30 August 2002. Thanks to G.
Source: Hardcopy of public records from the Southern District of New York.
These are court orders and formerly sealed documents in the case of Abdallah Higazy, an Egyptian national in the US to attend school, who was detained as a material witness based on a false accusation by a hotel guard of possessing an air-to-ground communcation device while staying in a hotel across from the World Trade Center on September 11, 2001. Higazy was also allegedly coerced by an FBI agent during a polygraph examination to admit possessing the device, and an investigation of this coercion is underway, as more fully described in the August 5, 2002 first opinion and order. The documents were unsealed on August 14, 2002 as described in the second order in response to a request by reporter Ben Weiser of the New York Times.
Related news reports in the New York Times, August 16, 2002 (copy below), and the Village Voice, August 28, 2002 provide some of the information redacted below.
The New York Times writes:
Newly released court documents show that a federal judge in Manhattan briefly considered appointing a special prosecutor to investigate how the F.B.I. had obtained a confession from an innocent Egyptian student detained in connection with the attack on the World Trade Center. The documents show that the judge, Jed S. Rakoff of Federal District Court, raised questions of whether the student, Abdallah Higazy, was coerced into confessing to an agent from the Federal Bureau of Investigation who was administering a polygraph test about a radio that was said to be in his hotel room. The judge also said he was ''apparently seriously misled'' into believing the confession was true, though it proved to be false.
The Village Voice writes:
It was dumb luck, not good police work, that freed Higazy. But the two FBI agents named in papers making the botched case against him are likely still investigating the September 11 attacks. The FBI's New York office would not comment on personnel questions, but a knowledgeable law enforcement source says neither of the agents—Christopher Bruno and Vince Sullivan—was ever disciplined or retrained.
The unsealed documents:
1. December 18, 2001 Hearing Transcript
2. December 18, 2001 FBI Affidavit
3. December 28, 2001 Hearing Transcript
4. January 11, 2002 Complaint in 02 Mag. 053
5. Janaury 14, 2002 Hearing Transcript
6. January 16, 2002 Government Letter in 02 Mag. 053
7. January 18, 2002 Hearing Transcript
8. January 28, 2002 Witness' Counsel Letter
9. February 4, 2002 Government Ex Parte Letter
10. February 18, 2002 Witness' Counsel Letter
11. February 27, 2002 Government Letter with attached charge against Ronald Ferry [Not provided here.]
12. March 4, 2002 Government Letter with attached transcript of Ronald Ferry's plea before Judge Daniels [Not provided here.]
13. March 12, 2002 Government Letter with attached redacted version of 02/04/02 letter
14. March 18, 2002 Hearing Transcript
15. March 19, 2002 Government Letter
16. March 25, 2002 Government Letter
17. April 10, 2002 Witness' Counsel Letter
18. May 30, 2002 Transcript of sentencing in U.S. v. Ferry [Not provided here.]
19. July 12, 2002 New York Times Letter
20. July 15, 2002 Letter from Court to Counsel
21. July 18, 2002 Witness' Counsel Letter
22. July 19, 2002 Government Letter
23. July 23, 2002 Government Letter attaching revised version of Government Letter of 07/19/02
24. July 24, 2002 Letter from Court
25. July 26, 2002 Letter from the New York Times
26. July 29, 2002 Witness' Counsel Letter [Not provided here.]
27. August 1, 2002 Government Letter
ORIGINAL
#1
87238
FILED OPINION
2002 AUG - 5 P 12 24
SOUTHERN DISTRICT
OF NEW YORK
| UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK |
||
| -----------------------------------------X
In re application of the United -----------------------------------------X |
01 MISC. 1750 (JSR)
OPINION AND ORDER |
|
JED S. RAKOFF, U.S.D.J.
The issue here presented concerns the extent of the Court's authority to inquire into the circumstances that led, seemingly unwittingly, to the Government's making material misrepresentations to the Court. Originally, the proceedings that generated the issue were placed under seal as ancillary to a grand jury investigation. Subsequently, however, most of the matters that otherwise qualified for sealing were disclosed to the public, first by the Government in connection with two criminal case1, and then in statements relating to those cases made to the press by the Government and by the other party to the instant proceedings, a prospective grand jury witness named Abdallah Higazy, who was also the subject of one of the two criminal cases.2 Thus, a subordinate issue here is whether anything regarding these proceedings should remain sealed.
____________________
1 See United States v. Abdallah Higazy, 02 Mag. 53 (FM); United States v. Ronald Ferry, 02 Cr. 221 (GBD).2 See, e.g., Christine Haughney, Egyptian Man Charged in New York; Student Accused of Lying About Aviation Radio, WASH. POST, Jan. 12, 2002, at A13; John J. Goldman, Response to Terror; Egyptian Accused of Lying to FBI, L.A. TIMES, Jan. 12, 2002, at A7; Jane Fritsch, A Nation Challenged: The Investigation; Grateful Egyptian is Freed as U.S. Terror Case Fizzles, N.Y. TIMES, Jan. 18, 2002, at A3; Christine Haughney, A Sept. 11 Casualty: 'Radio Man' Jailed For A Month, Then Freed; Egyptian Student Perplexed By Mistaken Arrest, WASH. POST, March 11, 2002, at A3; Ben Weiser, A Worker is Sentenced for Lie that Jailed Egyptian Student, N.Y. TIMES, May 31, 2002, at 24. See generally, Butterworth v. Smith, 494 U.S. 624, 634 (1990)(no obligation of secrecy imposed on federal grand jury witnesses with respect to their own identity or testimony).
To the extent not subject to sealing, see infra, the facts of this unfortunate matter are as follows. On December 18, 2001, the Court, sitting in the Miscellaneous Part, conducted a hearing as to whether Abdallah Higazy should be detained as a material witness in order to guarantee his appearance before a grand jury investigating the horrendous events of September 11, 2001. The Government alleged, and the witness, an Egyptian national, will not deny, that he had entered the United States on August 27, 2001 on a student visa and had checked into Room 5101 of the Millennium Hilton Hotel, directly across the street from the World Trade Center. The witness was still there when, on September 11, 2001, he, along with all hotel guests, was evacuated soon after the terrorist airplane attacks that morning. Some weeks thereafter, however, a hotel security guard, Ronald Ferry, who was helping conduct an inventory of the still closed hotel, told agents of the Federal Bureau of Investigation that he had found in the room safe provided for valuables in Room 5101, along with Mr. Higazy's passport and a copy of the Koran, a kind of hand-held radio known as a "transceiver" that can be used for air-to-air and air-to-ground communication with persons in possession of a similar radio.
As a result, when Mr. Higazy returned to the hotel to recover his belongings on December 17, 2001, he was questioned and detained by the FBI. Although the witness denied that the transceiver was his, he did, in further questioning, admit familiarity with such devices and eventually admitted that he had previously served in the Egyptian Air Corps. The Government then petitioned this Court to hold Mr. Higazy without bail as a material witness to the grand jury pursuant to 18 U.S.C. § 3144.3
____________________
3 Although two judges of this District have subsequently disagreed as to whether 3144 applies to grand jury proceedings, compare United States v. Awadallah, 202 F. Supp. 2d 55 (S.D.N.Y. May 13, 2002) with In re Application of the United States for a Material Witness Warrant, 2002 WL 1592739 (S.D.N.Y. July 11 2002), Higazy at no time challenged its applicability in his case.
At the December 18 hearing on this issue, Higazy denied any impropriety and asked that he be given a polygraph test to prove that the transceiver was not his. Transcript, December 18, 2001 at 27. While the Court declined Higazy's request that it order the Government to give the witness a polygraph test (both because the Court lacked power to do so and because numerous studies indicate that polygraph tests are unreliable, id. at 28; see also Transcript, March 18, 2002, at 20), the Court indicated that it had no objection to the Government's accommodating Mr. Higazy's request. Id. Meanwhile, however, the Government argued that the fact that the transceiver had been found, not just in the room last occupied by Higazy, but in the room safe together with Higazy's passport, showed that the transceiver was Higazy's and that his denial thereof was false and further proof that he should be detained without bail. Id. at 34-35. The Court, although finding that this was "not perhaps the most overwhelming showing on the part of the Government," id. at 41, concluded that it was sufficient, together with all the other circumstances,4 to detain the witness for up to ten days for the purpose of securing his appearance before the grand jury during that time period. Id. at 38, 40-41.
____________________
4 The Government also relied, inter alia, on information about a hypothesized link between the witness and the subject matter of the grand jury's investigation set forth in an affidavit from an F.B.I. agent dated December 18, 2001, at least portions of which may remain under seal, see infra.
Ten days later, on December 28, 2001, the parties reappeared before the Court on the Government's application to detain the witness for another ten days to two weeks, the grand jury having not yet heard from him. Although defense counsel initially indicated his consent to the continued detention, Transcript, December 28, 2001 at 2-3, the Court, in fulfillment of its obligation not to detain someone without an adequate basis to do so, required the parties to provide further information. Id. at 10. The Government then informed the Court that, in response to the witness's prior request, the FBI had arranged for the witness to be given a polygraph test on December 27, 2001, during the course of which the witness had confessed that the transceiver was his, though providing three different versions of where it came from. Id. at 10-11. The witness's reported confession, the Court concluded, made the decision to detain the witness "no longer ... even an arguably close call," id. at 12, and consequently, the Court ruled, the witness could be held without bail until January 14, 2002 in order that this testimony could be taken by the grand jury. Id. at 13-14.
In the end, however, the witness was never presented to the grand jury. Rather, after re-interviewing the hotel security guard, the Government, on January 11, 2002, formally charged Higazy with making material false statements to the Government by initially denying possession of the transceiver. See Complaint, United States v. Abdallah Higazy, 02 Mag. 53 (FM). Accordingly, on January 14, 2002, the material witness warrant was vacated and Higazy was detained by order of Magistrate Judge Maas pursuant to the criminal complaint. See Transcript, January 14, 2002, at 6.
Later that same day, however, an American pilot who had also been evacuated from the Millenium Hilton Hotel on September 11, 2001 arrived at the hotel to retrieve his belongings and, after inspecting the items that were handed to him, advised the hotel employees that he had also had a transceiver. Further investigation b the FBI ckly confirmed that the transceiver previously attributed to Higazy actually belonglel to the pilot, who had no connection to Higazy. Still further investigation revealed that the hotel security guard had repeatedly lied to the FBI in stating that he had found the transceiver in the safe in Higazy's room. See Government Letter to Magistrate Judge Maas, January 16, 2002. Based on these developments, the Government promptly dismissed the charge against Higazy, see id. (order endorsed, 1/16/02).
Upon learning,of these developments, this Court, on January 18, 2002, convened, sua sponte, a telephonic (but transcribed) conference with counsel to raise its concern that the Government might have made material misrepresentations to the Court, both at the December 18 hearing when the Government represented that the transceiver was found in a safe in Higazy's room and at the December 28 hearing when the Government represented that Higazy had confessed to possessing the transceiver. Transcript, January 18, 2002, at 2-3. The Court requested letter-briefing on these concerns, id. at 15, with particular reference to whether, as Higazy's counsel argued, the Court had authority and a basis in these circumstances either to initiate contempt proceedings or, short of that, to undertake a factual inquiry premised on the Court's inherent supervisory powers. Subsequently, an oral argument on these issues was scheduled for March 18, 2002.
In the interim, the Government charged the hotel security guard, Ronald Ferry, with making false statements, see United States v. Ronald Ferry, 02 Cr. 221 (GBD), and on February 27, 2002 Ferry pled guilty. This effectively obviated the need for the Court to pursue further the issue of the material misrepresentations made to the Court at the initial hearing in December 18, 2001, since it was now clear that those misrepresentations, regarding the location of the transceiver, were the fault, not of the Government, but of the hotel security guard, whom the Government had now taken appropriate steps to punish.
The argument on March 18, 2002 therefore focused on the Government's representation at the hearing on December 28, 2001 that Higazy had "confessed" to possessing the transceiver. Transcript, March 18, 2002, at 7-8. While conceding that "the government is terribly troubled by how this case unfolded," id. at 10, Government counsel argued that no misrepresentation had been made to the Court because, for whatever reason, Higazy had in fact told the FBI agent conducting the polygraph test on December 27 that the transceiver was his (Higazy's). Id. at 24. Thus, even though that now appeared to be a false confession, the Government, not knowing this at the time, properly brought the confession to the Court's attention on December 28. Id. at 45-46.
In response, Higazy's counsel did not deny that Higazy might have made the statement to the FBI polygraph examiner attributed to him, see id. at 45-46, 51,-52, but argued that, in light of Higazy's prior strenuous denials of possessing the transceiver and the now established truth of those denials, the circumstances under which the "confession" was made were inherently suspicious and required factual inquiry by the Court. Id. at 46, 51-52. At a minimum, Higazy's counsel argued, the Government had acted improperly in obtaining an uncounseled confession. Specifically, Higazy, after being informed that it was standard FBI procedure to conduct polygraph tests outside the presence of counsel, agreed to have his counsel wait outside the polygraph testing room while the test proceeded, id. at 16, 46; but at some point, the FBI agent ceased administering the test and instead began a conversation with the witness leading to the "confession." While it might be true, as the Government argued, that Higazy had been told that he could stop the testing at any point and consult with his attorney, id. at 19, this did not mean, argued Higazy's counsel, that the Government had the right to take advantage of the happenstance of an interruption in the polygraph testing to begin an interrogation leading to an uncounseled confession. Id. at 46-47.
Going further, Higazy's counsel alleged in his papers that his client had reported afterwards that the FBI agent had threatened Higazy's family's safety if Higazy did not confess, see Letter-Brief of Higazy's Counsel dated January 28, 2002, at 2; see also Transcript, January 18, 2002, at 7-8. While the Government denied these allegations, see Transcript, March 18, at 15-16, Higazy's counsel argued that this only meant that there was a factual dispute and that the Court should conduct an evidentiary hearing (just as a court would conduct a suppression hearing if the criminal case against Higazy were still ongoing). See id. at 44-45.
The Government, however, argued that, unlike the situation where the Court would be obliged to hold a suppression hearing because it would have to determine the admissibility vel non of evidence sought to be introduced at trial, here there was no trial nor, indeed, any remaining charge against the witness whatever, and consequently there was no reason or basis for the Court to pursue the matter further. Specifically, the Government argued, there had neither been a contempt nor, at this stage, any other basis for the Court to exercise any further jurisdiction over the matter. Id. at 26-38. While Higazy's counsel argued that this was tantamount to saying that there was no penalty for the Government's having used a putatively improperly-obtained confession to induce the Court to keep Higazy in jail, id. at 44, the Government advised that it was conducting its own internal review of the polygraph examiner's conduct and would keep the Court apprised of its progress - an offer the Government formally and unconditionally reconfirmed the next day. See Government Letter, March 19, 2002.
In light of this offer, the Court deferred ruling on the issues joined at the March 18, 2002, pending the results of the Government's internal investigation. When nothing further was heard from the Government, the Court requested an update, which was received in letter form on June 28, 2002. While that letter (which will remain under seal, see infra) indicated that the Government had taken a number of appropriate steps to investigate the matter, it also recited that the investigation was not yet complete and the results not yet apparent. Moreover, in seeming departure from its earlier, unconditional assurances to the Court, the Government added that it would refrain from going further with the investigation until the Court decided whether or not it was going to conduct its own evidentiary hearing on the matter.
While the Court rejects this attempt by the Government to add an after-the-fact qualification to the unqualified assurances the Government gave the Court in its letter of March 19, 2002 -- assurances to which the Government will be held -- the Court agrees that the matters argued before the Court on March 18 are ripe for decision. Indeed, the Court would have issued its opinion several weeks ago, except for still further briefing occasioned by a letter from the New York Times, dated July 12, 2002, requesting unsealing of all letters, documents, and transcripts relating to this matter. See discussion infra. But with the record now complete, the Court hereby rules as follows:
First, as to the issue of contempt, the Court is in agreement with the Government that the alleged misconduct of the polygraph examiner that precipitated the false confession reported to the Court on December 28 does not fall within this Court's criminal contempt jurisdiction.5 That power is codified in 18 U.S.C. § 401, which reads as follows:
A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as -(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
____________________
5 Any contempt in this case is criminal, rather than civil, as the contempt sanction contemplated would not serve to compel further compliance, but rather to punish previous misconduct. See Int'l Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 840 (1994) (Scalia, J., concurring); Nye v. United States, 313 U.S. 33, 42 (1941).
The parties are agreed that the portion of § 401 here applicable, if any, is the provision of subsection (1) relating to 11[m]isbehavior ... so near (to the court) as to obstruct the administration of justice." Under an old but still viable Supreme Court precedent, Nye v. United States, 313 U.S. 33 (1941) the words "'so near, . . . are to be construed as geographical terms." Id. at 48. But that statement by itself does not resolve the issue here, for the polygraph test, as it happens, was administered in an office on the 5th Floor of the same courthouse in which this Court sits, arguably close enough to meet the Nye standard.
All three subsections of § 401, however, are intended to specify forms of "contempt of [the Court's] authority," as set forth in the prefatory language of § 401. To be criminal, moreover, the contempt must be intentional. Here, it is plain, even on the present record, that the alleged "misbehavior" of the FBI agent was not directed at the Court or its authority. This is not a situation where a Government agent makes a false statement to his lawyer, intending that the lawyer repeat it in court and thereby mislead the Court -- although even in that case the courts appear divided as to whether § 401(l) has been violated. Compare O'Malley v. United States, 128 F. 2d 676 (8th Cir. 1942)(reversed on other grounds)(holding that such conduct constitutes contempt) with Calveresi v. United States, 216 F. 2d 891, 905 (10th Cir. 1954)(reversed on other grounds)(holding that it does not). Rather, the alleged misbehavior here consists, worst case, of an FBI agent's taking unfair advantage of a situation created during a polygraph testing expressly requested by the witness to obtain from the witness a coerced or uncounseled confession that could be used to bring criminal charges against the witness. Nothing in this situation remotely suggests that the FBI agent, even if guilty of such coercion, intended thereby to mislead the Court in connection with the only upcoming proceeding then contemplated before this Court: a then uncontested application to extend the witness's detention as a material witness for an additional ten days to two weeks. Accordingly, there is no basis for proceeding here further on a theory of criminal contempt.
Second, however, the fact that there was no contempt does not mean that the false confession obtained from Higazy did not materially impact the Court's processes for, as previously discussed, the Court was not willing to simply go-along with the uncontested request for a further detention of Higazy but, instead, demanded further information regarding what had previously seemed a close call, and in the process was materially misled by being informed of a confession that subsequently was shown to be false. Assuming arguendo that the obtaining of such confession was the product of Governmental misconduct, is there no judicial remedy for the Court's having been misled as the result of such misconduct? Does oversight of such misconduct that directly impacts the Court not fall within the Court's general supervisory power, which "serves the 'twofold purpose of deterring illegality and protecting judicial integrity"? United States v. Payner, 447 U.S. 727, 735 n.8 (1980); see United States v. Hasting, 461 U.S. 499, 505 (1983).
The breadth and flexibility of a court's general supervisory power are illustrated by the fact that it is pursuant to its supervisory power that the Supreme Court has sometimes excluded impermissibly obtained evidence, see, e.g., McNabb v. United States, 318 U.S. 332, 340-41 (1943), and has made clear that the federal courts may, in certain circumstances, dismiss impermissibly obtained indictments, see, e.g., United States v. Williams, 504 U.S. 36, 46 (1992) (citing Bank of Nova Scotia v. United States, 487 U.S. 250 (1988)). To be sure, in such cases, as previously noted, there is still an ongoing underlying proceeding before the Court and the supervisory power is exercised to keep the judicial processes free from future taint (i.e., to prevent the introduction of improperly obtained evidence or to prevent the trial of an improperly obtained charge), whereas here the damage has already been done (by the witness being.detained after December 28) and the immediate matter is at an end (by the witness thereafter being released and exonerated). It would be odd, however, if misconduct,that materially impacted the Court were shielded from any inquiry simply because the case were otherwise over.
Nor does it suffice that the witness may possibly have civil remedies available to him for the harm inflicted by the alleged misconduct (although governmental immunities may limit such redress). The victim we are here concerned with is not the witness, but the Court, which was materially misled. A wrong that so directly impacts the judicial process should not be wholly beyond the Court's power to address.
On the other hand, the exercise of such authority in such circumstances should be very limited and circumspect, for a court sits chiefly to decide controversies, not to oversee the conduct of the parties. Nor is it prudent for a court to act as both prosecutor and jury except in extreme circumstances, such as in the case of a contempt occurring in the actual presence of the Court.
Balancing all these considerations, in a situation largely unprecedented, the Court concludes that, while it retains some modest authority, pursuant to its general supervisory power, to inquire into the circumstances that led to the Court's being materially misled, that authority is limited to ordering an investigation and, where appropriate, to publicizing the results, so as to make known the truth and deter future misconduct. Barring highly unusual circumstances, moreover, a court should look to the Government to conduct the investigation of the alleged misconduct, for such investigations fall naturally within the Government's ordinary area of expertise, and while there may be some difficulty in the Government's investigating its own agent, by that very relationship the Government is often in a much better position to ferret out the facts than would be the Court. Moreover, despite the Court's disappointment with the Government's recent waffling about promptly completing its investigationa, the overall manner in which the Government has conducted itself throughout this difficult case gives the Court some confidence that the investigation will be conducted properly.
In short, what the Government has already volunteered, the Court here orders, with the difference that it will ultimately be for the Court, not the Government, to determine what public record to make, if any, of the results. Specifically, the Government is directed to complete its investigation and report the results to the Court, ex parte but in writing, by no later than October 31, 2002. Whether, at that point, the results should be disclosed to the public is an issue best left until that date.
Third, there remains the request of Mr. Higazy's counsel, joined in by the New York Times, to unseal all prior papers and proceedings in this case. While grand jury secrecy is mandated by law, see Fed. R. Crim. P. 6(e)(5)&(6), the determination to jail a person pending his appearance before a grand jury is presumptively public, for no free society can long tolerate secret arrests. See, e.g., Morrow v. District of Columbia, 417 F.2d 728, ~41- 742 (D.C. Cir. 1969) ("The requirement that arrest books be open to the public is to prevent any 'secret arrests,' a concept odious to a democratic society."); Center For National Security Studies v. United States Department of Justice, Civ. 012500 (D.D.C. August 2, 2002; Kessler, J.) at 3 (same). Where the two doctrines collide, the broad interpretation otherwise often appropriate of what is "ancillary" to the grand jury proceedings must give way to the public's right to know and assess why someone is being jailed, with the result that sealing of matters relating to the arrest and detention must be limited to keeping secret only what is strictly necessary to prevent disclosure of what is occurring before the grand jury itself. See Fed. R. Crim. P. 6(e)(5) ("the court shall order a hearing on matters affecting a grand jury proceeding to be closed to the extent necessary to prevent disclosure of matters occurring before the grand jury"); Fed. R. Crim. P. 6(e)(6) ("Records, orders and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before the grand jury.") (emphases supplied).
Here, moreover, the argument for continued sealing is largely academic, not only because Higazy never was presented to the grand jury but also because the Government, in its public filings regarding the charging and discharging of Higazy and the charging, convicting, and sentencing of Ferry, publicly disclosed virtually all the facts here at issue that could conceivably be claimed to relate to matters occurring before the grand jury. For example, the circumstances that led to Higazy's initial detention, his various statements to the FBI (notably including his statements to the polygraph examiner, which were repeated in open court by the prosecutor at that time Higazy was criminally charged and then widely reported in the press6), the circumstances leading to Higazy's subsequent exoneration, the conflicting statements made by Ferry and other hotel employees, and much more, are all set forth in the Government's public filings and in its public statements, not to mention the public statements of Higazy and his counsel regarding Higazy's own knowledge of the facts. See, e.g., footnotes 1 and 2, supra. As for the conduct of the polygraph examiner, Higazy, as a participant in the event, has never been under any impediment to making public his version of what occurred. Moreover, not even the Government suggests that the manner in which the polygraph examiner conducted the voluntary testing that Higazy himself initiated is itself the subject of a grand jury proceeding. Finally, of course, much of the in-court proceedings and the great bulk of the written submissions in this matter deal with purely legal issues that do not remotely reveal any aspect of the grand jury's investigation.
____________________
6 See, e.g., Goldman, supra note 2, at A7 ("Assistant U.S. Atty. Dan Himmelfarb told the judge Friday that Higazy agreed during a third interview that the radio belonged to him but told three conflicting stories about how he got it.").
Grand jury secrecy, therefore, remains implicated here only to the extent, if any, that matters that directly relate to the grand jury's investigation and that have not subsequently and lawfully been made public are referred to in the papers or proceedings previously sealed in this case. The Court has reviewed the file and finds nothing in the transcripts or in the written submissions of Higazy's counsel that qualifies under these standards for continued sealing. Nor does it appear that the greater part of the Government's written submissions qualify for continued sealing. Nevertheless, there may be a few statements, such as in the FBI affidavit presented to the Court in connection with Higazy's initial detention, see footnote 4, supra, that remain entitled to sealing pursuant to grand jury secrect. Rather than making those determinations now, therefore, the Court, in an excess of caution and before permitting the unsealing of any part of the file, will give the Government until 5 p.m. on August 9, 2002 to submit to the Court proposed redacted versions of any of the papers herein (including transcripts and written submissions of any party) showing the redactions that the Government believes are still justified under the standards enunciated herein - following receipt of which the Court will promptly make the final determinations as to unsealing.
Grand secrecy aside, there is one document that must continue to be sealed, at least for now, and that is the Government's June 28 letter to the Court reporting the Government's preliminary results of its inquiry into the conduct of the polygraph examiner. This, and all further reports relating to that subject matter, will remain sealed pending further order, not because of grand jury secrecy (to which, as mentioned, they do not relate), but rather to protect the integrity of the ongoing internal investigation here ordered by the Court.
SO ORDERED.
[Signature]
JED S. RAKOFF, U.S.D.J.
Dated: New York, New York
August 5, 2002
| UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK |
||
| -----------------------------------------X
In re application of the United -----------------------------------------X |
01 CRIM MISC. 1750 (JSR) -38
ORDER |
|
JED S. RAKOFF, U.S.D.J.
In accordance with the Court's Order dated August 5, 2002, the Government has submitted proposed redactions of the materials in this matter that are otherwise to be unsealed in accordance with that Order. With few exceptions, the Court agrees with the Government that its proposed redactions are appropriate and meet the requirements of the August 5 Order.1 Accordingly, the Clerk of the Court is hereby directed to publicly file the following documents (the redactions to which are indicated in parentheses below), which (as redacted) are being simultaneously submitted to the Clerk along with this order:
____________________
1 The Court's chief disagreement with the Government's proposed redactions pertains to the Government's proposal that references even to the existence of an ongoing Government investigation of the circumstances surrounding the recovery of the transceiver at the Millenium Hotel(as opposed to the details thereof) be redacted. Yet the Government, in its publicly filed letter to Magistrate Judge Maas dated January 16, 2002 that dropped the charges against Mr. Higazy, the discussed that investigation at length and then publicly stated: "The Government is continuing to investigate the circumstances that led to the radio's transfer from the room on the 50th Floor to Mr. Higazy's room on the 51st floor, including the manner in which it was transferred, the date of its transfer, and the persons who transferred it." Govt. Letter, 01/16/02, at 2, filed with endorsed order of Mag. Maas in 02 Mag. 053 (FM).
The unredacted original copies of those of the above-cited documents that have been redacted will be separately filed today under seal, as will the Government's request for redactions dated August 9, 2002 and, per the Court's order of 8/5/02, the Government's Letter of June 28, 2002.
SO ORDERED.
[Signature]
JED S. RAKOFF, U.S.D.J.
Dated: New York, New York
August 14 JSR, 2002
[By hand] Redacted and Unsealed xlcikapp 1
SEALED
1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------ x
In re the Application of the
3 United States for Material 01 Misc. 1750 JSR
Witness Warrant, Pursuant to
4 18 USC 3144, for ABDALLAH HIGAZY.
5 ------------------------------ x
New York, N.Y.
6 December 18, 2001
6:25 p.m.
7
Before:
8 HON. JED S. RAKOFF,
9 District Judge 10 11 S E A L E D
12
13 APPEARANCES
14 MARY JO WHITE
United States Attorney for the
15 Southern District of New York
BY: EDWARD O'CALLAGHAN
16 Assistant United States Attorney
17 ROBERT S. DUNN
Attorney for Witness
18
19 20
21
22
23 24 25
SOUTHERN DISTRICT REPORTERS (212) 805-0300
xlcikapp 2
SEALED
1 THE CLERK: Matter in re application of the United
2 States for a material warrant pursuant to 18 USC 3144 for
3 Abdallah Higazy. Counsel, please state your name for the
4 record.
5 MR. O'CALLAGHAN: Edward O'Callaghan for the
6 government. Good evening, your Honor.
7 THE COURT: Good evening. Let me make clear at the
8 outset that the transcript of these proceedings will be sealed
9 and the courtroom sealed as well.
10 I have before me the affidavit of Special Agent
11 Christopher Bruno. Is he here?
12 MR. O'CALLAGHAN: Yes, your Honor, he is with me at
13 counsel table.
14 THE COURT: Mr. Bruno, do you want to stand and raise
is your right hand. Do you swear to this affidavit?
16 AGENT BRUNO: Yes, I do.
17 THE COURT: Do you swear that everything there is
18 true to the best of your knowledge and belief?
19 AGENT BRUNO: I do.
20 THE COURT: So I have signed and attested to this
21 affidavit being sworn, and I have also signed the accompanying
22 sealing order. The question then is to hear from the arrestee
23 and his counsel. We have been waiting on them now for quite
24 sometime. It is approximately 6:30 p.m.
25 I understand that the marshals are now going to bring
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1 up the defendant, the arrestee, but we are still waiting on
2 his counsel. I am here until whenever and our long suffering
3 court reporter likewise, but I don't know that we can do
4 anything until counsel arrives. So let me sign all these
5 various copies. I am giving one copy to the government for
6 its files. Have you provided a copy yet to defense counsel?
7 MR. O'CALLAGHAN: No, your Honor, and with regard
8 that, because this is a Rule 6 proceeding, the government
9 certainly understands the necessity for defense counsel to see
10 the document and review it with its client; however, the
11 government would specifically request that the document be
12 returned this evening.
13 THE COURT: Yes. Subject to hearing from defense
14 counsel, that makes sense. So why don't you, when he arrives,
15 show him your copy and explain that subject to his being heard
16 he will then have to return that copy to you, either
17 immediately or as soon as the proceeding's evening is
18 is completed.
19 MR. O'CALLAGHAN: Very good, your Honor.
20 THE COURT: Do I understand also that the arrestee
21 has been interviewed by Pretrial Service.
22 THE CLERK: The Pretrial Services report is on its
23 way.
24 THE COURT: We will wait for that as well then. 25 I will give a copy of the original sealed affidavit
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1 and the court's order to my courtroom deputy to file under
2 seal. I am handing a copy to my law clerk to maintain in the
3 sealed chambers file. For the moment I will hold on to the
4 other copy, until we hear the proceedings, and then I'll
5 give it to the government.
6 So I think, unless the if ernment counsel has
7 anything else, that it makes sense for me to go down tPa"
8 chambers and work on other matters until everyone is ready.
9 Just let my courtroom deputy know when everyone arrives.
10 Anything else we need to take up until --
11 MR. O'CALLAGHAN: No, your Honor, not from the
12 government, until we hear from defense counsel.
13 THE COURT: Very good.
14 (Recess)
15 (Time noted, 7:10 p.m.; case called)
16 MR. O'CALLAGHAN: Edward O'Callaghan for the
17 government. Good evening, your Honor.
18 THE COURT: Good evening.
19 MR. DUNN: Good evening, your Honor. Appearing for
20 the material witness, Robert Dunn.
21 THE COURT: Mr. Dunn, have you received a copy of the
22 sealed affidavit on the basis of which the court approved
23 arrest warrant?
24 MR. DUNN: Your Honor, when you say have I received
25 it, I have been provided an opportunity to review it and I
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1 have returned the same to the assistant handling this matter.
2 THE COURT: I indicated to the assistant that he
3 should provide a copy and you should keep it until the end of
4 tonight's proceeding.
5 MR. O'CALLAGHAN: Judge, I took it back just a moment
6 ago because it is the only copy that I have.
7 MR. DUNN: If you think we will be working through it
8 at this time.
9 THE COURT: Yes. I suspect it may not be necessary
10 for tonight's proceedings, but I want you to have it in front
11 of you in any event.
12 MR. DUNN: I appreciate that.
13 THE COURT: I don't know if you have had a chance to
14 discuss it with your client or not.
15 MR. DUNN: I had a full discussion with my client
16 prior to being privy to the sealed affidavit, and I have had
17 some opportunity to speak with him with regard to a couple of
18 issues or some information that came out in the affidavit that
19 had not been provided to me by my client up to that point. We
20 have had some opportunity to discuss it.
21 THE COURT: If as we proceed tonight you need further
22 opportunity for tonight's purposes, let me know.
23 MR. DUNN: I don't think I will for tonight's
24 purposes, but I appreciate that offer.
25 THE COURT: Let me for the moment give the court's
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1 extra copy to counsel so that they each now have a copy.
2 MR. O'CALLAGHAN: Thank you, Judge. 3 Let me find out whether the defendant speaks, reads
4 and understands English.
5 MR. DUNN: Very well, sir. 6 THE COURT: Then I want to advise him and his counsel
7 that he has been arrested on a material witness warrant under
8 18 USC section 3144, which provides that "If it appears from
9 an affidavit filed by a party that the testimony of a person
10 is material in a criminal proceeding, and if it is shown that
11 it may become impractical to secure the presence of a person
12 by subpoena, a judicial officer may warrant the arrest of the
13 person and treat the person in accordance with the provisions
14 of section 3142 of the title," which is the section, of
15 course, dealing with bail, to which we will turn in a minute.
16 Section 3144 continues, "No material witness may be
17 detained because of inability to comply with any condition of
18 release if the testimony of such witness can be adequately
19 secured by deposition and if further detention is not
20 necessary to prevent a failure of justice. Release of a
21 material witness may be delayed for a reasonable period of
22 time until the deposition of the witness can be taken pursuant
23 to the Federal Rules of Criminal Procedure."
24 The specific allegations in the affidavit, briefly
25 summarized, are that Mr. Higazy has information bearing on the
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1 September 11 killing and property destruction at the World
2 Trade Centers and elsewhere; that a grand jury is
3 investigating those events and related criminal allegations;
4 that he is someone who for reasons set forth in the affidavit
5 is believed to have information material to the grand jury's
6 investigation; that he is an Egyptian national who entered the
7 United States on August 27, 2001; that he allegedly gave false
8 testimony -- false statements, excuse me -- when questioned by
9 the FBI, and that therefore and for the other reasons
10 appearing in the affidavit he should be detained at least
11 until he can give information to the grand jury and that bail
12 should not be granted.
13 I want to advise Mr. Higazy first and foremost that
14 he has a right to counsel and that if you can't afford counsel
15 one will be appointed to represent you. Mr. Dunn, I gather,
16 has already been appointed by the magistrate?
17 MR. DUNN: No, that was one of the housekeeping
18 matters that I was seeking to address. I do have a financial
19 affidavit which has been executed by Mr. Higazy. I have
20 reviewed with him the purpose of this affidavit. I have
21 secured from him the questions that are pertinent to the
22 court's determination as to whether or not he is eligible. It
23 is my belief, based upon the fact that he is unemployed and
24 lives off of a student stipend, which will be reflected in the
25 affidavit that I am asking at this time to submit to your
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1 Honor, that he will be found to be indigent and eligible for
2 representation by the CJA panel.
3 THE COURT: All right, would you hand that up,
4 please.
5 I should mention what I meant to mention at the
6 outset, that this is a sealed proceeding and that the
7 transcript will be kept under seal and made available only to
8 the court and counsel except for further order of the court.
9 MR. O'CALLAGHAN: Your Honor, on that point, with
10 respect to grand jury secrect materials, pursuant to 6(e) I
11 should inform the court that the agents present understand the
12 obligations upon them under Rule 6(e) not to disclose any of
13 the matters that are proceeding before your Honor. That would
14 be Special Agent Christopher Bruno of the FBI and Special
15 Agent Vince Sullivan of the FBI, your Honor.
16 THE COURT: Both of whom are present, and I should
17 note for the record that the only other persons present in
18 addition to the arrestee, his counsel, the two FBI agents,
19 government counsel, my courtroom deputy, my law clerk, my
20 court reporter and myself, are two marshals.
21 MR. O'CALLAGHAN: Thank you, Judge.
22 THE COURT: Let me look at the affidavit.
23 (Pause)
24 THE COURT: Mr. Higazy, this affidavit that you have
25 sworn to correctly sets forth your financial situation, is
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1 that correct?
2 MR. HIGAZY: Yes, sir.
3 THE COURT: I will then grant the application and
4 appoint Mr. Dunn as your counsel.
5 Mr. Higazy, you have a right to remain silent, and
6 let me advise you that anything you do say could be used
7 against you. Do you understand that?
8 MR. HIGAZY: Yes, sir, I do.
9 THE COURT: And also, if you have already made
10 statements, that in no way prevents you from remaining silent
11 in the future. Do you understand that? In other words, even
12 if you made a statement previously to an FBI or whomever, you
13 in no way have given up your right to remain silent going
14 forward. Do you understand that?
15 MR. HIGAZY: Yes, I do.
16 THE COURT: Very good.
17 Let me find out from the government first whether
18 there is anything further they believe that the defendant is
19 to be advised of at this time, and, secondly, what their
20 position is as to his presentation before the grand jury in
21 terms of timing.
22 MR. O'CALLAGHAN: Yes, your Honor. The only thing
23 that I could suggest that the court might want to know on
24 initial presentments on arrest is the date and time of the
25 defendant's arrest, which the government will indicate to your
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1 Honor was on December 17 at approximately 4. 4:00 p.m.
