United States v. Bary
United States v. Bary
Opinion of the Court
MEMORANDUM OPINION
Defendants Kahlid A1 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
A1 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. A1 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
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.”
Mr. Abdel Bary takes issue with the Indictment’s use of the phrase “extremist interpretation of Islam.” He contends that “[ujnder 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.”
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. Officials
1. 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.
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.
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.
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.
“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*362 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.”
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....”
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.
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.”
An examination of the relevant circumstances — including the defendant’s characteristics, the conditions of the interrogation, and the conduct of the police— establishes that Abdel Bary’s will was not overborne.
First, Mr. Abdel Bary is a well-educated and intelligent individual. Indeed, he was a lawyer in his native Egypt and was a partner in his own law firm there at the time of his arrest.
Second, the conditions of Mr. Abdel Bary’s interrogation clearly were accept
Mr. Abdel Bary was represented at every interview by a British lawyer. His lawyer informed him that his job was to “look after [Abdel Bary’s] legal rights.”
Third, the conduct of the British police who interviewed Mr. Abdel Bary did not overbear his will.
Abdel Bary contends that he impermissibly was given a Hobson’s Choice between exercising his right to remain silent and risking an adverse inference that might have been drawn from that silence.
The Supreme Court in Miranda v. Arizona
As this Court previously has held, a defendant who contends that a statement was coerced “must adduce evidence both that the individual subjectively believed that he or she had no real choice but to speak and that a reasonable person in that position would have felt the same way.”
That Mr. Abdel Bary subjectively believed that he had no choice but to speak is belied by the fact that he affirmatively chose to stop speaking on several occasions throughout the interviews, refusing to answer certain questions the detective con
Nor would it have been objectively reasonable for Abdel Bary to believe otherwise. As the government rightly points out, the instruction Abdel Bary received regarding his silence was not coercive; it was an accurate description of his rights under U.K.
It is true that the government here may not use at trial the silence of a defendant who has received a standard Miranda warning while in federal or state custody.
For an obvious reason — his presence in U.K., not U.S. custody — Mr. Abdel Bary was not given a standard Miranda warning; he was not told — implicitly or explicitly — that a decision to remain silent would not be used against him. Instead, he was informed that “it may harm [his] defence if [he] d[oes] not mention when questioned something which [he] later reifies] on in
An examination of the totality of the circumstances — including Abdel Bary’s characteristics, the conditions in which the interviews occurred, and the conduct of the British police
2. Whether Abdel Bary Was Questioned in Violation of Miranda
Mr. Abdel Bary contends also that his statements should be suppressed because he was not given the proper warnings under Miranda v. Arizona.
a. The Standard
As noted, Miranda provides that the “prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendants unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”
The Second Circuit has yet to define the precise contours of the joint venture doctrine where, as here, Americans were not directly involved in or present for the questioning conducted by foreign actors. Nor has it explicitly determined whether it is defendant’s burden to establish that a joint venture existed or the government’s burden to prove that it did not. In the absence of any guidance on the point, the
The Second Circuit has made clear that the government’s burden is not a heavy one. If the government can show that the United States and foreign law enforcement went no further than providing assistance and sharing information, a joint venture has been disproven. This is particularly true where U.S. authorities do not themselves conduct the interview in question.
The same is true even where U.S. authorities are involved in the investigations leading up to or following the interrogation in question. For example, in United States v. Bagaric, the Second Circuit concluded that collaboration and close cooperation between U.S. and Canadian officials in conducting an investigation was not a joint venture because defendant’s statements “were taken by a Canadian official, during his lawful pursuit of a separate and valid Canadian investigation into [defendant’s] activities.”
b. The Evidentiary Hearing
The Court on September 4 and 18, 2013 held an evidentiary hearing to resolve the question whether the interview of Abdel Bary was the result of a joint venture between U.S. and U.K. authorities. Having heard testimony from witnesses who were members of the U.K. Metropolitan Police at the time of the embassy bombings as well as former FBI agents, the Court concludes that the government has established that the U.K. and U.S. did not form a joint venture that led to Abdel Bary’s arrest and questioning. Miranda warnings thus were not required.
i. The Investigation, the Arrests, and the Interviews
Two members of the U.K. Metropolitan Police, both of whom were in charge of the operation leading up to and following Abdel Bary’s arrest, testified at the hearing. John Bunn was detective chief superintendent of the Antiterrorist Branch (“S013”) at the time of the embassy bombings.
