United States v. Musaibli

575 F.Supp.3d 870

UNITED STATES of America, Plaintiff,

v.Ibraheem Izzy MUSAIBLI, Defendant.

Case Number 18-20495

United States District Court, E.D. Michigan, Southern Division.

Signed December 13, 2021

Kevin Mulcahy, Cathleen M. Corken, U.S. Attorneys, U.S. Attorney's Office, Hank Moon, U.S. Attorney, U.S. Department of Justice, Detroit, MI, for Plaintiff.

Federal Community Defender, Fabian Renteria Franco, James R. Gerometta, Public Defenders, Federal Defender Office, Detroit, MI, John A. Shea, Ann Arbor, MI, for Defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTIONS TO SUPPRESS CUSTODIAL STATEMENTS AND ELECTRONIC MESSAGES

DAVID M. LAWSON, United States District Judge

Defendant Ibraheem Izzy Musaibli is charged with crimes arising from his alleged involvement with a terrorist organization in the Middle East between October 2015 and June 2018. Starting in April 2018, he began a series of text message exchanges with Federal Bureau of Investigation Special Agent Wendy Kerner. Musaibli eventually was captured by the Syrian Democratic Forces (SDF) and was turned over to the FBI, who repatriated him to the United States. Musaibli made statements to government agents during the transport flight from Kuwait to the United States and immediately after the flight landed in Gary, Indiana. Now before the Court are his motions to suppress those statements and the text messages. The Court held an evidentiary hearing on the motions. The evidence establishes that the custodial statements were voluntary and preceded by the appropriate advice of constitutional rights and warnings, the defendant's waiver of those rights was knowing and voluntary, and there is no valid reason to suppress the statements or the text messages. The motions to suppress, therefore, will be denied.

I.

Musaibli is charged in a superseding indictment with providing, attempting to provide, and conspiring to provide material support to a terrorist organization, and receiving military-type training from a foreign terrorist organization. These charges are based on Musaibli's alleged involvement with the Islamic State of Iraq and al-Sham (ISIS) from April 2015 through June 2018; during part of that time he supposedly provided military-type services for that organization.

Musaibli is an American citizen born in Dearborn, Michigan. In April 2015, he supposedly was radicalized after reading and viewing "jihadi materials," including lectures by Anwar al-Awlaki. That month, he traveled to Yemen. Six months later, he left Yemen and traveled to Syria by way of Saudi Arabia and Turkey. Upon arrival in Syria, he joined ISIS.

In April 2018, Musaibli contacted FBI agents, and he then had a series of communications about his situation with FBI Task Force Officer Wendy Kerner. The substance of those communications mostly consists of Musaibli asserting various demands for money, immunity, or transportation at the FBI's expense to facilitate his escape from Syria to Yemen. Agent Kerner responded to these demands by telling the defendant that if he wanted to get safely out of Syria, the safest course would be to surrender himself to the SDF and identify himself to them as a U.S. citizen, at which point the FBI could request to extradite him to the United States to face terrorism charges. Kerner also told the defendant that the FBI would not provide him with money or other resources to pursue schemes such as hiring a smuggler to get him out of Syria, because doing so would constitute illegal material support for his terrorist affiliated service with ISIS. The defendant last communicated with Agent Kerner around June 9, 2018.

Sometime after that last exchange, Musaibli was captured by SDF forces. He argues in his motion that while in SDF custody, he was interrogated by the SDF, and during those interrogations he was "threatened with physical violence, struck repeatedly, and spit upon." He says that he was interrogated "several times" during the six weeks he was in SDF custody, and frequently the interrogators threatened to turn him over to the Iraqi Army, which was reputed to be executing prisoners thought to have ISIS affiliations. On July 14, 2018, he was interrogated by unidentified U.S. agents while in an SDF prison. Although the government has not revealed the substance of that interview, it asserts that Musaibli reportedly then appeared to be in good health and showed no signs of distress or mistreatment.

Musaibli was extracted from the Middle East on July 24, 2018. He says that when he was turned over to U.S. authorities, he had not eaten since the prior afternoon, and he had slept less than two hours within the prior 24 hours, although there is no record evidence backing up those assertions.