2 With respect to the timing of the grand jury, we have
3 requested that the defendant be detained pursuant to 18 USC
4 3144 at least for the 10-day period. We believe that that is
5 a reasonable amount of time under the statute, given the
6 availability of the grand jury in the district on this matter
7 and in the intervening holidays, on which they will not be
8 sitting, the amount of days reasonably available to the
9 government to present the testimony -- it is actually less
10 than the 10 days, but we believe that if we set the matter
11 down before your Honor by next Friday we will at least have
12 the opportunity to present to the grand jury and report to
13 your Honor wherfe we stand.
14 THE COURT: Is the grand jury going to be sitting --
15 it is clearly not going to be sitting on Christmas. Is it
16 going to be sitting on the 26th?
17 MR. O'CALLAGHAN: We believe so, your Honor. Right
18 now the grand jury sits on Monday and Wednesday. Unless given
19 an opportunity tomorrow -- I don't want to speak as to when
20 exactly we will be presenting, but likely next week, the days
21 after the Christmas holiday will present us enough time to at
22 least get the testimony under way and get back before your
23 Honor by next Friday.
24 THE COURT: I want to hear from defense counsel, and
25 then we will need to address the issue of bail. This is
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1 really an application irrespective of bail at this point,
2 pursuant to the last line of section 3144.
3 MR. DUNN: Yes, your Honor. First of all, given the
4 severity of the events of September 11, not only myself -- my
5 office is like one block up from the World Trade Center. We
6 are fully aware of the exigent circumstances that allow for
7 material witness holding in this situation, vis a vis my
8 client, and my client recognizes that as well. We are not
9 really going to seriously challenge whether or not, based on
10 what I have seen in the affidavit, the court was correct in
11 signing off on the affidavit with regard to at least taking a
12 look at Mr. Higazy as a potential witness in this matter. So
13 on that score we really don't have any arguments in opposition
14 on that.
15 On the issue of bail --
16 THE COURT: I don't want to address bail this second,
17 but it seems to me -- I guess the two are sufficiently
is intertwined and we should turn to bail. Go ahead.
19 MR. DUNN: Yes. If it is the government s position
20 that they believe that by the time they have scheduled this
21 matter to be back before your Honor, that being the 27th, that
22 there would be grand jury action -- that is what I am not
23 clear on.
24 THE COURT: I think what they are saying, at least as
25 I understood it, is that they believe they could present this
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1 witness to the grand jury if he chose to testify and not
2 invoke his privilege by no later than December 27 -- actually
3 10 days from today, I guess, is Friday, the 28th. So by
4 December 28. Whether or not the grand jury took action is
5 neither here nor there in terms of the material witness. The
6 court would be very concerned if a witness being held by
7 material witness warrant were not promptly brought before the
8 body or to the proceeding as to which he is a prospective
9 witness. The government clearly is suggesting that it might
10 have further applications to make on the 28th, but it is
11 representing, as I understand it, its expectation that the
12 witness would be presented to the grand jury before the close
13 of business on the 28th. Is that right?
14 MR. O'CALLAGHAN: The witness will be presented
15 is our expectation that that will happen. Of course, the
16 conclusion of that testimony the government cannot anticipate
17 at this point.
18 THE COURT: I understand. You are reserving in
19 effect the right to come back and say we need his testimony
20 still more on some further aspect of the grand jury's
21 investigation. I can't express any opinion as to that until I
22 hear if and when such application is made. But I would think
23 it would not be reasonable for the court to order this witness
24 detained for more than 10 days without his having been in fact 25 presented to the grand jury in that time period, unless, of
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1 course, the government decides he is not a material witness.
2 MR. O'CALLAGHAN: Barring any intervening events
3 between this evening and December 28, the government fully
4 expects to put the witness before the grand jury, your Honor.
5 THE COURT: All right. So let's turn to the issue of
6 bail, because while 1344 contemplates that a witness who
7 otherwise might qualify for bail that nevertheless his release
8 could be delayed for a period of time, the assessment of that
9 has to also be made in the context of whether he does qualify
10 for bail or not. This is different, of course, from the
11 question of someone who has actually been charged with a
12 crime. But the standards, the section makes reference back to
13 the same overall standards under section 3142 that are
14 applied.
15 So my question on bail is, I am happy to hear you
16 tonight, or if you want more time to prepare something fuller
17 I am happy to hear you subsequent, or both. The government in
18 its affidavit has made a prima facie case that this witness is
19 someone whose attendance cannot be secured by any reasonable
20 alternative other than conditions under confinement. But that
21 is just from having heard from one side, so let me hear from
22 defense counsel.
23 MR. DUNN: Your Honor, if we were to revsisit this
24 issue, would we have an opportunity to have a date to revisit
25 it nearer to the closing of the government's --
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1 THE COURT: Yes. My normal practice, and I see no
2 reason to make it different in the case of a material witness,
3 is to hold bail hearings as soon as an arrestee and his
4 counsel feel it is appropriate to proceed. I will also hear
5 argument right now if you want to argue the point, but often
6 counsel may feel that it would be better to mount a more
7 detailed response. And, by the way, one doesn't exclude the
8 other. Questions of bail can be revisited.
9 MR. DUNN. Thank you.
10 THE COURT: But I am ready to hear you whenever you
11 would like, and if you want to do it tonight that is fine, and
12 if you want to set a date in the next few days that is also
13 fine.
14 MR. DUNN: My client is anxious for me to address
15 this issue as soon as possible. I was a bit reluctant because
16 there were some sources of potential help in the way of either
17 signing off on recognizance bonds or the posting of property
is if the court was of a mind to -- we can talk in hypotheticals.
19 If he can come in with A, B and C, we can proceed along those
20 lines.
21 THE COURT: I think what you are going to need to
22 address in the first instance are -- of course the court will
23 take into account all the factors listed under section 3142,
24 but some of the more obvious ones that loom in a case like
25 this are ties to the community and the allegation that he
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1 previously made false statements. Those are two big issues
2 that are out there before we reach any question now of
3 personal recognizance bonds or whatever.
4 MR. DUNN: Yes, your Honor.
5 THE COURT: I thought particularly on the latter you
6 might want to have more time to talk to your client about it
7 before we got into it, but I am happy to hear you right now.
a MR. DUNN: Let me just confer with my client.
9 THE COURT: Sure.
10 (Pause)
11 MR. DUNN: The more substantive issues in this regard
12 that, as your Honor just stated, are out there looming are not
13 likely to change from today to whatever date I might have put
14 this matter off with further investigation of some other
15 matters. With that in mind, I think we will proceed at this
16 time.
17 THE COURT: Very good. Just by way of background,
18 have you received a co of the Pretrial Services report?
19 MR. DUNN: Yes, I have, sir.
20 THE COURT: That indicates, so far as ties to the
21 community, that the defendant, who is a single male, is from
22 Cairo and only entered the United States on August 28 of this
23 year, and that he entered on a student visa, but that he
24 initially was living in various hotels and then now is living
25 with a friend in Staten Island, that his only family ties to
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1 the United States are a brother who is attending a master's
2 degree program in Ithaca, New York, and that he attends
3 Polytech University. So let's talk about that aspect first.
4 MR. DUNN: Your Honor, if I may be allowed to do a
5 little bit of preamble with respect to certain things that my
6 client wishes me to express to the court, and if the court
7 will allow me to unburden them to relieve my client's
8 concerns, I appreciate that.
9 THE COURT: Sure.
10 MR. DUNN, Mr. Higazy wants me to express to the
11 court that he himself is horrified by the events of September
12 11, 2001, that while he is a practicing Muslim, a devout
13 Muslim, he is not a fundamentalist Muslim, that he neither
14 psychologically nor in any material way sides with those who
15 bore responsibility for the attack of September 11, 2001.
16 While he only recently has come into the country for
17 the immediate purposes, that being in August of 2001, indeed,
18 your Honor, he has had a rather lengthy history of contact
19 with the United States based upon the fact that his father was
20 in the Egyptian diplomatic corps in one form or another
21 throughout the past two decades, and that after being born in
22 Egypt in 1971, Mr. Higazy traveled with his father to the
23 United States at the age of 7, in 1978, attended school here 24 in the United States from 1978 to 1982. He thereafter
25 returned in 1987 and continued education here in the United
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1 States.
2 THE COURT: Where was that education both those
3 times?
4 MR. DUNN: He went to D.C. Williams High School in
5 D.C., in the period that I was referring to, from '87 to '91.
6 D.C. Williams High School in Alexandria, Virginia, in the
7 years '87 to '91 for high school and some elementary high
8 school from 1978 to 1982. Barretts England Carland Elementary
9 School in Arlington, Virginia.
10 Thereafter, he was duly admitted into the United
11 States with a valid student visa that was in effect at the
12 time of his arrest. He was also registered in school, as was
13 required, and as was supposed to be his basis and reason for
14 being here. He was attending Polytech, Metrotech here in New
15 York City, in Brooklyn, at the time of his arrest.
16 His brother as well has been studying here in the
17 United States for many years. He too went to school during
18 some of those same periods of time while residing with his
19 father.
20 So there is that connection to the United States, and
21 I also point out to the court that, as I indicated, he was
22 here on a valid student visa, and he was indeed matriculating,
23 attending class and performing all the duties that would be
24 required of him being here on a student visa.
25 After the events of September 11, on that day
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1 Mr. Higazy was rushed out of the hotel at the urging of hotel
2 personnel, who indicated that everyone had to evacuate the
3 building. When he evacuated the building, he ran out with
4 nothing more than what was on his person and in the clothing
5 of his person, which was a T-shirt, jeans, a wallet which
6 contained his student i.d., and $100 in cash. He left
7 everything else behind in the hotel.
8 THE COURT: This was at the Millennium Hotel.
9 MR. DUNN: At the Millennium Hotel, in harm's way,
10 directly across the street from the World Trade Center.
11 Thereafter is when he stayed only in various places.
12 It should also be known by the court --
13 THE COURT: Why was he staying in a hotel at all?
14 MR. DUNN: According to my client, the entity that
15 arranged for his attending school here in the United States,
16 which is under the auspices of the USAID in Cairo -- the
17 actual entity is known as the International Institute for
18 Education. Mr. Higazy informs me that there were ublications
19 in newspapers in Cairo advertising that there were
20 opportunities for students to take advantage of education
21 abroad in the United States upon their submitting an
22 application and being found to be worthy of such an investment
23 with regard to their academic background and whatever other
24 screening that entity engaged in. It is important to note
25 that that entity is an American-based organization, that it,
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1 as I said, is under the auspices of the USAID and not some
2 philanthropic organization or association that stems from
3 either Egyptian or other than United States roots.
4 He informs me that it is under their control with
5 regard to all of the facets that would bring a student to be
6 here. They arrange for the transportation, which includes the
7 itinerary. They arrange for the housing and lodging of the
8 students when they first come, and throughout. When I say
9 throughout, he is given a $1,450 stipend that he has to report
10 back as to how it is being used consistent with what he is
11 given for his housing needs so that he can attend school.
12 So initially he was placed in the Millennium Hotel by
13 this entity, the International Institute for Education. They
14 made all the arrangements and he followed the instructions
15 given to him in the packet that was provided him in bringing
16 him here to the United States.
17 I believe and he believes that that was to be a
18 temporary residence until other residence could be arranged.
19 There was some mixup with his paperwork because of the fact
20 that he had once been in the Egyptian military and that they
21 required, the Egyptian military requires that anyone traveling
22 abroad has to get certain clearances from them before doing
23 so. The delay in obtaining that information caused Mr. Higazy
24 to not be in step with his admission class such that he
25 arrived here late, and that speaks to another issue that may
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1 come up down the road with regard to his need for any
2 information concerning Reagan Airport when he arrived at JFK.
3 It is my understanding that initially his class was to go into
4 Washington where the orientation for all students being
5 brought from abroad in that region would be instructed as to
6 what their responsibilities were in and orientated with regard
7 to what was available to them and resources and the like. He
8 missed that orientation and had to be rebooked for another
9 flight. At that point, since there was no orientation being
10 conducted in Washington he had no need to go to Washington,
11 although he had some information with regard to Reagan Airport
12 in Washington which was provided to him by the same institute.
13 THE COURT: Let me interrupt you and ask the
14 government whether there has been any attempt to corroborate
15 the connection with this educational entity?
16 MR. O'CALLAGHAN: The specifics of the educational
17 entity, there has been none, your Honor. I did inquire of the
18 agent whether there were any documents indicating the fact
19 that the witness was here on any kind of student-related
20 activities, and he said there were some documents which would
21 indicate that. I haven't actually seen those documents,
22 Judge.
23 THE COURT: All right. What about the suggestion
24 that he came here on a passport that was also assigned to
25 another person?
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1 MR. DUNN: I have inquired of Mr. Higazy with regard
2 to that. When I first spoke with him he had indicated to
3 me -- and this is something that I am familiar with and the
4 court may be familiar with as well -- that the manner in which
5 one is named and called by name in Arabic or in Arab countries
6 as well as in African countries, even in places as close as
7 uerto Rico here is a tendency there that one would carry
8 he mother's maiden name if it be Martinez and the father's
9 last name may be an Martinez Solo. Some people follow
10 that cultural custom in Puerto Rico, others don't.
11 In any event, within the cultural setup of Egypt,
12 here is an attempt to be able to know very much about one's
13 lineage simply by their name in the cultural fabric of that
14 country such that their names tend to include their immediate
15 ancestry. By that I mean to say that I was advised that his
16 first name is his given name. His second name would be his
17 father's first name. His third name would be his
18 grandfather's first name. His fourth name would be his great
19 grandfather's and the like, down to the actual surname Higazy,
20 which came from the lineage going back to the beginning of
21 when they began to identify themselves by that name. Those
22 would be the descendants of the original Higazy.
23 I don't mean to cut your Honor off. I just want
24 to answer you. What he believed in my earlier discussion was the
25 reason why there might have been different names with the same
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1 passport i.d. number was that in his own dealings coming in
2 and out of the country, those who would give him the passport
3 would choose to shorten his name because, oh, that's a little
4 too much, why don't we just say, you know, Abdallah Higazy and
5 never mind all that because the Americans aren't interested in
6 it anyway, and that different people may have had different
7 approaches and different names may have appeared on different
8 documents.
9 THE COURT: Was he here in April 2000?
10 MR. DUNN: No. I didn't know the date, but it
11 appears that is not the case anyway. I am sorry to belabor
12 the point.
13 THE COURT: It wouldn't seem to correspond with the
14 facts.
15 MR. DUNN: I inquired of the government, and the name
16 of the individual who had the same passport number does not
17 have any facsimile, any reasonable facsimile to Mr. Higazy,
is So that does not seem to be an explanation. The government
19 offered some possible explanation, I believe, in that they say
20 that there are different passports being issued by a military
21 or some governmental people.
22 THE COURT: So two passports could have the same
23 number because one was a military passport and one was a
24 regular -- I am sorry. One was an official government
25 passport and one was an ordinary citizen passport, and they
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1 both would have, in this hypothesis, the number 427 but the
2 INS records would not necessarily reflect that one was a
3 government passport and one was not. On the other hand, that
4 is just a hypothesis at this point.
5 MR. O'CALLAGHAN: That is correct, your Honor, more
6 a hypothesis, and we need additional time to confirm the
7 authenticity of the passport. We wanted to present to your
8 Honor in the affidavit exactly what we have done to this point
9 to clarify that question.
10 THE COURT: At this point it is an uncertain factor.
11 MR. O'CALLAGHAN: Exactly, Judge.
12 MR. DUNN: Your Honor, just one point of
13 clarification, because Mr. O'Callaghan kind of confused me to
14 this extent. He seemed to be saying that the practice does
15 exist but he doesn't know if this was a valid passport -- is
16 that correct? Are you aware of the fact that there is such a
17 practice where there are two different entities that would
18 issue passports in Egypt?
19 MR. O'CALLAGHAN: Your Honor, I am happy to answer
20 questions of the court.
21 THE COURT: Let me just say, what I understood from
22 the affidavit was that the INS records would simply have
23 something like Egyptian passport number X and that in fact
24 here may be a practice that both government official
25 passports and ordinary citizen passports would have the same
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1 number, so that you could have two passports both bearing the
2 number X, and both, therefore, being valid, one being
3 a government passport and one being an ordinary citizen
4 passport. The alternative hypothesis is that one or the other
5 is a counterfeit or otherwise misused passport.
6 MR. DUNN: But the issue is, to my mind, a second
7 issue as to whether it is authentic, and the first threshold
8 issue that I wasn't clear on, and it seems to be more than a
9 hypothesis, it would seem that INS is saying that we have
10 reason to know that this occurs, that there are instances
11 where one would have a passport issued with a certain number
12 from one entity and then some other entity would have given
13 out a passport with that same number to a different party.
14 THE COURT: Actually, it is not the INS. All the INS
15 has said is that its records reflect two different people
16 holding this same passport number from Egypt. The legal
17 attache, the FBI legal attache in Cairo is actually the one
18 who said, in effect, don't necessarily infer from that
19 invalidity of this passport, or misuse by this individual of
20 this passport, because there is a possible alternative
21 explanation. I agree with you that the fact that the FBI
22 attache even raises that possibility suggests that he knows
23 that in some instances that may occur. On the other hand,
24 that is not saying that in this instance such occurred.
25 Let me go to a different aspect. Moving along in
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1 your chronology we are up to where he leaves the hotel and he
2 only takes a modest amount of items with him, as would be
3 expected. In the room where he had been resident is, among
4 other things, an airband transceiver, which is a hand-held
5 radio marketed for use by pilots, used for air-to-air and
6 air-to-ground communication with persons in possession of a
7 similar radio, including a pilot of a commercial plane. The
8 radio also can be used to monitor air-to-air and air-to-ground
9 communications, and according to the Millennium Hotel employee
10 whose statements are reported in this affidavit, the airband
11 transceiver was found inside a safety deposit box located in
12 the room that Mr. Higazy was occupying, along with his
13 passport and a certain number of items.
14. Why would he be in possession of an airband
15 transceiver?
16 MR. DUNN: Judge, that is certainly a very telling
17 question. The item itself would cause great concern to any
18 rational thinking person, but the rational thinking person is
19 going to go beyond the item itself and look at the surrounding
20 circumstances and I would suggest to the court the following:
21 That first of all, not to get into hypertechnical arguments
22 with regard to chain of custod but you have a situation
23 where it is alleged that this item was taken out of a safe
24 that is not supposed to be entered under ordinary
25 circumstances by anyone other than the person occupying the
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1 room until such time that he or that his or her occupancy has
2 terminated.
3 THE COURT: That may be a different claim that you
4 may want to make at some appropriate time. I am not sure that
5 that really precludes me from taking cognizance of it for bail
6 purposes.
7 MR. DUNN: No, this is not a suppression of evidence
8 argument. It is an argument to say that since the items were
9 allegedly removed from a safe and stored in a separate
10 location to be held for the occupant for these many months,
11 three months from the point of the events of September 11
12 until Mr. Higazy comes to retrieve his property, that, you
13 know, the opportunity for mishap to occur with regard to this
14 item being misplaced into someone else's property or somehow
15 finding its way into a bundle of property that has been
16 designated for Mr. Higazy does exist.
17 THE COURT: Well, yes, that is a possibility. By the
18 way, as I understand it. what happened is this. He was there
19 for approximately two weeks. He stayed in room 5101, which is
20 on the 51st floor of the hotel, very high up, in a corner room
21 that contains a window with a view of the World Trade Center,
22 that it was the hotel employees who inventoried the contents
23 of the room and discovered this transceiver, and while
24 anything is possible and mixups do occur and one has to be
25 cognizant of that, at least as reflected in the affidavit the
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1 employees of the hotel attributed this property to a safe that
2 was right in the room occupied by this arrestee at the time of
3 the September 11 events.
4 [10 lines redacted.]
5
6
7
8
9
10 11 12
13
14 But what I haven't heard so far is an alternative
15 theory of why he would have this.
16 MR. DUNN: He has no theory as to why he would have
17 it because his position quite affirmatively is that he did not
18 have it. So the issue for the two opposing theories is not
19 why he would have it but whether indeed he had it, and that is
20 why I raise the issue for the potential of mishap or
21 misassignment with regard to items in the hotel, because of
22 the fact that he is steadfastly maintaining and has indicated
23 that he is urgently desirous of taking a lie detector test,
24 which I advised him is not evidence, it is usually used as an
25 ivvestigative tool and usually the people who are
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1 investigating determine whether they want to use it or not.
2 I just offer that to the court.
3 THE COURT: That is up to him and the government, of
4 course with his counsel's advice.
5 It is well established that polygraph tests are not
6 admissible in evidence at a trial and I have grave doubts as
7 to what weight I would give to it in a bail hearing, but I
8 don't need to pass on that because at the moment it hasn't
9 occurred.
10 MR. DUNN: I am only raising it because my client
11 wished me to do so. More importantly, I wish to apprise the
12 court how far afield this witness is in his denial of having
13 anything to do with this particular item.
14 THE COURT: I am not going to get into matters that
15 are beyond the court's purview, but I wouldn't be surprised,
16 if he offers to take a polygraph test given by the FBI, that
17 the FBI may well be interested in giving him such a test. I
18 don't know, but it is not before me now.
19 MR. DUNN: I just wanted to put that in as an aside.
20 If the court would allow me, also along the same
21 tangential claim, to just share some other common sense items
22 that the court may wish to take judicial notice of for these
23 purposes.
24 THE COURT: Yes.
25 MR. DUNN: These events occurred on 9/11/2001. This
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1 gentleman was arrested on December 17 of 2001. I have had
2 many an unenlightened client in my 20 years of practice, but
3 you would have to be particularly stupid, living under a rock
4 or I don't know what, not to appreciate by December 17 the
5 pains to which this government is willing to go to try to
6 pursue anyone who could have anything to do with the events of
7 9/11, so that he was calling, according to him, repeatedly to
8 obtain his property, and then comes December 17. If he is
9 knowing that he has left some receiving device that could be
10 used in any way to communicate with planes, he is in the
11 Millennium facing -- things could happen like that but it's 12 not your usual situation, yes, give me that incriminating
13 evidence, I'm here to pick it up three months later. It kind
14 of strains credulity and common sense to me.
15 That is just as an aside.
16 THE COURT: I understand that point. Let me ask you
17 this. It is turning to the other matter I raised earlier. in
18 what is paragraph I of the affidavit -- I will i st read it:
19 "During further questioning, Abdallah Higazy denied
20 ownership of the airband transceiver and stated in sum and
21 substance that he had not seen it before and did not know how
22 it got into his hotel room.
23 "Upon further questioning by other agents, Abdallah
24 Higazy stated that he may have seen a device such as the
25 airband transceiver in a Radio Shack store but that he would
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1 not have any interest in it. Abdallah Higazy then admitted
2 that he had knowledge of and familiarity with certain scanning
3 and other radio transmission devices. Abdallah Higazy stated,
4 in sum and substance, that he knew that scanners could be used
5 to pinpoint the desired direction of a satellite from a remote
6 location."
7 The affiant goes on to infer from this and other
8 statements that he was less than forthcoming in his original
9 statements and actually gave false or misleading statements
10 initially and then further inconsistent statements under later
11 questioning.
12 What about all that?
13 MR. DUNN: Yes, sir, glad you asked that. I asked
14 Mr. Higazy about that myself. I was quite concerned because I
15 didn't know anything about that in my first conversation with
16 him. It is one of the matters that I discussed upon receiving
17 and reviewing the sealed affidavit.
18 Mr. Higazy gives me a very reasonable explanation for
19 what occurred here, and that is the following: That he is
20 initially pulled in for questioning. It gets to the point
21 where he thought he would come in and he has a very simple
22 explanation, not for this item but he is thinking that it is a
23 basic profiling, that where I come from, I'm across the street
24 from this place, of course they have questions, let me come in 25 and answer questions. As the questions become more pointed,
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1 he of course becomes a bit more agitated to the extent of
2 being frightened and confused, only to this extent. The main
3 communication that he wanted to impress upon the agents that
4 he was speaking with is that he had nothing whatsoever to do
5 with this particular device, and, going so far as to
6 affirmatively denounce any connection to that particular
7 device, the followup questions become well, are you saying you
8 don't know anything about this kind of device or this
9 particular device. And as the pointed questions are fleshed
10 out, it is that no, I'm not saying I never saw a device like
11 this before, is that I don't know anything about devices like
12 that. In fact, he himself divulged that he had been in the
13 military, and that wasn't any information that they had in
14 their pocket or in a computer but that came from him.
15 THE COURT: What was his position in the Egyptian
16 military?
17 (Pause) 18 MR. DUNN. Does your Honor want his rank or his
19 duties?
20 THE COURT: I will take them both. 21 MR. DUNN: He was a first lieutenant in the Egyptian
22 air force. He says that he was trained and indeed worked with
23 communication devices from the ground to the air, and his
24 primary responsibility in that regard was in the repair of
25 these items as opposed to the actual operation of them in the
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1 field, but he certainly was familiar with that and shared that
2 familiarity readily with the government, and indicated that,
3 even going further, upon pressing him about any knowledge of
4 devices such as these as opposed to possession and ownership
5 of that particular device itself, that he had even seen these
6 devices at Radio Shack, that this wasn't something that you
7 had to be in the military to have had exposure to, almost
8 begging the question OK, so what does that prove, rather than
9 thinking that it's proving anything, you know, further against
10 him.
11 So it is really a matter of the fleshing out of what
12 exactly do you know about -- first the question is going to be
13 isn't this yours, we got it from somebody saying it belongs to
14 you. It's something in your room, what's it doing in your
15 room. I have never seen that before in my life. I don't know
16 anything about that. You don't know anything about that,
17 didn't you say you were in the military? Don't you know about
18 these devices? Yes, I was in the military, I know about those
19 devices.
20 So I don't think the framing of it is necessarily
21 fair to the manner in which the information may have come out.
22 I wasn't there.
23 THE COURT: I understand your argument.
24 MR. DUNN: This is a reasonable manner in which the
25 information could have come out. If you already have a
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1 jaundiced eye and if I saw something like that, I would have a
2 jaundiced eye, and you might look at things in a certain
3 light.
4 THE COURT: The reason they say that justice is blind
5 so to bring out the fact that judges need to avoid looking at
6 anything with a jaundiced eye and rather to evaluate them
7 fairly on the merits.
8 MR. DUNN: I was saying that in deference to the
9 agents.
10 THE COURT: I understand. I knew that. I was
11 just -- anyway, before we go further with defense counsel, let
12 me hear from the government as to anything they want to say at
13 this point in the chronology.
14 MR. O'CALLAGHAN: Yes, your Honor. Specifically with
15 respect to, as I understand it and it has been relayed to me
16 of the defendant's reaction and statements upon being
17 presented with the airband transceiver -- first of all, it may
18 not be clearly delineated in the affidavit, we understand when
19 the airband transceiver was actually found in the safety
20 deposit box there were certain documents, the Abdallah Higazy
21 passport, a copy of the Koran, and the airband transceiver was
22 on top of those documents within the safety deposit box in
23 room 5101, the defendant's room.
24 THE COURT: How tall is the hotel? How many stories
25 is the hotel?
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1 MR. O'CALLAGHAN: I am not sure how many stories the
2 hotel is. He was located on the 51st floor. I am told it is
3 between 55 and 56 stories high in total.
4 With respect to Mr. Higazy's statements regarding the
5 airband transceiver, it is my understanding that upon being
6 shown the airband transceiver and being told it was found in
7 his room, Mr. Higazy not only denounced ownership of the
8 airband transceiver but indicated that he had never seen
9 anything like that before.
10 Upon further questioning he said well maybe I saw
11 something like that before, yeah, maybe I saw it in a Radio
12 Shack or something, but I wouldn't have any interest in a
13 thing like that, so I wouldn't pay any mind to it..
14 Upon further questioning, he admits that he does have
115 some familiarity with radio transmission and scanners, to the
16 extent that he understands that scanners can be used
17 pinpoint the direction of a satellite.
18 The government doesn't proffer the statement with
19 respect to the satellite to support any argument that a
20 satellite was at all used in any theory of what happened.
21 THE COURT: No. You are suggesting that, as you
22 understand the way this interview took place, interviews took
23 place, it was not consistent with a truthful giving of
24 responses.
25 MR. O'CALLAGHAN: That is correct, your Honor.
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1 THE COURT: I understand.
2 MR. O'CALLAGHAN: Most importantly, Judge, actually,
3 and it was something that just came up in defense counsel's
4 arguments, the witness, when questioned about his experience
5 in the Egyptian air corps, or air force, indicated to the
6 agents that were interviewing him that he was essentially a
7 computer engineer guy who taught mostly people in the Egyptian
8 air corps certain things such as Microsoft EXCEL. Not once,
9 as I understand it, did the defendant mention that he was
10 trained in air communications, including radio air-to-air or
11 ground-to-air transmissions. If that was something that this
12 witness had indicated to the agents, that certainly would have
13 been included in the affidavit to your Honor, indicating
14 further the defendant's familiarity with exactly what was
15 found in his room -- the witness's, excuse me, your Honor --
16 and was a point that defense counsel brought up. That was
17 something that was not said whatsoever to the agents.
18 THE COURT: I want to hear whatever else defense
19 counsel wants to say and then I will review the relevant
20 criteria. But I am troubled by what I just heard. So let me
21 hear whatever further arguments counsel wants to make.
22 MR. DUNN: I believe, your Honor, that what has just
23 transpired before your Honor is reflective of what I offered
24 as a possible reasonable explanation as to how these facts
25 have unfolded, and that is that, again, when I asked m client
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1 that his exact position and duties were in the military -- and
2 one could say, in an effort to be completely forthcoming with
3 regard to every aspect of every duty that he may have
4 performed, he indicated that he did at sometime repair devices
5 based upon his computer knowledge, devices that could or would
6 be used in the communication from the ground to those in the
7 air. I don't know if it is necessary for the agent to vouch
8 for it or not, but I believe that they could overhear when I
9 was addressing the court, I came back with what I believed to
10 be the most salient aspects of what he was saying to me on the
11 issue at matter. But he was saying in the same breath, my
12 primary responsibilities were with the computers, training
13 people on computers and fixing computers and whatever else,
14 yes, I may have had exposure to communication devices, but
15 that my primary responsibilities were in the nature of fixing
16 computers.
17 As Socrates would say, depending on how you say the
18 is question would determine the answer you get. So as we develop
19 our own thinking on the other side of the table and what we
20 want to know, we tend to unearth more information than we
21 would if we were to till the soil in a different manner.
22 So I don't know that that is -- and again the man is
23 the one giving us the information. He is an educated man and 24 the court has not had the opportunity to speak with the man 25 but I have, and I would represent that the man is a very
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1 intelligent man. These are things that he is giving due to
2 questioning, to pointed questioning -- I am not saying he is
3 being evasive with you -- in an effort to respond.
4 The main thing that he keeps wanting to impress and
5 that may cause some confusion is the distinction between
6 knowing the technology and knowing that particular device, and
7 the confusion may occur in his vehement denouncing of his
8 possession or knowledge of that particular device or anyone
9 like it. Even again, there is no admission that yes, we use
10 that particular kind of device that they said was found in my
11 room back in Egypt, but if you are going to keep questioning
12 about any kind of device that might do what this one did, yes,
13 I know about that. But he is more focused on making it
14 perfectly clear that he doesn't know anything about that
15 particular device that was found in the hotel room.
16 I just don't know if it is fair in light of that to
17 say that these are misleading or lies or inconsistent
18 statements per se, although depending upon what you say and
19 how you are looking at this, one could certainly say that, I
20 can see that.
21 THE COURT: I think I've got a sufficient feel for
22 the situation to make a ruling for tonight's purposes. I say
23 that without prejudice to anything further that either counsel
24 may wish to present to me in the subsequent days.
25 Mr. Higazy is very lucky to have counsel as eloquent
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1 and as intelligent and articulate as Mr. Dunn. But we start
2 with the fact that it is uncontested at this point that he is
3 someone who the grand jury would materially wish and need to
4 hear from if he chooses to testify before the grand jury,
5 because of the simple and obvious fact that there in his room,
6 near the very top of the building looking out on the World
7 Trade Center was this device. It would be impossible for the
8 grand jury not to want and need to know further about that
9 situation. And, as I say, that is really undisputed.
10 The question, thus, is, first, what is a reasonable
11 time before which he can be presented to the grand jury at
12 least for the purposes presently represented, and 10 days,
13 particularly given the intervening holidays, is not
14 unreasonable, though I would think the presentation would not
15 support more than 10 days for that purpose. There may be
16 further developments. I don't know.
17 The next question then is should he be released on
18 bail until he can be presented to the grand jury, and the
19 court looks at the various factors specified in section 3142,
20 keeping in mind, however, of course, that the arrestee here is
21 a witness and has not been charged with any crime.
22 One first looks at the nature and circumstances of
23 the offense. It is in this case not the offense charged but
24 the offense under investigation by the grand jury, and
25 therefore it takes on a slightly different aspect than would
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1 be the case if he had been charged with something. But it is
2 still highly relevant that he is a material witness to an
3 extraordinarily important and critical investigation, and that
4 has to be given some consideration.
5 Second, there is the weight of the evidence. Again
6 under 3142 it is the weight of the evidence against the
7 person. Here it would have to be more considered in terms of
8 the weight of the evidence that he could not be relied upon to
9 remain available, all there the evidence first and foremost
10 relates to the manner in which he responded to the FBI agents.
11 I don't think it is by any means impossible that his
12 responses were consistent with innocence, but based on the
13 limited amount that I have heard tonight and what I have seen
14 in the affidavit, the more likely possibility is that he was
15 not fully forthcoming. I really want to urge and emphasize
16 that this is a very preliminary determination on my part,
17 based on very modest evidence, and that there may be further
18 evidence in the days to come that would change this
19 assessment. But at the moment it seems to me that of the two
20 hypotheses being suggested, one that he held back and was
21 inconsistent in his responses, and, two, that he simply was
22 responding as best he could to what was a broadening line of
23 questioning, it seems to me the first hypothesis is more
24 likely than the second, based on what I have heard so far.
25 With respect to history and characteristics of the
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1 witness, a very significant factor is the defendant's lack of
2 meaningful ties to the United States. He really has no
3 meaningful stake in remaining here, either financially or
4 familially or in any other way. Defense counsel points out
5 quite fairly that if the government is right in its hypothesis
6 that he left both his passport and this device in his hotel
7 room when he left on Seiitember 11, why would he stick around,
8 so to speak, and that is not without some weight. And overall
9 the government's position here is not the strongest that the
10 court has seen. But, of course, it is working under
11 considerable time and other constraints of its own.
12 I think one can't ignore the fact that when all is
13 said and done we have here a foreign national who has only
14 been back in this country a few weeks and who has very, very
15 limited ties of a serious nature to the United States.
16 I don't think there is enough before me to evaluate
17 any question relating to danger to the community. Obviously
18 if he were involved in the events of September 11, the danger
19 to the community in his release would be huge, but I don't
20 know that that connection has been made sufficiently for me to
21 evaluate that factor separately.
22 I conclude that when all is said and done, at this
23 stage there is really no set of conditions other than his
24 confinement that would keep his presence for his presentation
25 to the grand jury.
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1 Having said that, I want to reemphasize that this is
2 not perhaps the most overwhelming showing on the part of the
3 government, and it is sufficient for tonight's purposes.
4 Whether further information from either side will affect these
5 determinations in future applications remains problematic.
6 So based on those determinations, the witness will be
7 detained through, but on the present showing not beyond 8 December 28, and we will need to schedule, if nothing else, a
9 hearing for December 28 if there is not a hearing before then,
10 to see where things stand. So I will put that hearing down,
11 if it is convenient to counsel, for 2:00 on the afternoon of
12 December 28.
13 MR. DUNN: That is fine, sir.
14 THE COURT: Anything else that we need to take up
15 tonight.
16 MR. O'CALLAGHAN: Your Honor, just one clarifying
17 point. When your Honor mentioned the transcript of the
18 proceedings, you said it would be made available to counsel.
19 The government would request that that is only government
20 counsel.
21 THE COURT: I can see an argument perhaps that it not
22 be made available to the witness himself, but how can it not
23 be made available to defense counsel if he is going to be able
24 to meaningfully represent his client?
25 MR. O'CALLAGHAN: Your Honor, respectfully, it is the
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1 same consideration with respect to the defendant's affidavit that
2 the government asked to be returned. Defense counsel is privy
3 to the proceedings here.
4 THE COURT: He received what he needed to know for
5 tonight's purposes and I can see that it would make good sense
6 not to have that affidavit floating around, so to speak, not
7 that anyone is suggesting that. So I can see the argument for
8 returning it, which, as I told you when we first raised this,
9 I was ordering subject to hearing from counsel on the subject.
10 I can also see why there might be a good security reason not
11 to have defense counsel share the transcript with his client.
12 But how can he not see it himself and still be able adequately
13 to represent his client?
14 MR. O'CALLAGHAN: Your Honor, I just think
15 specifically under the language of Rule 6(e), anyone other
16 than a government agent just does not fall under the exception
17 of someone who may be privy to and have disclosure of grand
18 jury materials.
19 THE COURT: I am not sure this is grand jury
20 material. This is ancillary to a grand jury proceeding in
21 some sense, but it is, when all is said and done, really a
22 matter of statute. It is a hearing pursuant to section 3144
23 of Title 18, and a statute typically trumps a rule.
24 Here is perhaps a reasonable compromise for the
25 moment, and I want to hear from defense counsel on this.
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1 will direct the court reporter not to give the transcript to
2 anyone except the court until you and defense counsel can give
3 me the benefit of any learning you want to on this issue in
4 the form of legal memoranda, and if you think there is
5 something you can point to, case law under Rule 6(e) or
6 something else that suggests that it overcomes what would
7 otherwise follow from the normal requirements of the statutes,
8 I will consider that.
9 How quickly could you get me such a memorandum?
10 MR. O'CALLAGHAN: I will attempt to get one to the
11 court by tomorrow, your Honor.