Mr. Bunn testified that S013 worked closely with the British Security Service (“MI5”) and the Special Branch of the Metropolitan Police.
Mr. Weston testified that, when MI5 had intelligence that they believed needed to be acted upon, officers from that service presented the intelligence to the Special Branch and S013 at an executive liaison group (“ELG”) meeting.
The operation that led to the arrests of Mr. Abdel Bary and Mr. A1 Fawwaz was called “Operation Challenge.” Operation Challenge was “an investigation that was conducted into the activities of a number of persons in London, to establish whether they were involved in the commission, preparation, or instigation of acts of terrorism” in the U.K.
Before any action was taken on Operation Challenge, SOI3 received an intelligence briefing from the Special Branch and MI5.
The testimony provided by Mr. Bunn and Mr. Weston — as well as that of the remaining witnesses — made clear that the investigation leading up to Abdel Bary’s arrest, the subsequent searches, and Abdel Bary’s arrest and interviews, were entirely British operations. Indeed, the purpose of Operation Challenge was to “gather sufficient useable evidence leading to either prosecution [under U.K. law] or for grounds to be made to exclude an individual from the United Kingdom ... [because] their presence in the United Kingdom [was] not conducive to the public good.”
ii. American Involvement
Messrs. Bunn, Weston, and Ivan Agnew — the S013 detective constable who interviewed Abdel Bary in September 1998 — all testified explicitly that there had been no American involvement in the investigation, searches, arrests, and interviews of defendants. Mr. Bunn testified that neither he nor anyone in S013 had consulted “with any representatives of the American government about whether [they] should go forward with Operation Challenge;”
To the extent there was any American involvement at all with respect to Operation Challenge, it was limited to two incidents.
First, ten days after the bombings in East Africa, S013 sent four officers to the bombing sites at the U.S. embassies in Nairobi and Dares Salaam, of whom one was Stephen Gregory. Mr. Gregory testified that he was sent to the sites “to evaluate each scene ... to see if there was anything we could do to assist the ... physical recovery ... of exhibits.”
Second, shortly after the U.S. embassy bombings in East Africa, two FBI agents were sent from New York to London to work in the FBI’s London attached office.
Clearly these limited interactions between S013 and the FBI do not a joint venture make. Although Mr. Cloonan was permitted to observe the search of Mr. A1 Fawwaz’s residence, his observation was extremely limited and he did not participate in the search, investigation, arrest, or interviews. And the fact that SO 13 sent officers to assist in and learn from the FBI in the days following the embassy bombings certainly does not render Abdel Bary’s arrest and interviews — which were part of the wholly British Operation Challenge — an American operation. This Circuit and others have made clear that the fact that U.S. and foreign authorities share information and provide limited assistance to one another does not rise to the level of collaboration required to find joint venture such that Miranda should apply beyond U.S. borders.
c. Abdel Bary’s Joint Venture Arguments
Abdel Bary nonetheless contends that his arrest and interview were conducted at the “behest of the U.S. government” and were in fact the result of a joint venture between the U.S. and U.K. authorities. He bases his argument on two pieces of
First, Abdel Bary points to testimony Mr. Gregory gave in the United States v. Ghailani in 2010:
“Q: And how was it that you came to search that particular office?
“A: It was at the behest of the U.S. authorities who requested international cooperation of the antiterrorist branch, and, following their request, that address and five others were simultaneously searched in London on the 23rd of September, 1998, to continue investigation into the bombings of the U.S. embassies in Kenya and Tanzania a month previous.”99
Abdel Bary contends that this testimony “strongly suggests that U.K. law enforcement and the FBI were engaged in a joint venture in the investigation of this case.”
In 1998, Mr. Gregory was a “crime scene investigator and exhibits officer” in S013.
Second, Abdel Bary relies on a small portion of a book written by former FBI Special Agent Ali Soufan for Abdel Bary’s contention that his arrest and interviews were the result of a joint venture between the U.S. and U.K. governments.
Mr. Soufan was sent to London by the FBI some time after July 1999 to begin building the U.S case for extradition of Abdel Bary, A1 Fawwaz, and Eidarous. In his book, The Black Banners: The Inside Story of 9/11 and the War Against alQaeda, Mr. Soufan wrote that the FBI “urged the British to arrest Fawwaz, Bary, and Eidarous in 1996, [but] they had refused.”
