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UNITED STATES v. FAWAZ YUNIS

February 23, 1988

United States of America
v.
Fawaz Yunis



The opinion of the court was delivered by: PARKER

 (Denying Motion to Dismiss Because of Illegal Arrest; Granting Motion to Suppress Statements)

 BARRINGTON D. PARKER, United States District Judge

 This Memorandum Order addresses two of the remaining substantive pretrial motions filed on behalf of the defendant: (1) Motion to Dismiss the Indictment Based on the Illegal Arrest of the Defendant, and (2) Motion to Suppress statements. Both motions concern fundamental legal principles that law enforcement officers must act in accordance with long recognized and established restraints embodied in the fourth, fifth and sixth amendments no matter who is the subject of arrest or where the arrest occurs. These constitutional principles should not be cast aside nor minimized merely by invoking "national security" or "the fight against terrorism".

 Defendant, Fawaz Yunis, a citizen of Lebanon, was lured out of his homeland, arrested in international waters off the coast of Cyprus, and forcibly brought to the United States to face charges of hostage taking and aircraft piracy. His counsel argues that the arresting officers failed to respect the defendant's constitutional rights when he was arrested and that they unlawfully secured inculpatory statements from him while he was being brought back to the United States. He has moved to dismiss the indictment on grounds that the circumstances surrounding the arrest were outrageous and violated defendant's due process rights. Counsel has also moved to suppress his client's inculpatory statements and written confession claiming that his rights were not voluntarily or knowingly waived.

 For the reasons discussed in part II below, the Court denies the motion to dismiss the indictment on grounds that the defendant was the subject of an illegal arrest. In part III, the Court states the grounds for suppressing the written confession secured from Fawaz Yunis.

 The discussion of the two motions rests on the actual events which occurred during the course of and following the defendant's arrest. In part I, the court states its findings, giving the background facts and circumstances surrounding the arrest. It then turns to and considers the motion to dismiss the indictment and the motion to suppress statements.

 I.

 BACKGROUND FACTS

 Operation "Goldenrod", the chosen name for the government's plan to abduct defendant Yunis, was a carefully devised and well executed effort to arrest and bring to trial the ringleader of the small band of men who hijacked and later blew up a Royal Jordanian aircraft at the Beirut International Airport. *fn1" Immediately following the hijacking, the United States government sought to identify, locate and capture the responsible persons. After months of investigation, its efforts were focused on the defendant, Fawaz Yunis, identified as the ringleader. In this connection, the government secured and relied in large measure on the services of Jamal Hamdan, a one-time friend of Yunis who became a government informant.

 With the help of Hamdan, the government developed an elaborate scheme to lure Yunis from Lebanon to a location in international waters of the Mediterranean sea off the coast of Cyprus. The bait was the promise of a lucrative narcotics deal.

 A.

 The full operation, including the defendant's arrest and return to the United States for trial, was conceived well in advance of its execution. In early 1987, Oliver Revell, Executive Assistant Director of the Federal Bureau of Investigation ("FBI"), together with representatives from other United States' agencies *fn2" began the task of devising a plan to abduct the defendant. While other agencies were involved, the record and testimony clearly showed that the FBI took the leadership role in formulating the plans. Trans. of test., Oliver Revell, Jan. 28, 1988 at 167, 168. As the actual date of execution grew nearer, the planning group met frequently to "iron out last-minute details." Id. at 168. Approximately three weeks before the operation actually commenced, the government settled on the logistical plans necessary for transporting the defendant from the point of his arrest in the Mediterranean Sea back to the United States. Id. at 175. The plan included arresting the defendant on a motor yacht in international waters off the coast of Cyprus and transferring him to a "recovery ship", the U.S.S. Butte. The Butte, a naval munitions ship assigned to the United States Sixth Fleet, was instructed to steam across the Mediterranean to a prearranged rendezvous point with the aircraft carrier, the U.S.S. Saratoga. *fn3" Id. at 184. According to Joseph Davis, the Butte's captain, the government slated four days for this leg of the voyage. Trans. of test., Jan. 25, 1988 at 58, 89. From the Saratoga, the defendant was to be first tranquilized, then placed in a "Stokes" litter *fn4" and flown in a twin engine S3 aircraft to Andrews Air Force Base, Maryland. *fn5" All in all, the entire scenario from arrest to arrival in the United States was scheduled to be completed in five days.