12 THE COURT: Does defense counsel want an opportunity
13 to respond?
14 MR. DUNN: Yes, your Honor. Based on my meager
15 resources, I don't know if I can respond as quickly as the
16 government.
17 MR. O'CALLAGHAN: The government resources are
18 meager as well, your Honor.
19 THE COURT: And of course everyone knows the court
20 resources are limited. So the government will get me
21 something tomorrow with a copy for defense counsel, and that
22 is only for defense counsel's eyes even though it is a legal
23 memorandum and it will be part of the sealed proceeding and be
24 subject to sealing. Defense counsel under similar
25 circumstances will get me something by?
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1 MR. DUNN: I would say Monday?
2 THE COURT: Fine.
3 MR. DUNN: If I may add, your Honor, if it is going
4 to change anything with regard to the government's position, I
5 guess I don't need to remind the government that I am an
6 officer of the court who has never been challenged in any
7 forum with regard to my ethical obligations.
8 THE COURT: I am sure the government is not
9 suggesting that. in this situation they have an obvious
10 desire to keep things as secret as possible, and I am in
11 accordance with that, consistent with making sure that the
12 witness receives adequate representation.
13 MR. O'CALLAGHAN: Your Honor, it is the government's
14 obligation to secrecy under Rule 6(e) that the government is
is concerned about.
16 MR. DUNN: I can see that as to the affidavit, but as
17 to the minutes, what was principally my discussion in
18 extrapolating and not quoting in any regard the sealed
19 affidavit.
20 THE COURT: Anyway, we will leave it as it is.
21 The 24th, the court is not open. I will give you the
22 option if you get it done sooner than that -- bring it down
23 Friday -- in both cases it should be brought directly, one
24 copy to my chambers and one copy to adversary counsel.
25 MR. DUNN: When you say the court is not available to
SOUTHERN DISTRICT REPORTERS (212) 805-0300
xlcikapp 45
SEALED
1 receive the filing on Monday -- is that correct?
2 THE COURT: The truth is, the likelihood is high that
3 I will be working in chambers but I don't want to commit to
4 it. So if you can't do it by Friday you can do the following.
5 You can call chambers on Monday and I am here you can bring it
6 down. If I am not here, you can bring it the 26th.
7 MR. O'CALLAGHAN: Your Honor, can I ask for one
8 additional day, until Thursday?
9 THE COURT: In that case Thursday, and clearly your
10 adversary will not have it by Friday. If it is ready by
11 Monday, fine. If I am here I will take it. If not, bring it
12 by on the 26th.
13 MR. DUNN: Thank you, sir. Just one housekeeping
14 matter. I would like to amend the record if and where needed.
15 I think I may have fallen into calling my client the defendant
16 in one or two --
17 THE COURT: He is not the defendant.
18 MR. DUNN: He is not, but if I could have the record
19 reflect if I did that the record be changed --
20 THE COURT: It won't be changed because the record
21 can't be changed, but I think the court has been consistent in
22 referring to the witness as the arrestee rather than the
23 defendant.
24 I will ask pursuant to my prior tentative ruling that
25 you return the affidavit, and I see that is being done right
SOUTHERN DISTRICT REPORTERS (212) 805-0300
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1 now.
2 Very good. Anything else?
3 MR. O'CALLAGHAN: Not from the government. Thank
4 you, Judge.
5 MR. DUNN: Thank you for your patience, sir.
6 (Proceedings adjourned)
7
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12
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14
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SOUTHERN DISTRICT REPORTERS (212) 805-0300
[By hand] Redacted and Unsealed
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x SEALED AFFIDAVIT
IN RE THE APPLICATION OF THE
UNITED STATES FOR A MATERIAL 01 Misc. 1750
WITNESS WARRANT, PURSUANT TO
18 U.S.C. § 3144, FOR
ABDALLAH HIGAZY
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
COUNTY OF NEW YORK
)
STATE OF NEW YORK
) ss.:
SOUTHERN DISTRICT OF NEW YORK )
CHRISTOPHER E. BRUNO, being duly sworn, deposes and says:
I am a special agent with the Federal Bureau of Investigation ("FBI") and have been so employed for approximately four years. I am currently involved in the investigation of the September 11, 2001 attacks on the World Trade Center towers and the Pentagon by hijacked aircraft. I make this affirmation in support of the Government's application for a material witness warrant, pursuant to Title 18, United States Code, Section 3144, for ABDALLAH HIGAZY (the "Witness"). This application seeks the Witness's detention so that he may be produced for testimony before a grand jury in the Southern District of New York.
2. The qrand ]ury is conducting an investigation of a series of terroris attacks that were carried out in coordinated fashion on Tuesday, September 11, 2001. The plan consisted, among other things, in the hijacking of four commercial airliners: (a) American Airlines Flight 11 (AA11), a Boeing 767, which departed Logan Airport in Boston, Massachusetts, at approximately 7:55 a.m., en route to Los Angeles, California; (b) United Airlines Flight 175 (UA175), a Boeing 767, which departed Logan Airport at approximately 8:15 a.m., en route to Los Angeles, California; (c) American Airlines Flight 77 (AA77), a Boeing 757, which departed Dulles Air ort in Washington, D.C., at approximately 9:40 a.m., en route for Los Angeles, California; and (d) United Airlines Flight 93 (UA93), a Boeing 757, which departed Newark Airport in Newark, New Jersey, at approximately 8:00 a.m., en route to San Francisco, California.
3. At approximately 8:45 a.m., AA11 was flown into the North Tower of the World Trade Center (WTC) in lower Manhattan in New York City. Approximately twenty minutes later, UA175 was flown into the South Tower of the WTC. Within approximately 50 minutes, the South Tower collapsed. The North Tower followed, collapsing at approximately 10:25 a.m. The attack on the Twin Towers has resulted in the killing of thousands of people and the destruction of several additional buildings in the complex.
4. At approximately 9:40 a.m., AA77 was crashed into the Pentagon in Arlington, Virginia. A large portion of the building was destroyed, collapsing at approximately 10:10 a.m. The attack resulted in the murders of hundreds of people.
5. At approximately 10:10 a.m., UA93 was crash landed in Somerset County, Pennsylvania, killing all aboard.
6. The grand jury is thus investigating various felony offenses, including, among others, the destruction of and conspiracy to destroy aircraft (18 U.S.C. § 32) ; bombing and bombing conspiracy (18 U.S.C. § 844); racketeering and racketeering conspiracy (18 U.S.C. § 1962); and seditious consiira to levy war against the United States (18 U.S.C. § 2384). The hijacking attacks also appear to relate to an ongoing grand jury investigation of Usama Bin Laden, a Saudi Arabian who is an international fugitive, and the al Qaeda terrorist group led by Bin Laden. Al Qaeda was responsible for the August 7, 1998, bombings of the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, in which well over 200 people were killed and more than 4,000 injured. In connection with that investigation, a federal grand jury has returned indictments, including (S9) 98 Cr. 1023 (LBS), which charges, among other things, that Usama Bin Laden and the al Qaeda organization, in coordination with other terrorist groups, have declared war against Americans worldwide, specifically including the American civilian population. The indictment further alleges that the August 7, 1998, bombinqs of the American embassies in Kenya and Tanzania were carried out as part of that conspiracy to kill American nationals. A jury has recently convicted four defendants of being members of that conspiracy.
7. Based on information developed to date, the investigation has determined that groups of fundamentalist Islamic terrorists, some members of which were competent to fly aircraft, planned the attacks, seized the aircraft from the assigned crews, and flew the planes toward targets that were destroyed as part of an ongoing war against the United States. The investigation to date indicates that the hijackers included at least nineteen men, several of whom had received flight training. Most of the hijackers were Saudis; some were Egyptians.
8. I believe the testimony of ABDALLAH HIGAZY would be material to the grand jury's investigations. The reasons for that belief are as follows:
a. The Millenium Hilton Hotel ("the hotel") is located at 55 Church Street, in lower Manhattan, across the street from where the World Trade Center once stood. A man named "Abdallah Higazy* checked into the hotel on August 27, 2001, approximately two weeks before September 11. He was scheduled to check out on September 25, 2001, approximately two weeks after September 11. ABDALLAH HIGAZY stayed in Room 5101, on the 51st floor of the hotel. Room 5102 is a corner room that contains a window with a view of the World Trade Center.b. According to immigration and Naturalization Service ("INS") records, ADDALLAH HIGAZY is an Egyptian national who entered the United States on August 27, 2001 with an Egyptian passport and a foreign-exchange student visa. INS records also reflect that the passport number on ABDALLAH HIGAZY's passport -- 291551 -- appeared on the passport of another Egyptian national, who entered the United States in February 1997 and April 2000. The FBI Legal Attache in Cairo has indicated that one explanation for the same passport number being assigned to two different people may be that one of the passports may have been an official government passport, while the other could have been an ordinary citizen traveling passport. The authenticity of ADDALLAH HIGAZY's Egyptian passport, therefore, remains in question.
c. Immediately after the attacks on the World Trade Center on September 11, 2001, all of the guests at the hotel were evacuated. The hotel is located within the security zone of the World Trade Center recovery site, and has not reopened for business since September 11. The guests' property that was left behind has been inventoried by employees of the hotel.
d. The property from Room 5101, the room in which ABDALLAH HIGAZY was staying, included ABDALLAH HIGAZY's Egyptian passport. The property a1sa included a number of documents, among which was a map of John F. Kennedy International Airport in New York and a guide for Reagan National Airport in Washington, D.C.
e. The property from Room 5101 also included an air-band transreceiver, which is a hand-held radio marketed for use by pilots. The radio can be used for air-to-air and air-to-ground communication with a person in possession of a similar radio, including a pilot of a commercial plane. The radio can also be used to monitor air-to-air and air-to-ground communications between and among others. According to a Millenium Hotel employee, the air-band transreceiver was found inside a safety deposit box located inside of Room 5101. ABDALLAH HIGAZY's Egyptian passport, a copy of the Koran, and a gold medallion was also found within that same safety deposit box.
[8 lines redacted.]
g. In connection with the inventory, property from Room 5101 was moved by hotle employees to two different locations within the hotel. ABDALLAH HIGAZY's passport, the air-band transceiver, and a gold medallion were secured in a white envelope labeled "5101", which was placed in the office of the director of security in the basement of the hotel. The remainder of the property from Room 5101 consisted of three pieces of luggage and a box, all of which were labeled "5101" and located in the pool area on the fifth floor of the hotel.
h. On December 17, 2001, ABDALLAH HIGAZY arrived at the Millenium Hotel to retrieve his possessions that were discovered in the inventory of Room 5101. Soon after his arrival, ABDALLAH HIGAZY was questioned by myself and other FBI Agents. During this questioning, ABDALLAH HIGAZY provided biographical information that matched the information contained on ABDALLAH HIGAZY's passport which was found in Room 5101. The individual depicted in the photograph in ABDALLAE HIGAZY's passport and the individual who arrived at the Millenium Hotel on December 17 to retrieve the items from Room 5101 are one and the same person.
i. During further questioning, ABDALLAH HIGAZY denied ownership of the air-band transreceiver and stated in sum and substance that he had not seen it before and did not know how it got into his hotel room. Upon further questioning by other agents, ABDALLAH HIGAZY stated that he may have seen a device such as the air-band transreceiver in a Radio Shack store, but that he would not have any interest in it. ABDALLAH HIGAZY then admitted that he had knowledge of and familiarity with certain scanning and other radio transmission devices. ABDALLAH HIGAZY stated in sum and substance, that he knew that scanners could be used to pinpoint the desired direction of a satellite from a remote location.
9. Based upon the facts set forth herein, I believe that it may become impracticable to secure the presence of the Witness by subpoena. It appears that the Witness has already given false statements regarding his knowledge of the air-band transreceiver and the manner in which it was secured in the safety deposit box in his room and therefore he may have an incentive to flee rather than face additional questioning -- especially questioning under oath or affirmation before a grand jury. Upon further questioning by other law enforcement officials and I, ABDALLAH HIGAZY stated that he previously served in the Egyptian Air Corps, supporting the inference that ABDALLAH HIGAZY would be more likely than an ordinary person to understand what an air-band transreceiver could be used to accomplish and how to operate it. These facts further support the assessment that ABDALLAH HIGAZY may have already given false statements to federal law enforcement agents in the course of their investigation of a federal criminal offense, which pursuant to 18 U.S.C. § 1001, is a federal crime punishable with a term of imprisonment. Therefore, it is unlikely that serving ABDALLAH HIGAZY with a grand jury subpoena will ensure his appearance. In this regard, it is relevant that ABDALLAH HIGAZY is an Egyptian national, who most recently entered this country in August 2001, just a few months ago. Thus, his time in the community is minimal. Moreover, most of ABDALLAH HIGAZY's family, including his parents and sister, reside in Egypt, and he has minimal ties to the New York City area.
10. I believe, based on the facts set forth above, that there is no condition or combination of conditions that would reasonably assure the appearance of the Witness. Nevertheless, even assuming there is a combination of conditions that might arguably assure the Witness's appearance, I respectfully submit that the Court should detain the Witness for a reasonable period of time, to wit, ten dayes after his presentment on the material witness warrant. The limited detention is permissible under Section 3144, and would insure at the grand im would receive the Witness's testimony.
WHEREFORE your deponent prays that the Court issue material witness warrant for ABDALLAH HIGAZY, and that he be imprisoned or bailed as the case may be. Given that the information discussed herein relates to a pending grand jury investigation and that the disclosure of such information would potentially compromise the grand jury'spending investigation, I respectfully request that, pursuant to Federal Rule of Criminal Procedure 6 (e) , this application, the arrest warrant and any proceedings conducted with respect thereto be sealed until further order of this court.
[Signature]Christopher E. Bruno
Special Agent
Federal Bureau of Investigation
Sworn to before me this
18th Day of December, 2001
12/18/01 [Signature of Jed S. Rakoff]
UNITED STATES DISTRICT JUDGE
[Unsealed]
xlcsnmat 1 SEALED
1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------ x
IN RE APPLICATION BY UNITED
3 STATES OF AMERICA FOR MATERIAL
WITNESS WARRANT PURSUANT TO 01 Misc. 1750 (JSR)
4 18 U.S.C. 3144, MATERIAL WITNESS
NUMBER 38, ABDALLAH HIGAZY
5
------------------------------ x
6
December 28, 2001
7 2:00 p.m.
8 Before:
9 HON. JED S. RAKOFF,
10 District Judge
11 APPEARANCES
12 MARY JO WHITE
United States Attorney for the
13 Southern District of New York
DAN HIMMELFARB
14 Assistant United States Attorney
15 ROBERT DUNN
Attorney for the witness
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS 212-805-0300
x1csnmat 2
SEALED
1 THE DEPUTY CLERK: December 28, 2001, United States
2 v. Abdallah Higazy. Counsel, place state your names for the
3 record.
4 MR. HIMMELFARB: Dan Himmelfarb for the government.
5 THE COURT: Good afternoon.
6 MR. HIMMELFARB: There are two FBI agents present,
7 Vincent Sullivan and Christopher Bruno, both of whom are case
8 agents.
9 THE COURT: All right.
10 MR. DUNN: Good afternoon, sir. Robert Dunn for the
11 defendant.
12 THE COURT: Good afternoon.
13 MR. DUNN: Your Honor --
14 THE COURT: Yes?
15 MR. DUNN: Before proceeding, if I may address one
16 matter?
17 THE COURT:
18 MR. DUNN: It is our intention toclaly, we've been
19 working with the U.S. attorney on this matter. In fact, we
20 were in their office until 9, someth after 9 o'clock last
21 night in an effort to make a determination as to the way to
22 proceed here by way of proffer or grand jury testimony or the
23 lie detector exam which we commenced but were unable to
24 complete.
25 So all that really should be occurring today we
SOUTHERN DISTRICT REPORTERS 212-805-0300
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SEALED
1 imagine, with the Court's discretion, would be to adjourn the
2 matter for an additional period of time, ten days, such that
3 we can resolve these issues.
4 Mr. Higazy has about ten, eleven people outside, two
5 of whom traveled here from Philadelphia. I appreciate the
6 necessity of keeping matters relative to the grand jury
7 secret, and I know that that is generally the rule.
8 However, in this instance, this singular instance,
9 where all that should be occurring, and I now put it before
10 the Court, is adjourning the matter, without anything
11 substantive, unless the Court has some substantive questions
12 as to what was going on, if the Court didn't have that, if the
13 Court was simply going to go with our consented adjournment,
14 the parties could be permitted just to come to the
15 courtroom for that purpose, I only say that because --
16 THE COURT: First of all, let me find out what the
17 government's position is.
18 MR. HIMMELFARB: I think I'm constrained to object to
19 the request.
20 THE COURT: I don't think you stand on very good
21 authority. The last time your colleague was here, he took the
22 position initially that the counsel for the witness was not
23 entitled even to the transcript of the proceedings because it
24 was covered by grand jury secrecy. I doubted that at the
25 time.
SOUTHERN DISTRICT REPORTERS 212-805-0300
x1csnmat 4 SEALED
1 The more I thought about it, the more absurd and
2 preposterous it was, but I gave him an opportunity to brief
3 the issue, and he had the good sense to withdraw his
4 opposition. I assume you have received the transcript.
5 MR. DUNN: I have not received the transcript
6 your Honor.
7 THE COURT: I don't know why you haven't.
8 MR. DUNN: I will check into it.
9 THE COURT: I don't know of any authority for saying
10 that the arrest of a material witness and the proceedings
11 relating to it are themselves covered by grand jury secrecy.
12 I have sealed this proceeding at the request of the government
13 because of the security interest, but you better show me that
14 authority right now.
15 MR. HIMMELFARB: Judge Rakoff, I wasn't present at
16 the last proceeding. I'm familiar with how these matters have
17 been handled throughout this courthouse since September 11.
18 My understanding of the way we have proceeded and other judges
19 have proceeded is that no one has ever stated or even
20 suggested, I think, that Rule 6 covers this proceeding. I
21 don't think it does.
22 THE COURT: That was the implication of the absurd
23 comments made by your colleague, and I'm glad to know that he
24 was under a misimpression, because it clearly doesn't.
25 MR. HIMMELFARB: I think that's exactly right.
SOUTHERN DISTRICT REPORTERS 212-805-0300
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SEALED
1 We have always sought sealing orders from the court
2 as you might get in any type of proceeding where there are
3 legitimate investigative concerns.
4 THE COURT: That is fine. That I have no problems
5 So if that is the ground on which you're proceeding, we
6 will discuss it.
7 What is the basis on which you say you are
8 constrained from having a person who has been detained as a
9 material witness meet with persons who wish to visit them?
10 MR. HIMMELFARB: I did not understand that to be
11 Mr. Dunn's application. I thought his application was that he
12 wished for them to be permitted to be in the courtroom today
13 while this proceeding takes place.
14 THE COURT: I'm sorry. I misunderstood.
15 If that's his application, then I agree with the
16 government. I thought your application --
17 MR. DUNN: Do you want to hear from me first, sir?
18 THE COURT: Yes.
19 MR. DUNN: I'll run uphill.
20 I would simply offer to the Court that some balancing
21 is appropriate here to the following extent. If we are on the
22 same page, that nothing substantive in terms of queries from
23 the Court as to what stage we're at would happen and the like,
24 and the Court is willing to accept our consented adjournment,
25 our request for an adjournment on consent, with nothing more,
SOUTHERN DISTRICT REPORTERS 212-805-0300
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SEALED
1 then just for the appearance sake, by that I mean to say that
2 he's been snatched off the streets and no one has had access
3 to him thus far, and now I have discovered that the government
4 has no objection to and has made no request of the Bureau of
5 Prisons that he not be permitted access to visitors;
6 nonetheless, I just feel that we have this window here where
7 nothing of substance is going to be discussed that is going to
8 jeopardize any issues of secrecy, and yet it still would give
9 those concerned about Mr. Higazy some sense that a judge such
10 as ourself is sitting there, listening to whatever, the
11 request for adjournment, whatever is going on, they see he's,
12 you know, not being mistreated in any fashion and that justice
13 is being dispensed here, since we have we have that window
14 inasmuch as nothing of bstance should not be discussed at
15 this juncture.
16 THE COURT: There's something very strange about what
17 you are saying. You're saying let's discuss in a sealed
18 proceeding everything that needs to be discussed
19 MR. DUNN: No.
20 THE COURT: -- and then put on -- what? A charade?
21 A show? I don't sit here on the bench to create false images.
22 The proceeding has been sealed because it's involved
23 discussion of matters before the grand jury. There grand jury
24 secrecy is relevant. And, more importantly, because it 25 involves matters relating to an ongoing investigation of
SOUTHERN DISTRICT REPORTERS 212-805-0300
xlcsnmat 7 SEALED
1 obvious sensitivity as to which a great deal of cautionary
2 precautions -- "cautionary precautions" is a redundancy.
3 MR. DUNN: The situation may warrant such redundancy.
4 THE COURT: -- is required.
5 There is no question that what has to be discussed at
6 this hearing has to be subject to a sealing order.
7 Now, I had misunderstood your original application,
8 Mr. Dunn. I thought that you were simply trying to obtain
9 some sort of opportunity for a visit between the witness and
10 some people who apparently are concerned about him, and that
11 seemed to me not an unreasonable request. But now I
12 understand you to be asking for something else, which is that
13 you want these people present here in open court after we've
14 discussed everything substantive that we have to discuss for
15 the purpose of giving them some reassurance that there is a
16 court presiding over this matter.
17 I understand your application, but it sounds to me
18 somewhat peculiar, because all your client has to do is tell
19 them the judge is presiding over the matter. It does strike
20 me as a little bit of a charade.
21 MR. DUNN: Well, I certainly didn't intend to
22 perpetrate a charade. I just thought that there might not be
23 a need for the court to make any inquiry, since both the
24 government and the defense are requesting the adjournment.
25 THE COURT: Why don't we deal with that first, and
SOUTHERN DISTRICT REPORTERS 212-805-0300
x1csnmat 8 SEALED
1 then we'll get to your application.
2 Let me ask the assistant.
3 When last we were together, your colleague
4 represented that it was likely that the witness would be
5 presented to the grand jury between then and today. Indeed,
6 that's why we set the hearing for when we did, because he
7 thought there would be several opportunities, one of which
8 might even have been this morning. I think he said the grand
9 jury normally sat two days a week. I don't remember all the
10 details. I can look at my notes. But this much I do
11 remember, which was that he had every expectation that the
12 witness would be presented. I take it that has not occurred.
13 MR. HIMMELFARB: That's right.
14 THE COURT: Why not?
15 MR. HIMMELFARB: Between the last time government
16 was here, which was the 18th, I believe, and today, there have
17 been some developments. The witness made it known to the
18 government through Mr. Dunn'that he was interested in taking a
19 polygraph test.
20 THE COURT: He said that at the hearing on the 18th
21 as well.
22 MR. HIMMELFARB; The government agreed that it would
23 give one. The parties schedules were such that the test was
24 not able to be begun until yesterday. It was not completed.
25 So there is a need -- and Mr. Dunn can speak for himself, but
SOUTHERN DISTRICT REPORTERS 212-805-0300
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1 I believe he will agree with me. I believe he will agree that
2 it is not only in the government's interest but also in his
3 client's interest that there is a need for the test to be
4 completed, which we hope to do by next Wednesday, I believe.
5 It may well be that there will be a proffer after the
6 test is given, and I think that would be in everybody's
7 interest as well. After the polygraph is completed, and, if
8 there's to be a proffer, after the proffer is completed, I
9 think a decision can be made as to whether it is still the
10 government's intent to seek to have this witness testify in
11 the grand jury. If it is, Mr. Dunn may ask the government for
12 immunity. The government would have to consider that request.
13 The short of it is that the polygraph needs to be
14 completed. There may be a proffer. Those are things that I
15 think everybody involved would like to happen before the final
16 determination about grand jury testimony is made.
17 THE COURT: Assuming defense counsel is in agreement
18 with all that, I will consider that. I am concerned that a
19 witness not be held for a prolonged period of time simply on
20 the basis of being a material witness. Ten days struck me as
21 fairly lengthy, but there was the intervening holidays, and
22 now apparently on consent you're asking for another ten days.
23 I would be very, very loath to extend it beyond then
24 absent truly new developments. No one can, of course, predict
25 everything that might happen in a case like this, but I'm
SOUTHERN DISTRICT REPORTERS 212-805-0300
x1csnmat 10
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1 talking about based on the -- let me ask Mr. Dunn.
2 First of all, do you consent to everything the
3 government just said?
4 MR. DUNN: Yes, sir.
5 THE COURT: All right. So it is a joint application
6 to adjourn this and to hold the witness without bail for
7 another ten days?
8 MR. DUNN: Yes, sir.
9 THE COURT: All right. Now the Court's determination
10 as to bail was premised on several factors, but the most
11 salient were the lack of ties to the community and the glaring
12 fact that the transmitter device had been found in his room,
13 in the safe in the room he occupied, and in the same safe was
14 the passport identifying him and so forth.
15 Has anything changed in any of that equation that the
16 Court needs to know about?
17 MR. HIMMELFARB: Your Honor, I think there are some
18 developments that bear not only on the question of whether it
19 would now be appropriate to set bail, and our view is that it
20 wouldn't, but also by way of explanation as to why this
21 process is taking a little longer than ideally it might. I
22 want to be clear the government shares the Court's concern
23 that a material witness should not spend more time in jail
24 than is absolutely necessary.
25 Immediately before the witness's arrest, he was
SOUTHERN DISTRICT REPORTERS 212-805-0300
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1 interviewed by FBI agents and denied that this radio was his.
2 And the fact that we believe it clearly was his, it was found
3 in his hotel room with his passport in a safe, combined with
4 the denial of that fact we thought made this somebody who
5 should be held.
6 Since that time the witness has abandoned his
7 contention that it's not his radio. He has admitted it is his
8 radio, and he has provided I believe about three different
9 versions of where it came from. Mr. Dunn informed the court
10 earlier that at about 9 o'clock last night we decided to
11 terminate temporarily the polygraph, and that's really where
12 we were more or less at that point. So this is an evolving
13 process.
14 THE COURT: If he's admitted it's his radio, then I
15 wonder whether -- and this is normally a concern of just the
16 prosecutor, but there is a judicial concern here. I wonder
17 then whether he may have made false statements to the Court
18 through his counsel, of course, and/or to the pretrial
19 services, and pretrial services is in effect an arm of the
20 court. I don't express any opinion on that. I just raise
21 that as an issue because it,seems to me, if nothing else, it
22 further bears on the appropriateness of denying him bail if
23 the representations previously made were materially
24 inaccurate.
25 Well, I am satisfied -- Mr. Dunn, yes, go ahead.
SOUTHERN DISTRICT REPORTERS 212-805-0300
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1 MR. DUNN: Yes, your Honor.
2 Let's see how would be the best way to frame this. I
3 wasn't in the room when whatever discussions were had between
4 Mr. Higazy and the FBI agent where it's now being alleged that
5 he's recanted his earlier statement that it wasn't his and
6 he's now saying that it is. In my speaking with him there's
7 some ambiguity with regard to that issue that remains, and I
8 just want to say that to the Court.
9 THE COURT: Well, the long and the short of it is the
10 determination that I made previously was somewhat of a closer
11 call than might have otherwise been the case in a situation of
12 this sort because of the very strong representations that were
13 being made to the Court by the witness through his counsel,
14 and some statements were made to the pretrial services
15 directly out of the witness's own mouth. So it seems to me, I
16 just want the record to reflect this, that it no longer
17 strikes me as even an arguably close call whether to detain
18 him, given the apparent unreliability or inconsistency between
19 what was previously represented and what I am now being
20 advised is the situation.
21 I don't think there's much room for ambiguity in this
22 area. Either it's his device or it's not his device in the
23 sense of possession. If he placed it in the safe, for
24 example, that's completely, totally inconsistent with what was
25 being represented before. I'm sorry you haven't been
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1 furnished with a transcript. You should be promptly. The
2 Court should be promptly furnished with a transcript, subject
3 to the conditions that were set by the Court. It is not a
4 public record. It is a sealed record. But I think the
5 transcript will confirm that there was no ambiguity in the --
6 MR. DUNN: No, there was no ambiguity in the
7 statements made to the Court. The Court's recollection is
8 correct.
9 THE COURT: That is completely inconsistent with what
10 is now being said.
11 MR. DUNN: From my point of view, that is one of the
12 issues that still remained somewhat unresolved and that needed
13 to be resolved, and that's why I was consenting to having the
14 matter -- that makes all the difference in the world as well.
15 THE COURT: All right. In any event, the Court
16 accepts the joint appliocation of the parties to adjourn this
17 matter and to continue to detain the witness without bail.
18 Now we need to set a date for a further hearing. My
19 understanding from what I was advised by Chief Judge Mukasey's
20 office when this matter first came before me is that it
21 doesn't rotate from Part I judge to Part I judge but rather
22 stays with the same judge. So this particular matter stays
23 with me, and there are similar matters that I take that are
24 staying before other judges who initially retain them in part
25 I. So we need to set a date that will also accord with my
SOUTHERN DISTRICT REPORTERS 212-805-0300
x1csnmat 14 SEALED
1 schedule. I am going to be away the week of January 7, so
2 think we need to set this down for January 14 at 10 o'clock.
3 MR. DUNN: Your Honor, that is an agreeable date.
4 THE COURT: OK. Very good. The transcript of this
5 sealed proceeding will be made available to government
6 counsel, to defense counsel and to the Court, but to no one
7 else. The same is true of the transcript of the previous
8 proceeding. Defense counsel may show it to his client, but
9 must himself retain personal custody of his copy and not make
10 further copies of it.
11 All right. We have resolved everything that needs to
12 be resolved today. I don't know, Mr. Dunn, what further point
13 there would be in having people come into the courtroom. I'm
14 concerned about giving them the illusion of witnessing a
15 proceeding when they're not. The proceeding for all practical
16 effects has been concluded.
17 MR. DUNN: Under these circumstances, I wouldn't be
18 making the request. I failed to appreciate the Court that I
19 was in. By that I mean to say you are a very thoughtful and
20 active judge. some judges might have said, Oh, you consent.
21 Fine. Bring him in and we won't have it. As long as I don't
22 have a beef, the judge wouldn't have a beef. And they are not
23 as thoughtful and interested in dispensing justice as you are.
24 THE COURT: Putting aside the hyperbole -- by the
25 way, I am very impressed, as I indicated previously, with your
SOUTHERN DISTRICT REPORTERS 212-805-0300
xlcsnmat 15
SEALED
1 presentation, Mr. Dunn, but if you will check me out with
2 the assistants or with anyone else, you'll find out that I'm a
3 royal pain in the ass to both sides. So you can depend on
4 that for the future as well.
5 Very good. Thanks a lot
6 MR. DUNN: Thank you, sir.
7 (Adjourned)
8
9
10
12
13
14
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS 212-805-0300
02 MAG. 053
Approved: [Signature]
DAN
HIMMELFARB
Assistant
United States Attorney
Before: HONORABLE FRANK MAAS
United States
Magistrate Judge
Southern District
of New York
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
UNITED STATES OF AMERICA COMPLAINT
- v
-
Violation
of
18 U.S.C. § 1001
ABDALLAH HIGAZY,
COUNTY OF OFFENSE:
Defendant.
New York
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
SOUTHERN DISTRICT OF NEW YORK, ss.:
CHRISTOPHER E. BRUNO, being duly sworn, deposes and says that he is a special agent with the Federal Bureau of Investigation ("FBI"), and charges as follows:
On or about December 17, 2001, in the Southern District of New York, ABDALLAH HIGAZY, the defendant, in a matter within the jurisdiction of the executive branch of the Government of the United States, namely, a criminal investigation by the Federal Bureau of Investigation, unlawfully, willfully, and knowingly made materially false, fictitious, and fraudulent statements and representations, to wit, statements concerning the possession of an aviation radio found in a hotel room near the World Trade Center where HIGAZY had been staying on September 11, 2001.
(Title 18, United States Code Section 1001 (a).)
The bases for my knowledge and for the foregoing charge, are, in part, as follows:
1. I have been a special agent with the FBI for approximately four years. This complaint is based upon my personal observations; my conversations with other people, including other law enforcement officers; and my review of reports, records, and other documents. Because this complaint is being submitted for the limited purpose of establishing probable cause, it does not include all the facts I have learned during the course of my investigation. Where actions and statements are reported, they are reported in substance and in part.
2. As explained in more detail below, on September 11, 2001, ABDALLAH HIGAZY, the defendant, was staying in a hotel across the street from the World Trade Center ("WTC") in lower Manhattan. HIGAZY has made knowingly and materially false statements to FBI agents investigating the September 11 terrorist attacks about an aviation radio found in the hotel room in which HIGAZY was staying.
Background
3. On September 11, 2001, a series of terrorist attacks against American targets were carried out in coordinated fashion. The attacks began with the hijacking of four commercial airliners: American Airlines Flight 11 ("AA11"), a Boeing 767 that departed Logan Airport in Boston, Massachusetts, at approximately 7:55 a.m., en route to Los Angeles, California; United Airlines Flight 175 ("UA175"), a Boeing 767 that departed Logan Airport at approximately 8:15 a.m., en route to Los Angeles, California; American Airlines Flight 77 ("AA77"), a Boeing 757 that departed Dulles Airport in Washington, D.C., at approximately 9:40 a.m., en route to Los Angeles, California; and United Airlines Flight 93 ("UA93"), a Boeing 757 that departed Newark Airport in Newark, New Jersey, at approximately 8:00 a.m., en route to San Francisco, California.
4. At approximately 8:45 a.m., AA11 was flown into the North Tower of the WTC. Approximately twenty minutes later, UA175 was flown into the South Tower of the WTC. Within approximately fifty minutes, the South Tower collapsed. The North Tower followed, collapsing at approximately 10:25 a.m. The attack on the WTC has resulted in the death of thousands of people and the destruction of several additional buildings in the complex.
5. At approximately 9:40 a.m., AA77 was flown into the Pentagon in Arlington, Virginia. A portion of the building was destroyed, collapsing at approximately 10:10 a.m. The attack resulted in the death of hundreds of people.
6. At approximately 10:10 a.m., UA93 was crash landed in Somerset County, Pennsylvania, killing all aboard.
7. Based on information developed to date, it is believed that fundamentalist Islamic terrorists, some of whom were competent to fly aircraft, planned the terrorist attacks, seized the aircraft from the assigned crews, and flew the planes toward targets that were destroyed as part of an ongoing war against the United States. The investigation to date indicates that the hijackers included at least nineteen men, several of whom had received flight training. Most of the hijackers were Saudi nationals; some were Egyptians.
8. The FBI and other law enforcement agencies have been investigating the terrorist attacks described above since September 11, 2001. I am one of the FBI agents assigned to the investigation.
The False Statements
9. The Millenium Hilton Hotel ("hotel" or "the hotel") is located at 55 Church Street, in lower Manhattan, across the street from where the WTC once stood.
10. Based on discussions with hotel employees and a review of hotel records, I know that ABDALLAH HIGAZY, the defendant, checked into the hotel on August 27, 2001 and was scheduled to check out on September 25, 2001. HIGAZY stayed in Room 5101, on the 51st floor. Room 5101 is a corner room that had a view of the WTC.
11. According to Immigration and Naturalization Service records, HIGAZY is an Egyptian national who entered the United States on August 27, 2001 with an Egyptian passport and a student visa.
12. Based on discussions with hotel employees, I know that, immediately after the attacks on the WTC on September 11, 2001, all of the guests at the hotel were evacuated. The hotel is located within the security zone of the WTC recovery site, and has not re-opened for business since September 11. The guests' property that was left behind has been inventoried by employees of the hotel.
13. I have been informed by a hotel security officer who participated in the inventory of hotel guests' property that the security officer entered Room 5101 in early October to remove the property from that room. The digital combination-lock safe in the room, which is used by guests who stay in the room to store valuables, was locked when the security officer entered the room. The security officer opened the safe using an override key, available only to hotel security personnel.
14. The hotel security officer who opened the safe in Room 5101 has informed
me that he found an air-band transceiver inside the safe. When he found that
item, it was situated on top of a number of other items, including the Egyptian
passport of
ABDALLAE HIGAZY, the defendant, and a copy of an Arabic book.
15. I have seen the air-band transceiver and have spoken to people with technical knowledge of radio equipment. I have learned that the transceiver found in the safe in Room 5101 is a hand-held radio marketed for use by pilots. It can be used for air-to-air and air-to-ground communication with a person in possession of a similar radio, including a pilot of a commercial plane. It can also be used to monitor air-to-air and air-to-ground communications between and among others.
16. On December 17, 2001, ABDALLAH HIGAZY, the defendant, arrived at the hotel to retrieve his possessions. Soon after his arrival, other FBI agents and I interviewed HIGAZY.
17. During the interview, ABDALLAH HIGAZY, the defendant, stated that he had served in the Egyptian Air Corps. He also stated that he had some expertise in communications and communications devices.
18. Another FBI agent showed ABDALLAH HIGAZY, the defendant, the air-band transceiver that had been found in the safe in Room 5101. When he was asked about the transceiver, HIGAZY stated that the radio was not his; that he had never seen it before; that he did not know what it was; that he could not even guess what it was; and that it could not have been found in his room.
19. During the interview, ABDALLAH HIGAZY, the defendant, also stated that he had never had visitors in his room (other than hotel housekeeping personnel) while he was staying at the hotel.
20. After he was interviewed at the hotel, ABDALLAH HIGAZY, the defendant, was placed under arrest as a material witness in the investigation of the September 11, 2001 terrorist attacks. He was then taken to the FBI office in lower Manhattan.