Mr. Soufan did not start working in the FBI until 1997. He did not become case agent on the embassy bombings investiga
In the last analysis, Mr. Soufan’s book is not credible or persuasive evidence of anything that supports a conclusion that Mr. Abdel Bary’s arrest and interviews occurred pursuant to a joint venture between the U.S. and the U.K. Indeed, when asked whether he participated in any “meetings discussing who should be arrested in September or 1998” and whether he knew what “statutes were relied on in connection with” those arrests, Mr. Soufan answered “[n]o. That was totally a British operation.”
The evidence clearly establishes that the arrest and questioning of Mr. Abdel Bary were conducted exclusively by British authorities. American officials were not present for and took no part in the preparation or execution of either event. The fact that the British shared information resulting from the searches and interviews with U.S. officials, and that British authorities assisted in evidence collection from the embassy bombing sites, did not render British police officers agents or joint venturers of U.S. authorities who were employed for the purpose of evading Miranda. Instead, the U.K. police conducted a “completely British operation” in which Abdel Bary was arrested and interviewed. As this operation was not a joint venture with the U.S. government, no Miranda warnings were required.
Conclusion
For the foregoing reasons, Abdel Bary’s motions [DI1172] are denied. The forego
SO ORDERED.
. The other defendants on these counts have been convicted or are not available for trial with Abdel Bary for other reasons.
. Indictment ¶ 10.
. Id. ¶¶ 26, 27.
. Id. ¶ 2.
.DI 1173, at 2-3.
. BaryAff. at 1.
. Buckley Decl. Ex. C (Record of Tape Recorded Interview, Adel Abdel Bary, Sept. 24, 1998), at 1.
. Id. at 3.
. Id. at 1.
. Id. at 1-2.
. Id. at 2.
. Id.
. Id. at 3.
.Id.
. Buckley Decl. Ex. D (Record of Second Tape Recorded Interview, Adel Abdel Bary, Sept. 24, 1998), at 103.
. Id. at 2.
. Id.
. See Buckley Decl. Exs. C-G.
. Buckley Decl. Ex. E (Record of Tape Recorded Interview, Adel Abdel Bary, Sept. 25, 1998), at 2.
. Id. at 2-3.
. Id. at 4.
. Exs. F, G.
. U.S. Const. amend. V.
. Weaver v. Brenner, 40 F.3d 527, 534 (2d Cir. 1994) (quoting Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)).
. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 177, 199 (2d Cir. 2008).
. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)).
. Weaver v. Brenner, 40 F.3d 527, 536 (2d Cir. 1994).
.In re Terrorist Bombings, 552 F.3d at 213 (quoting Parsad v. Greiner, 337 F.3d 175, 183 (2d Cir. 2003)). The Supreme Court has noted that
"[i]n determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused, e.g., Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 [(1948)]; his lack of education, e.g., Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 [(1958)]; or his low intelligence, e.g., Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 [(1957)]; the lack of any advice to the accused of his constitutional rights, e.g., Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 [(1966)]; the length of detention, e.g.,*363 Chambers v. Florida, ...; the repeated and prolonged nature of the questioning, e.g., Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 [(1944)]; and the use of physical punishment such as the deprivation of food or sleep, e.g., Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 [(1961)]. In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted. Culombe v. Connecticut, ... 367 U.S. at 603, 81 S.Ct. at 1879. The significant fact about all of these decisions is that none of them turned on the presence or absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances.” (1967)); see also United States v. Stein, 440 F.Supp.2d 315 (suppressing statements made by defendants who were economically coerced).
. DI 1173 (quoting Garrity v. New Jersey, 385 U.S. 493, 496, 87 S.Ct. 616, 17 L.Ed.2d 562
. DI 1173, at 17.
. Id.
. Id. at 17-18.
. Ex. Cat 12-13.
. Id. at 12.
. Id. at 4.
. See, e.g., id. At 11 ("I will answer him on the question but I don't believe it is a question in connection or relating to what I am here for.”).
. See In re Terrorist Bombings, 552 F.3d at 213 (statements voluntary where “there is no evidence in the record suggesting that the conduct of Al-‘Owhali’s interrogators was oppressive; quite the contrary: they permitted breaks, provided food and water, limited the duration of the sessions, and never placed him in restraints”).
. Id. at 1.
. See Ex C, at 3; Ex. D, at 1.
. Ex. E, at 2-3.
. Id.
. DI 1173, at 18.
. 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. Id. at 467, 86 S.Ct. 1602.
. United States v. Stein, 440 F.Supp.2d 315, 328 (S.D.N.Y. 2006).