The five members of the foreign transfer of custody (FTOC) team testified at the evidentiary hearing. Three members — FBI agents Michael Stepp, Richard Alzner, and John McKinley — provided logistical and security support. Stepp was trained as an emergency medical technician. McKinley was trained as a physician's assistant and was able to furnish medical support if needed. The other two team members — agents Kerner and Julius Nutter — came along with the primary purpose of interrogating the defendant.

The team left the United States on July 23, 2018 and travelled to a base in Kuwait via Germany. Stepp, Alzner, and McKinley then flew in a C-130 to Syria to take custody of Musaibli from the SDF at 10:20 p.m. Syria local time (2:20 p.m. Eastern Time) on July 23, 2018. They wore civilian clothes and, although armed, they did not display weapons. There was another group of individuals that also was being extracted at the time. The agents took custody of Musaibli, who wore eye coverings and zip-cuff restraints. They told him they were FBI agents who were taking him back to the United States. Musaibli said he understood that he was being transferred to FBI custody and asked to speak with agent Kerner. He was cooperative during the transfer, and according to the agents, "appeared to be relieved" to be handed over to U.S. authorities.

They swapped the restraints for their own metal handcuffs and blackout goggles. McKinley performed a "quick" head-to-toe medical exam — five to six minutes — and pronounced Musaibli fit for travel. McKinley testified that Musaibli was alert, responsive, oriented, and did not appear to be distressed, injured, agitated, or sleep-deprived. He saw no indication that Musaibli had been tortured or beaten, and Musaibli did not complain about being hungry, tired, or exhausted.

Musaibli was brought aboard the C-130 first, and then the other extractees were boarded. After the flight took off, the pilot had to take evasive action because of a surface-to-air missile threat, which lasted five to ten seconds, but the aircraft was not damaged and none aboard were injured. After about 25 minutes, the defendant fell asleep. When he awoke, he was offered water, then went back to sleep. The plane landed at the Kuwaiti airbase around three hours later. These events were documented in the FTOC log, which was kept by Stepp and Alzner.

At the base in Kuwait, Musaibli was transferred to a C-17 for the flight back to the United States. He remained in restraints and wore blackout goggles and ear protection. He was confined to a partitioned space on the aircraft that measured 18 by 30 feet. The five extraction team members were with him. The other extractees also were boarded in another section of the C-17. Stepp offered Musaibli water and a bathroom break. He declined both. Alzner adjusted the seatbelt restraints to make Musaibli more comfortable. He was offered water twice more before the plane took off around 10:00 p.m. Eastern Time.

One hour after the plane took off for its 16-hour flight to the United States, agents Nutter and Kerner approached Musaibli and asked if he wanted to speak with them. When the agents spoke to the defendant his goggles were removed, and the noise cancelling earmuffs were replaced with a headset (the agents also wore headsets and ear protection) so the defendant and agents could communicate over the din of the aircraft noise. The agents offered the defendant food and water, which he declined. Instead, he "immediately started telling ‘Wendy’ about what happened in the days after their last chat in June." He asked if the agents had retrieved any of his personal property from the SDF, told the agents that he had slept the day before, and said that he "wanted to ‘cooperate 100%’ with the FBI." Agent Kerner then provided a written advice of rights form and orally advised Musaibli of his Miranda rights. In addition to the standard advice of rights, the form also stated that the agents were unaware of any statements previously made by the defendant, any such statements could not be used against the defendant in U.S. courts, and he was not obligated to make any further statements because he previously had spoken to other U.S. authorities. Musaibli said he understood his rights and elected to waive them, and he signed the advice of rights form at 11:13 p.m. Eastern Time.

The interview continued thereafter for around five hours. During the questioning, Musaibli was offered water five times, and an open bottle of water was left for him to drink. He asked to pray and was allowed to do so. He used the bathroom twice and declined when asked another time if he needed to do so. He was offered and ate a hot meal, along with chips, a soda, a snack bar, a protein bar, and a Pop-Tart. One of his hands was uncuffed at agent Kerner's request to make the defendant more comfortable, while the other remained cuffed to the seat. The interrogation paused while the plane was refueled midair. During the refueling operation, the defendant fell asleep. He awoke briefly, and the agents brought a padded footrest to make the defendant more comfortable. He fell asleep again, awaking eventually to use the bathroom. The FTOC log indicates that the defendant slept between 4:43 a.m. and 9:00 a.m. Eastern...