21. After he was taken to the FBI office, ABDALLAH HIGAZY, the defendant,
was re-interviewed by FBI agents. During that interview, HIGAZY stated that
one of his duties in the Egyptian Air Corps was to repair radios used by
pilots to communicate with people on the ground. During the interview at
the FBI office, HIGAZY again stated that he had no knowledge of the transceiver
that was found in the hotel room in which he was staying. HIGAZY also stated
that he did not give the combination
he had created for the safe in his room to anyone during his stay at the
hotel.
22. After the transceiver was found, FBI agents interviewed all of the hotel security officers who have access to the override key that can open safes in guests' rooms. Other than the security officer who found the air-band transceiver, each of the security officers stated that he had not opened the safe in Room 5101 since September 11, 2001.
WHEREFORE, deponent prays that the defendant be imprisoned or bailed, as the case may be.
[Signature]
CHRISTOPHER E. BRUNO
SPECIAL AGENT
FEDERAL BUREAU OF INVESTIGATION
Sworn to before me this
11th day of January, 2002.
[No signature]
UNITED STATES MAGISTRATE JUDGE
[Stamp]
FRANK MAAS
United States Magistrate Judge
Southern District of New York
x2leinr ag 1 SEALED
1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------ x
3 In Re:
APPLICATION BY UNITES STATES OF
4 AMERICA FOR MATERIAL WITNESS
WARRANT PURSUANT TO 18 U.S.C.
5 3144, MATERIAL WITNESS NUMBER
38, ABDALLAH HIGAZY
6 01 M 1750 JSR ------------------------------ x
7 January 14, 2002 8 10:50 a.m. New York, N.Y.
9 Before:
10 HON. JED S. RAKOFF,
11 District Judge
12 APPEARANCES
13 JAMES R. COMEY
14 United States Attorney for the
Southern District of New York
15 DAN HIMMELFARB
EDWARD O'CALLAGHAN
16 Assistant United States Attorney
17 ROBERT DUNN
18 19 SEALED PROCEEDINGS
20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS 805-0300
x2leinr ag 2
S E A L E D 1 THE COURTROOM DEPUTY: In re application by United
2 States of America for material witness warrant pursuant to 18
3 U.S.C. 3144, material witness number 38, Abdallah Higazy.
4 MR. HIMMELFARB: Dan Himmelfarb and Edward
5 O'Callaghan for the government.
6 MR. DUNN: For the defendant, Robert Dunn. Allow me
7 to apologize, I was a bit late this morning. My sister had
8 surgery last weekend, I took her to her doctor for her
9 follow-up visit and came in as soon as I could I apologize.
10 THE COURT: No problem.
11 This at least initially will be deemed a sealed
12 transcript with copies being made available only to defense
13 counsel, government counsel, and the Court except upon further
14 order of the Court.
15 This matter was on in connection with the material
16 witness warrant for Mr. Higazy. On Friday a telephone
17 message was left by Mr. O'Callaghan on courtroom deputy's
18 voice mail. I listened to it later myself, I was out of town.
19 It appeared, Mr. O'Callaghan, that you were the only person on
20 the telephone, even though my individual rules prohibit any ex
21 parte communications with the Court. Am I wrong about that?
22 MR. O'CALLAGHAN: No, Judge, my call was actually in
23 reply to a call I had received from the courtroom deputy
24 earlier asking whether or not we were going forward with
25 today's proceedings. Some matters developed and under the
SOUTHERN DISTRICT REPORTERS 805-0300
x2leinr ag 3
S E A L E D
1 extraordinary circumstances of this case I thought it in the
2 best interest of everyone just to inform the Court where the
3 government stood on the matter.
4 THE COURT: All you said in your message was that the
5 government was willing to vacate the material witness warrant,
6 is that correct?
7 MR. O'CALLAGHAN: I believe so, Judge, which is what
8 I indicated to your courtroom deputy I would inform the Court
9 when and if that would happen.
10 THE COURT: Well, not being done in open court -- not
11 open court, but in a sealed proceeding -- but through a
12 telephonic communication, it would have been useful to have
13 been informed that the witness had been indicted, but you
14 didn't see fit to inform the Court of that.
15 MR. O'CALLAGHAN: The defendant actually has not been
16 indicted.
17 THE COURT: Excuse me, arrested, on a complaint.
18 MR. O'CALLAGHAN: Yes, Judge.
19 THE COURT: Actually, I only know what appeared in
20 the New York Times, which appears to have considerably greater
21 access to information from your office than this Court.
22 MR. O'CALLAGHAN: I was not aware that the courtroom
23 deputy was not in on Friday. I left a message on the voice
24 mail solely to inform the courtroom deputy and your Honor 25 where the government stood, expecting a return call, which in
SOUTHERN DISTRICT REPORTERS 805-0300
x2leinr ag 4
1 act I did receive from your courtroom deputy, indicating that
2 we would be on this morning. So I determined that there was
3 no need to continue any further discussions.
4 THE COURT: Very well. Tell me where this matter
5 stands.
6 MR. O'CALLACHAN: Your Honor, I can speak to it. The
7 defendant has been charged in a complaint essentially charging
8 him with making material false statements to government
9 agents. The defendant was charged on Friday, the preliminary
10 hearing date in the matter is scheduled for January 28, 2002.
11 THE COURT: Prior to that time was the defendant
12 presented to the grand jury?
13 MR. HIMMELFARB: He was not, your Honor.
14 THE COURT: Was the grand jury made aware of his
15 that he was being held for appearance before them?
16 MR. HIMMELFARB: I don't know, your Honor.
17 THE COURT: The basis on which this Court was asked
18 to hold him for what amounted to three weeks was that he was a
19 material witness whose testimon the grand jury would like to
20 have. That doesn't mean that he necessarily would have
21 testified, but that was the basis on which the government
22 sought its order from this Court.
23 MR. HIMMELFARB: That's correct, your Honor.
24 THE COURT: I want to know whether that basis was
25 fulfilled. SOUTHERN DISTRICT REPORTERS 805-0300
x2leinr ag 5
S E A L E D
1 MR. HIMMELFARB: He did not testify in the grand
2 jury. I can tell your Honor various things were done in lieu
3 of or leading up to a possible grand jury appearance including
4 meetings with the government. Ultimately, the government
5 learned from the then witness' lawyer that he would not
6 testify before the grand jury without a grant of immunity.
7 Our office determined it was not prepared to offer him that
8 grant of immunity.
9 THE COURT: When was that determination made?
10 MR. HIMMELFARB: I beg your pardon.
11 THE COURT: When was your office's determination 12 made?
13 MR. HIMMELFARB: I believe sometime iast week, your
14 Honor, around the same time it was decided that he would be
15 charged. So I think that's the short answer.
16 THE COURT: At the time that determination was made,
17 you no longer then had a basis for holding him under a
18 material witness warrant.
19 MR. HIMMELFARB: I think that's right, your Honor.
20 It was made at about the same time that he was charged or that
21 a determination was made that he was to be charged and he was
22 charged shortly thereafter. I can't give the Court a specific
23 date and time when the determination was actually made and I'm
24 not sure it was made formally, but certainly by the time he
25 was charged, the thinking of the office was that he would not
SOUTHERN DISTRICT REPORTERS 805-0300
x2leinr ag 6
S E A L E D
1 be put in the grand jury and that we would seek to vacate the
2 warrant.
3 THE COURT: All right. Mr. Dunn, is there anything
4 you wanted to raise with the Court?
5 MR. DUNN: No, nothing that would alter matters such
6 as they are. I would simply say to the Court just for
7 purposes of clarity, that actually when I had discussions with
8 Mr. Himmelfarb concerning any testimony before the grand
9 the government's position was that the defendant's denial of
10 the ownership or custody of the transponder or transreceiver
11 was a false statement and if I were to put him in and he gave
12 that statement that he would then be subject to charges for
13 perjury before the grand jury. We had some discussion about
14 possible immunity and I was unclear as to whether or not, even
15 if the government were willing to grant immunit I don't know
16 if they can grant him immunity for lying.
17 THE COURT: That's right. Immunity never covers a
18 lie.
19 MR. DUNNn: So at that point, I would have assumed I 20 would have been compelled to have the defendant plead the
21 Fifth in light of the government's position that if he were to
22 say that it was not his before the grand jury that -- that would
23 be a more serious charge, in my judgment, than lying to an
24 agent in the course of an investigation. So that was the
25 extent of any conversations that we had with regard to this
SOUTHERN DISTRICT REPORTERS 805-0300
x2leinr ag 7
SEALED
1 matter.
2 THE COURT: That at leasts suggests to the Court that
3 there were serious ongoing discussions about appearance of that
4 witness before the grand jury, which is what I wanted to be
5 certain of. All right. So the government is now moving as I
6 take it to vacate the warrant, is that right?
7 MR. HIMMELFARB: Yes.
8 THE COURT: All right. That motion is granted on
9 consent. Anything else we need to take up?
10 MR. HIMMELFARB: I don't think so, your Honor.
11 THE COURT: Okay, very good. Thanks a lot.
12 (Proceedings adjourned)
13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS 805-0300
U.S. Department of JusticeUnited States Attorney
Southern District of New York
The Silvio J. Moll Building
One Saint Andrew's Plaza
New York, New York 10007
January 16, 2002
| BY HAND DELIVERY
Honorable Frank Maas |
SO ORDERED
[Signature]
Hon. Frank Maas 1/16/02 |
Re: United States v. Abdallah Higazy
Mag. 53
Dear Judge Maas:
As the Court is aware, the Government filed a complaint on January 11, 2002 against the defendant, Abdallah Higazy, charging him with having made false statements to agents of the Federal Bureau of Investigation ("FBI"). The charge was based upon Mr. Higazy's denial of any knowledge of an aviation radio found in the room on the 51st floor of the Millennium Hotel ("hotel") in which Mr. Higazy had been staying on September 11, 2001. As explained below, subsequent developments have called into question the charge in the complaint. The Government therefore requests that the complaint be dismissed without prejudice, and that Mr. Higazy be immediately released.
As explained in the complaint (which was based in large part on FBI interviews of hotel employees), immediately after the attacks on the World Trade Center on September 11, all of the guests at the hotel were evacuated. The guests' property that was left behind was then inventoried by employees of the hotel. In early October, a hotel employee who participated in the inventory entered the room in which Mr. Higazy had been staying and opened the safe in the room using an override key. This hotel employee informed the FBI that he had found the aviation radio inside the safe, on top of a number of other items, including Mr. Higazy's Egyptian passport. In subsequent interviews, Mr. Higazy denied, seemingly inexplicably, that he had ever possessed the radio.
On January 14, 2002, three days after Mr, Higazy was charged, a man who had been staying in a room on the 50th Floor of the hotel on September 11, 2001 arrived at the hotel to retrieve his belongings. After inspecting the items that were handed to him, the man advised a hotel employee that an aviation radio that he had had with him in his room on September 11th was missing. The FBI has verified that the aviation radio found in Mr. Higazy's room belongs to this other man, who is a private pilot and has credibly explained his ownership of the radio.
After verifying that the radio did not belong to Mr. Higazy, the FBI this morning re-interviewed the hotel security employee who had previously told the FBI that he found the radio in the safe in Mr. Higazy's room with other items belonging to Mr. Higazy, The employee stated that he now recalls that he found the radio on a table in Mr. Higazy's room, not in the safe. A second hotel employee, who was in Mr. Higazy's room at the time the other employee found the radio, has stated that the other employee gave her the radio, but she is unaware of where in the room the radio was initially recovered.
The owner of the aviation radio had no interaction with Mr. Higazy. It is still unclear, therefore, how the radio was transferred from the room on the 50th Floor to Mr. Higazy's room on the 51st floor. Employees of the hotel have indicated that, although the hotel has heen closed since September 11th, a number of people entered the room in which Mr. Higazy had been staying at different times between September 11th and the day on which the radio was found.
Based upon these developments, the Government respectfully requests that the complaint against Mr. Higazy be dismissed and that he be immediately released. The Government is continuing to investigate the circumstances that led to the radio's transfer from the room on the 50th Floor to Mr. Higazy's room on the 51st floor, including the manner in which it was transferred, the date of its transfer, and the person who transferred it.
A dismissal form is enclosed for the Court's signature.
Respectfully submitted,JAMES B. COMEY
United States AttorneyBy: [Signature]
Dan Himmelfarb
Assistant United States Attorney
Telephone: (212) 637-2315
Enclosure
cc: Robert S. Dunn, Esq.
(by facsimile/without enclosure)
[By hand] Redacted and Unsealed
x21ikapp 1
SEALED
1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------ x
In re the Application of the
3 United States for Material 01 Misc. 1750 JSR
Witness Warrant, Pursuant to
4 18 USC 3144, for ABDALLAH HIGAZY.
5 ------------------------------ x
New York, N.Y.
6 January 18, 2002
10:30 a.m.
7
Before:
8
HON. JED S. RAKOFF,
9
District Judge
10
11 S E A L E D
12
13 APPEARANCES
14 JAMES M. COMEY
United States Attorney for the
15 Southern District of New York
BY: DAN HIMMELFARB
16 Assistant United States Attorney
17 ROBERT DUNN
Attorney for Witness
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS (212) 805-0300
x2likapp 2 SEALED
1 (In chambers; by telephone)
2 THE COURT: This is Judge Rakoff, and I have here a
3 court reporter. Would counsel please identify themselves.
4 MR. HIMMELFARB: Dan Himmelfarb. Good morning.
5 MR. DUNN: Robert Dunn. Good morning, your Honor.
6 THE COURT: Good morning. This is ancillary to the
7 proceeding that was previously had before this court, and,
8 accordingly, the transcript of this telephone conversation
9 will be sealed, with copies available to only government
10 counsel, witness counsel and the court, except upon further
11 order of the court.
12 The reason I asked you to call is because I am
13 concerned that a material misrepresentation may have been made
14 to the court by the government and I need to find out more
15 about that and see whether it is something that, pursuant to
16 the court's contempt powers or otherwise, needs to be pursued.
17 What I am referring to is the following. On December
18 28, 2001, the second time this case came before me, and was
19 coming before me on that second occasion for an extension of
20 the detaining of the witness pursuant to a material witness
21 warrant, the government represented, and I am reading now from
22 page 11 of the transcript, "The witness has abandoned his
23 contention that it is not his radio. He has admi'tted it is
24 his radio, and he has provided, I believe, about three
25 different versions of where it came from."
SOUTHERN DISTRICT REPORTERS (212) 805-0300
x21ikapp 3
SEALED
1 I then raised sua sponte the fact that this new
2 admission not only made the detention a much less close call
3 than it had previously been but also that there was the
4 possibility of false representations having been made by the
5 witness through his counsel to the court at the earlier
6 December 18 initial proceeding.
7 Yesterday I heard on the radio and today I saw the
8 newspapers that the government had dismissed the criminal
9 charge that was subsequently brought against the witness, and
10 I was furnished a few minutes ago with the letter that was
11 sent in that connection to Magistrate Judge Maas, dated
12 January 16, 2002, which indicates that the radio in question,
13 the radio transmission in question was claimed by someone
14 else -- I am sorry. Is there someone there on a speaker
15 phone?
16 MR. DUNN: No, I am on a cell phone and I am trying
17 to get to a quieter location. Go ahead, your Honor.
18 THE COURT: That letter indicated, as the press
19 reports also indicated, that the radio apparently belonged to
20 someone else. Moreover, I was furnished today for the first
21 time with a copy of the complaint that was filed in connection
22 with the criminal charge brought against the defendant, this
23 being the complaint of Special Agent Bruno, B-R-U-N-O, and
24 that does not appear on a first reading to make any reference
25 to the alleged admission that was represented to me.
SOUTHERN DISTRICT REPORTERS (212) 805-0300
x2likapp 4 SEALED
1 So my question is whether there was a
2 misrepresentation to me by the government as to an alleged
3 admission by the witness.
4 MR. HIMMELFARB: There wasn't, your Honor, and I
5 would be happy to explain the circumstances.
6 THE COURT: That is why we are having this call.
7 MR. HIMMELFARB: There were three sets of statements
8 made by Mr. Higazy about the radio. Immediately before his
9 arrest on December 17 when he showed up at the hotel to pick
10 up his belongings he was questioned by the FBI about the
11 radio. He denied it was his. He was arrested as a material
12 witness and interviewed immediately after his arrest, on the
13 same day, December 17. He was again asked whether the radio
14 was his. He again denied that it was his.
15 Sometime later, days later, at his request, through
16 his counsel, we scheduled a polygraph exam. I forget the
17 exact date but it was in late December.
18 MR. DUNN: I think it was the 27th.
19 MR. HIMMELFARB: He was given the polygraph exam. He
20 was in a room with the polygrapher alone in the U.S.
21 Attorney's office. outside of the office were, at various
22 points in time -- I believe his counsel was there the entire
23 time, I was there intermittently, and the two case agents were
24 outside the room. I was informed b the polygrapher that at
25 some point during the polygraph exam he admitted that the
SOUTHERN DISTRICT REPORTERS (212) 805-0300
x21ikapp 5 SEALED
1 radio was his and gave three different versions of where he
2 had found it.
3 The complaint which was subsequently filed charged
4 him with false statements. The false statements related only
5 to the first two sets of statements, which are the statements
6 that at the time we believed to be false. He was not charged
7 in connection with the third set of statements, which we
8 believed to be in part true, that is, that part in which he
9 admitted that the radio was his, and in part false, that part
10 in which he provided three different explanations for where he
11 had gotten it.
12 So the representation I made to the court was based
13 on what I learned from the polygrapher.
14 THE COURT: Regardless of whether it related to the
15 charges, which is not the issue before me, the issue I had to
16 make a determination whether or not to agree to the joint
17 proposal of counsel that he be held for additional time -- an
18 this was a material, a very material element in my
19 determination, as I clearly stated on the record at the time.
20 Your unequivocal statement to me was, "He has admitted it is
21 his radio."
22 Now that I hear what you are saying -- who was the
23 polygrapher?
24 MR. HIMMELFARB: He is an FBI agent named [two words
25 redacted.]
SOUTHERN DISTRICT REPORTERS (212) 805-0300
x2likapp 6 SEALED [Lines 1-9 redacted.]
10 [word redacted] and we just determined that given that somebody
11 had come forward and credibly claimed ownership of the radio,
12 someone who was not Mr. Higazy, and given that the hotel
13 employee who had previously told the FBI that he had found the
14 radio in Mr. Higazy's room, locked in a safe with Mr. Higazy's
is passport, later remembered it differently, weighing those two
16 things on one side of the balance and Mr. Higazy's statements
17 to the polygrapher on the other in which he acknowledged that
18 he owned it, or stated that he owned it, we determined that
19 under the totality of the circumstances the best course to
20 take was to dismiss the c.aarges.
21 THE COURT: Mr. Dunn, were you present when the
22 statements by the witness to the polygrapher were made?
23 MR. DUNN: No. I would say to some extent yes. I
24 don't know --
25 THE COURT: Did you hear any such admission during
SOUTHERN DISTRICT REPORTERS (212) 805-0300
x21ikapp 7
SEALED 1 the period you were there?
2 MR. DUNN: No, and if I may.
3 THE COURT: Yes.
4 MR. DUNN: Addressing that concern first and then I
5 will address the second concern that I have as well. When the
6 polygrapher came out, I asked him how did the polygraph go.
7 He says, well, we don't have a polygraph exam but I do have a
8 confession. I said a confession? He said yes. He handed me
9 a document where there were statements attributed to
10 Mr. Higazy, and he was asking for Mr. Higazy's signature on
11 them. I said well, let me go ahead and talk to him because I
12 don't know anything about this.
13 When I went into the room Mr. Higazy was crying. He
14 was trembling. I said what's going on. I said I've been
15 advised that you made a confession and this is the substance
16 of it, and I read to him what was in the statement. He says
17 that's a lie. I said, well, what do you mean that's a lie?
18 He said that's a lie. I said are you saying it's a lie that
19 you didn't say it or it's a lie that it isn't true? He said,
20 it isn't true. I said, did you say it? He said don't know
21 what I said. I was about to think he took the equipment
22 off of me, he started threatening my family, threatening my
23 brother. He was making the statements, and at some point I
24 may have said yes -- I'm not even clear what I said, what I
25 have been telling you is what I have been telling you all
SOUTHERN DISTRICT REPORTERS (212) 805-0300
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SEALED
1 along is the truth and that's a lie.
2 So at that point that the most I was able to get from
3 Mr. Higazy at the point, and pretty much subsequent to that
4 point was that he had become substantially agitated and was
5 hyperventilating and was so nervous that he doesn't know what
6 he said except that he didn't know that -- he had the sense
7 that there was no way, the way the investigator was speaking
8 to him, that he was ever going to be able to convince him,
9 he had been trying to do for the two and a half, three hours
10 that he had been there, that he had nothing to do with that
11 item.
12 So I never really got the clearest answer as to what
13 he did say, if anything, that formed the substance of the
14 statement that was prepared by [word redacted] I think that the
15 best source would be Mr. Higazy to the court. I think it is
16 something that needs to be looked into at the court, because
17 we now know that the item in question did not belong to
18 Mr. Higazy. This is not based on totality of circumstances.
19 This has been pretty much clearly established beyond doubt
20 that it is the equipment of someone else, and how it is that
21 if the statement was procured, to the contrary, whether such
22 statement was made, I would like to know how that could
23 happen. I don't know if the court would be of a similar
24 interest, but I would.
25 Secondly. I am very concerned with -- it has been
SOUTHERN DISTRICT REPORTERS (212) 805-0300
x2likapp 9 SEALED
1 said the security personnel at the Millennium Hotel was
2 mistaken, but, as your Honor probably recalls, the degree of
3 specificity with which the recollection as to where the item
4 was found, that it was up underneath or on top of a Koran and
5 there was another item, the passport was here, the medallion,
6 that breadth of detail is inconsistent with an error. That
7 degree of detail is more consistent with fabrication. You
8 know, it is one thing to say I gathered up a lot of belongings
9 in a room and I believe that that was in the safe, or that I
10 took certain items from the safe and that could have been in
11 there as well, or things to that effect. But this was
12 represented to the court, to my recollection, as being in an
13 ironclad statement that the person recalls instantly upon
14 seeing the device that it caught their attention, that they
is recalled where it was in position in relation to the other
16 items that was in the safe, and now we know that it is
17 impossible for it to have been in the safe, if we are to
18 believe anything with regard to it having been locked when the
19 security personnel went to the safe.
20 So I am interested in knowing what was the nature of
21 that statement that was made that the government was relying
22 upon, because, as you said just a moment ago, in the second
23 instance when we were before your Honor on the 28th, one of
24 the factors that colored your judgment was the representation
25 that an inconsistent statement making out that there was
SOUTHERN DISTRICT REPORTERS (212) 805-0300
x2likapp 10
SEALED
1 possession on the part of Mr. Higazy with regard to the
2 instrument having been made -- and I know that in the first
3 instance, even though the circumstantial evidence would have
4 been less persuasive given what was going on in the
5 surrounding circumstances subsequent to 9/11 at that locatation,
6 but for the representation, the compelling representation that
7 it was found in a safe with a passport and other personal
8 belongings, the Koran and a medallion, I take it that that was
9 very persuasive with the court in the court setting out the
10 conditions that were set for Mr. Higazy during his detention
11 as a material witness.
12 So I believe that both those issues need to be
13 explored and resolved, but I leave it to the court's judgment
14 on that.
15 THE COURT: There is no question that both of those
16 statements, the one made at the first hearing and the one made
17 at the second hearing, met the legal standard of materiality,
18 that is to say, that they were factors that were important to
19 the court in making its determination. We don't have to have
20 debates about whether a particular fact was more important or
21 less important or whatever. There is just no question that
22 they were both material.
23 The first representation concerning the fact that the
24 radio was found in the safe with the witness's passport, etc.,
25 as I read the government's letter to Judge Maas, has been SOUTHERN DISTRICT REPORTERS (212) 805-0300
x2likapp 11
SEALED
1 withdrawn, and the allegation is that the misstatement was
2 made, or an apparent misstatement was made but was made by a
3 security guard.
4 With respect to the second statement, what I hear you
5 saying is that the witness might have made the admission
6 reported by a polygrapher but that he may have done so under
7 coercive circumstances.
8 In each case, what is very troubling to me is whether
9 the statements that were made to me were (a) inaccurate, or
10 (b) even if accurate the product of inappropriate governmental
11 practices by the polygrapher, the FBI interviewers or
12 whomever. I expess no opinion on this, I am just flagging
13 the issue.
14 Let me hear from the government, but before I do, my
15 inclination is to convene some sort of in-court hearing but
16 still under seal, at which the appropriate agents could be
17 questioned and cross-examined and perhaps the security guard
is as well. It may be that before we do that the government may
19 want to put in some papers on that issue and the defense may
20 want to put in some papers on that issue. But let me hear
21 from the government.
22 MR. HIMMELFARB: Judge Rakoff, I don't think any such
23 proceeding is warranted under the circumstances. I will
24 address each of the statements that have been discussed here.
25 The first one, relating to where the radio was found, as we
SOUTHERN DISTRICT REPORTERS (212) 805-0300
x2likapp 12
SEALED
1 set forth in the complaint and the letter to Judge Maas, the
2 FBI interviewed an employee of the hotel who informed the FBI
3 that the radio had been found in the safe in the room where
4 Mr. Higazy had been staying.
5 THE COURT: Let me interrupt you for a moment and
6 ask, was that a single interview? Was he at that time
7 interviewed -- before the representation was made to the court,
8 was there more than one interview?
9 MR. HIMMELFARB: I don't know the answer to that, but
10 I can tell you that the FBI deemed him credible and would not
11 have relied on his representation if it hadn't deemed him
12 credible.
13 THE COURT: What is his explanation for the clearly
14 major mistake he made?
15 MR. HIMMELFARB: For the fact that he has now got a
16 different recollection?
17 THE COURT: Yes.
18 MR. HIMMELFARB: Judge Rakoff -- I would prefer -- I
19 don't think it is appropriate to get into that. As the
20 government set forth in the letter to Judge Maas, this is
21 still a matter under investigation. Particularly with Mr.
22 Dunn on the phone, I don't think it would be appropriate for
23 me to --
24 THE COURT: All right, all right, but that may yet
25 need to be the subject of a hearing. We will see.
SOUTHERN DISTRICT REPORTERS (212) 805-0300
x21ikapp 13
SEALED
1 MR. HIMMELFARB: Your Honor, as we set forth in our
2 letter to Judge Maas, this entire matter is under government
3 investigation right now.
4 THE COURT: Yes, yes, but what is potentially under
5 the court's investigation is whether the government caused
6 material misrepresentations to be made to the court either
7 through sloppy practices or through coercive police practices.
8 That is before the court potentially. So the fact that you
9 got your investigation is one thing, but I have my
10 responsibilities too.
11 But let's go on to what you wanted to say about the
12 second item.
13 MR. HIMMELFARB: On the other matter, I deny, based
14 on my understanding of what happened in the room with the
15 polygrapher and Mr. Higazy present -- obviously I wasn't there
16 and no one but the polygrapher and Mr. Higazy were there but
17 my understanding is that it is simply not true that threats
18 were made to Mr. Higazy, and, you know, as I say, putting
19 even those into the mix, our determination ultimately was that
20 the admissions he made could not be deemed sufficiently
21 credible to warrant going forward with the prosecution.
22 THE COURT: Let me ask you this. Was his counsel --
23 and, Mr. Dunn you may know the answer to this as well --
24 given the opportunity, if he had chosen to avail himself of
25 it, to be present throughout the polygraphy test? SOUTHERN DISTRICT REPORTERS (212) 805-0300
x2likapp 14
SEALED
1 MR. HIMMELFARB: No, your Honor. I can answer that
2 question. The way polygraph tests are given is that only the
3 polygrapher and the test taker are resent. The reason for
4 that is that the polygrapher thinks that if other people are
5 present in the room, particularly the test taker's lawyer, he
6 is just not going to get an accurate result. Everyone
7 understood that going in. It was also made clear to
8 everybody, including Mr. Higazy, that if at any point during
9 the test he wanted to speak to his lawyer the test would be
10 interrupted and he could speak to his lawyer, and that
11 happened a number of times.
12 MR. DUNN: If I may, briefly, it never happened
13 during the course of the three, the four hours that Mr. Higazy
14 was in with the polygrapher. Not once did he come out or did
15 anyone come out and say that he wished to speak to me.
16 Additionally, the waiver, the limited waiver -- and I
17 discussed parameters with Mr. Himmelfarb prior to allowing my
18 client to go in there. The limited waiver that I had given
19 that he could be spoken to by the agent without counsel was
20 for the production of results of a polygraph exam. So where
21 the examiner came out with, rather than results of an exam but
22 with a statement, a written statement which had been
23 by the examiner, which went into not only yes or no, is it
24 yours, but where did you get it from and various other things,
25 I felt that my client's Fifth Amendment right had been
SOUTHERN DISTRICT REPORTERS (212) 805-0300
x21ikapp 15 SEALED
1 violated at that junction, because there was only the limited
2 waiver that was given with regard to the questions as to
3 establishing the baseline for the polygraph exam, whatever
4 questions that were necessary to do that, and then the narrow
5 issue as to whether or not the item in question belonged to
6 him.
7 THE COURT: Here is what I think we need to do. I
8 will ask Mr. Dunn to first put in a letter to me -- this again
9 should be sent directly to chambers and it will be filed under
10 seal -- indicating what inquiries you believe, if any, it
11 would be appropriate for the court to make and the form you
12 believe such inquiries should take and the legal basis for the
13 court making such inquiries. Then I will ask the government
14 to respond to that letter and then I will determine whether
15 the court needs to go forward, and, if so, in what respects,
16 and so advise counsel.
17 So, Mr. Dunn, when could you have a letter like that
18 to me?
19 MR. DUNN: I want to give the court some idea on a
20 personal level what is going on. My sister has had surgery
21 for cancer.
22 THE COURT: I am sorry to hear that.
23 MR. DUNN: I am trying to got her set up at
24 Sloan-Kettering.
2 THE COURT: Take whatever time you want.
SOUTHERN DISTRICT REPORTERS (212) 805-0300
x21ikapp 16 SEALED
1 MR. DUNN: If the court would give me Wednesday or
2 Thursday of next week.
3 THE COURT: Sure. Why don't we say Thursday of next
4 week, which is January 24.
5 MR. DUNN: Fine.
6 THE COURT: You can either hand deliver that to
7 chambers or fax it to chambers at 212-805-7935. And then how
8 long does the government want to respond?
9 MR. HIMMELFARB: I guess I would ask until, to have
10 until Tuesday of the following week.
11 THE COURT: Yes, that is fine. So that would be the
12 29th, again, either hand delivery or fax. Then after I have
13 looked at those I will advise you of where we go, if anywhere,
14 from there.
15 MR. DUNN: May I just confirm, is it 805-7935? 16 THE COURT: Right. Thank you very much.
17
18
19
20
21
22
23
24
25 SOUTHERN DISTRICT REPORTERS (212) 805-0300
[By hand] Redacted and Unsealed
Robert S. Dunn
Attorney at Law
225 Boradway, Suite 1401
New York, New York 10007
212/528-0898 Fax: 212/385-3525
email: rsdesq@aol.com
BY HAND
January 28, 2602
Honorable Jed S. Rakoff
United States District Judge
Southern District of New York
500 Pearl Street
New York New York 10007
RE: Application of the United States for Material Witness Warrant, Pursuant to 18 USC 3144 for ABDALIAH HIGAZY; 01 Misc. 1750 (JSR)
Dear Jud Rakoff:
The purpose of the missive is to highlight for the Court certain irregularities which have occurred in the subject proceedings. It is my contention that material misrepresentations of fact were made herein, causing the Court in its reliance thereon, to take actions which have impacted negatively upon the rights of Mr. Higazy. Moreover, that there have been transgressions which have breached the appropriate ethical protocol which the Court must redress.
Background of the Case
Mr. Higazy was presented before this Court upon a material witness warrant December 18, 2001. At this hearing the government proffered a sealed affidavit from agent Cristopher Bruno whichaet out the "factual foundation" or basis upon which it sought the seizure of Mr. Higazy pursuant to 18 USC section 3144. The threshold issue before the Court was whether indeed Mr. Higazy was a "person who was material in a criminal proceeding." The , subject proceeding concerned the Grand Jury investigation of the attack of the World Trade Center on September 11, 2001.
Unfortunately, I am not able to quote the exact language utilized in the said affidavit. However, suffice it to note that the gravamen of the affidavit were the representations concerning the circumstance of the discovery of an airband transceiver. It was proffered to the Court that.Mr. Higazy's room had be-en entered by security personnel of the Millennium hotel in order to inventory his property/belongings. Further that upon entering his room (#5101) the safety deposit box (safe) was locked/sealed. That the said (unnamed) security person then used an override key to open the security box. Upon opening it an airband transceiver (radio) was discovered.
The agent's ' affidavit went on to set out in particularly detailed fashion exactly where and how the radio was situated relative to the other articles in the safe. It was represented to the Court by both the AUSA (Mr. Edward O'Callaghan) and in the subject affidavit that "when the airband transceiver was actually found in the safety deposit box there were certain documents. Also within the safe were the Abdullah Higazy passport, a copy of the Koran, and the air band receiver was on top of those documents within the safe in room 5101, the defendant's room" (see transcript of the 12-18-01 (HTI p.33, L18-23 Exhibit A) It was further proffered that as part of the investigation all of the other Millennium personnel who would have had access to the said override key were interviewed and indicated that none of them had gone into the safe in Mr. Higazy's room at any time during the relevant period of time.
Based principally upon the representation of the government as set forth above this Court concluded that Mr. Higazy was:
"someone who the Grand Jury would materially wish and need to hear from if he chooses to testify before the Grand Jury because of the simple and obvious fact that there is in his room, near the very top of the building looking out on the World Trade Center, was this device." (HTI p. 38 L3-7)
Having so resolved the threshold issue, the Court "concluded that when all is said and done, at this stage there is really no set of conditions other than his confinement that would keep his presence for his presentation to the grand jury." (HTI p.40 L22-25) Whereupon Mr. Higazy was held over and the rqatter was adjourned to December 28, 2001 for the purposes of having Mr. Higazy testify before the Grand Jury.
From the outset Mr. Higazy adamantly and vociferously proclaimed that he had nothing whatsoever to do with the subject radio. Indeed he repeatedly requested to be given a polygraph exam in order to demonstrate his veracity in that regard. After a series of discussions an agreement to conduct a polygraph was reached and scheduled for December 27, 2001. As part of the agreement, the FBI insisted that no one other than the examiner and Mr. Higazy be present. According a limited waiver was granted permitting the FBI to question Mr. Higazy without counsel.
On the same said December 27, 2001 Mr. Higazy was produced in the offices of the U.S. Attorney for purposes of conducting the polygraph. The particular agent assigned (ostensibly) to perform the test was agent [phrase redacted]. After some three and half hours [word redacted] emerged from the room and in response to my query replied "well, I don't have a polygraph but I do have a confession." He then showed me a draft statement which he had written allegedly memorializing what Mr. Higazy had told him.
I immediately went to question Mr. Higazy, confronting him with the draft. When I entered the room he was trembling and sobbing uncontrollably. When I asked him if he had "confessed"/acknowledged a connection to the radio, he replied that he was not certain what exactly he had said. All he knew was that the agent had threatened the safety and security of both his family in Egypt as well as his younger brother who was attending school upstate and he did acquiesce/admit some connection to the radio. However, he again insisted that he had no connection to the device but felt he had no choice but to make some kind of admission relative to the radio in an effort to remove his family from harms way.
While Mr. Higazy was so distraught that he was somewhat unclear as to exactly what he had said to the agent. He nonetheless immediately reaffirmed that the truth was, it was not his radio.
After further discussions it was agreed that the polygraph exam would suspended as Mr. Higazy was an emotional wreck and in no condition to proceed. On the following day, December 28, 2001, the matter was back before this Court. The Court was advised that the polygraph had not been completed and the question of Mr. Higazy's testimony before the Grand Jury remained unresolved. The Court queried if there had been any new developments and the government offered the following:
"... [T]he witness has abandoned his contention that it's not his radio. He has admitted it is his radio, and has provided three different versions of where it came from" (Transcript of 12-28-01 page 11 L6-9; hereinafter referred to as HTII)
Whereupon the Court opined: "If he admitted it's his radio then I wonder whether ... he may have made false statements to the Court through his counsel ... I just raise that as an issue because it seems to me, if nothing else, it further bears on the appropriateness of denying him bail if the representations previously made were materially inaccurate (HT II page 11 L14-24)
I advised the Court that it was unclear to me what if any admission/recantation had been made by Mr. Higazy and was consenting to the adjournment for the purposed of clarifying this and other unresolved issues. The matter was then adjourned to January 14, 2002.
On January 8, 2002, 1 confronted the Government with Mr. Higazy's accusations concerning Agent [word redacted] behavior. Mr. Higazy remained anxious to submit to a polygraph exam. However, he would only, do so if counsel were present to witness the conduct of the exam. [By hand] Proposed redaction not approved JSR [for following sentence]. After a number of proposals involving different scenarios allowing counsel to monitor the conduct of the exam were rejected by the government, I indicated that no further cooperation would be forthcoming from Mr. Higazy. The Government then decided to criminally charge Mr. Higazy.
On January 11, 2002, Mr. Higazy was arraigned before Magistrate Frank Maas on the charge that he "unlawfully, willfully and knowingly made false, fictitious and fraudulent statements and representations, to wit, statements concerning the possession of an aviation radio...". The Complaint (Exhibit "C") re-alleged the detailed and elaborate description of the circumstances of the discovery of the radio locked in the safe of the hotel room that Mr. Higazy had occupied on September 11, 2001. Based no doubt in large part upon the above-referenced representation, Magistrate Maas opined that "it appears to be a very strong case" and held Mr. Higazy without bail. On January 14, 2002 Mr. Higazy was again before this Court when it was advised that the government would be withdrawing its material witness application and that Mr. Higazy had been charged as set forth supra.