. Ex. E, at 5.
. Id.
. Stein, 440 F.Supp.2d at 328 ("There would be little reason to exclude a statement as obtained in violation of the Fifth Amendment if the speaker did not in fact feel compelled to make the statement.”).
. Defendants do not dispute that the instruction was an accurate description of Mr. Abdel Bary’s rights under U.K. law.
. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980).
. Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (citing Jenkins, 447 U.S. at 239, 100 S.Ct. 2124).
.Id., at 607, 102 S.Ct. 1309; see also Jenkins, 447 U.S. at 235, 100 S.Ct. 2124'("the Fifth Amendment is not violated when a defendant who testifies in his own defense is impeached with his prior silence”). Mr. Abdel Bary attempts to distinguish his case from Fletcher and Jenkins because those cases involved defendants whose pre-arrest silence later was used against them at trial. Abdel Bary, by contrast, was in custody when his interviews occurred. But the rule set forth in Fletcher and Jenkins holds true whether a defendants’ silence is pre- or post-arrest. See, e.g., United States v. Reynolds, 27 Fed.Appx. 60, 62 (2d Cir. 2001) ("Moreover, as Mr. Reynolds had received no assurances from the government that his silence would not be used against him, reference by the government to his post-arrest silence in cross-examination or in summation does not implicate his due process rights.”)
. E.g., Ex. C, at 3. This instruction could also be read to inform Mr. Abdel Bary that if, in answering the questions posed to him, he omits or misrepresents certain information and later attempts to include that include or alter that information at trial, his earlier statement can be used against him. This is of course true whether or not Mr. Abdel Bary received a standard Miranda warning.
. Abdel Bary's contention that his statements were coerced because his attorney had not been provided sufficient material to enable him to provide Abdel Bary meaningful assistance lacks merit. First, the transcripts make clear that the British police made continuous disclosures to Mr. Abdel Bary’s lawyer. See, e.g., Ex. C, at 3; Ex. D, at 1-2, 12; Ex. E, at 2-8; Ex. F, at 2-3. Second, Abdel Bary’s claim would fail even if the police had not been so forthcoming with information and materials. 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.’ ” Colorado v. Spring, 479 U.S. 564, 576-77, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987) (quoting Moran v. Burbine, 475 U.S. 412, 422, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)).
. Miranda, 384 U.S. at 478, 86 S.Ct. 1602.
. United States v. Yousef, 327 F.3d 56, 145 (2d Cir. 2003).
. Id.
. Id. at 146.
. E.g., United States v. Abu Ali, 528 F.3d 210, 228 (4th Cir. 2008) (no joint venture where "FBI supplied a list of questions” to Saudi officials to be asked at interrogation and FBI and Secret Service agents observed the interrogation because Saudis retained ultimate control over interrogation).
. United States v. Bagaric, 706 F.2d 42, 69 (2d Cir. 1983), abrogated on other grounds by Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994)
. United States v. Welch, 455 F.2d 211, 213 (2d Cir. 1972).
. Bagaric, 706 F.2d at 69.
. United States v. Maturo, 982 F.2d 57, 62 (2d Cir. 1992); see also U.S. v. Lee, 723 F.3d 134, 137, 141 (2d Cir. 2013) (Jamaican officials not "virtual agents” of U.S. officials even where U.S. and Jamaican law enforcement "ran parallel investigations of ... organized marijuana trafficking activity” and Jamaican law enforcement provided DEA with wire taps that led to surveillance warrants in the U.S. because Jamaican investigation was independent and conducted for its own purpose); United States v. Getto, 729 F.3d 221, 230-35 (2d Cir. 2013) (Israeli law enforcement agents were not "virtual agents” of U.S. authorities for Fourth Amendment purposes even where (1) the U.S. requested by MLAT treaty that Israeli police conduct searches, (2) Israeli and U.S. law enforcement shared intelligence, and (3) U.S. law enforcement was allegedly permitted to monitor Israeli surveillance, and (4) the defendant was arrested and charged in the United States”).
Maturo, Lee, and Getto all were Fourth Amendment cases. The Court in Lee noted that the Second Circuit has not adopted the joint venture doctrine "in the context of the Fourth Amendment.” Lee, 723 F.3d at 140 n. 4. It reaffirmed that holding in Getto. In both Fourth and Fifth Amendment cases, however, the inquiry into whether the constitutional protections should apply to foreign investigation involves an examination of the degree of U.S. control over foreign law enforcement operations. The Second Circuit in Fourth Amendment cases, however, does not require a finding that U.S. law enforcement created a joint venture for the purposes of evading Miranda, as it does in Fifth Amendment cases like this one.
