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United States v. Al-Imam

United States District Court, District of Columbia

April 8, 2019




         On September 11 and 12, 2012, a group of Libyan militants attacked U.S. diplomatic and intelligence facilities in Benghazi, Libya. Four Americans died in the attacks, including then-United States Ambassador to Libya J. Christopher Stevens. Roughly two years after the attacks, the United States captured in Libya one of the men the government believed was responsible for the attacks, Ahmed Abu Khatallah, and brought him to trial in this Court. Then, in 2017, the United States captured a man who they believed was one of Abu Khatallah's co-conspirators, Mustafa Mufta Al-Imam, the defendant in this case. Like Abu Khatallah before him, Al-Imam was interrogated en route to the United States while aboard an American naval vessel. Also like Abu Khatallah, he argues that the statements he offered during those interrogations were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), which safeguards detainees' Fifth Amendment right against self-incrimination.

         Al-Imam thus moves to suppress those statements. He says that he gave his statements while suffering from mental trauma induced by his recent abduction and seasickness, that he lacked the wherewithal and familiarity with American legal norms to understand he did not have to talk with his interrogators, and that he feared he would be beaten if he did not talk with them. Those factors, Al-Imam suggests, render his two Miranda waivers both involuntary and unknowing and require suppression of his statements.

         The Court held an evidentiary hearing at which it received testimony from the personnel involved in Al-Imam's capture and transport; individuals responsible for his processing and detention on the naval vessel where the interrogations took place; a doctor who several times examined Al-Imam on board the vessel; one of the FBI agents who conducted the interrogations; and the Arabic-language interpreter who facilitated all communications aboard the vessel. Based on that testimony and the entire evidentiary record, and for the reasons that follow, the Court will deny Al-Imam's motion.

         I. Factual Findings

         A. Attack on the U.S. Special Mission Compound in Benghazi, Libya

         Muammar Gaddafi seized power in Libya in 1969 and remained its leader until 2011, when a civil war broke out. Indictment ¶ 2. The war originated in the Libyan coastal city of Benghazi, which was controlled by rebels and served as the base of operations for the rebel-led Transitional National Council (“TNC”). Id. On February 25, 2011, the U.S. Department of State evacuated American personnel from Libya and suspended its operations at the U.S. Embassy in Tripoli. Id. ¶ 3. Less than two months later, in April 2011, the State Department reestablished its presence in the country with the arrival in Benghazi of U.S. Special Envoy J. Christopher Stevens. Id. ¶ 4.

         On July 15, 2011, the United States officially recognized the TNC as Libya's governing authority. Id. One month later, Gaddafi was ousted from power and killed. Id. In November 2011, the United States established a diplomatic outpost in Benghazi, known as the U.S. Special Mission (“Mission”), where a contingent of State Department personnel was stationed. Id. ¶ 5. The United States established a second Benghazi facility, this one known as the Annex, where additional U.S. personnel were based. Id. ¶ 6.

         In May 2012, the United States dispatched Stevens, now the U.S. Ambassador to Libya, to the Libyan capital of Tripoli. Id. ¶ 7. Ambassador Stevens traveled to Benghazi to visit the Mission compound on September 10, 2012. Id. Stationed at the compound and present during the Ambassador's visit were Information Management Officer Sean Patrick Smith; Assistant Regional Security Officers Scott Wickland and David Ubben; and Security Officers Tyrone Snowden Woods, Glen Anthony Doherty, and Mark Geist. See id. ¶¶ 13-18.

         Around 9:45 P.M. on September 11, 2012, approximately twenty men-armed with assault rifles, handguns, and rocket-propelled grenade launchers-attacked the Mission. Id. ¶ 22. After breaching the facility, the attackers set fire to several buildings, causing the deaths of Ambassador Stevens and Sean Smith. Id. The remaining State Department personnel escaped to the Annex, which soon also came under attack, ending in mortar fire that killed Tyrone Woods and Glen Doherty. Id. The government believes that Al-Imam was a close associate of Abu Khatallah, the leader of the extremist group that carried out the attacks. Id. ¶ 9. It alleges that Al-Imam was present for, helped orchestrate, and participated in the attacks. Id. ¶¶ 9-11. According to the indictment, Al-Imam entered the Mission at the direction of Abu Khatallah and took sensitive material, including material that identified the Annex by location and as the evacuation point for State Department personnel. Id. ¶ 22. The indictment also alleges that Al-Imam then assembled with Abu Khatallah and others to coordinate the attack on the Annex. Id.