On January 16, 2002, the government in a rather curt and somewhat cryptic letter to Judge Maas, dismissed the complaint against Mr. Higazy, and consented to his immediate release (Exhibit "D")
ARGUMENT
"The Courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for the defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function." Sheppard v Maxwell 384 US 333; 86 S. Ct. 1507
The above cited admonition of the Supreme Court in Sheppard (supra) should be heeded by this Court in it's evaluation of the participants conduct in the instant proceedings. Indeed it is respectfully submitted that material misrepresentations and other improper unethical conduct permeate the record herein. In the supporting affidavit a federal agent informed the Court that the subject airband transceiver was found under circumstances which essentially led to the inescapable conclusion that the item had to have been possessed by Mr. Higazy. This representation was echoed by the Assistant United States Attorney in argument and relied upon by this Court in determining to seize and detain Mr. Higazy. We now know that the radio was never in Mr. Higazy's safe as was previously represented to this Court both in writing and orally. In fact it now appears that the item probably was never even in his room and possibly not on his floor at all.
Thus the facts was severely misrepresented to the Court. That the misrepresentations were material is evident and without controversy. The real question is how is that such a material misrepresentation made it's way into the court such as to corrupt its process.
I respectfully submit that the detail with which the discovery of this item was initially described when contrasted with subsequent revelations do not reconcile with any notion of simple error. How is it that the Millennium Security employee could describe with such elaborate details where in the locked safe this item was alleged to have been found. Yet, when confronted with the truth (to quote from the Government's letter - see exhibit D) "the employee stated that he now recalls that he found the radio on the table in Mr. Higazy's room, not in the safe." How could this be? What type of questioning was done -- how extensive was it? Did this individual actually provide the Government with a sworn statement in the first instance? Did the government discharge it's responsibility in assuring some degree of reliability of the inaccurate/false statement.
As the Supreme Court has stated in its discussion of the prosecutors duty in a criminal case: "it is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one" Berger vs. United States 95 U.S. 78. It is unclear whether the Government met its duty in this case or was derelict in proffering material misrepresentations which perpetrated a fraud upon this Court. It is insufficient to place blame solely on the vague and unidentified "Millennium employee."
Only after the truth surfaced does the Government reveal that: "Employees, of the hotel have indicated that although the Hotel has been closed since September 11, a number of people entered the room in which Mr. Higazy had been staying at different times between September 11, and the day on which the radio was found. Was this known to the Government on December 18, 2001 when Mr. Higazy first appeared? Did the Government know this fact on December 28, 2001 when the matter was again before your Honor? If so, why didn't the government reveal it? "The prosecutor has a duty to learn any favorable evidence known to others acting on the Government's behalf in the case including... (law enforcement) Kyles v. Whitley 514 U.S. 419 (1995).
At the purported close of this case we are left with more questions than answers. Another very troubling aspect concerns the "tactics" employed in questioning, Mr. Higazy . As set forth above in an effort to assist in the resolution of this matter Mr. Higazy and counsel agreed to do a polygraph. To comply with the FBI, I agreed to absent myself from the exam. However, it was made clear that only a limited waiver was granted for exclusive purposes of conducting the exam. The parameters of the questioning were also quite express.
It would seem that rather than conducting the polygraph Agent [word redacted] used/abused the situation to interrogate Mr. Higazy without counsel. This in and of itself is a violation of Mr. Higazy's Sixth Amendment rights and warrants censure from this Court. Yet, that is but the tip of the iceberg.
The more grievous issue concerns the threats and other heavy handed conduct engaged to coerce a false confession from a totally innocent man. The Court must peel back the veil and scrutinize exactly what the agent did in this instance. It is important not only as it relates to Mr. Higazy but as well to others who are similarly situated. The Court can not be seen as to countenance such behavior without some form of redress. But for the pilot coming forward and claiming the subject radio a frightening miscarriage of justice would almost certainlybave occurred.
The fact that the matter been dismissed in no way insulates these transgressions from the Court's supervision and its inherent powers to police that conduct of litigants and other participants in actions before it. "It is well established that a Federal Court may consider collateral issues after an action is no longer pending. ... [The imposition of costs, attorney fees and contempt sanctions....is not a judgment on the merits of an action. Rather it requires the determination of a collateral issue: Whether the attorney has abused the judicial process and if so what sanction would be appropriate?] Cooter & Gell v. Hartmarx Corp. 110 S.Ct. 2447 496 U.S. 384 (U.S. Dist. Col 1990).
Even though Cooter (supra) concerned the Court's imposition of sanctions pursuant to Rule 11 in a civil litigation it has no less import in the context of a criminal proceeding. Indeed as the second circuit has pointed out even in cases where the Court, does not have jurisdiction the court is not powerless. Recently, we observed that [j]urisdiction is an all-purpose word denoting a judiciary power. A Court may have power to do some things but not others, and the use of "lack of jurisdiction" to describe things it may not do does not mean that the Court is out of business." Chemiakin v. Yefimov 93 F.2d 124 (C.A. 2 (N.Y.) 1991) Here, the Court went on to hold that [a] District Court [is] not precluded from later exercising its inherent jurisdiction over [litigants who have appeared before it] ... Id (citation omitted).
Conclusion
Based upon the above-referenced statement of facts and argument on the Law. It is respectfully requested that the Court set this matter down for further hearings to determine exactly who is responsible and to what extent, for the material misrepresentation which have been made in these proceedings.
Further, for the Court to scrutinize the conduct of the agent who "interrogated" Mr. Higazy to determine if any violation occurred warranting exercise of its power to sanction participants for imptoper conduct in matters before it.
Respectfully submitted,[Signature]
Robert S. Dunn, Esq.
Cc: AUSA Dan Himmelfarb
[By hand] Redacted and Unsealed
U.S. Department of JusticeUnited Stales Attorney
Southern District of New YorkThe Silvio J. Moll Building
One Saint Andrew's Plaza
New York, New York 10007
February 4, 2002
BY HAND DELIVERY TO BE FILED EX PARTE AND UNDER SEAL
Honorable Jed S. Rakoff
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street
Room 1340
New York, New York 10007
Re: Material Witness Abdallah Higazy
01 Misc. 1750 (JSR)
Dear Judge Rakoff:
The Government respectfully submits this letter, to be filed ex parte and under seal, in further response to the letter of January 28, 2002 that was submitted by Robert S. Dunn, the attorney for Abdallah Higazy. As explained below, Government attorneys did not make any misrepresentations to the Court during the course of the material witness proceedings involving Mr. Higazy. There is therefore no need for the Court to institute contempt proceedings.
Background
In November 2001, agents of the Federal Bureau of Investigation ("FBI") were informed that, in early October 2001, an air-band transreceiver was found in Room 5101 of the Millenium Hilton Hotel. The radio, which is hand-held, is marketed for use by pilots. It can he used for air-to-air and air-to-ground communication with a person in possession of a similar radio, including a pilot of a commercial plane. It can also be used to monitor air-to-air and air-to-ground communications between and among others.
The hotel in which the aviation radio was,found is located across the street from where the World Trade Center ("WTC") once stood. The room in which the FBI was told the radio was found, Room 5101, is on the 51st floor of the hotel, and had a view of the WTC.
Hotel records reflect that Abdallah Higazy, an Egyptian national, checked into Room 5101 on August 27, 2001 and was scheduled to check out on September 25, 2001. On September 11, 2001, after the terrorist attack on the WTC, all of the guests, including Mr. Higazy, were evacuated from the hotel. Employees of the hotel have informed the FBI that, after the evacuation of the hotel on September 11, the guests' property that was left behind was inventoried by hotel personnel.
On December 17, 2001, Mr. Hiqazy returned to the hotel to recover his property. [two lines redacted]. After his arrival, Mr. Higazy agreed to be interviewed by the agents.
When he was shown and asked about the aviation radio during the December 17 interview, Mr. Higazy stated that the radio was not his and that he had never seen it before. After denying any knowledge of what such a device could be used for, Mr. Higazy stated that he had served in the Egyptian Air Corps and had some expertise in communications and communications devices.
After Mr. Higazy denied ownership of the radio, one of the FBI agents asked the hotel employee who claimed to have found the radio where in Room 5101 it had been found. The employee stated that he had found the radio inside the safe in the room, on top of a number of other items, including Mr. Higazy's Egyptian passport and an Arabic book. The employee stated that the safe had been locked, and that he had opened it with an override key., The FBI agent asked the hotel employee whether he was sure that he had found the radio in the safe, on top of the other items. The employee said that he was sure. The employee who claimed to have found the radio in the safe, and said he was sure of it, is a hotel security officer and a retired police detective.
When he was confronted, during the December 17 interview, with the hotel employee's statement about where the radio had been found, Mr. Higazy continued to deny that the radio was his. He was then placed under arrest as a material witness in the investigation of the September 11 terrorist attacks.
Following his arrest, Mr. Higazy was taken to the FBI office in lower Manhattan and re-interviewed. During this second interview, Mr. Higazy stated that one of his duties in the Egyptian Air Corps was to repair aviation radios. Mr. Higazy continued to deny, however, any knowledge of the radio found in Room 5101 of the hotel.
Mr. Higazy had his initial appearance before the Court on December 18, 2001. At that appearance, FBI Special Agent Christopher Bruno swore to the material witness affidavit (12/19/01 Tr. 2) and Robert S. Dunn was appointed to represent Mr. Higazy (id. at 9). The material witness affidavit included the following statement: "According to a Millenium Hotel employee, the [radio] was found inside a safety deposit box located inside of Room 5101. ABDALLAH HIGAZY's Egyptian passport, a copy of the Koran, and a gold medallion were also found within that same safety deposit box." (Bruno Aff. ¶ 8(e)). During the course of the bail argument, the Government again called the Court's attention to that information: "We understand [that] when the [radio] was actually found in the safety deposit box there were certain documents, the Abdallah Higazy passport, a copy of the Koran, and the (radio] was on top of those documents within the safety deposit box in room 5101." (12/18/01 Tr. 33). At the conclusion of the bail argument, the Court ordered that Mr. Higazy be detained. (Id. at 38-41).
[By hand] Proposed redaction not approved JSR [for following paragraph] On December 20, 2001, FBI agents again spoke with the hotel employee who had told FBI agents on December 17 that he found the radio in Room 5101, inside the safe. During the December 20 interview, the hotel employee once again stated that he had found the radio inside a locked safe in Room 5101, together with, among other items, Mr. Higazy's passport.
[4 lines redacted]
On December 27, 2001, at Mr. Higazy's request, the FBI administered a polygraph exam to Mr. Higazy. [3 lines redacted] The exam was given in a room at the United States Attorney's office at 500 Pearl Street. Only Mr. Higazy and the polygrapher were in the room while the exam was taking place. Mr. Dunn was outside the room, with two other FBI agents. An Assistant United States Attorney was intermittently present outside the room.
That no one other than the polygrapher and Mr. Higazy would be permitted in the room during the exam was made clear to, and understood by, Mr. Higazy and Mr. Dunn before the exam began. Mr. Higazy was also advised of his Miranda rights before the exam began and signed a waiver form. In addition, Mr. Higazy was advised that he had the right to refuse to take the polygraph test; that he had the right to stop the test at any time; and that he had the right to refuse to answer any questions. Mr. Higazy signed a form acknowledging those rights as well. In addition to advising him of his Miranda and other rights before the exam began, the polygrapher told Mr. Higazy that he was free to consult with Mr. Dunn at any time while the exam was in progress.
[By hand] Proposed redaction not approved JSR [for following paragraph] The Government has been informed by the polygrapher that, after the exam began, Mr. Higazy initially denied any knowledge of the radio. According to the polygrapher, however, Mr. Higazy later admitted that the radio was his. He told the polygrapher that he had found the radio at a subway station near City Hall; then told the polygrapher that he had found that radio underneath the Brooklyn Bridge; then told the polygrapher that he had stolen the radio from the Egyptian Air Corps.
A written statement was prepared for Mr. Higazy's signature; but, after consulting with Mr. Dunn, he declined to sign it. The polygraph exam was then terminated, without having been completed. Though he had spoken with his client, Mr. Dunn did not claim on December 27 that Mr. Higazy's admissions had been made involuntarily. Nor did Mr. Dunn raise any other complaints about the manner in which the polygraph exam had been conducted.
A second conference was held by the Court on December 28, 2001. At that conference, the Government and the witness, through Mr. Dunn, jointly asked for an adjournment, so that, among other things, the polygraph examination could be completed and a proffer session could be held, if Mr. Higazy decided to proffer. (12/28/01 Tr. 7-10). After that request was made, the Court asked the Government whether "anything [had] changed" that bore upon the question whether Mr. Higazy should continue to be detained. (Id. at 10). In response to the Court's question, the Government stated that Mr. Higazy had admitted that the radio found in Room 5101 of the hotel was his, and had provided a number of different explanations of where he had gotten it. (Id. at 11). Mr. Dunn did not deny that Mr. Higazy had admitted that the radio was his. Nor did Mr. Dunn claim, or even suggest to the Court, that Mr. Higazy had been coerced into making the admission. Instead, Mr. Dunn merely stated that he "wasn't in the room" at the time of Mr. Higazy's "alleged . . . recant[ation]," and added that, "in my speaking with [Mr. Higazy] there's some ambiguity with regard to that issue that remains." (Id. at 12). The Court granted the request for an adjournment and ordered that Mr. Higazy's detention be continued. (Id. at 13).
On January 8, 2002, at the United States Attorney's Office, Mr. Dunn informed the Government that Mr. Higazy would agree to complete the polygraph exam only if Mr. Dunn was permitted to be in the room while the exam was administered or if the exam was videotaped or audiotaped. The polygrapher informed Mr. Dunn that both requests were inconsistent with FBI policy. Mr. Dunn accordingly informed the Government that Mr. Higazy did not wish to complete the polygraph exam. Mr. Dunn also informed the Government that Mr. Higazy had no interest in proffering.
Mr. Higazy's decision not to complete the polygraph exam or proffer followed various discussions on January 8 among an Assistant United States Attorney, Mr. Dunn, Mr. Higazy, and a number of FBI agents, including the polygrapher. It was during one of those discussions that Mr. Higazy raised, for the first time, his claim that the polygrapher had made threats directed at his family during the December 27 polygraph exam. Immediately after the accusation was made, the polygrapher categorically denied that he had made any such threats.
On January 11, 2002, Mr. Higazy was charged in a criminal complaint with having made false statements to agents of the FBI, in violation of Title 18, United States Code, Section 1001. The charge was based upon Mr. Higazy's denial, during the two interviews on December 17, that he had any knowledge of the radio found in Room 5101 of the hotel. Mr. Higazy had his initial appearance in the criminal case on January 11, before Magistrate Judge Maas, who ordered that Mr. Higazy be held without bail. Mr. Dunn was appointed to represent Mr. Higazy in the criminal case.
A third, and final, conference in the material witness proceedings was held on the morning of January 14, 2002. At that conference, the Court vacated the material witness warrant and the material witness proceedings were terminated. (1/14/02 Tr. 7).
Later in the day on January 14, 2002, the FBI learned that a man who was staying in a room on the 50th floor of the hotel on September 11, 2001 had arrived at the hotel on January 14 to retrieve his belongings. The man, who is a private pilot, advised a hotel employee that an aviation radio that the man had had with him in his room on September 11 was not among the items that were returned to him.
[3 paragraphs of 1/2 page redacted]
In light of these developments, the Government moved to dismiss the complaint later in the day on January 16. Magistrate Judge Maas granted the motion the same day, and Mr. Higazy was released from jail.
On January 18 2002, the Court held a telephone conference with the Government and Mr. Dunn. At the beginning of the conference, the Court stated that it had scheduled the conference because of a concern that "a material misrepresentation may have been made to the [C]ourt by the [G]overnment." (1/18/02 Tr. 2). The Court went on to say that it wanted "to find out more about that and see whether it is something that, pursuant to the [C]ourt's contempt powers or otherwise, needs to be pursued." (Id.). The particular representation about which the Court had concerns was the following statement by the Government. at the December 28 conference: "'The witness has abandoned his contention that it is not his radio. He has admitted it is his radio, and he has provided, I believe, about three different versions of where it came from.'" Id. (quoting 12/28/01 Tr. 11)). During the conference, the Government explained that Mr. Higazy's admissions had been made during a polygraph exam that Mr. Higazy himself had requested, and that the Government had learned about the admissions from the polygrapher, who was alone with Mr. Higazy when the admissions were inade. (Id. at 4-5).
[3 lines redacted]
At the conclusion of the January 18, 2002 conference, after Mr. Dunn had spoken (id. at 7-10) about certain issues that he thought "need[ed] to be explored and resolved" (id. at 10), the Court directed Mr. Dunn to make a submission, to be filed under seal, "indicating what inquiries [he] believe[s], if any, it would be appropriate for the [C]ourt to make and the form you believe such inquiries should take and the legal basis for the [C]ourt making such inquiries" (id. at 15). The Court also directed the Government to submit a response. (Id.).
Mr. Dunn made his submission on January 28, 2002. In it, he charges that "material misrepresentations and other improper unethical conduct permeate the record herein." (1/28/02 Ltr. 5). Mr. Dunn contends that the Government made a material misrepresentation to the Court when it stated, during the bail argument on December 18, that the radio was found in the safe in room 5101 of the hotel. (Id. at 5-7). Mr. Dunn also contends that Mr. Higazy's admission that the radio was his was coerced by the polygrapher. (Id. at 7).
Discussion
The Government did not make any misrepresentations to the Court.
A. The December 18 Conference
When the Government attorney stated, at the December 18 conference, that "we understand . . . the [radio] . . . was . . . found in the safety deposit box . . . [with] the Abdallah Higazy passport [ ] [and] a copy of the Koran, and the [radio] was on top of those documents with the safety deposit box in room 5101" (12/18/01 Tr. 33), he was indisputably telling the truth. At the time the statement was made, the Government did understand that the radio had been found in the safe in Room 5101, on top of Mr. Higazy's passport. The Government had received that information from the FBI, which in turn had received the information, on December 17, from the hotel security officer who claimed to have found the radio in Room 5101.
Nor did the Government have any reason to doubt the accuracy of the information. The person who informed the FBI that he had found the aviation radio in the safe in Room 5101 said that he was certain that he had found it there. This person was not someone of dubious credibility, but a hotel security officer and a retired law enforcement officer. Nor was there anything implausible about the information he provided. In fact given what the Government knew on December 18, the information seemed more than merely plausible. On December 18, the Government knew that terrorists had hijacked planes and then crashed them into the WTC on September 11, 2001; it knew that, on September 11, Mr. Higazy was staying at a hotel next to the WTC, on the 51st floor, in a room with a view of the WTC; it knew that he had checked into the room about two weeks before September 11 and was scheduled to check out two weeks after September 11; it knew that he had served in the Egyptian Air Corps; it knew that one of his duties in.the Egyptian Air Corps was to repair aviation radios; [3 lines redacted]; it knew that a number of the September 11 hijackers were Egyptian nationals; and it knew that Mr. Higazy is an Egyptian national. Given these undisputed facts, it was hardly unreasonable to believe that the aviation radio had in fact been found in a locked safe in Mr. Higazy's room.
B. The December 28 Conference
When a different Government attorney stated, at the December 28 conference, that Mr. Higazy had "abandoned his contention that it's not his radio" and had "admitted it is his radio, and . . . provided . . . three different versions of where it came from" (12/28/02 Tr. 11), that Government attorney, too, was indisputably telling the truth. At the time the statement was made, Mr. Higazy had in fact admitted that the radio was his, and had in fact provided three different versions of where it came from. Mr. Higazy made those statements on December 27, 2001 to an FBI polygrapher, who so informed the Government.
Nor did the Government have any reason to doubt the accuracy of this information. The person who informed the Government that Mr. Higazy had made the statements about the radio was not somebody of dubious credibility, but an experienced FBI agent and polygrapher. And there was never any suggestion, on or before December 28, that Mr. Higazy had made the statements involuntarily. Nor was there anything implausible about the statements that Mr. Higazy made. On the contrary, as of December 28, 2001, the Government was aware of all the undisputed information about Mr. Higazy that is get forth two paragraphs above and had been informed that the radio was found in the safe in Mr. Higazy's room, on top of his passport. Indeed, by December 28, the hotel security officer who claimed to have found the radio in the safe had provided that information to the FBI two separate occasions and a second hotel employee had told the FBI that the radio was found in the safe. Given what the Government knew about Mr. Higazy, and given its reasonable belief that the radio had been found locked in the safe in Mr. Higazy's room on top of his passport, the Government, was hardly surprised to learn that Mr. Higazy had admitted that the radio was his.
It is also significant that, on December 28, immediately after the Government attorney told the Court that Mr. Higazy had admitted ownership of the radio, Mr. Higazy's own attorney did not deny that Mr. Higazy had done so. (Id. at 12). Indeed, in his January 28 submission to the Court, Mr. Dunn acknowledges that, on December 27, Mr. Higazy "did . . . admit some connection to the radio." (1/28/02 Ltr. 3). That acknowledgment is inconsistent with any suggestion that the Government attorney was lying when he stated that Mr. Higazy admitted that the radio was his.
To the extent that Mr. Dunn is suggesting, not that the Government attorney made a false statement when the attorney told the Court that Mr. Higazy had admitted the radio was his, but that the admission itself was coerced by the FBI polygrapher (id. at 7), the Government has two responses.
First, the Government denies that the admission was coerced. Mr. Dunn alleges that, during the polygraph exam on December 27, the polygrapher "threatened the safety and security of both [Mr. Higazy's] family in Egypt [and] his younger brother who was attending school upstate." (Id. at 1). The polyqrapher denies that he made any such threats. [6 lines redacted]
Second, regardless of the merits of Mr. Dunn's allegation that the FBI coerced a confession from Mr. Higazy and thereby violated his rights, a wrong of that type is not remediable through the exercise of the Court's contempt power. If Mr. Dunn believes that his client's rights were violated during the polygraph exam -- an exam that his client requested, and one during which Mr. Dunn was on the other side of the door -- he may be able to seek a remedy through a civil lawsuit. (Indeed, according to media reports, Mr. Dunn has already indicated that he may file a suit on Mr. Higazy's behalf. See, e.g., Robert F. Worth, Egyptian Seeks An Apology, And May Sue, N.Y. Times, January 21, 2002, at B3.) But Mr. Dunn cites no authority, and the Government is aware of none, that would support the view that a law enforcement agent who violates a person's rights during a polygraph exam is thereby in contempt of court. The misconduct that Mr. Dunn alleges took place was directed at his client, not at the Court.
Conclusion
On January 14, 2002, for the first time, a person other than Mr. Higazy claimed ownership of the aviation radio that the FBI had been told was found in Mr. Higazy's room. Immediately upon being so informed, the Government conducted a thorough investigation. Then, after determining that the radio had probably not been found in Mr. Higazy's safe, it dismissed the charges against Mr. Higazy and requested his immediate release. [By hand] Proposed redaction not approved JSR [for following sentence] That investigation is continuing, with particular attention being paid to whether the hotel security officer who claimed to have found the radio in the safe in Mr. Higazy's room, and perhaps other hotel employees, made knowingly false statements to the FBI.
Up until January 14, however, the Government had no reason to doubt that the radio had in fact been found in Mr. Higazy's safe and had no reason to doubt that Mr. Higazy was being truthful when he finally admitted that the radio was his. That being the case, the Government did not make any misrepresentations to the Court in connection with the material witness proceedings, and there is no need to institute contempt proceedings.
Respectfully submitted,JAMES B. COMEY
United States AttorneyBY: [Signature]
DAVID N. KELLEY
Deputy United States Attorney
Telephone: (212) 637-1025
Robert S. Dunn
Attorney at Law
225 Boradway, Suite 1401
New York, New York 10007
212/528-0898 Fax: 212/385-3525
email: rsdesq@aol.com
BY HAND DELIVERY
Honorable Jed S. Rakoff
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street, Room 1340
New York, New York 10007
Re: Material Witness Abdallah Higazy
01 Misc. 1750 (JSR)
Dear Judge Rakoff:
Please accept this letter as reply to the Government's "response" to my previous submission request that the court investigate the conduct of the Government's agents in the instant matter as it relates to how misrepresentations, which were specifically relied upon by the court, came to be constructed and so proffered. Further, to examine the procedures employed by the federal agents involved in this case in vetting their witnesses and more particularly, the tactics utilized in the interrogation of Mr. Higazy, which resulted in the extraction of a false confession.
I cannot speak to the merits of any explanation the Government may have regarding these issues, since they have seen fit not to advise counsel of same. Indeed, I must strenuously object to the Government's attempt to squelch adversarial review of their statements of fact and arguments herein. I know of no authority (and the Government cites none) for the information black out proposed by the Government herein.
At the inception of this case, all proceedings were sealed because the case was proceeding under the umbrella of Grand Jury Action. That is no longer true nor, as has become indisputably evident, does this case have anything whatsoever to do with the events of September 11, 2002. So on what basis does the Government seek to shroud it's activities herein, in secrecy.
From their missive, it would seem that their nondisclosure is premised upon the Supreme Court's decision in Young v. United States Ex. Rel. Vuitton Et. Fils , Et. Al. 481 U.S. 787 (1987). If so, said reliance is severely misplaced. The actual holding in Young was "that counsel for a party who is the beneficiary of a court order1 may not be appointed to undertake contempt prosecutions for alleged violation of that order" Id. at 790.
___________________
1 Italics supplied by this author for emphasis
No such circumstances are present herein. The facts in Young are clearly distinguishable from the matter at bench. Young involved an underlying civil litigation for trademark infringement and plaintiff's attorney had conducted a "sting" operation to uncover the evidence of defendant's continued violation of the Court's injunction. Upon presentment of fruits of the said sting operation, the District Court determined that there was probable cause to believe that defendant had engaged in conduct contumacious of it's injunctive order. The Court then appointed plaintiffs attorneys as "special prosecutors" to represent the United States in the prosecution of criminal contempt proceedings.
The Supreme Court began its analysis by reaffirming that: " ... it is well settled that courts possess inherent authority to initiate contempt proceedings... authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt." Young supra at 750. However, in the context of criminal contempt proceedings, it held that appointment of a private attorney who has (though their representation of one of the litigants to the underlying action) an interest in the outcome of said prosecution is improper. In Young, there was a $750,000.00 liquidated damage provision which kicked in were defendants found guilty of violating the order. For all those reasons the court held it was improper to appoint plaintiff's attorney as prosecutor.
Contrary to Young, no request has been made for my appointment as prosecutor in this action, nor has there yet been any finding by this court that probable cause exists for prosecution of criminal contempt proceedings. All that has transpired thus far is that we now know that material misrepresentations were made to the court. How that came to be, who is responsible and to what extent, is not known.
"In determining the proper remedy pursuant to the [Court's]2 supervisory power, the relief chosen should be directly related to the seriousness of the misconduct" United States v. Banks 383 F. Supp at 392. We are at the preliminary stage of first determining the nature of the conduct which gave rise to the material misrepresentations. No finding has been made nor has the decision of appropriate relief been determined. The threshold issue is whether the proceeding is criminal or civil in nature. The Supreme Court has previously ["]... held that conclusions about the civil or criminal nature of a contempt sanction are properly drawn from an examination of the character of relief itself." International Union United Mine Workers of America, et. al. v. John Bagwell et. al. 512 U.S. 821 at 829 (see also Hicks vs. Feruck 485 U.S. 624).
____________________
2 Added by this author for clarity.
The Court may (upon being advised of the actual developments herein) refer a complaint to the office of Professional Responsibility in the Justice Department vis-a-vis either the conduct of the AUSA or the agent (s) involved in the case. For, as noted in Cammer v. United States 350 U.S. 399 (1956), "'the imposition of disciplinary sanctions itself implicates an independent and fundamental duty of the district court it's supervision of the attorneys who practice as a member of its bar in ways that other sanctions simply cannot." (quoted from Crowe v. Smith 151 F.3d 217 at 230 cf. RTC v. Bright, 6 F.3d 336 340 (5 Circuit 1988). Accordingly, ..."'it is beyond dispute that a Federal Court may suspend or dismiss an attorney as an exercise of the court's inherent powers." Howell v. State Bar of Texas, 843 F. 2d 205, 201 (5th Circuit 1988)
I am not suggesting that any of the above is warranted herein, because I do not know how the subject of misrepresentations came to be constructed, (and I doubt that the Court does either) There is a vast array of actions short of criminal contempt proceedings available to the court. It may well be that the Court refers the matter of the witnesses conduct of flip-flopping the truth to the Justice Department for criminal prosecution. The investigation by the Court to make that determination is within its inherent supervisory power. [By hand] Proposed redaction not approved JSR [for following sentence] The Government assertion that it has an "'on-going investigation" is neither dispositive, nor does it render the court helpless.
As stated by the Supreme Court: "'If a party can make himself a judge of the validity of orders when which have been issued and by his own act of disobedience set them aside then the courts are impotent, and what the constitution now fitting calls the "judicial power' would be a mere mockery. " Gompers v. Bucks Stove and Range Co., 221 U.S. 418 at 450. Similarly, if the issue of the proper investigation, questioning and scrutinizing of statements herein, were left solely to the Government, that too would make a mockery of our system of justice. The Court must be satisfied that all parties have acted appropriately herein.
"The need to vindicate a Courts authority is thus satisfied by ensuring that an alleged contemnor will have to account for his or her behavior in a legal proceeding, regardless of whether the party is the party ultimately convicted or acquitted. A Court's ability to institute a contempt proceeding is therefore essential to the vindication of it's authority in a way that the ability to determine guilt or innocence is not." Young supra at 2132.
The agents or even more likely, the witness may have acted in an improper fashion but not to the degree that the Government determines it warrants the pressing of criminal charges. Then what? "In punishing contempt, the judiciary is sanctioning conduct that violated specific duties imposed by the court itself, arising directly from the parties participation in judicial proceedings... If the judiciary, were completely dependent upon the executive Branch to redress direct affronts to it's authority, it would be powerless to protect itself if that Branch declined." Id at 797, 801.
If anything, developments herein raise the issue of whether the Government can impartially proceed in its decision-making vis-a-vis the subject witness(es). As they may well have a conflict of interest in placing all the blame for this near travesty solely upon the shoulder(s) of the said witness(es).
It was settled that outside of prosecutions for criminal contempt appointment /use of private attorney as prosecutor for other contempt purposes does not run afoul of any due process consideration. As Justice Hand stated, ... "'the judge may prefer to use the attorney of a party, who will indeed, ordinarily be his only means of information when the contempt is not in his presence. There is no reason why he should not do so and every reason why he should..." McCann v. New York Stock Exchange et. al. 80F 2d 211. 214 (1935).
However, counsel has not petitioned this court to be appointed to prosecute anything; yet, the Government presses the argument that counsel for Mr. Higazy should not participate at all nor even be privy to the process of resolution of these issues.
Given the f act that Mr. Higazy was hustled out of the side door (from captivity); into the cold of winter, without proper clothing, under the cover of darkness, without benefit of apology nor even explanation, I am not surprised by the Government's position. However, there is absolutely no authority for the Government's position. The Government cites Crowe v. Smith 151 F. 3d 217 in support of this position. I know not what contorted reasoning led to their supposed reliance on Crowe.
In Crowe, unlike the circumstances herein, after an informal meeting with all parties with pertinent inquiries having been made by the court, the court set the matter down for a full fledged trial. The court appointed plaintiff's attorney first as U.S. Attorney, then as the Court's Attorney. The court empowered the attotney with full compulsory discovery. Moreover, the said private attorney had a personal interest in the matter and even testified during the trial. Nonetheless the court still upheld the convictions in that case which resulted in "quasi-criminal" sanctions. The court stated that:
Young is not infringed, even where the District Court relies on interested opposing counsel to present the facts giving rise to an imposition ... of the quasi-criminal sanction of disbarment, so long as the court relies on it's own research (as supplemented by appropriate briefing by the parties) with regard to relevant legal issues.... Id. at 233.
Both Young and Crowe address due process concerns in the prosecution of criminal contempt proceedings (which I genuinely trust and sincerely hope do not lie here) where an interested attorney serves as prosecutor. There is nothing in either case that stands for the proposition that counsel and his client should be barred from any participation in the resolution of issues. The language used by the Government (see last sentence of page 4 to the completion of first paragraph of page 5) from Crowe is taken out of context and applied disingenuously. There, in assessing the due process considerations of criminal contempt proceedings the court concluded that switching titles and placing some limitations on the private attorneys role did not change the fact that said attorney was the prosecutor in that case. It did not, as the Government proffers, place a ban on any and all activity participation by opposing counsel.
The time has come for the light of justice to shine on the events that led to the improper seizure and detention of Mr. Higazy, and for all to know what mistakes were made here, such that a similar miscarriage of justice not reoccur.
Respectfully Submitted[Signature]
Rober S. Dunn, Esq.
cc: David Kelley
Deputy United States Attorney
(By hand)
U.S. Department of JusticeUnited States Attorney
Southern District of New YorkThe Silvio J. Moll Building
One Saint Andrew's Plaza
New York, New York 10007
March 12, 2002
BY OVERNIGHT MAIL
Robert S. Dunn, Es q.
225 Broadway
Suite 1401
New York, New York 10007
Re: Material Witness Abdallah Higazy
01 Misc. 1750 (JSR)
Dear Mr. Dunn:
At the Court's direction, I am enclosing a redacted copy of the Government's February 4, 2002 ex parte letter to the Court. Though the Court made it clear that the Government could redact the entire "Background" section of the letter, the Government has redacted only certain portions of that section. The redactions are necessary because the letter includes details of the Government's ongoing investigation.
Very truly yours,JAMES B. COMEY
United States AttorneyBY: [signature]
DAVID N. KELLEY
Deputy United States Attorney
Telephone: (212)637-1025
Enclosure
CC: Honorable Jed S. Rakoff
(by hand delivery/with enclosure)
______________________________
U.S. Department of JusticeUnited States Attorney
Southern District of New YorkThe Silvio J. Moll Building
One Saint Andrew's Plaza
New York, New York 10007
February 4, 2002
BY HAND DELIVERY TO BE FILED UNDER SEAL
Honorable Jed S. Rakoff
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street
Room 1340
New York, New York 10007
Re: Material Witness Abdallah Higazy
01 Misc. 1750 (JSR)
Dear Judge Rakoff:
The Government respectfully submits this letter, to be filed under seal, in partial response to the letter of January 28, 2002 that was submitted by Robert S. Dunn, the attorney for Abdallah Higazy. As explained in the ex parte letter that is enclosed with this letter, Government attorneys did not make any misrepresentations to the Court during the course of the material witness proceedings involving Mr. Higazy, and there is therefore no need to institute contempt proceedings. As explained below, however, if such proceedings are instituted, Mr. Dunn should not be permitted to participate in the prosecution or investigation of the case, because he has an interest in its outcome. For the same reason, Mr. Dunn should not be permitted to participate any further in the process by which the Court determines whether to institute contempt proceedings. Because that is the Government's position, [By hand] Proposed redaction not approved JSR [for following phrase] and becaus there is an ongoing investigation relating to the discovery of the aviation radio at the Millenium Hilton, the the Government's response to the concerns raised by the Court during the January 18, 2002 telephone conference, and to the charges raised in Mr. Dunn's January 28 letter, is being submitted ex parte, in a separate letter. This letter, a copy of which is being sent to Mr. Dunn, addresses only the propriety of Mr. Dunn's participation in the process initiated by the Court on January 18.
Background
On December 17, 2001, Mr. Higazy was arrested as a material witness in connection with the Government's investigation of the September 11, 2001 terrorist attacks. The material witness proceedings were terminated on January 14, 2002. At the start of a telephone conference on January 18, 2002, the Court stated that it was concerned that the Government may have made a material misrepresentation during the course of the material witness proceedings. (1/18/02 Tr. 2). At the conclusion of the conference, the Court directed Mr. Dunn to make a submission, to be filed under seal, "indicating what inquiries [he] believe[s], if any, it would be appropriate for the [Clourt to make and the form [he] believe[s] such inquiries should take and the legal basis for the [Clourt making such inquiries." (Id. at 15). The Court also directed the Government to file a response. (Id.).
Mr. Dunn made his submission on January 28. In it, he charges that "material misrepresentations and other improper unethical conduct permeate the record herein" (1/28/02 Ltr. 5); he asks the Court to hold "hearings to determine exactly who is responsible[,] and to what extent, for the material misrepresentation[s]" (id. at 8); and he requests that, if "any violation occurred," the Court "sanction [the] participants for improper conduct" (id. at 9) .
As explained in its ex parte letter, the Government did not engage in any misconduct during the course of the material witness proceedings, and certainly did not make any misrepresentations to the Court. As explained below, Mr. Dunn should not be permitted to serve as a "private prosecutor" in connection with the Court's inquiry.
Discussion
During the January 18 telephone conference, the Court stated that it was looking into the question whether the Government had made a material misrepresentation "pursuant to [its] contempt powers or otherwise." (Id. at 2). In his January 28 submission, Mr. Dunn has alleged that the Government did make material misrepresentations to the Court, and, as a bractical. matter, has asked the Court to institute contempt proceedings.
Contempt can be civil or criminal. In a case of civil contempt, "an uncooperative litigant [i]s incarcerated [or fined] until he complie[s] with a specific order of the court"; in a case of criminal contempt, "a litigant [i]s punished for an affront to the court by a fixed fine or period of incarceration." Int'l Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 840 (1994) (Scalia, J., concurring) (citing Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-44 (1911)). Under that standard, a material misrepresentation to a court, if it is a contempt, would appear to be a criminal contempt. See 18 U.S.C. § 401(1).