. Id. See also Bagaric, 706 F.2d at 69.
. The Court need not reach the question whether, assuming Miranda warnings were necessary, the warnings he did receive were sufficient.
. Sept. 4, 2013 Hr’g Tr. at 6:10-20.
. Sept. 18, 2013 Hr’g Tr. at 7:10-11.
. Id. at 7:15-25.
. Id. at 8:4-6.
. Id. at 8:6-11.
. Id. at 8:14-19.
. Id. 13:13-19.
. Id. 13:18-25.
. Id. 9:3-5.
. DI
. Id. at 9:3-6.
. Id. at 10:18-11:3. See also, id. at 11:3-8. (Operation Challenge "was to prove or disprove the intelligence that these men were involved in the commission, preparation, or instigation of acts of terrorism, and we ere trying to establish how far that involvement had gone, what it was about, what activity was taking place in London.”)
. Id. at 11:9-15.
. Id. at 13:10-15.
. Id. at 13:3-9.
. Id. at 14:12-13.
. Sept. 18 Hr'g Tr. at 12:25-13:3.
. Id. at 15:6-8 (emphasis added). See also, id. at 43:18-25 ("the intelligence was that these individuals were involved in conspiring to undertake or had undertaken or been involved in, in some way, acts of terrorism abroad. My role was to ascertain whether or not they were involved in the commission, preparation, or instigation of acts of terrorism in the U.K.”). Mr. Weston eventually determined that there was insufficient evidence that Al Fawwaz and Abdel Baiy had engaged in these acts and released them.
. Sept. 4, 2013 Hr’g Tr. at 10:7-10
. Id. at 14:18-20; 15:1-2.
. Id. at 15:6-10.
. Sept. 18, 2013 Hr’g Tr. at 23:3-21.
. Id. at 65:14-66:9.
. Sept. 4, 2013 Hr’g Tr. at 88:22-89:1.
. Id. at 89:7-18.
. Id. at 19:3-12 (testifying that S013 was "always interested in the manner in which other countries investigated large vehicle-borne improvised devices where there was a huge amount of casualties and whether any
. Sept. 18, 2013 Hr'gTr. at 111:10-24.
. Id. at 112:7-9.
. Id. at 113:1-6.
. Id. at 114-118. See also Sept. 4, 2013 Hr’g Tr. at 20:3-9 (Bunn testifies that ”[w]e would not allow [FBI agents] to go to any address or be part of any part of the evidentiary scene, but I did permit and I personally took one agent to just watch people enter the address because it was an unarmed intervention into these premises, and that was of interest to the officer. And that’s all that happened. That was the only participation.”).
. Id. at 120:3-14.
. Id. at 130:2-13.
. DI 1173, at 23-24 (citing Transcript of Record at 1828-1829, United States v. Ghailani, Vol. 15, Nov. 1, 2010).
. Id. at 24.
. Id. at 96:13-16.
. Sept. 4 Hr'g Tr. at 87:1-6.
. Id. at 87:13-18.
. Id. at 96:21-23.
. Sept. 18, 2013 Hr’g Tr. at 89:23-25.
. DI 1173, at 22.
. Sept. 18, 2013 Hr’g Tr. at 82:9-10; 85:20-25.
. Id. at 91:16-19.
. Id. at 90:1-7.
. Id. at 104:10-14.
. Id.
; Mat 86:18-23.
. Abdel Bary’s counsel argued at the hearing that, because Mr. Cloonan testified that "he and the FBI provided information to MI5,” the defense should be provided with "information so that [they] can call the member of MI5 who attended the elective liaison group” meetings at which Operation Challenge was discussed. Sept. 18, 2013 Hr'g Tr. at 146:16-121. As the Second Circuit and others have held, however, the fact that a foreign government provides information to the U.S. government does not rise to the level of collaboration sufficient to trigger extraterritorial application of the Fourth or Fifth Amendments. See, e.g., Maturo, 982 F.2d 57, 62; Lee, 723 F.3d at 141;. Getto, 729 F.3d at 230-35. This is particularly the case where, as here, American officials did not participate in and were not present for the interviews at which the statements defendant seeks to suppress were made. Abdel Bary’s request therefore is denied.
Reference
- Full Case Name
- United States v. Adel Abdel BARY
- Status
- Published