Sixth Amendment Violations
Yunis' sixth amendment claim is twofold: he had the right to an attorney at the moment the FBI commenced interrogation; and he was totally unfamiliar with and lacked an understanding of the American criminal justice system. Because of these conditions, he therefore, could not knowingly and intelligently waive his right to counsel. The government counters, simply by suggesting that his sixth amendment rights had not yet attached. In its brief dismissal of defendant's argument, the government relies solely upon a 1986 United States Supreme Court case, Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410.
In that proceeding, Justice O'Connor held that the defendant's inculpatory statements took place before the initiation of adversary proceedings and therefore his right to counsel had not attached. She relied upon United States v. Gouveia, 467 U.S. 180, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984), which held that the defendant has the right to the presence of an attorney during any interrogation occurring after the first formal charging proceeding. 467 U.S. at 187. In Gouveia, the court made clear that until such time as the "government has committed itself to prosecute, and . . . the adverse positions of government and defendant have solidified" the Sixth amendment right to counsel does not attach. Id. at 189 (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972)).
However, it is clear from the facts here that the federal government had long since committed itself to prosecute Yunis. It had engaged in a two-year investigation; the abduction of Yunis took six months to plan and involved several government agencies, considerable personnel, and various resources, financial and physical.
Trans. of Revell at 167-68. In short, the government was not just bringing another defendant into the station house for questioning. It was committed to bringing an alleged terrorist to trial. The fact that the indictment charging Mr. Yunis with violating several United States laws was returned on September 15, 1987, halfway through his custodial journey across the Mediterranean, does not change the fact that his right to counsel had attached at the outset of the interrogation.
A warrant had been issued for defendant's arrest on September 11, 1987, the government had presented its evidence to the grand jury seeking an indictment, and an extremely complicated abduction operation had all been planned prior to his custodial interrogation.
The Court is extremely troubled by the fact that despite the meticulous detail of Operation "Goldenrod," the government failed to have an attorney available. If the FBI could arrange to have a medical surgical team of five doctors and several tons of medical equipment aboard the Butte,
would it have been too difficult to arrange for a competent and detached attorney?
When government chief counsel was asked during closing argument why such provisions were not made, he responded in what appeared to be a near apologetic tone:
I don't know the answer . . . it just didn't come up.
From the minute of his arrest, Yunis was told that he had all the rights of a United States citizen. The government cannot now argue that his right to an attorney had not vested. An arrest warrant had already been issued and the government was committed to prosecute. Therefore, the defendant's Sixth amendment right had crystallized. This right to counsel is "indispensable to the fair administration of our adversarial system of criminal justice." Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 483, 88 L. Ed. 2d 481 (1985).
A defendant's waiver of his sixth amendment right to counsel,
is only valid, if made knowingly and voluntarily.
For the same reasons the Court concluded that Yunis failed to waive his fifth amendment rights knowingly and voluntarily, it likewise determines that his sixth amendment right to counsel was not waived.
Somewhere along the way, in its zeal and determination to indict and prosecute an alleged hostage-taker and hijacker under recent Congressional enactments, and in securing Fawaz Yunis' written confession, the FBI failed to comply fully with constitutional restraints and precedential Supreme Court decisions. In our criminal justice system, law enforcement agencies must follow the letter and the spirit of the law, even though the accused is not a citizen of the United States. It failed to do so in September 1987 when it interrogated the defendant.
For the reasons presented above, it is this 23rd day of February, 1988,
That defendant's motion to dismiss the indictment based on an alleged illegal arrest is denied.
That defendant's motion to suppress his confession because he did not voluntarily and knowingly waive his Miranda rights, and for other stated reasons, is granted.