If a judge determines that a criminal contempt proceeding should be instituted, he may not simultaneously judge and prosecute the contempt, American Airlines, Inc. v. Allied Pilots Assoc., 968 F.2d 523, 531 (5th Cir. 1992); the judge is obligated to refer the matter to a prosecutor. Under some circumstances, the prosecutor may be a private attorney.* Under no circumstances, however, may the prosecutor be a private attorney with an interest in the litigation that gave rise to the contempt proceeding. Exercising its supervisory power, the Supreme Court so held explicitly in Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787 (1987). Following that decision, various courts of appeals have reversed contempt convictions where the prosecutor appointed by the court had an interest in the outcome of the contempt proceeding. See F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1140-42 (9th Cir. 2001) (attorney who prosecuted contempt represented party litigating against contemnor in civil case that gave rise to contempt proceeding); Crowe v. Smith, 151 F.3d 217, 227-29 (5th Cir. 1998) (attorney who prosecuted contempt represented parties litigating against parties represented by contemnors in civil case that gave rise to contempt proceeding), cert. denied, 526 U.S. 1158 (1999); In re Yanks, 882 F.2d 497, 497 (11th Cir. 1989) (per curiam) (attorney who prosecuted contempt against debtor was attorney for bankruptcy trustee, who litigated against debtor in bankruptcy proceeding that gave rise to to contempt proceeding).
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* In the first instance, a court should "request the appropriate prosecuting authority to prosecute [a] contempt action [ ]." Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 801 (1987); see, e.g., D'Oranqe v. Feely, 959 F. Supp. 631, 638 (S.D.N.Y. 1997) (Motley, kl.)-. The court "should appoint a private prosecutor" only if the prosecuting authority declines the request. Young, 481 U.S. at 801; see, e.g., United States v. Terry, 806 F. Supp. 490, 492 (S.D.N.Y. 1992) (Ward, J.). A district court may not appoint "a private attorney . . . to prosecute . . . contempt charges" when "the appropriate prosecuting authority . . . ha[s] . . . not declined to prosecute the charges." United States v. Vlahos, 33 F.3d 758, 762 (7th Cir. 1994).
The principal basis for the Supreme Court's decision in Young is that a criminal contempt proceeding is "'between the public and the defendant," and that a private attorney appointed to prosecute such an action "represent[s] the United States." 481 U.S. at 804 (quoting Gompers, 221 U.S. at 445). For that reason, "[a] private attorney appointed to prosecute a criminal contempt [must] be as disinterested as a public prosecutor." Id.
Mr. Higazy's attorney, Robert S. Dunn, is obviously not disinterested, since Mr. Higazy stands to benefit from a finding of Government misconduct. Indeed, he stands to benefit from the mere institution of a contempt proceeding, whatever its result. Mr. Higazy is a potential plaintiff in a civil lawsuit relating to his arrest and incarceration. (In fact, according to media reports, Mr. Dunn has already stated that he may file a lawsuit on Mr. Higazy's behalf. See, e.g., Robert F. Worth, Egyptian Seeks An Apology, And May Sue, N.Y. Times, January 21, 2002, at B3.) As in Young, therefore, a contempt prosecution may "promise [ ] financial or legal rewards for the private client." Young, 481 U.S. at 805. And as in Young, the criminal investigation could be used "to gather information of use" in a civil lawsuit. Id. at 806.
Mr. Dunn has been given the opportunity to express his view on whether the Government has engaged in any wrongdoing and to suggest what steps should be taken by the Court. He has availed himself of that opportunity, submitting a nine-page letter on January 28 in which he essentially urges the Court to institute contempt proceedings. The Government's view is that the reasoning of the Supreme Court's decision in Young precludes Mr. Dunn from playing any further part in the process by which the Court determines whether to institute contempt proceedings, and that the holding of Young precludes Mr. Dunn from participating in the investigation or prosecution of any contempt case that is instituted. In this connection, the Government notes that, for purposes of the rule set forth in Young, prosecutorial functions are defined broadly. See Crowe, 151 F.3d at 227 ("[T]he argument that [the attorney appointed by the court] was not actually acting as a prosecutor -- in the sense that he only investigated and presented the evidence, leaving to the judge and defendants the entirety of the legal argument -- is of no moment in this context.").
Conclusion
Since a contempt proceeding is between the United States and the contemnor, Mr. Higazy will not be a party to any such proceeding. Since Mr. Higazy stands to benefit from the institution of a contempt proceeding, and to benefit even more from a finding of contempt, his attorney, Mr. Dunn, has an obvious interest in the decision whether to institute any such proceeding, in the conduct of the proceeding (if one is to be instituted), and in the result. [By hand] Proposed redaction not approved JSR [for following sentence] And since the Government's investigation concerning the discovery of an aviation radio in Mr. Higazy's hotel room is ongoing, non-public facts discovered during the course of that investigation that bear upon the question whether Government attorneys made material misrepresentations to the Court should not at this time be disclosed to members of the nublic, including Mr. Hiqazy and Mr. Dunn. For all these reasons, Mr. Dunn should not be permitted to participate any further in the process by which the Court decides whether to institute contempt proceedings, and, if contempt proceedings are instituted, he should not be permitted to play any role in the investigation or propecution of the case. Consistent with its view that Mr. Dunn should not play any further role in this matter, the Government is filing the remainder of its submission ex parte, in the form of a second letter of today's date that is enclosed with this one.
Respectfully submitted,JAMES B. COMEY
United States AttorneyBy: [Signature]
DAVID N. KELLEY
Deputy United States Attorney
Telephone: (212) 637-1025
Enclosure
cc: Robert S. Dunn, Esq.
(by overnight mail/without enclosure)
[By hand] Redacted and Unsealed
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1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------ x
In re the Application of the
3 United States for Material 01 Misc. 1750 JSR
Witness Warrant, Pursuant to
4 18 USC 3144, for Material
Witness No. 38.
5 ------------------------------ x
New York, N.Y. 6 March 18, 2002
2:15 p.m.
7
Before: 8
HON. JED S. RAKOFF,
9
District Judge
10
11 S E A L E D
12
13 APPEARANCES
14 JAMES B. COMEY
United States Attorney for the
15 Southern District of New Y ork
BY: DAVID KELLEY
16 EDWARD O'CALLAGHAN
DAN HIMMELFARB
17 Assistant United States Attorneys
18 ROBERT DUNN
Attorney for Witness
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24 25
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1 THE COURT: In re material witness No. 38 Abdallah
2 Higazy. Please state your name.
3 MR. KELLEY: David Kelley. With me are Dan
4 Himmelfarb and Ed O'Callaghan, Judge.
5 MR. DUNN: Good afternoon, your Honor, Robert Dunn
6 for the material witness.
7 Your Honor, a colleague of mine, Mr. Oliver Smith is
8 in court today,
9 THE COURT: Is he a member of the bar?
10 MR. DUNN: Member of the bar and admitted to the
11 Southern District, on the CJA panel as well.
12 THE COURT: OK.
13 MR. KELLEY: Your Honor, if I may, I hadn't met the
14 gentleman until a few moments ago, but until now and
15 continuing to this point he has never met the witness that is
16 the subject of this proceeding, and that concerns me because
17 this is a sealed proceeding, but also --
18 THE COURT: Yes.
19 MR. KELLEY: If I may finish, it has also been a
20 sealed proceeding for many weeks now, and I am concerned about
21 what if any disclosures have been made to this gentleman.
22 THE COURT: Mr. Dunn, what is the role of this
23 gentleman? I am sorry. Tell me his name again.
24 MR. DUNN: Oliver Smith.
25 THE COURT: It's too complicated a last name. That
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1 is why I couldn't remember it.
2 MR. DUNN: I can understand that, sir. Actually,
3 sir, we have an appointment after the close of this, a state
4 matter, so he accompanied me up here just for the purposes of
5 being with me while this matter is addressed, until such time
6 as we were going to attend our next appointment. I have
7 shared nothing with him. It is my understanding -- I know the
8 court is keeping these matters under seal out of an extreme
9 caution, I would imagine.
10 THE COURT: There may come a point, and it is one of
11 the things we need to discuss today, as to whether or not
12 there should at some point be an unsealing. But that hasn't
13 happened yet and I think, with great apologies, Mr. Smith, we
14 will have to ask you to go outside and wait till this
15 proceeding is over.
16 MR. SMITH: Fine.
17 THE COURT: That doesn't excuse you from appearing
18 before me on some good matter hereinafter.
19 MR. SMITH: No problem.
20 (Mr. Smith excused)
21 THE COURT: Let me confirm that this proceeding today
22 is in a sealed courtroom and the transcript will similarly be
23 sealed, with copies only available to counsel for the material
24 witness and counsel for the government and the court, except
25 upon further order of the court.
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1 I should also note that in that regard the government
2 originally submitted certain material to the court ex parte,
3 but in a telephone conference that we had a few days ago, I
4 directed the government to provide Mr. Dunn with all but the
5 factual portion of that submission, and the government then on
6 its own, I was glad to see, even provided most of the factual
7 portion as well to Mr. Dunn. [2 lines redacted] 8
9 Having said that, something that we will need to take
10 up at the close of this proceeding here today perhaps is the
11 degree to which any of this should remain under seal. The
12 court has kept these matters under seal because of a
13 possibility that there would be references made to matters
14 before an ongoing grand jury investigation and its
15 investigation of the September 11 terrorist attacks, and
16 therefore obviously very sensitive matter. At the same time,
17 the immediate issues that I think we are concerned with don't
18 relate to the ongoing grand jury investigation as far as I can
19 tell. But we will talk about that later.
20 I also should mention, Mr. Dunn, you would have been
21 permitted and are permitted if you wish to have Mr. Higazy
22 present here today. I take it you waive his appearance.
23 MR. DUNN: Yes, your Honor. 24 THE COURT: Now, to set the stage, so to speak, the 25 court is of the preliminary view that it was apparently
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1 seriously misled on two occasions in connection with the
2 detention of Mr. Higazy as a material witness, and the court
3 is trying to determine, in effect, what steps it should take.
4 Are the facts as they presently appear, and subject to
5 correction by counsel from either side. When the court first
6 heard this matter back in mid-December of last year, it was in
7 the context of Mr. Higazy having been arrested on a material
8 witness warrant, and the immediate question was whether he
9 should be detained without bail, and through his counsel he
10 made a strong proffer of reasons why he should be released on
11 bail such as to make it a less than obvious decision for the
12 court as to whether to release him or not.
13 An important factor, though, cutting against him
14 that he informed the court through counsel that he had
15 essentially no connection with a transceiver, if that's the
16 right word, a form of radio receiver that has relevance, among
17 other things, to airplanes, that the government alleged had
18 been found along with papers identifying him in a safe in a
19 room near the top of a hotel across from the World Trade
20 towers, a room that he had occupied from late August till
21 September 11. And the government informed the court that a
22 security employee of the hotel had repeatedly told the
23 government that the security officer had located this
24 transceiver in the safe in Mr. Higazy's hotel room when some 25 weeks after the September 11 events the hotel was being
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1 checked by employees in connection with things getting back to
2 some semblance of normality.
3 Since there was no obvious motive for the employee to
4 have lied, and since it was represented that he made the
5 statement on more than one occasion, the court inferred that,
6 notwithstanding Mr. Higazy's protestations of ignorance, that
7 he probably was not being candid with the court and that
8 therefore there was every reason to believe that he was not a
9 good bail risk. This was by no means the only factor in the
10 court's determination, but it was clearly a material factor.
11 So the court detained Mr. Higazy.
12 A second hearing was held about 10 days later,
13 because Mr. Higazy had been detained for only 10 days on the
14 government's representation that that is what they thought
15 they presently needed to present him to the grand jury,
16 although they qualified that with the possibility that he
17 would be further needed thereafter.
18 At that time, even though a tentative agreement had
19 been reached between counsel, the court, in fulfillment of its
20 own obligations never to detain anyone even in such a serious
21 matter as this without an adequate basis for doing so,
22 inquired about further developments and was told that in
23 connection with a polygraph test that had been started to be
24 administered to Mr. Higazy at his request, Mr. Higazy had
25 confessed to the FBI agent administering the polygraph test,
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1 that he, Mr. Higazy, in fact had possessed the transceiver,
2 and that indeed, according to the FBI agent as relayed to the
3 court by the AUSA, had been on the verge of signing a
4 confession. And the court, in reliance, among other things,
5 on those representations, concluded that the bail question
6 that had previously been somewhat close was no longer as close
7 and that indeed there was a question whether through his
8 counsel the witness had made false statements to the court.
9 The government was apparently of similar beliefs and they
10 charged Mr. Higazy with making false statements.
11 It then transpired that the employee had lied to the
12 government when he said that he had found the transceiver in
13 the safe in Mr. Higazy's room, and he subsequently entered a
14 guilty plea, and that was precipitated, that inquiry into the
15 employee's credibility was precipitated by the fact that a
16 pilot had come forth saying that the transceiver belonged to
17 him and that apparently for that reason the government then
18 released Mr. Higazy and dismissed the charge against him.
19 Those developments have tentatively convinced the
20 Court that there is no need for any further inquiry with
21 respect to what happened on the first occasion that this
22 matter came before the court, because whatever misleading
23 occurred of the court on that occasion was the result of some 24 third person, namely, this employee, having lied to the 25 government, and the government has taken action in response.
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1 I gather from some of the papers that Mr. Higazy may be 2 contemplating some sort of civil lawsuit but that is none of
3 my concern. I am concerned only with whether the court and
4 its processes were the victim of misleading. But the second
5 occasion on which Mr. Higazy was before the court still
6 presents, I think, some unresolved issues.
7 At the time Mr. Dunn, after speaking briefly with his
8 client, asserted that his client still was protesting that the
9 transceiver was not his -- a protestation which now with
10 hindsight appears to have been accurate -- and that he had
11 been in effect verbally threatened during the time that he was
12 alone with the FBI agent, who was taking, or administering
13 polygraph test.
14 This much I think we know, subject to hearing from
15 counsel, and that is that either Mr. Higazy did not confess to
16 the FBI agent, in which case the FBI agent made a
17 misrepresentation to the court, via the AUSA, or, more likely,
18 a false confession was obtained, which still had the effect,
19 of course, of misleading the court but would not have involved
20 the same intent on the part of the agent. And at a minimum,
21 one would think that some explanation would be forthcoming as
22 to how a false confession could have been obtained. But none
23 has been offered yet in any of the papers from the government.
24 Legally I think the situation is as follows: If the
25 FBI agent lied to the government knowing the government would,
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1 in reliance on that, present that lie to the court, then there
2 may well be a basis for the court recommending some action,
3 either the pursuing of an obstruction of justice charge by the
4 government or the institution by the court itself of a
5 contempt proceeding, in which case I would unquestionably
6 appoint some third person as a special prosecutor. If, as I
7 am hypothesizing is more likely, the FBI agent accurately 8 recorded what words were coming out of the mouth of the
9 witness but those words were the result of coercion or deceit,
10 then there would still be the issue of possible contempt or,
11 short of that, the need for the court to exercise its
12 supervisory powers to inquire into what led to this misleading
13 of the court in a very serious matter.
14 I have reached no conclusions about any of this. My
15 tentative thought is that given that I don't know very much
16 about what went on between the FBI agent and Mr. Higazy at the
17 time of this polygraph, the appropriate thing would be for the
18 court to take testimony from, I think, the only four people
19 meaningfully involved, which would be Mr. Higazy, Mr. Dunn,
20 the agent who administered the polygraph, and the AUSA to whom
21 that agent reported, and then reach a conclusion based on that
22 whether to recommend any further action or not.
23 I am also tentatively of the view that the taking of
24 that testimony should be sealed, in camera, and possibly ex
25 parte, with Mr. Dunn and Mr. Higazy present alone on one
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1 occasion and the FBI agent and the AUSA present and one on
2 the other occasion, so as to maximize the protection on the
3 one hand of attorney-client privilege of Mr. Higazy and on the
4 other hand of grand jury secrecy of the government. But I
5 haven't made any final determination as to any of this.
6 I give you that, if you will, as the state of
7 thinking on this and let me hear now from the government and
8 then counsel for the witness.
9 MR. KELLEY: Your Honor, if I may, and this is the
10 first time I have appeared in this matter, but I will say, and
11 think it becomes clear from our papers, that obviously the
12 government is terribly troubled by how this case unfolded. It
13 is horribly unfortunate. It is the nightmare that we have
14 all experienced as prosecutors, hoping it would never come
15 true, and this is that instance where it did come true.
16 On the other side of the coin, this was a nightmare
17 that was cut off pretty quickly, recognizing that what I call
18 quickly here was an eternity for the witness who was sitting
19 in jail for several weeks. We have taken, I think, prudent
20 and appropriate steps. The moment we had an inkling that
21 there was a weakness to the case we reviewed it immediately.
22 We took steps to investigate it very aggressively, which
23 resulted in the filing of charges against the hotel employee,
24 as you well know.
25 THE COURT: Let me interrupt just to ask a question.
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1 I agree with everything you have said and I think the
2 government is to be applauded for the way it proceeded in a
3 number of different respects. [By hand] Proposed redaction not approved JSR [for lines 3-22] What is notably absent from
4 your papers, however, is any indication of any investigation
5 of what went on with respect to the FBI agent who was taking
6 the polygraph test.
7 MR. KELLEY: I appreciate that, your Honor, and what
8 we were focusing on was what was the meat of our investigation
9 at that time. If you look at it in terms of a triage, the
10 agent is going to be there. What we needed to do was get to
11 the bottom of what was possibly a transient situation with the
12 employees, not giving them the opportunity to exchange
13 stories, get their ducks in a row, so to speak. So at the
14 time we were confronted with the evidence of the radio and,
15 secondly, with the concerns of the court, and we were
16 literally running down to the Millennium Hotel to cordon it
17 off. So at the time our focus was that.
18 We have continued our investigation, which I would
19 prefer not in the presence of Mr. Dunn to apprise the court of
20 the status of that investigation, but it is continuing.
21 THE COURT: I don't need to know it, so I don't
22 suppose he needs to know it.
23 [Lines 23-25 redacted]
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18 On the other hand, what occurs to the court, and I
19 don't know whether it has been looked at by the government or
20 not, is this: It is well known that polygraphy is of
21 questionable scientific validity. The federal courts will not
22 admit polygraph testing. That was true even before Daubert
23 and now I think it is more likely to be, if anything,
24 reinforced by the Supreme Court's view of the requirements of
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1 in certain circumstances the FBI may see it as an opportunity
2 to place a witness in a position where they may be able to
3 obtain statements from him that they would not otherwise be
4 able to obtain.
5 As I understand what may have happened here, and
6 again, it may be inaccurate, the witness of course was the one
7 who suggested the polygraph test. That, there is no question
8 about. It happened in my own court the first time he was
9 here. But what I understand happened next was that he was
10 told that he could not have his counsel present during the
11 polygraph testing, in accordance with, quote, standard FBI
12 practice, close quote.
13 MR. KELLEY: Which, your Honor, if I may, was also
14 something expressly agreed to by the witness.
15 THE COURT: Yes. I have some questions about the
16 motivation of that alleged standard policy. But in any event,
17 he then agreed to that, as you said, and he went in without
18 his counsel. And at some point it no longer became the
19 administering of a polygraph test, because again, as I
20 understand it, statements were made by the witness that the
21 FBI agent either did reduce to a separate statement form or
22 was preparing to reduce to a separate statement form, in the 23 vernacular a confession, and that when the FBI agent came out
24 of the room he indicated that a confession had been given. So
25 it had gone beyond the administering of a test, and one would
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1 want to know, for example, whether this FBI agent is trained
2 to take advantage of that kind of situation.
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4 The procedure -- and this was not something with
5 which I was specifically familiar, as specifically familiar as
6 I have since become, administering polygraphs. When I walked
7 into it I thought, I have seen the list of questions, some six
8 questions, I am going to plug this stuff up to you and ask you
9 some questions and you're done. That is not what happens.
10 What happens is, you have a rather lengthy pretest
11 interview, taking some pedigree and biographical data, some
12 explanation as to how the test operates, and in fact I was
13 given an explanation that lasted about 15 to 20 minutes and I
14 was told that that explanation was a shorter version of what
15 the examinee is provided. It then goes into the testing, where
16 several questions are asked, I think somewhere in the
17 neighborhood of six to eight, only two of which are the
18 salient ones. The others are essentially control questions.
19 Those series of questions are asked in a series on three
20 different occasions while he is hooked up to the equipment,
21 and each one is called a chart. A chart is prepared as a
22 result of the examination on each series of questions. The
23 questions remain the same on each chart, the order is changed.
24 So that takes a substantial period of time. That is followed
25 up by what is called a post-test interview.
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22 THE COURT: Clearly no one is suggesting ill will or
23 malevolence. The concern is, the very nature of this
24 investigation must place on any agent a very strong desire to
25 get to the bottom of the situation as best he can. The danger
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1 of course, which, as you say, is everyone's nightmare and here
2 that has occurred, is that false confessions or false
3 information is extracted, and I certainly observed, even from
4 brief observation of Mr. Higazy when he was in my
5 courtroom, that he was, understandably, very nervous and
6 distraught, as anyone would be if they had just been arrested.
7 But what we have here is, as near as one can tell, a story
8 being made up, and the question is what led to that occurring,
9 and did it involve in any respect improper practices. [By hand] Proposed redaction not approved JSR [for lines 10-21]
10 MR. KELLEY: Let me say a couple more things -- well,
11 let me address that first.
12 I think it is noteworthy, Judge, that his statements
13 to the polygrapher in the post-interview, as opposed to the
14 polygraph itself, were not statements that we relied on, and
15 it was not statements that we used in the complaint, it was
16 not statements that we presented to the court --
17 THE COURT: The only person who relied, I agree with
18 you, was me. That's why we are here.
19 MR. KELLEY: I recognize that. But the point is,
20 Judge, we didn't come in and say ah-ha, this fellow lied and
21 we rely on that.
22 THE COURT: No. My recollection of the criminal
23 complaint was that it was much more premised on the difference
24 between what the hotel employee had said and what the witness
25 had said.
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1 MR. KELLEY: Not only much more, it was completely.
2 THE COURT: That is even much, much more.
3 MR. KELLEY: The other part of it, Judge, is, not
4 only was he orally informed at the outset that you can stop
5 this, you don't have to do this, you don't have to answer all
6 the questions, you can pick and choose what you want to
7 answer, you can consult with your lawyer, he's right outside,
8 he told him orally, he read the form, he signed the form, not
9 once did he say I'm done with this, I want to see my lawyer.
10 We don't have any allegations that he was prevented from that.
11 What we do have, in fact, after he was done and spoke with his
12 lawyer for an hour, we didn't hear any allegations. We didn't
13 hear any allegations when we spoke with him the next morning.
14 It was not until the next week that the conversation was, he
15 felt intimidated by the guy and he wants me to sit in there,
16 we want to go forward with the polygraph but we want to do it
17 under somewhat different conditions.
18 That draws me to another question that the court
19 asked, why does the polygrapher do that, and I understand the
20 science vaguely but it makes sense, and the reason is, when
21 you are doing a polygraph, the effort is to have a pure
22 environment, without any distractions, because what is being
23 monitored, obviously, is the person's biochemical and physical
24 reactions to the stress one feels in lying. To have somebody
25 else in a room I understand to be a distraction. It might
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1 give him some sense of comfort that wouldn't cause the
2 reactions one typically would have in lying. So it may come
3 out with an inaccurate test, to the extent one can use the
4 word "accurate" when talking about a polygraph anyway.
5 I say that only half jokingly, talking about the
6 accuracy of a polygraph. We don't use it, again, as a
7 conclusive type of thing. It is an investigative tool.
8 Sometimes it's helpful, sometimes it is not.
9 THE COURT: This gets beyond what we need to deal
10 with in this hearing, for what it is worth. The overwhelming
11 majority of serious independent studies of polygraphy have
12 cast grave doubt on its scientific validity and reliability,
13 and that doesn't mean it isn't a good investigative tool in a
14 different sense, because the public, or large portions of the
15 public believe it works, and, therefore, if someone thinks it
16 works and you hook him up, you may get the truth out of him,
17 or if they are lying they may quickly confess. The whole
18 thing in a way is built, however, on taking advantage of a
19 misimpression.
20 I have no reason to believe that that is the FBI's
21 belief. I have every reason to believe that they think it is
22 a useful investigative tool in the sense of it tells you a
23 little something. But what bothers me here about the
24 situation here is that the agent, knowing that he is dealing
25 at best with a modest investigative tool whose results even
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1 taken most favorably are not to be given great weight, and
2 knowing that he is dealing with an individual who is nervous
3 and under stress in any event, having then informed the
4 individual, as I gather from what you said he did, you failed,
5 you lied --
6 [Lines 6-9 redacted]
7
8
9
10 THE COURT: But it really transformed it, and that is
11 what I am concerned about, into all uncounseled interrogation.
12 MR. KELLEY: Two points. The first one, on the
13 counsel one. He had access to his counsel and there are no
14 allegations that he was prevented from having access to his
15 counsel.
16 But let me also back up. We need to focus, I think,
17 on the fact that in the first instance the representation by
18 the polygrapher to the assistant that was ultimately reported
19 to the court was an accurate one: He failed the test. So we
20 are not dealing with a misrepresentation. I guess we are just
21 dealing with concerns about the manner in which the test may
22 have been conducted.
23 THE COURT: Well, no. We have the transcript here,
24 but I believe the representation to the ccmrt was in words or
25 substance that he has confessed.
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1 [Lines 1-10 redacted] 2
3
4
5
6
7
8
9
10
11 THE COURT: Let's just quickly look at the
12 representation, because I think this was December 28.
13 MR. KELLEY: Actually, Judge, I think it would have
14 been January 8.
15 THE COURT: I am sorry, the 7th? Is that right?
16 MR. KELLEY: Forgive me, your Honor, I was wrong.
17 The test was on the 27th so this would have been the
18 appearance on the 28th, and it is on page 10, and perhaps page
19 9.
20 THE COURT: No, here it is. It starts at the bottom
21 of page 10. This is beginning at line 17.
22 "Mr. Himmelfarb: Your Honor, I think there are some
23 developments that bear not only on the question of whether it
24 would now be appropriate to set bail, and our view is that it
25 wouldn't, but also by way of explanation as to why this
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1 process is taking a little longer than ideally it might. I
2 want to be clear, the government shares the court's concern
3 that a material witness should not spend more time in jail
4 than is absolutely necessary. Immediately before the
5 witness's arrest, he was interviewed by FBI agents and denied
6 that this radio was his. And the fact that we believe it
7 clearly was his, it was found in his hotel room with his
8 passport in a safe, combined with the denial of that fact, we
9 thought, made this somebody who should be held."
10 Let me pause at that point to say, that is, I think,
11 a fair and accurate summary of the same reasoning that led the
12 court to hold the witness the first hearing. But now let's
13 go on back to, we are now at page 11, line 6:
14 "Since that time the witness has abandoned his
15 contention that it's not his radio. He has admitted it is his
16 radio, and he has provided, I believe, about three different
17 versions of where it came from. Mr. Dunn informed the court
18 earlier that at 9:00 last night we decided to terminate
19 temporarily the polygraph, and that's really where we were
20 more or less at that point. So this is an evolving process.
21 "The court: If he's admitted it's his radio, then I
22 wonder whether -- and this is normally a concern of just the
23 prosecutor, but there is a judicial concern here. I wonder,
24 then, whether he may have made false statements to the court
25 through his counsel, of course, and/or to the Pretrial
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1 Services, and Pretrial Services is in effect an arm of the
2 court. I don't express any opinion on that. I just raise
3 in that as an issue because it seems to me, if nothing else, it
4 further bears on the appropriateness of denying him bail if
5 the representations previously made were materially
6 inaccurate."
7 So I will end at that point.
8 So, as I indicated earlier today, what happened was
9 that Mr. Himmelfarb represented flat out that the defendant
10 had now admitted it was his radio, and then the court, in
11 reliance on that, concluded that bail should be more obviously
12 denied than had been the case earlier. I assume, because I
13 have absolutely no reason to believe the U.S. Attorney's
14 Office has been anything but accurate and forthright
15 throughout these proceedings, that that was a fair statement
16 of what Mr. Himmelfarb had learned from the agent.
17 MR. KELLEY: That is my point, yes, Judge.
18 THE COURT: So what the agent got was a confession.
19 He got three versions of where it came from, but he got a
20 flat-out confession that it was Mr. Higazy's radio, which we
21 now know, as far as the present state of our knowledge is
22 concerned, that that was not the case.
23 MR. KELLEY: I also submit to your Honor that not
24 only was it a fair representation by Mr. Himmelfarb, I think
25 it also was a representation, a truthful representation by the
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1 polygrapher to Mr. Himmelfarb. That brings you back to how it
2 it that he acquired that information, which I think becomes
3 more the focus of the court. I am just trying to narrow the
4 issues here from one of false statements to one of potential
5 so-called misbehavior.
6 THE COURT: I can't totally exclude the possibility
7 that the FBI agent lied to Mr. Himmelfarb but I don't think it
8 makes much sense. As I indicated earlier, the far more likely
9 possibility is that he accurately reported a false confession
10 that had been obtained and the question was how was it
11 obtained.
12 [Lines 12-22 redacted]
13
14
15
16
17
18
19
20
21
22
23 THE COURT: You have correctly summarized where we
24 are at and you have correctly put your finger on the issue,
25 but you have also correctl identified the fact that the
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1 victim of the misrepresentation, the immediate victim was the
2 court.
3 MR. KELLEY: And I can address the issues that flow
4 from that, if I may. You mentioned supervisory powers but I
5 think what we are really talking about here is whether or not
6 this is something that would fall under the court's power of
7 contempt under section 401 of Title 18.
8 THE COURT: I think -- but let me hear you on that. 9 MR KELLEY: And whether or not the procedure that
10 one should follow under 401, which really falls into Federal 11 Rule of Criminal Procedure 42, whether or not the procedure
12 that the court has set forth is the appropriate one, but I
13 don't know that we really need to get there.
14 THE COURT: You see, the way I look at it is this.
15 While I suppose theoreticall the government could initiate a
16 contempt proceeding on its own -- but then it would have to be 17 approved by the court -- a much more likely scenario is for a
18 court to institute a contempt proceeding. If it is a civil
19 contempt proceeding and done in the presence of the court, the 20 court can do it right then and there. If it is a criminal
21 contempt proceeding, other things come into play. But I don't 22 know enough, and certainly didn't know enough at the beginning 23 of this proceeding this afternoon, to know even whether or not 24 I would seek to institute a contempt proceeding. I do believe 25 the court has the inherent power to hear testimony to
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1 determine whether or not it should even begin a criminal
2 contempt proceeding. It cannot be the law that that
3 determination is left totally to the executive when the
4 executive is the potential defendant.
5 MR. KELLEY: Well, Judge, let me, first off, I
6 disagree with the court, most respectfully, on part of that,
7 because the inquiry itself can be tantamount to a contempt
8 proceeding. But I can come back to that later. You know, I'm
9 also in a sense -- more than in a sense. We are, like the
10 court, victims of some of what transpired here. Certainly we
11 were the victims of the false statement and yet we were the
12 ones who prosecuted it. Now, if there is any misconduct here,
13 not only was the court the victim, as you have indicated, but
14 we too were the victim of misbehavior, if in fact there was
15 misconduct or misbehavior. We in the normal course, not that
16 this is a normal case, but we investigate the government,
17 agents, prosecutors, all employees, all the time, and we
18 prosecute them.
19 THE COURT: That is true, but I think that is rarely
20 done pursuant to the contempt power. I think what you are
21 confusing is two different things. There are many countries
22 where courts do not have the contempt power. They are almost
23 exclusively dictatorships and other countries in which the
24 executive has overwhelming control of the powers of state.
25 The historical role of contempt going back to English times
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1 has been so that the court can indicate its own authority and
2 not have to rely on the executive or the legislature.
3 MR. KELLEY: The Supreme Court obviously has
4 recognized that throughout our history but they have also
5 recognized some limits on it, and where it is limited is where
6 it is handed off to the executive branch because it is the
7 executive branch's duty, as we all know what Berger says, of
8 seeking justice. We are the arm that goes and vindicates not
9 only the court but the public, and the public's right for a
10 court to be run unobstructed.
11 THE COURT: Yes, but looking at it now from a sort of
12 practical standpoint, it is not the easiest thing for the
13 government to investigate an FBI agent in the context where
14 the government is simultaneously making use of the agent in
15 conducting what is unquestionably the single-most important
16 investigation --
17 MR. KELLEY: One of countless agents, Judge, and I am
18 sure the court may be aware, two or three weeks ago we
19 prosecuted a DEA agent who was working for the government in
20 several investigations and we convicted him. So this is not
21 an unusual circumstance.
22 But before we get to the procedural issue I would
23 like to come back and focus on the substantive issue, whether
24 or not this is contempt. Certainly if an act is committed in
25 the presence of the court, as you have indicated, the court
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1 has the power to cite that individual for contempt, and there
2 is a whole range of remedies available for the court to
3 impose. The limits that I was talking about come into play
4 when it is not direct contempt but it is an allegation of
5 indirect contempt. Let me, if I may, walk through the
6 contempt statute. Title 18, section 401, has essentially
7 three contempt provisions. One is if somebody violates an
8 order of the court. We don't have an order that was violated.
9 The second is whether or not an officer of the court
10 essentially misled the court. The agent is not an officer of
11 the court. Which leads you to, with 401(l), the first
12 provision, which is whether or not there is misbehavior of an
13 person in the presence of the court
14 THE COURT: I am going to stop you before you get to
15 your third alternative, because it is not so clear to me that
16 the second alternative doesn't apply. Something that happens
17 all the time, regretfully, is a lawyer in a private lawsuit in
18 federal court will stand up and say I represent to the court
19 X, and then it turns out that X is false, and when you press
20 the lawyer you find that out a week later and you press the
21 lawyer and the lawyer said, Judge, that's what my client told
22 me, and I was simply representing what my client told me. It
23 is by no means clear to me that that doesn't constitute
24 contempt by the client.
25 MR. KELLEY: The cases actually, Judge, I believe,
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1 might say otherwise, that the officer of the court -- we use
2 that as a term of art. I stand up and make this
3 representation as an officer of the court. That has a
4 different meaning than 401(2). Cammer, 350 US 399, says even
5 lawyers aren't officers of the court. Rather, officer means
6 personnel, like marshals, bailiffs, clerks and judges, for
7 purposes of 401.
8 So that again brings me back, if I am right on that
9 and I believe I am, to the last provision, which is
10 misbehavior of any persons in the presence of the court, and
11 we don't have that.
12 That brings me to the second clause, which is, "or so
13 near thereto as to obstruct the administration of justice."
14 That clause has been interpreted on a few occasions even by
15 the Supreme Court and a couple of the circuits. "As near
16 thereto" has nothing to do with the relevancy of an action to
17 a certain proceeding, so that is not the consideration. The
18 consideration really, and it may be somewhat counterintuitive,
19 but the interpretation by the Supreme Court is geographical
20 proximity, which has been interpreted to mean areas of the
21 courthouse, the courtroom, and parts of the courthouse when
22 and where the court is in session.
23 THE COURT: Well, let me ask you this: Whether it is
24 under the contempt power or supervisory powers, is it your
25 assertion in that fairly though unfortunately routine
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x23ikmat 31 SEALED 1 situation that I have just described that if the lawyer a week
2 later in that civil suit stands up and says, Judge, all I can
3 tell you, I am embarrassed now because it's come out, the
4 statement was completely inaccurate but all I can tell you is
5 that it was my client who told me this, and the court has some
6 question in his mind as to whether it was the client who told
7 him this or also has a question in his mind whether assuming
8 it was the client who told him whether it is something that he
9 should recommend for prosecution or for sanctions or for
10 whatever, and then the judge says, so bring your client down
11 here, I'll put him on the stand and we will find out exactly
12 what the situation was, are you saying that is beyond the
13 court's power?
14 MR. KELLEY: No. What I would suggest is that that
15 was direct contempt. It was in the presence of the court.
16 THE COURT: No. The lawyer accurately reported, or
17 at least is saying he did, and, more often, 99 times out of a
18 hundred it turns out it was the client and sometimes the
19 client lied and more often than not he got mixed up.
20 MR. KELLEY: And I would suggest that it might amount
21 to a violation of 401(l) or it might amount to obstruction of
22 justice under 1001.
23 THE COURT: But, frankly, if I have the power in that
24 situation, which frankly hasn't been questioned before -- but
25 these are civil lawyers and what do they know.
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1 MR. KELLEY: Which is not to say that Rule 11 in the
2 civil context might give you a different parameter.
3 THE COURT: It is not a Rule 11 situation --
4 MR. KELLEY: Which shows you how much civil work I
5 do, at least recently.
6 THE COURT: If I could appropriately call down that
7 client in that situation I just described and put him on the
8 stand, it seems to me that same reasoning would allow me to
9 call the FBI agent and put him on the stand. It might be that
10 you are right that all I could do on the basis of that was
11 form a determination as to whether to recommend then that some
12 proceeding go forward or not. But I would find it
13 extraordinary that I wouldn't have the power when a
14 misrepresentation has been made to me that the attorney making
15 it says was a statement that he was merely an agent for, a
16 medium for, that I couldn't call that other person down.
17 MR. KELLEY: And I would submit if you saw it that
18 way, I think, number one, you have the possibility, number
19 one, if it was in the presence of the court, but I would
20 suggest if you were to proceed in that fashion and were
21 challenged, you might find that you would have to adhere to
22 the procedures under Rule 42, which has notice provisions,
23 order to show cause, and the like. The person would be
24 entitled to certain procedural safeguards such as the
25 appointment of counsel and the like.
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1 THE COURT: That might be.
2 MR. KELLEY: I think that you have those powers but
3 they are not unlimited, which is quite distinct and different;
4 from what happens in the esence of the court and that is
5 essentially unfettered when it is in front of the court.