         B. Al-Imam's Capture and Initial Transport

         FBI Special Agent Brandon Goad described Al-Imam's capture at the evidentiary hearing. On October 29, 2017, at about 9:15 P.M., [1] U.S. special forces abducted Al-Imam in Misrata, Libya. Testimony of FBI Special Agent Brandon Goad (“Goad Testimony”), Hr'g Tr. at 11:1-7.[2] The capture team waited in a vehicle outside Al-Imam's apartment and took him into custody after Al-Imam exited his car and walked toward his apartment. Id. at 11:10-13. Some members of the team “grabbed his arms” while one “covered his mouth.” Id. at 11:16-18. The capture team loaded Al-Imam into the vehicle and left the scene. Id. at 11:18-20. Special Agent Goad estimated that this initial capture took only ten seconds, and he did not recall any members of the capture team pointing weapons at Al-Imam or that Al-Imam resisted in any way. Id. at 11:24-12:10.

         Inside the vehicle, Al-Imam was handcuffed and fitted with goggles, ear coverings, and a verbal restraint. Id. at 12:24-13:8; see Ex 2. These measures were taken, according to Special Agent Goad, for Al-Imam's and the capture team's safety, because they were traveling in an area that presented the risk of armed conflict had they been discovered. Id. at 13:23-14:6. Prior to applying the ear coverings, Special Agent Goad-who had memorized “a handful” of Arabic phrases “to be able to communicate with [Al-Imam] after he was captured, ” Id. at 9:6-10-told Al-Imam that he had been detained by the American government, id. at 14:19-20. Al-Imam, who initially had “seemed excited” and “was breathing heavy, ” “seemed to completely calm down, and . . . appeared relaxed from that point on.” Id. at 14:14-17. A member of the capture team trained as a medic also monitored Al-Imam's pulse and blood pressure during this initial transport, but Special Agent Goad said he was not concerned “because it seemed like he had calmed down, and he was compliant.” Id. at 15:22-23.

         The capture team then arrived at a second location, where they met with additional American personnel. Id. at 16:3-12. The capture team outfitted Al-Imam with a fleece pullover, an “all-weather trench coat, ” and a lifejacket, before replacing his handcuffs and eye and ear protection. Id. at 16:15-22. The verbal restraint was not replaced, because Special Agent Goad “didn't feel there was a need to, ” as Al-Imam “was being compliant, and he was following all the instructions and seemed calm.” Id. at 17:4-6.

         While at the second location, Al-Imam communicated with FBI Special Agent Jonathan Kath, who had a “limited working proficiency in Modern Standard Arabic, ” which he said enabled him to “give commands and understand the responses back” and “engage in basic conversation.” Testimony of FBI Special Agent Jonathan Kath (“Kath Testimony”), Hr'g Tr. at 27:5-13. Special Agent Kath asked whether Al-Imam “was thirsty and how he felt generally, if he was fine, ” and Al-Imam indicated that he was fine and accepted some water. Id. at 31:4-10. Special Agent Kath said his overarching responsibility was to “ensur[e]” and “assess[ ]” Al-Imam's “status” and “to kind of give him the next steps of . . . what to expect in the arrest process.” Id. at 27:18-20. He explained that he spoke to Al-Imam in a “conversational tone” and avoided anything close to “drill-instructor-style orders.” Id. at 27:2-12.

         The capture team then escorted Al-Imam to “a staging area to get [Al-Imam] on the [water]craft that was coming in.” Goad Testimony, Hr'g Tr. at 18:3-4. Special Agents Goad and Kath “hooked underneath both of [Al-Imam's] arms and took him to the craft when it arrived, ” with Al-Imam's back facing forward. Id. at 18:11-16. Once they were “about waist deep” in the water, a “wave knocked the craft back into all of [them], and the back of the craft impacted [Al-Imam's] back.” Id. at 19:4-5. After Al-Imam had been lifted onto the boat, Special Agent Kath again asked him how he was feeling. Kath Testimony, Hr'g Tr. at 33:25-34:1. Al-Imam responded that his back hurt, but that he was otherwise fine, id. at 34:3-4, and Special Agent Kath said Al-Imam “appeared entirely fine, ” id. at 34:5.

         The first boat took Al-Imam to a second boat. Using the same under-arm lifting technique they had used earlier, Special Agents Goad and Kath moved Al-Imam to the second boat. Goad Testimony, Hr'g Tr. at 20:25-21:2. When it became clear to the capture team that Al-Imam was suffering from seasickness, they removed his eye and ear protection in the hope that it might alleviate his symptoms. Id. at 21:11-14; Kath Testimony, Hr'g Tr. at 35:2-4. It didn't help, or at least not enough: at some point on the second boat trip, Al-Imam vomited. Goad Testimony, Hr'g Tr. at 21:17.

