United States v. Elsheikh

578 F.Supp.3d 752

UNITED STATES of America

v.El Shafee ELSHEIKH, Defendant.

Criminal Action No. 1:20-cr-239

United States District Court, E.D. Virginia, Alexandria Division.

Signed January 4, 2022

Aidan T. Grano, John T. Gibbs, Raj Parekh, Dennis Fitzpatrick, US Attorneys, Alicia H. Cook, United States Attorney's Office, Alexandria, VA, for United States of America.

Edward B. MacMahon, Law Offices of Edward B. MacMahon Jr., Middleburg, VA, Jessica Nicole Carmichael, Carmichael Ellis & Brock, Nina J. Ginsberg, Zachary Andrew Deubler, DiMuroGinsberg PC, Alexandria, VA, for Defendant.

UNCLASSIFIED MEMORANDUM OPINION

T.S. Ellis, III, United States District Judge

On October 6, 2020, a grand jury in the Eastern District of Virginia returned an Indictment charging Defendant El Shafee Elsheikh and Co-Defendant Alexanda Amon Kotey¹ with hostage-taking and criminal conspiracy while allegedly acting as members of the Islamic State of Iraq and Syria ("ISIS") in Syria between 2012 and 2015. The Indictment sets forth the following eight counts:

(1) conspiracy to commit hostage-taking resulting in death, in violation of 18 U.S.C. § 1203 ;

(2) hostage-taking resulting in the death of James Foley, in violation of 18 U.S.C. §§ 1203 and 2;

(3) hostage-taking resulting in the death of Kayla Mueller, in violation of 18 U.S.C. §§ 1203 and 2;

(4) hostage-taking resulting in the death of Steven Sotloff, in violation of 18 U.S.C. §§ 1203 and 2;

(5) hostage-taking resulting in the death of Peter Kassig, in violation of 18 U.S.C. §§ 1203 and 2;

(6) conspiracy to murder United States citizens outside of the United States, in violation of 18 U.S.C. § 2339B ;

(7) conspiracy to provide material support to terrorists, in violation of 18 U.S.C. § 2339A ; and (8) conspiracy to provide material support to a designated foreign terror organization, in violation of 18 U.S.C. § 2339B.

This criminal prosecution is before the Court on Defendant's Motion to Suppress incriminating statements made by Defendant while in the custody of the Syrian Democratic Forces (SDF) in Syria in 2018 and 2019. Specifically, Defendant seeks to exclude from use at trial statements made by Defendant to Federal Bureau of Investigation (FBI) interviewers on March 27, 2018 and to journalists from various media outlets in 2019.² With respect to the former set of statements, although the FBI interviewers provided Miranda warnings on March 27, 2018, Defendant asserts that any statements offered during that interview must be suppressed because the Government utilized an impermissible two-step interrogation procedure to undermine Miranda ,³ in violation of Missouri v. Seibert , 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). And with respect to the 2019 media statements, Defendant contends that those statements constitute the involuntary products of torture by SDF personnel.

The parties’ positions on Defendant's Motion to Suppress have been fully briefed and orally argued at a hearing on December 10, 2021. In addition, a pre-trial evidentiary hearing was held on November 16–18, 2021, during which the Government presented testimony from a number of witnesses. Five witnesses, including four from the Department of Defense (DOD), offered classified testimony in a closed courtroom on the first day of the hearing.⁴ During the second and third days of the hearing, the following witnesses offered unclassified testimony: three SDF officials with authority over or within prisons where the SDF held ISIS detainees, FBI Special Agents John Chiappone and Julius Nutter, who conducted Mirandized interviews of Defendant on March 27 and 28, 2018, documentary filmmaker Sean Langan, who interviewed both Defendant and Co-Defendant Kotey in July 2019, and FBI Agent Daniel O'Toole. The parties also submitted a substantial volume of evidence, both as attachments to their briefing and as exhibits during the evidentiary hearing, including reports documenting Defendant's statements during the DOD and FBI interviews, communications to and from various DOD and FBI interviewers and other officials, video clips from Defendant's media interviews, and other relevant documentary evidence.