6 THE COURT: I understand what you are saying and no
7 person should have unfettered powers, whether he is part of
8 the executive or part of the judicial branch or whatever. But
9 I find it hard to believe that a court doesn't have the
10 inherent supervisory powers to at least inquire as to what led
11 to the making of a material false statement in the court by
12 compelling the testimony of the person who admittedly made the
13 statement that was reported to the court. But I need to look
14 at some of those cases you talked about.
15 MR. KELLEY: Let me follow that argument, if I could,
16 and talk a little bit more about the substance and discuss a
17 little bit more of the procedure, and take only a few more
18 minutes.
19 THE COURT: Sure, certainly.
20 MR. KELLEY: The cases talk really about proximity,
21 and if I can cite a few, one being Nye v. United States, 313
22 US 30, which really lays out this physical proximity rule, the
23 geographical limits. And Farese v. United States, 209 F.2d
24 312, a First Circuit case. That in fact, I believe, if my
25 memory serves me, is a case where a lawyer essentially
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1 attempted to persuade a witness in a certain way outside, in
2 the courtroom hallway, and the court found that since, I
3 believe, it was immediately after the court session, because
4 the court wasn't in session and because it was out of the
5 court's presence, the court did not have the summary contempt
6 power and that it did not fall under 401 because it wasn't in
7 the presence of the court.
8 THE COURT: They have very short days up there in the
9 First Circuit.
10 MR. KELLEY: Certainly shorter than yours, Judge, I
11 am sure.
12 The other case is United States v. Welch, 154 F.2d
13 705, and Schmidt, 124 F.2d 177. These are all cases that
14 discuss it.
15 THE COURT: You see, I think the concern there, and I
1G need to read those cases so I am guessing, and I could be
17 completely wrong, but one could well imagine a concern that no
18 judge should be empowered to just become their own one-person
19 mini-investigative agency. This is an issue that is deeply
20 troubling the Republic of France just right now -- not that
21 that is binding precedent on me -- where the judges there have
22 essentially general investigative powers, or so they have
23 claimed, which has led them to investigate the, I can't
24 remember whether it is the premier or the president, but in
25 that glorious country they have both. The point is that you
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1 don't want to vest the judge with the power to go willy-nilly
2 issuing orders that I want to investigate X, I want to
3 investigate Y. I understand that completely and I understand,
4 therefore, that these cases which I have not read yet might
5 hold a fairly narrow view of it.
6 But this is a little different, it seems to me, not
7 from a contempt standpoint so much but from a supervisory
8 power standpoint. Here you have a highly material statement
9 explicitly made in reliance on what a government officer has
10 represented to the AUSA. It may be important whether the
11 agent knew it was going to be represented to the court or not.
12 I can see that would certainly be important from an
13 obstruction of justice analysis, but it may be relevant from a
14 contempt analysis as well, but the court absolutely relying on
15 that.
16 MR. KELLEY: But, Judge, you hit another good point,
17 which is, getting beyond the proximity -- and let me stay with
18 that for the moment because I don't think we get past that.
19 But the proximity we have here is a polygraph conducted not at
20 the direction of the court, not in order to aid the
21 proceedings before the court but in connection with the 911
22 investigation, in the U.S. Attorney's Office. Now, granted
23 the U.S. Attorney's Office for these purposes was on the fifth
24 floor where we have the whole floor. But I point that out to
25 show that that does not matter for purposes of the physical
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1 proximity.
2 THE COURT: understand that. I mean, when I was an
3 AUSA we were actually in the courthouse itself but we did not
4 feel ourselves subject to immediately being hauled into court
5 on a contempt issue.
6 MR. KELLEY: I thought the better of mentioning it
7 for fear of some sort of reprisal for dating you --
8 THE COURT: No, it was four other assistants and I in
9 the U.S. Attorney's Office in the 19th century -
10 MR. KELLEY: In any event, the other part that you
11 alluded to was the contempt, which would be essentially
12 criminal intent not only to engage in some sort of illegal
13 misconduct but the dual intent of having the product of that
14 be to disrupt or interfere with the administration of the
15 court.
16 THE COURT: Right, but that would be a reason, if I
17 concluded that there was no such intent, to not refer it for
18 contempt proceedings, but I couldn't know that until I heard
19 from the agent.
20 MR. KELLEY: It is our view, Judge, that we can't get
21 past the proximate issue for 401(l).
22 THE COURT: That is what I have to look at the cases
23 on.
[By hand] Proposed redaction not approved JSR [for lines 24-25] 24 Let me say this, before we leave it on that note. I
25 take it the government at a minimum would have no problems
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[By hand] Proposed redaction not approved JSR [for lines 1-17] 1 providing the court, on a strictly ex parLe basis but in
2 writing, with the further results of this continuing
3 investigation of this particular agent.
4 MR. KELLEY: I would have to give that some thought
5 but I think that -- that has been the route that we have taken
6 in this case. We have done that. I would think that we would
7 have to do that, that we would do that, but I would have to
8 give that a little bit of -- I hadn't really thought that
9 through. I had always thought that we would keep the court
10 apprised.
11 THE COURT: I would think that would follow from your
12 own theory.
13 MR. KELLEY: It does, your Honor. I don't want to
14 seem to be hedging but I want to think that through. I would
15 think we would do in this case as we have and are prepared to
16 do a little more. But I would think that we would apprise the
17 court of the results of our investigation.
18 THE COURT: I know you have more but we should
19 probably give Mr. Dunn a chance to be heard.
20 MR. KELLEY: If I may, Judge, on the importance also
21 of the procedures under Rule 42, and that is the procedures
22 follow for contempt. Really what we are dealing with is
23 42(b). 42(a) is direct contempt, which we are not dealing
24 with. 42(b) requires the court to refer to the prosecutor
25 agency, the U.S. Attorney's Office. I wanted to highlight it
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1 because you made mention of appointing a special prosecutor.
2 I think that would be completely inappropriate, if I may, to
3 do in this case. We investigate instances of misconduct and
4 allegations of misconduct and we prosecute them all the time.
5 We make referrals to the Office of Professional
6 Responsibility. When we find that we or the people, two
7 hundred some odd assistants are recused, we pass it to another
8 branch of the Department of Justice.
9 The cases, we cited some in our papers but there are
10 more cases that say that the failure to do that, give the U.S.
11 Attorney's Office the right of referral in the first instance
12 is reversible. Only after the U.S. Attorney's Office says we
13 are not interested or we are not doing it can the court
14 consider the appointment of a special prosecuPor, one who does
15 not have a special interest in the case.
16 THE COURT. I think there are cases going both ways.
17 Of course, the opportunity to commit reversible error is
18 always a temptation to any self-respecting court but I won't
19 let that cause me to purposely seek being reversed.
20 But getting serious, the issue, it seems to me, in a
21 way ironically is raised by a case that both sides cite that
22 at first I thought was clearly irrelevant, which is vital,
23 where the Supreme Court held that a lawyer in a civil suit
24 could not be appointed as counsel to prosecute a criminal
25 contempt arising out of a disobeying of an injunction that the
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1 court had ordered in the civil suit where the lawyer
2 represented the party seeking the injunction because of the
3 inherent conflicts it raised. I just wonder whether that
4 doesn't also apply in a situation like this.
5 MR. KELLEY: I think what you have in that particular
6 instance -- that was the holding, obviously. There is also
7 another part of it. I won't go so far as to say it was a
8 holding but certainly in dicta in that case, they mentioned
9 the fact that what should have been done was to make a proper
10 referral to the U.S. Attorney's Office in the first instance
11 and that wasn't done. What they did was say hey, by the way,
12 the judge is letting us investigate this and we will share
13 with you the fruits of that investigation.
14 THE COURT: The background is that the U.S. Attorney
15 was never undertaking the investigations. They viewed it as
16 essentially civil. These were trademark cases and what
17 ultimately happened was Congress passed the Trademark
18 Counterfeiting Act -- which I ultimately drafted -- to resolve
19 this problem.
20 MR. KELLEY: And I never litigated.
21 THE COURT: You are right it was dicta.
22 MR. KELLEY: The important thing to note, Judge, is,
23 obviously the U.S. Attorney's Office has in excess of 200
24 prosecutors who would be able to deal with this. You are
25 dealing with a small number of people who are so tied into it
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1 and they have essentially a financial interest in the case.
2 That is certainly not the instance here. We have our office,
3 we have OPR, we have other U.S. Attorney's Offices to which we
4 an refer the matter, and, frankly, we do this constantly. We
5 do it all the time. You look, in the wake of all the
6 independent counsel issues, why can't you let career
7 prosecutors do this even when there are certain concerns as
8 you have suggested.
9 THE COURT: Actually, I want to hear from Mr. Dunn
10 but I think on that point there is a lot to what you say.
11 MR. KELLEY: I want to make two last quick points and
12 I will shut up.
13 When you look at some of these cases, and I am
14 referring now to the tentative suggestion by the court of
15 conducting some sort of hearing, and I have mentioned a couple
16 of times the safeguards of procedure to be followed under
17 42(b), the court ought not put itself in the position, for
18 effectiveness and appearances of being the judge, the
19 prosecutor and the jury. [By hand] Proposed redaction not approved JSR [for lines 19-25] I would suggest to you that that
20 ought to be avoided in this case, and let the prosecuting
21 authority continue to conduct the investigation, which,
22 frankly, up to this point has been quite successful once we
23 identified that there was misconduct. We already have one
24 conviction. We are continuing the investigation and we hope 25 to have additional results.
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[By hand] Proposed redaction not approved JSR [for lines 1-10] 1 But insofar as the court suggests that you are going
2 to call people in, for instance, the agent, you know, once you
3 do that you are, I think, limiting the likely success of the
4 investigation because you are automatically sending off all
5 sorts of alarms on the person who is now going to want -- he
6 is entitled to notice, he is entitled to an attorney, he
7 entitled to Fifth Amendment privileges, and it may ultimately
8 be a fruitless event that would stymie other opportunities to
9 pursue the instances attendant that caused the court so much
10 concern.
11 THE COURT: All right. Let me hear from Mr. Dunn.
12 MR. DUNN: Your Honor, you might have to forgive me,
13 it has taken so long for me to be brought into the fray that
14 my attention span may have wandered a bit during the course of
15 my waiting.
16 In any event, the first thing that I want to address
17 to the court is my confusion with regard to why this matter
18 remains one under seal. It would seem to me that there are a
19 lot'of questions that remain unanswered, but one thing that is
20 abundantly clear is that at this point the transceiver, radio,
21 Mr. Higazy and the actual owner of the transceiver, none of
22 those are the subject of grand jury proceedings with regard to
23 9/11. [Lines 23-25 redacted] 24 25
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[Lines 1-7 redacted] 1
2
3
4
5
6
7
8 THE COURT: I don't know whether there is or isn't,
9 but I would think there is plenty of just common sense reason
10 to believe there would be. For example, and now I am relying
11 not on anything in the papers of the parties but really what I
12 read in the newspapers, which is, if I understand what
13 happened when the employee entered his guilty plea, he
14 admitted he had lied when he said that the transceiver was in
15 the safe, but he asserted -- I may have this wrong, relying
16 here on hearsay, in the sense that it appeared in the
17 newspapers, and my own memory, which with every day becomes
18 more suspect. But my recollection is that he still asserted,
19 the employee, that the receiver was in the room that your
20 client had occupied. I could have that wrong, but assuming
21 arguendo that is true. Whereas the pilot that came forward,
22 my recollection from the papers, said that he was in a
23 different room. But it could be that there is an ongoing
24 investigation, including an ongoing investigation relating to
2S your client. I have no knowledge of that. I am just talking
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1 aloud.
2 MR. DUNN: If I may be permitted to indulge myself,
3 just thinking aloud, I don't know either. I know that when
4 the item was alleged to be found in the safe of a person who
5 was from a Middle Eastern country or of Arab or Middle Eastern
6 descent. It was automatically perceived to be of such great
7 moment that he was determined to be held a material witness
8 regardless of the transceiver, regardless of anything else,
9 any information to the effect that such a device was used in
10 any manner with regard to the events of 9/11. But it is my
11 understanding, however, that once an American citizen came
12 forward and indicated no, that that radio was mine, my
13 understanding is that he was allowed to go back home to Ohio,
14 he was not held as a material witness
15 THE COURT: But this sounds, Mr. Dunn, like the civil
16 suit that you may be pursuing. I think there is a question of
17 whether this should remain under seal and I am willing to talk
18 more about that. But before we reach that --
19 MR. DUNN: OK, fine, I will move on, Judge.
20 THE COURT: We will come back to that because, as I
21 indicated in the beginning, that is an issue that I wanted to
22 take up today.
23 What the government is -- there is the carrot and the
24 stick. The stick is that they say I have no power to conduct
25 this hearing. I am a little skeptical of that but I haven't
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1 read all their cases, maybe they are right. But the carrot
2 is, although Mr. Kelley hasn't quite committed, he seems to be
3 on the verge of committing to keeping me up to date on their
4 investigation regarding this agent. That is my only concern.
5 My only concern is that if there was some impropriety by this
6 agent that led to a false statement made in my court on which
7 I relied, that that not go unredressed. It seems to me that
8 is the sole focus of this court, the sole appropriate focus on
9 this court.
10 The harm to your client is something you may well
11 want to pursue. I am not insensitive at all to that subject.
12 MR. DUNN: I wasn't really raising it from the point
13 of view of the harm that was occasioned by my client. I was
14 just saying that where the matter remained under investigation
15 there were certain actions consistent with it remaining under
16 investigation which are no longer persisting, as we speak,
17 that I am aware of. So it would seem to me, if I am permitted
18 to think aloud, there is no continued investigation with
19 regard to that radio as relates to the events of 9/11. But
20 let me move on to the court's central concern.
21 It was my submission to the court that the court
22 clearly has within its inherent supervisory powers the power
23 to police proceedings before it, and that would go not only to
24 the actual litigants who are counsel that appear before the 25 court but also parties to matters that come before the court
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1 and their agents, be they in law enforcement or otherwise,
2 that when the powers of the court have been contorted based
3 upon misrepresentations either with regard to the accuracy Of
4 the statement or the intent that is behind that which is being
5 conveyed to the court, that in either of those instances the
6 court has within its inherent power to scrutinize and examine
7 and police what has occurred.
8 In the instance before our Honor with regard to the
9 extraction of a false confession from Mr. Higazy, and I may
10 have lost the exact wording because it was about an hour or so
11 ago that Mr. Kelley was addressing it, but the fact of the
12 matter is, Judge, as you correctly deduced, there was an
13 agreement to perform a polygraph. A polygraph was never
14 performed. As your Honor correctly pointed out, there was no
15 representation made to the court that he had failed the
16 polygraph. Quite the contrary, what was represented to the
17 court was, when the court asked had there been any new
18 developments, what was represented to the court was one of the
19 new developments was that the witness had backed off his
20 previous statement saying that he had nothing to do with the
21 device and then embraced the device and indeed indicated that
22 it was his and then gave three different versions as to where
23 it came from.
24 When the polygrapher came out of the room where the
25 exam should have been conducted and I asked him, as I
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1 indicated in my paper submissions to the court, what was the
2 result of the polygraph, he said, well, I don't have a
3 polygraph but I do have a confession. As the court seemed to
4 be correctly concerned with, at what juncture did it turn from
5 the submission of a polygraph into a full-fledged
6 interrogation that led to the product of being a full
7 statement allegedly memorializing all that had been said to
8 the agent by the witness?
9 Now, the witness is not a professional and the
10 witness was operating under extreme duress and anxiety while
11 being in there. If the witness may have forgotten in the
12 midst of what was going on that he had a right to reach out
13 for counsel in the midst of being interrogated and in the
14 throes of intimidation and to ask can I speak to my counsel,
15 clearly the agent was laboring under no such emotional
16 distress.
17 THE COURT: Let me ask you this in that regard. Had
18 you previously made the witness available for questioning in
19 your presence or otherwise by the agents?
20 MR. DUNN: No.
21 THE COURT: So the inference would be that you were
22 limiting your consent to an interrogation outside of your
23 presence, to only such questioning as was necessary for the
24 polygraph test itself.
25 MR. DUNN: That is absolutely correct, and I had
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1 specific discussions to that effect, to the extent of saying
2 listen, all that I am consenting to here is that a polygraph
3 be given to the witness with regard to whether or not he had
4 anything to do with the item in question, and that is whether
5 or not it was given to him, whether or not it was left in his
6 room, whether he had it himself, or whether he had any
7 knowledge of it.
8 THE COURT: And just to follow up on that, if the
9 criminal charges brought against your client had proceeded,
10 then of course you would have brought a suppression motion
11 suppress the alleged confession.
12 MR. DUNN: Yes, I would have.
13 THE COURT: And this would have all been aired in a
14 federal court and a federal judge would have determined
15 whether or not the agent acted improperly.
16 At the other extreme, if the agent had acted
17 improperly in the course of an investigation that never
18 resulted in anything coming before a court, the court would
19 have no power to reach out and say, oh, I read in the papers
20 that within the Southern District of New York some agent
21 improperly utilized a polygraph to secretly extract an
22 uncounseled confession, I don't like that, I'm going to hold a
23 hearing.
24 The question before me is, I don't have the
25 automatic, obvious power that attaches at the suppression
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1 hearing situation. On the other hand, I am by no means just
2 reaching out. On the contrary, it was in my court and my
3 court alone that that confession was given meaning, an
4 operative meaning, because it became a basis on which your
5 client was held.
6 It may be that the only redress there is the civil
7 redress that you might pursue. That certainly would be the
8 case if the only victim were your client. My concern is,
9 here is another victim here, and that's me.
10 The government makes the point that, well, a victim
11 is maybe not the person to make a determination of ultimate
12 liability, I think there is a lot to that. But that is not
13 what I am thinking about right now. I am just deciding, in
14 effect, whether I have a basis for invoking a curative
15 procedure.
16 The government says, well, what you mean by that
17 really is you want to decide whether or not to bring on
18 contempt, you only have the power to initiate that when it's
19 immediately in your presence and when it isn't, what you have
20 to do is leave it to the executive to look into, whether there
21 is a basis for bringing the contempt.
22 You are saying no, that is too mincing a thing, the
23 contempt before the court has to embrace not only the lawyer
24 who makes the statement but the party who authorizes the 25 statement. They say the executive didn't authorize the
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1 statement, the FBI made the statement, it was the AUSA who
2 brings it to the attention of the court.
3 All of this, I think, is a close call, but I think
4 that's the way I analyze it anyway. It is somewhere between
5 the two obvious extremes. On the suppression hearing
6 question, I could inquire into it. Something that occurred
7 that never led to a statement before me, I couldn't inquire
8 into, I think that is perfectly clear too. This is in between
9 and the question is how far the powers of the court go in that
10 situation.
11 MR. DUNN: I think, your Honor, that the powers must
12 necessarily go so far as is necessary for the court to in the
13 first instance ascertain exactly what happened. I don't know
14 that the court is, as we sit here now, completely clear on
15 what transpired within the confines of the room between the
16 polygrapher --
17 THE COURT: I agree with that.
18 MR. DUNN: And I don't know how the court could then
19 entertain rational decision on what to do and what not to do
20 without even knowing what is, what the true facts are.
21 Clearly the court has a right, if not the duty, to supervise,
22 as I indicated, matters that come before it, and most
23 particularly when they relate to representations upon which
24 the court relies heavily or significantly in making a
25 determination with regard to the seizure, holding with or
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1 without bail of an individual. Clearly the decision that was
2 made from the very instant that this matter came before the
3 court the court indicated that it was a close call because of
4 the circumstances under which the item was left. By that I
5 mean to say any building that had been evacuated in the midst
6 of a calamity, people running in and out, and but for the
7 compelling nature of the allegation with regard to how it was
8 found and where it was found and under what circumstances it
9 was found, that is what moved the court to hold Mr. Higazy in
10 the first instance. We now know that that ended up being a
11 false representation. Whatever the source might have been, we
12 nonetheless now know it was a false representation.
13 In the next instance the court indicated that it was
14 going to keep the government on a short leash with regard to
15 proceeding with this matter in an expeditious fashion and that
16 had there been any other developments that the court should
17 consider, as the court is now considering what to do about
18 this matter 10 days hence, at which point it was brought to
19 the court's attention that the case against the witness was
20 made all the stronger now by a confession along with three
21 different versions as to where it came from, which only made
22 the credibility and suspect nature of the witness all the
23 greater, and, based upon those representations, in large part,
24 that is why Mr. Higazy continued to be held, and at that point
25 without bail.
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1 As I indicated, Judge, not to bring up the
2 suppression issue, but just so that we are clear, only because
3 there are certain remarks that were made that I just wanted to
4 take the record straight what Mr. Kelley says, it is not as
5 though the government came running in and said look what we
6 have, we have a confession, well, that's about what the
7 government did. At a juncture, when the court asked if they
8 specifically knew anything, they did leap to their feet to say
9 that yes, something substantial had occurred, something of
10 great moment, something pivotal, so to speak, and that he had
11 made this admission.
12 THE COURT: That is true, but isn't it also true that
13 until I made this inquiry sua sponte, you and the government
14 had tentatively reached agreement to hold your client for
15 another 10 days or so, and it was only because I wasn't happy
16 just rubber stamping that but felt the need to inquire further
17 that we even had these further representations?
18 MR. DUNN It is true, your Honor, that based upon
19 the fact that I was presented with an allegation that my
20 client had indeed confessed to owning the device, and, as I
21 said, there was a full written confession that was prepared,
22 at which point I went in and asked Mr. Higazy whether or not
23 it was true, and he said to me I'm telling you the device is 24 not mine, I am not even sure sitting here now what this guy 25 got me to admit to, I was so nervous, but I'm telling you it's
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1 not mine, I want to do a polygraph but you need to be there,
2 somebody needs to be there because I am not being permitted to
3 take a polygraph, I am only being interrogated to the point of
4 I don't want to hear anything about it not being yours, let's
5 get beyond that, where did you get it, how long have you had
6 it and so forth. So I myself was not clear on what was going
7 on.
8 THE COURT: Assuming that I am prepared to go forward
9 with the hearing, is your client prepared to testify about
10 what occurred during that meeting with the FBI?
11 MR. DUNN: Yes, he is. 12 THE COURT: OK. 13 MR. DUNN: And with regard to his availability,
14 because the court had asked that we inquire as to the
15 availability both on my behalf, my client and the government's
16 behalf, [word redacted] Agent. Mr. Higazy is available tomorrow as
17 well as Wednesday, and then he is going away and will not be
18 returning for nine days from that Wednesday, I guess to the
19 next Friday.
20 THE COURT: I think we would be talking about the
21 latter situation, because if I were to order a hearing, I
22 think the government would probably want me to stay the order
23 so they could take, or at least examine whether or not they
24 have a right to an appeal, from what I am hearing them say,
25 and I would give them that within a reasonable period of time.
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1 So I am thinking if we do go this route, it will be like two
2 weeks from now.
3 MR. DUNN: I would just offer to the court, I don't
4 believe, contrary to the government's arguments, that the
5 court's hands are either tied or the court must proceed
6 directly to contempt proceedings, that the court is not able
7 to first conduct its own inquiry to determine the basis upon
8 which to make a decision as to any further action if any
9 further action be warranted and
10 THE COURT: It seems strange that the court in
11 connection with a false representation would have so limited
12 inquiry powers when the grand jury, which is technically an
13 arm of the court, has such broad powers. It is like saying,
14 well, my 16-year-old can drive the car but I'm not allowed to.
15 That seems -- actually, having a 16-year-old, I think that is
16 what you would wish.
17 MR. KELLEY: Unfortunately for the 16-year-old, you
18 are prosecutor, judge and jury, whereas the grand jury serves
19 a very narrow and limited function.
20 THE COURT: It is a narrow and limited function but I
21 understand your point, whichever way you look at it. But I
22 understand your point.
23 All right. I think the issues have been fairly
24 joined and I need to decide them, not today.
25 I want to talk about the sealing aspect. I also want
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1 hear anything else Mr. Dunn has to say before I hear from
2 Mr. Kelley. Mr. Dunn waited very patiently. So other than
3 sealing, which we will turn back to in a second, is there
4 anything else that you wanted to bring to my attention?
5 MR. DUNN: I don't believe, Judge, I could amplify
6 further on what I have already said, but the gist of what I
7 would have to say the court grasps without my standing up and
8 I don't think I need belabor the point.
9 THE COURT: Let me ask the government, assuming
10 arguendo, and I am very far from making a determination one
11 way or the other, assuming the court were to order a hearing,
12 is Mr. [word redacted] available two weeks from now?
13 MR. KELLEY: I believe he is, your Honor, but I think
14 the court is right, we obviously would examine very closely
15 any order and determine what we would do from there.
16 THE COURT: I expected as much. If I make an order
17 that would require such a hearing, I will make it within a
18 time period and then stay it for at least a week to allow the
19 government to decide whether or not it wants to appeal.
20 MR. KELLEY: To be clear, I did speak to Agent
21 [wprd redacted] about his availability, but I focused, perhaps
22 inappropriately, only on the remainder of the week. My guess
23 is that he will make himself available should it be required
24 at any time.
25 THE COURT: Let's talk about this under seal aspect.
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1 I am prepared to assume, without the government having to
2 represent one way or the other, that there is an ongoing
3 continuing investigation regarding all aspects of what
4 occurred in 9/11, including what occurred at the hotel,
5 because it would boggle the mind if that wasn't the case.
6 [Lines 6-13 redacted]
7
8
9
10
12
13
14 THE COURT: But let's just talk about, for example,
15 what would there be in today's hearing that would implicate
16 the ongoing investigation? Ninety-nine percent of what we
17 talked about today is already known to the public.
18 MR. KELLEY: I would have to go back and review it
19 but I don't think that is right, Judge, [lines 19-22 redacted]
20
21
22
23 THE COURT: It is a little bit like your letter. I
24 am not going to unseal anything that touches upon an ongoing
25 grand jury investigation. But it doesn't follow from that
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1 that everything should be sealed either. That is the question
2 I am raising now.
3 MR. KELLEY: What I would propose, Judge, if I may, I
4 was going to propose that we be given an opportunity to brief
5 a few issues, some of which came up in today's hearing, and I
6 would ask that we also be given an opportunity to address the
7 sealing issue as well.
8 THE COURT: I will do that, but I don't think we can
9 put this off too long. So what I think we should do is the
10 following: First of all, I think I need to know by tomorrow
11 whether the government is prepared to continue to keep me
12 fully up to date on the ongoing investigation of the FBI
13 agent.
14 [Lines 14-25 redacted]
15
16
17
18
19
20
21
22
23
24
25
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1 [Lines 1-14 redacted]
2
3
4
5
6
7
8
9
10
12
13
14
15 THE COURT: Let me know tomorrow what your
16 determination is in that regard.
17 In terms of sealing and unsealing, I am happy to have
18 whatever papers either side wants to give me. The issue, just
19 so we are clear, I would never unseal any part of this
20 proceeding or any other part of the prior proceedings we have
21 had in this matter that reveal ongoing grand jury
22 investigation. So it is not a question of that. That will
23 remain sealed no matter what. But there is a lot that's gone
24 on that does not relate to that at all. Lengthy discussion of
25 legal issues, for example, has nothing to do with the ongoing
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1 grand jury investigation. It has to do with my powers or lack
2 thereof. So the question,is whether the ancillary portions of
3 this proceeding should remain under seal or not.
4 You can take it as a given, both sides, that you
5 won't even have to address the issue of anything that directly
6 touches upon ongoing grand jury investigations: That will
7 remain sealed. But let me ask that both of you give me
8 whatever -- simultaneously, because I don't think I need back
9 and forth on this -- any authority that you want on the
10 unsealing of the other stuff. We will set the date for that
11 in one second because it will turn on the third matter.
12 I am happy to have you give me further papers on
13 anything else that came up today but I am wondering whether
14 you really need to do so. I heard a very full presentation
15 from the government, complete with reference to the important
16 cases that I haven't more than glanced at yet but I will,
17 obviously, before I decide. Defense counsel has also made
18 substantial written submissions, and he infers, and I would
19 like to think that he is right, that I have grasped his
20 arguments as well. So I don't know that I need it.
21 MR. KELLEY: My proposal would be, perhaps in a more
22 articulate fashion than I presented to the court, briefly lay
23 out the cases on 401 supporting my argument. The second thing
24 would be to address, which I couldn't do in an informed
25 fashion, the limits, or expansiveness, perhaps, of the
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1 supervisory powers.
2 THE COURT: I think the supervisory powers are the
3 one area that perhaps haven't been as fully addressed in the
4 papers as they might have been.
5 MR. KELLEY: The other part, Judge, and I was going
6 to ask to leave you with this thought, is this notion with
7 regard to a preliminary hearing. There is no threshold that
8 needs to be met before the court contacts a prosecutor and
9 says this is what happened, go run with it -- you don't have
10 to show probable cause, you just say -- and this happens, you
11 know, Judge, the U.S. Attorney will get a call from a judge,
12 this happened, please look into it and it is undertaken. So I
13 don't know that a preliminary hearing is effective or
14 appropriate particularly when to conduct the type of hearing
15 that I am hearing -- no pun intended -- you know, kicks in
16 some procedural issues that I think would not really aid the
17 investigation.
18 THE COURT: All right. How about, can you get me
19 those papers, what, by Thursday?
20 MR. KELLEY: Yes, I think that would be fine, Judge.
21 THE COURT: And, Mr. Dunn, you are welcome on the
22 same day to put in an additional papers you want. I think
23 the issue you might want to particularly address is the
24 sealing question because I don't think you said much on that
25 in writing. You said some things verbally on several
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1 occasions, and indeed because of what you have said I have
2 directed the government to turn various things over to you
3 that were not previously furnished. So it is an issue, I
4 think, of considerable importance.
5 MR. DUNN: If I may, your Honor, not to drag the
6 process out, I will of course, if the court directs, research
7 that in that manner but it would seem to me that once you have
8 carved out anything having to do with an ongoing grand jury
9 investigation as to what would not be unsealed under any
10 circumstance, I am at a loss to know on what basis is the
11 government seeking to have what remains to be sealed --
12 THE COURT: That's fair enough. You are saying that
13 you rest your position on simple logic and don't feel the need
14 to put in any papers. That's fine.
15 MR. DUNN: No.
16 THE COURT: Here is why I think papers can
17 sometimes --
18 MR. DUNN: Before you go there, Judge, if I may, I
19 Wasn't meaning to suggest that I didn't think that papers
20 Might be warranted because it is such a no brainer. What I
21 meant to suggest was that rather than citing every example
22 where the courts have found that we are on basic premise,
23 except for the exceptions that this is an open process and
24 transparency to whatever degree can be obtained without
25 compromising some other interests is the order of the day,
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1 that without the government directing my attention
2 specifically the grounds on which they believe should be under
3 seal --
4 THE COURT: I see. You want to know what should be
5 under seal.
6 MR. DUNN: Yes, rather than spinning my wheels --
7 THE COURT: I am willing to do that, except you were
8 the one quite rightly who wrote to the court to say, in
9 effect, get on with it. Not that you would put it that way --
10 MR. DUNN: No, no.
11 THE COURT: No, I didn't take it amiss at all. I
12 thought that the -- I am used to getting that advice from my
13 wife, and why not from lawyers as well.
14 MR. DUNN: No, Judge, I can't let you stay with that
15 impression, no. My concern was that given what had happened,
16 it certainly appeared as though the court's inquiry could have
17 been completely satisfied with regard to one big branch of
18 what it was we were dealing with, which was the obstruction
19 so I didn't know from that, since the government didn't put in
20 papers or whatever, as to whether the matter was still in play
21 as to this next issue.
22 THE COURT: And that is more than fine and I actually
23 have been very blessed in this particular matter by having
24 such fine counsel on both sides.
25 But then can you get me your -- assuming they can get
SOUTHERN DISTRICT REPORTERS (212) 805-0300
x23ikmat 62
SEALED
1 you their papers on Thursday also by fax or some other method
2 that you will work out with them, can you get me your papers
3 by the following Tuesday? Is that doable?
4 MR. DUNN: Well, your Honor --
5 THE COURT: What would you like?
6 MR. DUNN: I planned to go away this weekend to the
7 next weekend.
8 THE COURT: Then why don't we do this. Why don't we
9 give the government more time. We will give them till next
10 Monday to get in their papers. You can have your papers three
11 days after you get back. When is that?
12 MR. DUNN: I will be back that Sunday, the 31st. 13 THE COURT: So April 3 for your papers. Then what I
14 will try to do -- I don't make an absolute commitment on this
15 but I will bend every effort to have my determination, which I
16 think will be in writing -- it may or may not be sealed
17 depending how I come out on that but it will be, at least, in
18 writing by a week from then, which is April 10. So all my
19 business about what the availability of witnesses is becomes
20 somewhat mooted, but we will take that up again, if it becomes
21 necessary, on April 10 or immediately thereafter.
22 Very good. I appreciate everyone's good offices.
23 Anything else we need to raise today?
24 MR. KELLEY: No, your Honor. Done.
25 MR. DUNN: Thank you.
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1 THE COURT: Thanks a lot.
2 (Proceedings adjourned) 3 4 5 6 7 8 9 10 11 12 13 14
15 16
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SOUTHERN DISTRICT REPORTERS (212) 805-0300
[By hand] Unsealed
U.S. Department of JusticeUnited States Attorney
Southern District of New York
The Silvio J. Moll Building
One Saint Andrew's Plaza
New York, New York 10007
March 19, 2002
TO BE FILED UNDER SEAL
BY HAND DELIVERY
The Honorable Jed S. Rakoff
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street
Room 1340
New York, New York 10007
Re: Material Witness Abdallah Higazy
01 M 1750-38 (JSR)
Dear Judge Rakoff:
[By hand] Proposed redaction not approved JSR [for following paragraph]
The Government writes to confirm that this Office will apprise the Court of the investigative steps taken and the conclusions made by this office with respect to the conduct of the FBI Agent who administered the polygraph examination to Mr. Higazy on December 27, 2001.
Respectfully submitted,
JAMES B. COMEY
United States Attorney
By: [Signature]
DAVID N. KELLEY
Deputy United States Atttorney
Telephone: (212)637-1025
[By hand] Redacted and unsealed
U.S. Department of JusticeUnited States Attorney
Southern District of New York
The Silvio J. Moll Building
One Saint Andrew's Plaza
New York, New York 10007
March 25, 2002
BY HAND DELIVERY TO BE FILED UNDER SEAL
Honorable Jed S. Rakoff
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street
Room 1340
New York, New York 10007
Re: Material Witness Abdallah Higazy
01 misc. 1750 (JSR)
Dear Judge Rakoff:
The Government respectfully submits this letter to address a number of issues that were raised during the March 18, 2002 proceeding. Those issues are first, whether the conduct in this case of an agent with the Federal Bureau of Investigation ("FBI") can, under any circumstances, constitute criminal contempt; second, whether it is appropriate for the Court to hold an evidentiary hearing before deciding whether a contempt proceeding should be initiated; and third, whether the submissions of counsel and transcripts of proceedings relating to the Court's contempt inquiry should remain under seal. As explained below, the FBI agent's conduct, even assuming the existence of facts least favorable to the agent, did not constitute criminal contempt; the Court should not hold an evidentiary hearing; and the documents should remain sealed.
Discussion
A. Even If The FBI Agent Knowingly Made A False Or Misleading Statement To An Assistant U.S. Attorney With An Awareness That The Statement Would Be Repeated To The Court, That Conduct Does Not Constitute Contempt
1. The Issue Presented
Based on its comments at the March 18 proceeding (see 3/18/02 Tr. 8-9, 29-32, 48-49), the Court's concern appears to be the following: on December 27, 2001, at his own request, Mr. Higazy began taking a polygraph exam in the United States Attorney's Office. That same day, the FBI agent who conducted the test told an Assistant United States Attorney ("AUSA") that Mr. Higazy had admitted to the agent, during the course of the exam, that an aviation radio found in the hotel where he was staying was his. The next day, in reliance on what he had learned from the FBI agent, the AUSA told the Court that Mr. Higazy had admitted that the radio was his. Since it now has been established that the radio did not belong to Mr. Higazy, the statement by the FBI agent to the AUSA, in the Court's view, may have been either false or misleading. If Mr. Higazy'in fact made no such admission to the FBI agent (a circumstance the Court has characterized as unlikely), the agent's statement to the AUSA was false. If Mr. Higazy did make the admission, but the admission was in some way coerced by the FBI agent and the agent recognized that the admission was coerced, the agent's statement to the AUSA, though true, was misleading. If the FBI agent's statement to the AUSA was either false or misleading, and the FBI agent knew that the AUSA would repeat the statement to the Court, the Court believes that it may be appropriate to punish the agent for contempt.
The issue is whether, even viewing the facts in a light least favorable to
the FBI agent, the agent's conduct can constitute contempt. For the reasons
that follow, the Government
believes the answer is no.
Contempt can be civil or criminal. In a case of civil contempt, "an uncooperative litigant [i]s incarcerated [or fined] until he complie[s] with a specific order of the court"; in a case of criminal contempt, "a litigant [i]s punished for an affront to the court by a fixed fine or period of incarceration Int'l Union, United Mine Workers of America v. Bagwell, 512 U.S 821, 840 (1994) (Scalia, J. , concurring) (citing Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-44 (1911)). Since there is no attempt here to enforce compliance with a court order, the contempt in this case, if there is a contempt, is necessarily criminal.
Criminal contempt is governed by statute. That statute, Section 401 of Title 18 of the United States Code, has three subsections, each of which defines a distinct category of criminal contempt. Under Section 401(1), a court may punish "Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice." 18 U.S.C. § 401(l). Under Section 401(2), a court may punish "Misbehavior of any of its officers in their official transactions." Id. § 401(2). And under Section 401(3), a court may punish "[d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command." Id. § 401(3).