 B.

 Operation "Goldenrod" was carried out exactly as planned. On the morning of September 13, 1987, Hamdan and Yunis boarded a small motor boat off the coast of Cyprus, were carried to a prearranged point into international waters, where they then rendezvoused with the motor yacht. The motor boat then returned to shore.

 Immediately upon boarding the yacht, defendant was greeted, given a routine pat down *fn6" and then offered a beer by one of the FBI agents. S.A. George Gast, who assumed the role of one of the narcotic contacts, escorted Yunis to the stern of the boat where he and Yunis joined S.A. Donald Glasser. At a prearranged signal -- a slight nod -- the two agents, who were then positioned alongside Yunis, engaged in a " take down." Together, they grasped the defendant's arms, "kick[ed] his feet out from underneath him, and [took] him down to the deck and put handcuffs on him." Trans. of test., Gast and Glasser, Jan. 29, 1988, at 33-35 and 63 respectively. After reviewing all of the motion's hearing testimony, the Court finds that the agents' "take down" caused fractures to the defendant's wrists, infra, p. 922. Defendant was then carried to the front of the ship where he was strip searched, placed in a harness, re-handcuffed and shackled with metal leg irons. At this point, the defendant complained that his legs and wrists were throbbing with pain; and the agents responded by loosening the cuffs. Trans. of test., Dimitry Droujinsky, Jan. 26, 1988, at 29, 104.

 The method of arrest had been prearranged and rehearsed several times by the agents to ensure a smooth execution. They developed a specific plan based on prior information that defendant was approximately 6' 2", over 205 pounds, "a good athlete, a good swimmer and [with the] possibility of a struggle taking place." Trans. of Gast, at 43. As it turned out, the defendant was much smaller in stature, only 5'9" and approximately 175 pounds. *fn7" Yunis never made an aggressive gesture toward the agents. Indeed, Agent Gast testified that he was "very compliant." Id. at 64.

 After defendant was handcuffed, S.A. Droujinsky, who was quite fluent in Arabic, advised Yunis that he was being arrested by United States authorities for his involvement in the 1985 hijacking of the Royal Jordanian aircraft flight 402. While he told defendant that he was under arrest for the hijacking incident, he never advised him of his rights at that time.

 Agent Droujinsky played a key role in Operation "Goldenrod." He served as the interpreter for the four days that Yunis was confined to the Butte. Because the defendant had very little if any ability to understand or speak the English language, Droujinsky's services were most crucial, serving as the principal means of communicating with the defendant.

 Immediately following the arrest, the yacht resumed power and slogged for over an hour through extremely rough and choppy seas with 4' to 5' waves, to a prearranged rendezvous point with the Butte. Upon reaching that ship, the defendant and the agents then boarded a small launch vessel which was to be electronically hoisted on board the Butte. Trans of test., David Johnson, Jan. 19, 1988 at 47. However, due to mechanical problems with the winching equipment, naval personnel had to manually hand crank the equipment to allow the party to go aboard. Due to the mechanical difficulty, Yunis and the others were left "swinging and swaying from side to side with the rock and roll of the ship." Id. at 88. This movement exacerbated a nauseous condition which defendant had developed. Indeed, he suffered from dry heaves at least twice while the vessel was being lifted alongside the Butte. Id. at 47-48; Trans. of test., Thomas Hansen, Jan 28, 1988, at 46.

 C.

