies “regardless of the origin— i.e., domestic or foreign—of a statement ... [and] it does not matter whether the defendant is a U.S. citizen or a foreign national.” ²⁵ The Supreme Court has said “[t]he ultimate test” for whether a statement was “compelled” is “ ‘the test of voluntariness. Is the [statement] the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to [make his statement], it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his [statement] offends due process.’ ” ²⁶

The test of whether a statement was voluntarily made depends not on a single factor, but upon an “examin[ation of] all of the circumstances surrounding the interrogation to see if police overreaching overcame a suspect's will and led to an involuntary” statement.²⁷ “ ‘Specifically, these circumstances include 1) the accused's characteristics, 2) the conditions of the interrogation, and 3) the conduct of the police.’ “ ²⁸ Moreover, as Abdel Bary rightly points out, coercion can be “mental as well as physical; the blood of the accused is not the only hallmark of an unconstitutional inquisition.” ²⁹

Abdel Bary contends that the statements he made during his interviews with the U.K. police “were not the product of a free and unrestrained will.” ³⁰ He argues that the warning he was given by the detective constable—that he did not have “to say anything but it may harm [his] defence if [he] do[es] not mention something which [he] later rel[ies] on in court”—was “inherently coercive because it penalized silence.” ³¹ The warnings allegedly caused Abdel Bary to believe that “if he wanted to prevent his silence from being used against him, he had no choice but to answer the questions posed.” ³² He contends also that his lawyer was not properly equipped and prepared to provide him meaningful assistance and advise him of his rights. Thus, he argues, all statements he made during the five interviews with U.K. officials must be suppressed.

An examination of the relevant...