         The second boat arrived at a third, this one a large naval vessel, around 11:15 P.M. Id. at 22:6-8. Once Al-Imam was lifted aboard the third vessel, Special Agents Goad and Kath had no further contact with Al-Imam. Id. at 22:3-5; Kath Testimony, Hr'g Tr. at 35:21. Goad Testimony, Hr'g Tr. at 22:8. Both Special Agents Goad and Kath described Al-Imam as calm and compliant on the journey. Id. at 22:24-25 (stating that Al-Imam was “calm and compliant for the entire transit”); Kath Testimony, Hr'g Tr. at 35:24-25 (describing Al-Iman's demeanor during the second boat trip as “very pleasant” and “at no point . . . confrontational at all”).

         C. Initial Processing Aboard the Naval Vessel

         FBI Special Agent Joshua Kolarcik testified at the evidentiary hearing regarding Al-Imam's transfer to the third vessel and his initial processing aboard the ship. Because the third vessel was significantly larger than the one on which Al-Imam had arrived, he had to be hoisted aboard using a lift. Testimony of FBI Special Agent Joshua Kolarcik (“Kolarcik Testimony”), Hr'g Tr. at 46:16. This was done by strapping Al-Imam to a “Stokes basket” that had been lowered to the smaller boat, and then raising the basket, using a pulley system operated by a “four- to five-man crew, ” to one of the larger vessel's decks. Id. at 46:22-47:7; id. at 47:18-24. According to Kolarcik, this “couldn't have gone any better” and Al-Imam was brought “on board without any incident safely.” Id. at 46:17-19.

         Still handcuffed and with his eye and ear coverings on, Al-Imam was escorted to his “detention pod.”[3] Id. at 48:5-6. A “pod” is “basically just a container” with a distinct purpose. Id. at 44:1-4. The detention pod is where Al-Imam was housed when he was not being interrogated. Id. at 42:8-9; see Exs. 4-5 (depicting outside and inside of detention pod). It was a small room, approximately 2.22 meters by 1.95 meters. Id. at 45:10. Posted on the wall inside the detention pod were rules provided by the “guard force, ” the Department of Defense unit responsible for Al-Imam's detention aboard the vessel, and certain Geneva Convention articles, in both English and Arabic. Id. at 43:1-23; see Exs. 6-8. The Air Force Captain[4] responsible for the guard force provided further details on the detention pod. It contained a “sleeping mat, ” a blanket, a water bottle, a prayer rug, and a Quran, placed on top of a box (rather than the floor) as a sign of respect. Testimony of Air Force Captain (“Captain Testimony”), Hr'g Tr. at 108:23-109:3.

         Once inside the detention pod, Special Agent Kolarcik and his team began Al-Imam's “inprocessing, ” or initial processing. Id. at 48:12-14. Id. at 48:19-20. First came photographs of Al-Imam as he had arrived on the vessel, fully clothed and with scattered “white flecks on his shoes and pants, ” remants of his earlier seasickness.[5] Id. at 49:6-10; see Ex. 10.

         Next came the “primary objective” of the inprocessing-a medical screening to ensure that there were no immediate health concerns. Id. at 53:5-6. Al-Imam was given privacy to strip down to his underwear for the screening, id. at 49:22-23, which was performed by an Air Force Doctor, [6] Testimony of Air Force Doctor (“Doctor Testimony”), Hr'g Tr. at 67:21. Assisted by an interpreter, the Doctor began with a subjective examination, asking Al-Imam a series of questions regarding the history of any present illnesses before conducting a more general “review of systems.” Id. at 65:9-12. Al-Imam reported that he vomited prior to arriving on the vessel and that he had experienced a “productive cough with a sore throat and nasal congestion for the past ten days.” Id. at 69:7-8. He indicated that he occasionally took medicine for rheumatism and that he had last eaten approximately four hours earlier. Id. at 69:16-19. Relevant to Al-Imam's arguments in this motion, he also said he wore glasses “a long time ago” and “had trouble reading up close, ” but he did not complain of any loss of consciousness or head trauma and did not report any mental health issues. Id. at 71:3-14.

         Moving to the physical examination, the Doctor observed “some minor abrasions and what appeared to be some well-healed scars[.]” Id. at 72:8-9. A series of photographs taken during the medical screening document each of these: a few small abrasions on the face and shoulders, and some minor bruising near his biceps, likely close to where he was held by Special Agents Goad and Kath. See Exs. 11-16. Each of these were noted in the Doctor's intake form. See Ex. 18. None of them was sufficiently serious to warrant any treatment. See, e.g., Doctor Testimony, Hr'g Tr. at 72:19-20. The Doctor chose not to conduct a genital-rectal examination, because when he indicated he would do so, he said Al-Imam “became visibly upset, tearful, [and] kind of backed up a little bit from [him][.]” Id. at 72: 1-2.

         The only condition that Al-Imam presented requiring immediate attention was the motion sickness. Id. at 73:4-9. The Doctor “reviewed the potential effects of a medicine, ” an over-the-counter drug called meclizine, and Al-Imam indicated that he wanted to take it. Id. at 74:11-75:1. The Doctor gave him a dose and, finding no other “acute medical issues, ” cleared him for detention. Id. at 75:14-19. The Doctor continued to see Al-Imam twice each day throughout his detention and continued providing him with motion-sickness medication. Id. at 80:21-81:24 (discussing follow-up visits); see Exs. 20-23.