 Once aboard the Butte, Yunis was escorted to his 8'by 10' "state room", a room normally used to store mail. It had no windows nor a functioning ventilation system. Dr. Clarence Braddock, a naval medical internist aboard the ship solely for Operation "Goldenrod," described the room as "uncomfortably warm." Trans. of test., Jan. 20, 1988 at 35. He proceeded with a medical examination which consisted principally of a routine physical, several blood tests and an urinalysis. He testified that his examination lasted between 20 to 30 minutes. Id. at 36. Yunis never volunteered any information; he only spoke in response to specific questions put to him by the doctor. Id. at 76. *fn8" At that time, Dr. Braddock had not been informed that defendant had complained about pain in his wrists and therefore did not respond or even notice when the defendant winced and attempted to withdraw his arms during the physical examination. Id. at 63; Trans. of Johnson, at 91. Trans. of Hansen, Jan. 28, 1988, at 51. The agents had advised Doctor Braddock of Yunis' nausea, and therefore, he inquired whether defendant was still feeling nauseous. Trans. of Braddock at 28. Based on defendant's continued complaints, Dr. Braddock concluded that he suffered from seasickness. He prescribed rest to relieve the seasickness and clear liquids to prevent dehydration. Id. at 98.

 Over the course of the next two days, Dr. Braddock periodically checked on the defendant's physical state and medical condition. On the third day, after being informed that the defendant was constantly complaining of pain in his wrists, he called upon Dr. Rufus Gore, a naval orthopedic surgeon who was also a part of the special medical team, to examine defendant's wrists. His treatment of defendant's wrists did not differ from Dr. Braddock, and consisted of applying ice to relieve the wrist pains and recommending rest and clear liquids to alleviate motion sickness.

 Immediately following Dr. Braddock's initial examination and just hours after the arrest, agent Hansen with Droujinsky, acting as interpreter, began the first of nine interviews with the defendant. The first part of their initial interview was spent explaining to Yunis that he had all the rights of a United States citizen. The agents utilized a standard "advice of rights" form, (FD 395). According to Hansen, this prerequisite was completed in approximately nine minutes. Trans. of Hansen, Jan. 27, 1988, at 107, 115-116. At one point, Droujinsky handed Yunis a copy of the rights form translated in Arabic *fn9" and instructed the defendant to read the form himself. Droujinsky then read the form to defendant, line by line, and asked him whether he understood the information and was willing to sign the card. Trans. of Droujinsky at 43. Defendant answered in the affirmative and signed the form. This proved to be the first and only time during the days of interrogation that Yunis was advised of his rights. Trans. of Hansen, Jan. 28, 1988 at 79-80; Trans. of Droujinsky at 139.

 Again, without giving defendant any rest, the agents continued for 40 minutes to interview and question the defendant about his involvement in the hijacking of the Jordanian aircraft. A total of nine interviews lasting anywhere from 30 minutes to over two hours were undertaken by the agents over the course of the four days at sea. During these sessions they elicited statements concerning his involvement in the hijacking of the Jordanian aircraft. Agent Hansen took notes throughout and at the conclusion of the final interview, completed around 10:30 p.m. of September 16, 1987, presented defendant with a written summary of his statements for his approval and signature. Trans. of Hansen, Jan. 27, 1988, at 158. *fn10" The defendant initially inquired why he should sign the document. Agent Hansen explained that the signed statement would establish a record of his testimony that could be used as evidence in Court. Trans. of Hansen, Jan. 28, 1988, at 82. After making a single extremely minor change, Yunis signed the statement.

 In the early morning of the fifth day at sea, the Butte rendezvoused as scheduled with the Saratoga. At this point, Yunis was prepared for the long flight back to the United States. He was sedated, placed in a Stokes litter and carried by helicopter from the Butte to the aircraft carrier. He was then strapped into the S3. Agents Johnson and John Schrum accompanied and kept guard over the defendant during the flight across the Atlantic. Within the record time of thirteen hours, the aircraft landed at Andrews Air Force Base. Shortly thereafter, the defendant was arraigned in this courthouse before United States Magistrate Jean Dwyer.