A Motion in Limine by the Government is also pending before the Court (Dkt. 97). That motion seeks to establish the admissibility of false identifying statements provided by Defendant and Co-Defendant Kotey to DOD officials soon after Defendant's capture by the SDF. Although those statements were made by Defendant and Kotey prior to the provision of any Miranda warnings, the Government contends that they are admissible pursuant to the routine booking exception. Finally, also before the Court are portions of Defendant's Motion to Compel for which ruling was deferred in a previous Order entered on November 15, 2021. See Dkt. 158. For the reasons stated in this Memorandum Opinion, Defendant's Motion to Suppress and the remaining portions of the Motion to Compel must be denied and the Government's Motion in Limine must be granted.

I.

The testimony of the witnesses at the November 16–18, 2021 hearing as well as the documentary and video evidence submitted by the parties, establishes convincingly the following facts pertinent to disposition of the pending motions:

• The SDF is a military force comprised largely of Syrian Kurds which operates in an autonomous region of northeastern Syria. Since 2015, the SDF has served as a military opponent of ISIS and as an ally of the United States in the battle against ISIS. The SDF is not part of the Syrian government.

• As part of the SDF's anti-ISIS operations, the SDF has captured and detained numerous ISIS combatants. The SDF operates several prisons in northeastern Syria for the purpose of housing captured ISIS detainees. During the relevant time period, i.e. from January 2018 to October 2019, those facilities included: (1) Ayn Issa Prison, (2) Kobani Prison, and (3) Derik Prison.

• During the relevant time period, the SDF allowed members of the DOD to have discretionary access to suspected ISIS prisoners. The DOD's operations in SDF prisons included routine "biometric enrollment" of substantial numbers of detainees. During the standard enrollment process, DOD officials asked detainees for basic biographical information. DOD officials also collected fingerprints and photographs of detainees. Biometric enrollment served an administrative function (identification and tracking of prisoners) as well as advanced the United States’ national security interests.

• DOD personnel had the ability to upload biometric data to certain government databases. This permitted DOD officials to ascertain or confirm the identity of some detainees who previously had biometric data stored in a government database. This process also served the interest of national security: for example, United States immigration officials might later be able to identify a suspected ISIS detainee attempting to enter the United States.

• DOD interrogators also interviewed suspected ISIS prisoners. In general, each time a DOD interrogator interviewed an SDF prisoner, the interrogator generated a Tactical Interrogation Report ("TIR") summarizing the prisoner's statements during the interview. The questions asked during interviews were driven by DOD intelligence needs. Interrogators sometimes asked questions submitted by other U.S. government agencies called Source Directed Requirements ("SDRs"), but only when the SDRs related to intelligence requirements.⁵

• In January 2018, the SDF captured a group of individuals attempting to cross the border from northern Syria into Turkey. These individuals, including Defendant and Co-Defendant Kotey, were soon thereafter transported to Ayn Issa Prison.

• At Ayn Issa Prison, Defendant, Co-Defendant Kotey, and other new detainees were subjected to the standard DOD biometric enrollment process. During preliminary questioning, both Defendant and Kotey offered false identities. Specifically, Defendant claimed to be a national of Yemen named "Suhayb Abdallah Jasim." Kotey claimed to be a Yemeni named "Yahya Mustafa Ibrahim." Defendant also identified Kotey as Yahya. Both Defendant and Kotey denied being able to speak English.

• As part of the intake process, the DOD collected Defendant's fingerprints and uploaded them to a government database. Defendant's fingerprints matched those collected when Defendant entered the United States in 2008, thereby revealing Defendant's true identity.

• When Defendant was confronted with a fingerprint match revealing his identity, he then admitted that he was British national El Shafee Elsheikh. Co-Defendant Kotey also ultimately admitted his identity to DOD officials.

• LCF was a DOD facility located in close proximity to the Ayn Issa and Kobani Prisons in January 2018. Because Defendant was suspected to be a member of the notorious and high-level group of ISIS operatives known as the "Beatles,"⁶ a DOD official at LCF set interviewing Defendant as a high level priority.

• Between January and March 2018, DOD officials interviewed Defendant a total of twenty-six times. These interviews were for the purpose of gathering intelligence rather than for the law enforcement purpose of gathering evidence to support a criminal prosecution. Miranda warnings were not provided in advance of these interviews. During these interviews, Defendant provided extensive and detailed answers which established Defendant's involvement in the activities of ISIS, including the hostage-taking conspiracy alleged in the Indictment.

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• Defendant was relocated from Ayn Issa Prison to Kobani Prison between February 18, 2018 and February 20, 2018.

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• During the course of the DOD interviews, Defendant admitted that he had taken direct part in the alleged hostage-taking conspiracy by serving as a

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