         Throughout these check-ups, the Doctor testified that Al-Imam responded appropriately to his questions, that he did not seem confused by the questions, that he did not appear disoriented, and that he otherwise showed no signs of “acute mental distress.” Id. at 87:14-88:2. When pressed on cross-examination whether Al-Imam appeared to be “psychologically shut down, ” the Doctor answered in the negative and explained that “he was appropriate and cooperative with me, answering questions appropriately.” Id. at 93:9-22.

         Special Agent Kolarcik, who was present for much of Al-Imam's initial processing, including some of the medical screening, was also asked about Al-Imam's treatment and condition during this time. Kolarcik said that Al-Imam “was treated very gently and humanely, ” that no force was ever required, that “[e]verything was explained to him through the translator, ” that Al-Imam acknowledged he understood what he was being told, that no one “used raised voices, ” and that the entire affair was “very calm and organized and orderly.” Id. at 54:8-12. He said that he and his team “did [their] best to ensure that [Al-Imam] was comfortable and warm and to try to limit any emotional stress he may experience during the inprocessing.” Id. at 55:25-56:5. Finally, while Kolarcik said that Al-Imam appeared “very calm” throughout inprocessing, he added that Al-Imam also seemed “slightly emotionally distraught, as could be understood given his situation and following capture and being transported to a Navy vessel[.]” Id. at 55:25-56:2.

         Following the medical screening, the guard force, through the interpreter, explained to Al-Imam the rules of detention and Article 3 of the Geneva Convention, the same materials posted in English and Arabic on the detention pod's walls. See Exs. 5-8. The Air Force Captain in charge of the guard force testified concerning this portion of Al-Imam's processing. The rules of detention included “the [physical] position that he need[ed] to take” before the guard force entered the pod and “how he could communicate with the guard force” when he needed something. Captain Testimony, Hr'g Tr. at 105:8-15. Next came the recitation of Article 3, “which speaks to protection against mistreatment, inhumane care, as well as any humiliation.” Id. at 106:9-10. Article 3 forbids, inter alia, “[a]ny form of violence, mutilation, cruel treatment, or torture” and “humiliating or degrading treatment.” See Ex. 25 (English version). For both the rules and Article 3, a member of the guard force read one line in English, and the interpreter then translated that line into Arabic. Id. at 106:16-20. Al-Imam indicated that he understood and did not have any questions. Id. at 106:18-24.

         D. FBI Interrogations

         The first interrogation was slated to begin soon after Al-Imam's initial processing. The guard force handcuffed Al-Imam, blindfolded him, applied ear coverings and escorted him to the interview room. Id. at 108:12-16. Once inside the interview room, the handcuffs and eye and ear coverings were removed, and all members of the guard force exited. Id. at 109:4-19. Waiting for Al-Imam in the room for the first and all later interviews were FBI Special Agent Ryan Larkin, Task Force Officer Anthony Marcano (“TFO Marcano”), and FBI interpreter Samuel Babisha (who had been handling all translation since Al-Imam boarded the third vessel). Larkin and Babisha provided testimony regarding the interrogations.

         The first interview began at approximately 1:25 A.M. on the morning of October 30- just over four hours after Al-Imam's initial capture. Testimony of FBI Special Agent Ryan Larkin (“Larkin Testimony”), Hr'g Tr. at 188:12-13. Dressed in civilian attire, Hr'g Tr. at 213:6-7, the agents “introduced themselves and asked Al-Imam how he was feeling, id. at 189:20-190:3. Al-Imam responded that he was “a little bit nauseous but overall felt okay, ” and Special Agent Larkin said he appeared “attentive.” Id. at 190:19-21. The agents informed Al-Imam that he would be permitted to take a break to use the restroom or to pray, id. at 190:8-13, and they offered him tea and Pop-Tarts, id. at 191:1-5.

         Then the agents administered the Miranda warnings. The rights were read by Babisha in Arabic from a form titled “Advice of Rights, ” which was also provided in written Arabic to Al- Imam. Testimony of FBI Interpreter Samuel Babisha (“Babisha Testimony”), Hr'g Tr. at 165:21-166:5. The “Advice of Rights” stated as follows:

We are American law-enforcement agents. You have been arrested for violations of United States criminal law related to the attack on the American mission in Benghazi, Libya, on September 11, 2012. Because you are under arrest, United States law provides you with certain rights in your dealings with us.
Before we ask you any questions, we want to make sure you understand your rights.
You have the right to remain silent.
If you decide to speak with us today, you should know that anything you say can be used against you in a ...

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