 Upon arrival in Washington, D.C., Yunis was afforded better medical attention and care to his wrists than he received on the Butte. For the first time, the injuries to his wrists were correctly diagnosed and appropriately treated. See infra p. 922 n.19.

 II.

 MOTION TO DISMISS INDICTMENT BASED ON THE ILLEGAL ARREST

 Defendant's counsel has moved to dismiss the entire multi-count indictment on two grounds: first, the government's actions contravened its extradition treaty obligations with Lebanon and Cyprus, and second, the government used excessive and outrageous force when arresting defendant in violation of his fifth amendment rights to due process. Both grounds present threshold questions of standing and jurisdiction: whether Yunis can assert violations of an extradition treaty absent objections or protests by either Lebanon or Cyprus, and whether the defendant, a nonresident alien, can invoke the protective cloak of our Constitution for actions committed beyond the territorial borders of the United States.

 For the reasons set forth below, the court concludes that individuals, alone, are not empowered to enforce extradition treaties. Therefore, it need not reach the issue whether the United States breached its treaty obligations. As to the fifth amendment claims, the court determines that the Constitution applies abroad to aliens but that the government's actions did not rise to the level of "outrageousness" that "shocks the conscience" and warrants dismissal of the indictment.

 A.

 Violation of Extradition Treaties

 Yunis' counsel argues that the government developed a clever and elaborate scheme to lure defendant out of Lebanon and Cyprus and then arrest him in international waters. This plan, he argues, was established to deliberately circumvent our extradition treaty obligations with Lebanon and Cyprus. He contends further, that the government was well aware that Yunis resided in Beirut, and, therefore, was obligated at the outset to initiate an extradition request to Lebanon. At the very minimum, he suggests that the government should have made such a request to Cyprus, where Yunis was located on September 11, 1987, the date the arrest warrant was issued by the United States Magistrate. Finally, he argues that the remedy for the government's failure to adhere to its treaty obligations is dismissal of the indictment. In response, the government claims that it had no obligation to make an extradition request to either country because the defendant was arrested in international waters. *fn11" Further, it argues that only sovereign nations can protest violations of an extradition treaty. Since neither Lebanon nor Cyprus have objected to the abduction, Yunis' protest must fail.

 Accepted principles of international law recognize that only sovereign nations have the authority to complain about violations of extradition treaties. Individuals are not empowered to assert violations, absent objections by the offended states. Leading treatises on extradition law explain the rationale behind this bright line rule: "Extradition is regarded as an institutional practice between and for the benefit of states with little or no regard for the rights of the individuals who are the object of its outcome." M. Bassiouini, International Extradition in United States Law and Practice, ch. 10 at 629 (1986 ed.) Several federal courts have likewise adhered to this rule: United States v. Cordero, 668 F.2d 32, 37 (1st Cir. 1981). "Extradition treaties are made for the benefit of the governments concerned . . . And, under international law, it is the contracting foreign government, not the defendant, that would have the right to complain about a violation." (Panamanian defendants convicted of distributing cocaine lack standing to assert violation of extradition treaty, absent objections from Panamanian authorities.); United States v. Valot, 625 F.2d 308 (9th Cir. 1980) (defendant abducted in Thailand to stand trial in Hawaii; failure to comply with extradition treaty did not bar prosecution); United States ex rel Lujan v. Gengler, 510 F.2d 62, 67-78 (2nd Cir. 1975) cert. denied, 421 U.S. 1001, 95 S. Ct. 2400, 44 L. Ed. 2d 668 (1975) (Bolivian citizen abducted by United States officials lack standing to assert violation of extradition treaty absent protests by offended states).

 In this criminal proceeding, there is no evidence that Lebanon or Cyprus objected or protested to the circumstances under which Yunis was arrested. Absent such formal protests, defendant is precluded from raising his objections. ...


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