The absence of a court order renders subsection (3) of the criminal contempt statute inapplicable. Subsection (2) is also inapplicable, because the person whose conduct is at issue here -- an FBI agent -- is not a court officer. The "officers" to which subsection (2) refers are "persons who serve as conventional court officers," such as "marshals, bailiffs, court clerks or judges." Cammer v. United States, 350 U.S. 399, 405 (1956). They are people, in other words, who are employed by the court, and therefore do not include FBI agents. Cf. In re Rumaker, 646 F.2d 870, 872 (5th Cir. 1980) (under Section 401(2), INS examiner is not "officer" of court); In re Shue, 199 F. 282 285 (D. Mass. 1912) (under Section 401(2), neither customs inspector nor inspector in Department of Commerce and Labor is "officer" of court). That leaves only subsection (1), which empowers a federal court to punish misbehavior "in its presence or so near thereto as to obstruct the administration of justice." 18 U.S.C. § 401(1). Because the FBI agent's conduct did not take place "in" the Court's presence, the sole issue is whether, if one assumes that the agent made a false or misleading statement to the AUSA with the knowledge that it would be conveyed to the Court, his conduct was "so near" to the Court as to obstruct the administration of justice.
2. Under Nye v. United States And Its Progeny, Inducing Another Person To Convey False Or Misleading Information To The Court Is Not Contempt Within The Meaning of Section 401(1)
Under the Supreme Court decision interpreting Section 401(1), Nye v. United
States, 313 U.S. 33 (1941), the FBI agent's conduct (assuming he made
a false or misleading statement to the AUSA with the intent to obstruct justice)
does not fall within that section.
In Nye, a father brought a suit in federal-district court alleging that his
son had died because he took medicine manufactured and sold by the defendants.
The father was "illiterate, and feeble in mind and body." 313 U.S. at 39.
The petitioners in the Supreme Court, who were acquaintances of the defendants
in the civil suit, induced the father to dismiss the suit, "through the use
of liquor and persuasion." Id. One of the petitioners had his own
lawyer prepare a letter, to be sent to the district court, expressing the
father's desire to have the suit dismissed. The petitioner then took the
father to the post office, "registered the letters and paid the postage."
Id. at 40. The petitioners' conduct "took place more than 100 miles
from . . . where the District Court was located." Id.
The scheme was discovered and the petitioners were held in criminal contempt. The district court found that the letter was written " 'for the express and definite purpose of preventing the prosecution of the civil action . . . and with intent to obstruct and to prevent the trial of the case on its merits,' " and concluded that the petitioners' conduct was " 'misbehavior so near to the presence of the court as to obstruct the administration of justice.' " Id. at 41. The Court of Appeals affirmed the contempt convictions, but the Supreme Court reversed.
The question presented, according to the Court, was "whether the conduct of [the] petitioners constituted 'misbehavior . . . so near' the presence of the court 'as to obstruct the administration of justice' within the meaning of [the criminal contempt statute]." Id. at 44-45. The question, more specifically, was "whether the words 'so near thereto' have a geographical or a causal connection." Id. at 48. "Read in their context and in the light of their ordinary meaning," the Court held, "we conclude that they are to be construed as geographical terms." Id.
"It is not sufficient," the Court explained, "that the misbehavior charged
has some direct relation to the work of the court. 'Near' in this context,
juxtaposed to 'presence,' suggests physical proximity not relevancy."
Id. at 49. The Court went on to observe that "[t]here may, of course,
be many types of misbehavior, which will obstruct the administration of
justice, but which may not be in' or 'near' to the 'presence' of the court."
Id. If such conduct is to be punished, it must be punished in other
ways. Unless the contempt statute's "requirements are clearly satisfied,
an offense will be dealt with as the law deals with the run of illegal acts."
Id. at 51.
Applying that principle to the facts before it, the Court held that the
petitioners' conduct, though "highly reprehensible" and "of a kind which
corrupts the judicial process and impedes the administration of justice,"
did not violate the contempt statute. Id. at 52. Because "[t]he acts
complained of took place miles from the District Court[,] [t]he evil influence
which affected [the father] was in no possible sense in the 'presence' of
the court or 'near thereto.' " Id. "[T]he fact that the judge received
[the father's] letter," moreover, did not make the crime one committed in
the presence of or near the court. Id. "So far as the crime of contempt
is concerned," the Court said, that fact "is inconsequential."
Id.
The Court concluded its opinion in Nye by "conced[ing] that there
was an obstruction of justice, as evidenced by the long delay and large expense
which the reprehensible conduct of [the] petitioners entailed." Id.
The Court reasoned, however, that the obstruction of justice could.not be
equated with contempt, when the alleged misconduct occurred away from the
district court. The Court reasoned as follows:
The fact that in purpose and effect there was an obstruction in the administration of justice did not bring the condemned conduct within the vicinity of the court in any normal meaning,of the term. It was not misbehavior in the vicinity of the court disrupting to quiet and order or actually interrupting the court in the conduct of its business.
Id. at 52.
The case before this Court, even assuming facts least favorable to the FBI agent, falls within the holding of Nye. In that case, the petitioners induced a third party (namely, a plaintiff in a civil suit) to make a false representation to the court (namely, that the plaintiff wished to dismiss the suit). The Supreme Court found that conduct reprehensible, but held that it was not conduct occurring in or near the court, even if, as a direct and proximate result of the conduct, a false statement was made to the court. The same is true here. Viewing the facts in the light least favorable to the FBI agent, the agent caused a third party (namely, an AUSA) to make a false or misleading representation to the court (namely, that a witness had made an incriminating admission). If that is what the agent did, his conduct was obstructive (and perhaps even criminal), but, under Nye, it did not take place in the presence of or near the court. It is therefore not a contempt.
Applying the holding of Nye, several different courts of appeals have held that various types of misconduct occurring out of court that had an obstructive effect on proceedings in court did not constitute misbehavior "in [the court's] presence or so near thereto as to obstruct the administration of justice." 18 U.S.C. § 401(1). See In re Stewart, 571 F.2d 958, 965-66 (5th Cir. 1978) (demoting employee because of jury service); Calvaresi v. United States, 216 F.2d 891, 905-07 (10th Cir. 1954) (threatening and bribing prospective jurors outside of court), rev'd on other grounds, 348 U.S. 961 (1955); Farese v. United States, 209 F.2d 312 (1st Cir. 1954) (threatening wife of cooperating witness outside courtroom at conclusion of trial day); United States v. Welch, 154 F.2d 705 (3d Cir. 1946) (sending someone to conduct unauthorized examination of prospective jurors at their homes and businesses); Klein v. United States, 151 F.2d 286 (D.C. Cir. 1945) (refusing to return to court and continue representation of defendant in criminal case); Schmidt v. United States, 124 F.2d 177 (6th Cir. 1941) (filing affidavit in clerk's office when court was not in session).
Only one court of appeals, in a decision subsequently reversed on other grounds by the Supreme Court, has ever reached a different conclusion. In O'Malley v. United States, 128 F.2d 676 (8th Cir. 1942), rev'd on other grounds, 317 U.S. 412 (1943), a divided panel of the Eighth Circuit affirmed contempt convictions of defendants who had sent their unwitting lawyers to present to the district court a fraudulent agreement settling a civil lawsuit. Though the defendants drew up the agreement outside of court, and were not in court when the agreement was presented, the Eighth Circuit nevertheless held that the defendants, conduct was in or near the court. In so holding, the panel majority distinguished Nye. 128 F.2d at 681-83. O'Malley was reversed on statute of limitations grounds by the Supreme Court, which assumed arguendo that the conduct of the defendants constituted a violation of Section 401(1) while carefully declining to "express an opinion" on the issue. Pendergast v. United States, 317 U.S. 412, 416 (1943).
The Government concurs in the view of the dissenting circuit judge in O'Malley that the Eighth Circuit erred in distinguishing Nye, and that O'Malley was wrongly decided. See 128 F.2d at 687-90 (Riddick, J., dissenting). The Eighth Circuit majority relied on the "general principle of criminal law that one may be guilty of a crime, where the prohibited act is committed through the agency of mechanical or chemical means, as by instruments, poison or powder, or by an animal, a child or other innocent agent acting under the direction and compulsion of the accused.'" Id. at 683 (quoting Beausoliel v. United States, 107 F.2d 292, 297 (D.C. Cir. 1939)). That may be a general principle of criminal law, but it does not apply to 18 U.S.C. 401(1). If it did, Nye itself would have been decided differently, since the "illiterate" and "feeble" plaintiff in that case, 313 U.S. at 39, made a false representation to the court -- he wrote a letter seeking the dismissal of a lawsuit he did not in fact wish to dismiss -- " 'under the direction and compulsion of the accused," 128 F.3d at 683. As for the panel majority's assertion that the defendants in O'Malley deceived "the court," while the defendants in Nye deceived "a litigant," id. at 682, that is simply incorrect. In both cases, the defendants tricked one or more third parties into making a false representation to the district court, and thus deceived both the third party [or parties] and the court. Notably, while O'Malley is a sixty-year old precedent, the case has never been cited for the proposition that obstructive conduct outside the courthouse may be transformed to criminal contempt "in" or "near" the courthouse via the acts of an innocent agent before the court.
3. The Court's Ability To Hold Clients In Contempt Or Sanction Them In The Civil Context Has No Applicability In This Case
As the Court noted at the March 18 proceeding, in private suits, a district court is empowered in certain circumstances to hold a party in contempt for conduct outside of the court's presence or to sanction a party for misrepresentations conveyed to the court by an innocent agent. (See 3/18/02 Tr. 29, 30-31). Importantly, however, for the purposes of this proceeding, the cases in which a client in a civil suit has been held in contempt or sanctioned, irrespective of his or her attorney's good faith, have relied on statutory provisions that -- in sharp contrast to Section 401(1) -- grant the district court power to reach the client's outside-of-court conduct.
The Government's research has disclosed two contexts in which a party commonly
is adjudged in contempt or sanctioned for causing misrepresentations to be
uttered in court: (1) in a civil contempt proceeding, when it is established
clearly and convincingly that the client defied a previously entered court
order, see, e.g., ACLI Government Securities, Inc. v.
Rhoades, 989 F. Supp. 462, 464, 467 (S.D.N.Y. 1997) (finding defendant
in civil contempt where he failed to comply with order of court and appointing
U.S. Attorney's Office to prosecute possible violation of Section 401(3)),
aff'd, 159 F.3d 1345 (2d Cir. 1998); SEC v. Bankers Alliance
Corp., 881 F. Supp. 673, 678, 684 (D.D.C. 1995) (finding defendants in
civil contempt where they violated terms of preliminary injunction),
modified on other grounds, 1995 WL 590665 (D.D.C. May 5, 1995); Swift
v. Blum, 502 F. Supp. 1140, 1143-45 (S.D.N.Y. 1980) (finding that
Commissioner of New York State Department of Social Services violated specific
" order to restore plaintiffs, benefits); and (2) in the Rule 11 context,
where the client has caused false information to be included in a
pleading, see, e.g., Business Guides, Inc., v. Chromatic
Communications Enterprises, Inc., 498 U.S. 533, 544-45 (1991) (finding
violation of prior version of Rule 11 by represented
client when complaint signed by client contained misrepresentations of fact
as result of misinformation furnished by client to law firm); Sussman
v. Salem, Saxon and Nielson,
P.A., 150 F.R.D. 209, 213 (M.D.Fla. 1993) (under Rule 11, "where a party
misleads an attorney as to facts or the purpose of the lawsuit, but the attorney
nevertheless had an objectively reasonable basis to sign the papers in question,
then sanctions on the party alone are appropriate").
The power of a court to sanction conduct outside the courthouse in these scenarios does not establish the Court's authority to sanction the FBI agent here, even assuming misconduct on his part. As already noted, the FBI agent was under no court order, and thus his conduct cannot be adjudged contumacious, regardless of where it occurred, under Section 401(3). Fed. R. Civ. P. 11, moreover, in its current form, expressly grants courts the power to sanction not only the attorneys who sign, file, submit, or advocate false representations to the court, but "parties . . . who are responsible" for a Rule 11 violation. Fed. R. Civ. P. 11(c). Indeed, the Advisory Committee Notes to the rule state that Rule 11 "permits the court to consider whether other attorneys in the firm, co-counsel, other law firms, or the party itself should be held accountable for their part in causing a violation." Id., Advisory Comm. Notes (1993 Amendments).
Because Section 401(1) is limited in application to misbehavior "in the vicinity of the court disrupting to quiet . . . or actually interrupting the court in the conduct of its business," Nye, 313 U.S. at 52, that section is simply unlike statutory provisions that permit a court to punish misconduct committed at a distance from the courthouse. Civil cases that may appear at first blush to be analogous to this case, therefore, have no true applicability here.
4. The Court's Supervisory Powers Do Not Authorize Any Remedy
At various points during the March 18 proceeding, there were references to the possible exercise of the Court's "supervisory powers." (3/18/02 Tr. 9, 26, 30, 33, 35, 44, 59). But cases in which courts exercise such powers are generally criminal cases. If there has been Government misconduct in connection with a criminal prosecution, for example, a district court, under appropriate circumstances, might be able to provide a remedy, usually by dismissing the charges. See, e.g., United States v. Williams, 504 U.S. 36, 46 (1992) ("the supervisory power can be used to dismiss an indictment because of misconduct before the grand jury"). Since there are no longer charges pending against Mr. Higazy, there are no charges that can be dismissed. Nor does there appear to be any other remedy that might appropriately be ordered by the Court given the procedural posture of this case.
* * *
If the FBI agent did engage in misconduct, in sum,
(1) civil contempt is not an available remedy, because there was no violation of a court order;(2) criminal contempt is not an available remedy, because there was no violation of a court order, an FBI agent is not a court officer, and any misconduct by the agent did not take place in the presence of or near the Court;
(3) suppression of evidence is not an available remedy, because there is no criminal case; and
(4) dismissal of charges in the exercise of the Court's supervisory authority is not an available remedy, because there is no criminal case.
As the Government emphasized at the March 18 proceeding, however, the dismissal of the criminal case and the lack of a contempt remedy do not mean that any misconduct on the part of the FBI agent will go uninvestigated or unpunished. There remain a number of possibilities in that regard:
(1) Mr. Higazy retains his right to file a civil lawsuit (something his lawyer has indicated he is contemplating);(2) the Government can file criminal charges (if its ongoing investigation reveals criminal misconduct by the agent); or
(3) the Department of Justice can impose non-criminal disciplinary sanctions (if it is determined that the agent has in fact engaged in misconduct).
B. The Court Should Not Hold A Hearing To Investigate The Circumstances Of The Alleged Misconduct
At the March 18 proceeding, the Court indicated that it was considering holding an evidentiary hearing before deciding whether a contempt proceeding should be commenced. At such a hearing, the Court would hear testimony from, among other witnesses, Mr. Higazy and the FBI agent. It would then resolve any conflicts in the witnesses' testimony; determine whether Mr. Higazy made admissions about the radio found in the hotel where he was staying and, if so, what prompted the admissions; and decide whether a contempt prosecution is warranted. (See 3/18/02 Tr. 9-10, 26-27, 30-33, 36, 52-54).
For the reasons stated in Section A, above, even assuming facts least favorable to the FBI agent, his conduct, as a matter of law, did not constitute criminal contempt. Since there is no conceivable set of facts that would make the agent guilty of criminal contempt, there is no cause for a hearing.
Indeed, for the Court to hold a hearing, when the alleged misconduct constitutes, at the very worst, obstruction of justice, transgresses Nye's directive that crimes be punished "as the law deals with the run of illegal acts," 313 U.S. at 51, so long as summary punishment is not necessary to protect the immediate functioning of the court. In Nye, the Supreme Court emphasized that those who engage in obstructive conduct that does not rise to the level of contempt must be punished "under the Criminal Code where they will be afforded the normal safeguards surrounding criminal prosecutions." Id. at 53. The normal course for an obstruction prosecution, of course, is investigation by the executive branch. For the Court to conduct a hearing in this matter and to call the FBI agent and others as witnesses would thus result in the Court's carrying out an investigative function that is within the Government's sole purview. See United States v. Neal, 101 F.3d 993, 997 (4th Cir. 1996) (except in summary proceeding for direct contempt, where it is appropriate.for "the otherwise inconsistent functions of prosecutor, jury and judge to mesh into a single individual," prosecution of crimes "is not a proper exercise of the judicial function"). Put another way, even assuming that the Court was victimized by misconduct on the agent's part, such misconduct, in and of itself, does not serve as justification for the Court to conduct its own investigation. Perjury and obstruction of justice cases, for example, are routinely investigated and prosecuted by the United States Attorney's Office, even when the purported offender is a law enforcement officer.
But even if the Court disagrees with the legal analysis in Section A, above, it still should not hold a hearing.
First, the Government is not aware of any statute, rule, or judicial decision that authorizes (or even contemplates) an evidentiary hearing that is different from, or preliminary to, a proceeding conducted pursuant to Rule 42 of the Federal Rules of Criminal Procedure -- the proceeding conducted to determine whether the defendant is guilty of the crime of contempt. When a district court believes that a contempt may have beeri committed, and the alleged misconduct was not committed "in the actual presence of the court," Fed. R. Crim. P. 42(a), Rule 42 requires, among other things, that the court notice a hearing and afford the putative defendant a reasonable time to prepare. Under this procedure, and because of the court's obligation to invoke in contempt proceedings "[t]he least possible power adequate to the end proposed," a court "ordinarily should first request the appropriate prosecuting authority to prosecute contempt actions, and should appoint a private prosecutor only if that request is denied." Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 801 (1987) (internal quotation marks omitted); see also United States v. Vlahos, 33 F.3d 758, 762 (7th Cir. 1994) (district court erred in appointing "a private attorney . . . to prosecute . . . contempt charges" when "the appropriate prosecuting authority, the United States Attorney's Office, had manifestly not declined to prosecute the charges"). There is no basis, under the procedures established by Rule 42(b), for the court preliminarily to determine whether some evidentiary threshold -- probable cause, for example -- has been crossed, for the potential contempt can be referred for prosecution without any such preliminary finding. See United States ex rel. Vuitton Et Fils S.A. v. Karen Bags, Inc., 592 F. Supp. 734, 749 (S.D.N.Y. 1984), aff'd, 780 F.2d 179 (2d Cir. 1985), rev'd on other grounds, 481 U.S. 787 (1987).
Second, even if the Court has the authority to conduct a "preliminary" hearing of the kind it appears to be contemplating, there is reason to question the usefulness of such a hearing as an investigative tool. Even if the Government's legal analysis in Section A, above, is incorrect, in order for the FBI agent's conduct to constitute criminal contempt, it will likely have to be established that Mr. Higazy made admissions as a result of coercion, that the agent recognized the coercive nature of his questioning, and that the agent informed the AUSA of Mr. Higazy's admissions with the intent, or at least the expectation, that the AUSA would inform the Court of the admissions. Under these circumstances, the probability of finding that the FBI agent engaged in criminal contempt is not high. Moreover, were the Court to notice a hearing, thus putting the FBI agent on notice that he is the "subject" or "target" of a contempt inquiry, the FBI agent might well decline to testify. If that happened, the Court would have only Mr. Higazy's version of what happened during the polygraph exam, and would be unable to make an informed decision about those events.
[20 lines redacted]
C. The Proceedings Relating To The Allegations Of Contempt Should Remain Sealed
At the March 18 proceeding, the Court asked for the Government's position on whether the transcripts of proceedings and submissions of counsel in this matter should be unsealed. (See 3/18/02 Tr. 4, 54-58). The Government's understanding is that the documents that the Court is considering unsealing are the documents relating to the contempt inquiry, and not the documents relating to the material witness proceedings. For the reasons that follow, the Government's position is that the various submissions by counsel and transcripts of proceedings relating to the contempt inquiry should remain sealed.
[25 lines redacted]
Conclusion
For the reasons stated above, the FBI agent's conduct, even viewing the facts
in a light least favorable to the agent, did not constitute criminal contempt;
the Court should not hold a hearing to investigate the circumstances of Mr.
Higazy's admissions to the agent; and the submissions of counsel and transcripts
of proceedings relating to the contempt inquiry
should remain sealed.
Respectfully submitted,
JAMES B. COMEY
United States Attorney
By: [Signature]
DAVID N. KELLEY
Deputy United States Attorney
Telephone: (212) 637-1025
cc: Robert S. Dunn, Esq.
(by overnight mail)
[By hand] Redacted and Unsealed
Robert S. Dunn
Attorney at Law
225 Boradway, Suite 1401
New York, New York 10007
212/528-0898 Fax: 212/385-3525
email: rsdesq@aol.com
CORRECTED VERSION
April 10, 2002
Honorable Jed S. Rakoff
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street, Room 1340
New York, New York 10007
Re: Material Witness Abdallah Higazy
01 Misc. 1750 (JSR)
Dear Judge Rakoff,
Please accept this letter in rebuttal to the Govemment's submission dated
March 25, 2002
concerning issues raised during the March 18, 2002 proceeding before your
honor. The gravamen of the concerns as expressed in said proceedings dealt
with a representation made by the government that Mr. Higazy had
confessed/admitted ownership of the airband radio which was found at the
Millennium Hotel sometime after the events of September 11, 2001.
It subsequently came to fight that the subject radio actually belonged to some one else -- a private pilot who was also staying at the hotel on September 11, the question presented was whether the Government had misrepresented to the court that Mr. Higazy admitted ownership of the subject radio. If not, what conduct was engaged in by the agent to extract a false confession from Mr. Higazy.
The Goveniment's position appears to be whether or not the agent acted improperly in causing material misrepresentations to be made to the court, the court is helpless to act. Moreover, that the Court should be restrained from even determining the exact conduct of the said agent and from holding any further proceedings to make such determination. I respectfully submit that the Government's position is without merit for the reasons outlined below.
I. IF THE FBI AGENT [word redacted] KNOWINGLY MADE A FALSE OR MISLEADING STATEMENT TO THE ASSISTANT U.S. ATTORNEY UNDER THE CIRCUMSTANCES HEREIN WITH AN AWARENESS THAT THE STATEMENT WOULD BE REPEATED TO THE COURT; SUCH CONDUCT COULD BE THE BASIS OF CRUAINAL CONTEMPT PROCEEDINGS.
Assuming arguendo as the Government proffers that there is no basis herein for civil contempt proceedings and that 18 U.S.C. 401 is applicable. The question is whether [word redacted] conduct is proper subject matter for criminal contempt proceedings. Accepting t the Government's proposition that subdivision (1) of U.S.C. 401 is controlling [word redacted] conduct would fall within the ambit of its pronouncement that a court may punish "behavior of any person in its presence or so near thereto as to obstruct the administration of justice". 18 U. S.C. 401 (1)
Under the analysis which holds that the proper interpretation of the language; "in its presence or so thereto" is "to be constued as geographical terms" (Nye v. United States 313 U.S. 3; 3). If agent [word redacted] conduct is deemed improper -- said conduct would fall squarely within construction.
In the matter sub judice the conduct of coercing the false confession took place in this very courthouse (on its fifth floor). Then, the communication of the false statement of facts was also made by agent [word redacted] to the AUSA in this same courthouse. Finally, and most importantly said conduct gave rise, as its natural consequence, to a material misrepresentation being made directly to this court -- in it's actual presence. These facts bring this case directly within the purview of the Supreme Court decision in Ex Parte Savin 131 U.S. 67 and distinguish it from Nye supra as detailed below.
In Savin (supra) the court held that a surreptitious attempt in the "presence" of the court , to bribe a witness about to testify in a pending proceeding could be punished as a criminal contempt under Rev. Stat. Sec. 725, the statutory precursor of the present 18 U.S.C.401(1). There the defendant Savin approached a witness in the jury room of the court and attempted to deter a witness from testifying; and also attempted to bribe that witness in the hallway of the courthouse building. Both acts were deemed to be in "the presence of the court".
Justice Harlan reasoned "... there may be misbehavior, not in the immediate presence of the Court, but outside and in the vicinity of the building in which the Court is held, which on account of its ... character, would actually ... and consequently obstruct the administration of justice" Id. 727 The Justice then ticked off some of the significant circumstances giving rise to the holding herein. He noted that the witness was "in attendance upon the Court, in obedience to a subpoena commanding him to appear as a witness." Id. at 727.
Further, that the "witness was ... both in a room adjacent to the Court, (in the Jury Room temporarily used as a witness room) and in the hallway outside of the court. The Chief Justice concluded; "[t]he Grand Jury, like the Petit Jury, is an appendage of the Court, sitting under the authority of the Court, and the witness summoned before them are amenable to the Court precisely as the witness testifying before the Petit Jury are amenable to the Court. Bacon, in his essay on Judicature says: the place of Justice is a hollowed place; and therefore not only the bench, but the foot place and and purprise thereof ought to be preserved without scandal and corruption." Id. at 727
The facts before this Court bear a strong verasimilitude to those presented in Savin Id. and the Court should give keen attention to the totality of the circumstances attaining herein. Mr. Higazy was not only "summoned" (in the pejorative sense) to Court but was detained as a material witness for the Grand Jury. His presence in the U.S. Attorneys' was akin to 'the witness' (captive) presence in the make-shift witness' room in Savin, his appearance there too was predicated upon the fact of his appearance before the Grand Jury "an appendage of the Court acting under the authority of the court". Is he entitled to lesser protection than one who is free to come and go as was the witness in Savin. "Assuming the existence of facts least favorable to the agent" (as government offers), would the agent's conduct be any less an obstruction of justice than the defendant Savin.
Following Savin the First Circuit held ... "When U.S.C. section 401(1) includes as a criminal contempt of the Court's authority, misbehavior in the presence of the Court, the word 'presence' is used in a brooding, metaphorical sense broader than misbehavior in the 'actual presence' of the Judge as used in Rule 42 (a)". Carlson v. United States 209 F.2d 209.
This increased, broadening, scrutiny and definition is particularly warranted when dealing with a witness before the Grand Jury and should be even moreso when dealing with a detained material witness. In a subsequent case in the First Circuit had occasion to note that because "[t]he Grand Jury is an arm of the Court. No doubt there may be instances of misbehavior in the Grand Jury room that constitute a completed offense of criminal contempt of Court because committed in the presence of the Court within the broader meaning of 18 U.S.C section 401 (1)." Farese v. United States 209 F.2d 312, 316.
In Toledo Newspa per Co. V. United States 247 U.S. 402, the contemptuous acts consisted of the publication by a newspaper of articles extremely critical of a Judge's anticipated decision in a case. It was found that the articles were calculated to have an undue influence upon the court and thereby to obstruct justice.
While it could hardly be said that the publication of these articles was in the presence of the court, said publication/conduct was found to be within the 'presence' (reach) of the court for purposes of summary proceedings. Chief Justice White in reviewing the legislative history and setting out the parameters of the pertinent language stated:
"The provision therefore, conformably to the whole history of the country, not minimizing the constitutional limitations nor restricting or qualifying the powers granted, by necessary implication recognized and sanctioned the existence of the right of selfpreservation, that is, the power to restrain acts tending to obstruct and prevent the untrammeled and unprejudiced exercise of the judicial power given by summarily treating such acts as a contempt and punishing accordingly. The test therefore is the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty ... "
Toledo supra.
Under this analysis of the above-cited cases, the fifth floor of the building which houses the Federal Courts, even if designated for use by the Executive Branch, must be free from corruption, scandal and the contemptuous conduct alleged against agent [word redacted] indeed, as Chief Justice White concluded, it is the character of the act which is truly determinative of the court's reach.
In this regard, the matter at bench is on all fours with the critical aspect of the contemnor's conduct in O'Malley v. United States 128 F. 2d 676 (8 Cir. 1942). In O'Malley the contemnors had drawn up the fraudulent agreement outside of the courthouse and were not present when they sent their unwitting attorneys into court to present it. Nonetheless, the court found: "... when [they] sent emissaries into that court and there in it's geographical presence ... [sought] by fraudulent misrepresentation to secure the aid of that court to assist them ... their misbehavior in the very presence of the court obstructed the administration ofjustice ." O'Malley Id. at 681.
The O'Malley court then held: under such circumstances the conduct does fall within the scope of the proscribed conduct of U.S.C. 401 (1).
In the matter at bench, in each instance the conduct of agent [word redacted] took place in this very courthouse. Moreover, agent [word redacted] conduct causing the AUSA to misrepresent the true facts to this court, is entirely consistent with the contemnors conduct in O'Malley where the court found that:
"In the instant case the misbehavior of Appellants consisted in wrongfully inducing the court to enter a decree. Hence the 'evil influence' was exercised directly upon the court in its presence by agents of appellant."
Similarly, agent [word redacted] caused a misrepresentation of the true facts to be made to this court which this court relied upon in reaching its decision to further detain Mr. Higazy. In Nye the contemner had induced a feeble minded plaintiff to endorse and mail a letter requesting dismissal of his action. The contemptuous conduct had occurred some 100 miles from the District Court House. The court held in Nye that despite how reprehensible the conduct, which did serve to obstruct justice, the distance of the actions from the courthouse took that conduct out of the purview of U.S.C. 401(1).
It is to be noted that the court in O'Malley took great pains to demonstrate the distinction between the facts before it and those in Nye (op. cit.) noting:
"No part of Nye's wrongful conduct occurred in the presence of the court and the misbehavior consisted of the "evil influence" exercised by Nye upon Elmore to induce him to dismiss a case pending in a court 100 miles distant. In the instant case, the misbehavior of appellants consisted in wrongfully, fraudulently, corruptly and unlawfully inducing the court to enter a decree. ... Hence, the "evil influence" was exercised directly upon the court in its presence by the [attorney's]* of appellants.____________________
* agents changed to attorneys by author for purposes of clarity.
O'Malley op. cit; at 681.
Thus, Nye is distinguishable not only from O'Malley but the instant matter as well. It should be noted that the decision in Savin supra was unanimous, and while the majority decision in Nye Id. cited Savin (supra) a number of times -- it did not seek to overrule it. We contend that Savin not only remains good law but is controlling herein.
II. IF THE AGENT ACTED IN A MANNER TO INTENTIONALLY MISLEAD THE, COURT -- OR OTHERWISE PERPETRATE A FRAUD UPON IT THE COURT MAY UTILIZE ITS SUPERVISORY POWERS TO REDRESS TO EFFRONT
The Government has the temerity to suggest that even if, (1) the agent threatened the lives of Mr. Higazy's family to coerce a false confession, (2) then knowing the statement to be false, communicated same to the AUSA, (3) with the intent that said misrepresentation would be proffered to the Court to mislead it into making an erroneous ruling, that the Court would be helpless to do anything whatsoever about it. I think not!
As the Court stated in United States v. Omni International Corp. 634 F. supp 1414: "Court's decisions emphasize the unifying premise in all of the supervisory power cases ... it is designed to preserve the integrity of the system" Id At 1438. Clearly, if the above statement of facts attain herein, such an effirontery cannot be countenanced and permitted to trespass without incident by the Court. It is of vital importance that litigants and their agents know that such behavior can and will not be tolerated.
If a Party can make himself a judge of the validity of .. [it's conduct] ... then are the courts impotent and what the constitution now fittingly calls "judicial power of the United States" would be a mere mockery. Gompers v. Buck Stove and Range 221 U.S. 418 at 450(1911)
"The concern about the impairment of a court's authority is based on the fear that an alleged contemnor will consider himself or herself beyond the reach of the law" Young v. United States Ex. Rel. Vuitton Et. Fils. S.A. Et. Al. 481 U.S. 787 at 796.
That is precisely the case herein. To accept the government's, position would be abdicate all authority of the court to police parties and their agents in the conduct before it. "The court's supervisory power [should] be used, not merely as a means of enforcing or vindicating legally compelled standards of prosecutorial conduct ... but as a means of prescribing those standards of prosecutorial conduct in the first instance -- just as it may be used as a means of establishing standards of prosecutorial conduct before the courts themselves." United States v. Williams 504 U.S. 36, 46 (1992) (See also Bank of Nova Scotia v. United States of America 487 U.S. 250, 108 S. Ct. 2369, 101 L. Ed. 2d 228 (1988)).
The court must ensure that the Government and its agents, as with all litigants before it, comport their behavior in a manner so as not to obstruct urt in the discharge of its duty. To permit the conduct alleged against agent [word redacted] to go unchecked would make a mockery of your Honor's court.
Yet, the Government seems to suggest that the only power the court has under its 'supervisory powers' is to dismiss cases or counts in an indictment. In fact, that is but one of the many powers the court has in its supervisory context. Some have been codified in other statutes (i.e. Rule 11 sanctions in the civil arena) others remain vested with the courts to fashion in it's discretion as the interest ofjustice require. As the court stated in Crowe v. Smith 151 F.3d 217 (1998):
"The imposition of sanctions under the inherent power is a decision particularly committed to the sound discretion of a district court. The inherent power was expressly derived from that control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. When a district court imposes sanctions under this power, it is because the court has determined that the sanctions are necessary to effectuate these important goals as to the particular defendants under its particular theory of the case."
III. THE COURT MUST HOLD A HEARING TO INVESTIGATE THE CIRCUMSTANCES OF
THE ALLEGED CONDUCT
"Public justice and the reign of law demand that the Court hearing a cause shall exercise its jurisdiction untrammeled by the action of another branch of government." O'Malley v. United States supra at 684. The alleged improper conduct took place before this Court and it is the integrity of the Judiciary in general and this Court in particular that has been assailed. Yet, the Government demands that the matter be delegated solely to it for redress.
It is now three months since the government has known that the proffered confession/admission was false [two lines redacted] The Court still does not even know what happened. All that the government's efforts have produced is that:
[8 lines redacted]
We still not know what threats or undue influence were brought to bear upon Mr. Higazy to get him to lie on himself. At what point did the polygraph exam turn into a full-fledged interrogation? At what point and under what pressure did each of the false statements attributed to Mr. Higazy occur? What exactly was said to Mr. Higazy and what were his exact responses thereto? These are the questions to which justice and the integrity of the process demand answers.
Under these circumstances, one cannot help but to have concerns about the sincerity and interest of the government to ferret out and allow the true circumstances to see the light of day (justice).
It should be noted that no effort has been made by the Government to interview Mr. Higazy in order to assist the "investigation" in reaching a just conclusion. What kind of investigation completely ignores the complainant/witness? From the information that the Government has condescended to share with the Court it appears that the "investigation" consists of accepting at face value whatever curt statement Agent [word redacted] saw fit to provide. There has been no explanation of what occurred provided by the Government.
These circumstances cry out for the Court to hold a hearing to determine for itself what occurred under its watch. In determining the proper remedy pursuant to the (Court's) supervisory power, ["] the relief chosen should be directly related to the seriousness of the misconduct" The United States v. Banks. 313 F. Supp at 392.
Quite the contrary to the Government's contention herein the Court has an array of remedies at its disposal depending upon the nature of the offense determined. As suggested in my February 18, 2002 missive, the Court may (upon being advised of the actual developments herein) simply refer a complaint to the Office of Professional Responsibility in the Justice Department. As the Supreme Court noted in Young supra "referral will thus enhance the prospect that investigative activity will be conducted ... pursuant to Justice Department guidelines" Id. at 802.
Or the Court may determine that prosecution for criminal contempt is indeed mandated and take the appropriate steps to consummate that process. The Govermnent's aver that: "were the Court to notice a hearing, thus putting the F.B.I. agent on notice that he is the "subject" or "target" of a contempt inquiry, the F.B.I agent might well decline to testify, (see the Government's March 25, 2002 submission, page 13 fines 14 - 16) -- is without merit.
Should the agent seek to assert his Fifth Amendment right -- that in and. of itself would be noteworthy and instructive to the Court's consideration of this matter. "The need to vindicate a Court's authority is thus satisfied by ensuring that an alleged contemnor will have to account for his or her behavior in a legal proceeding regardless of whether the party is ultimately convicted or acquitted. A Court's ability to institute a contempt proceeding is therefore essential to the vindication of its authority in a way that the ability to determine guilt or innocence is not." Young Supra at 796.
The concerns expressed throughout all of the cases which seek to reign in the courts inherent powers be that of a supervisory nature, or in the context of contempt procedures focus upon the sanction which is to be meted out. There is no restraint upon the court finding out what the devil happened in the first instance. Here, the court is in no position to determine what if anything further is required. Thus the court must hold a hearing to discover what actually transpired and if any further action/remedy is warranted.
As the Supreme Court has stated:
"The fact that we have come to regard criminal contempt as a 'crime in the ordinary sense' (citation omitted) does not mean that any prosecution of contempt must now be considered an execution of the criminal law in which only the executive branch may engage... that criminal procedure protections are now required in such prosecutions should not obscure the fact that these procedures are not intended to punish conduct proscribed as harmful by the general criminal laws rather, they are designed to serve the limited purpose of vindicating the authority of the court. In punishing contempt, the judiciary is sanctioning conduct that violates spdcific duties imposed by the court itself, arising directly from the parties participation in judicial proceedings." Young supra at 800
However, we don't even know if criminal contempt is applicable nor what punishment is warranted. Yet, the government seeks to disable the court from further inquiry, suggesting that the court is powerless to sanction thus disqualified from even knowing what happened. This is unacceptable notwithstanding the Government's empty promise to keep the Court advised of the progress of their investigation (as though any fruit therefrom had been shared with the Court to date).
Such circumstances cannot be permitted because to do so would render the court powerless. "While contempt proceedings are sufficiently criminal in nature to warrant the imposition of many procedural protections, their fundamental purpose is to preserve respect for the judicial system itself. As a result, courts have long had, and must continue to have, the authority to initiate such proceedings when the need arises .... [T]he rationale for the authority... is necessity. If the Judiciary were completely dependent on the Executive Branch to redress direct affronts to its authority, it would be powerless to protect itself if that Branch declined prosecution. Without a hearing we may never know what occurred. the court's authority would be undermined.
IV. THOSE PORTIONS OF THE PROCEEDING WHICH DO NOT CONCERN SUBJECT MATTER OF THE GRAND JURY SHOULD BE UNSEALED
The Court invited the Govermnent to provide cases which support its request that the entire record remain sealed. The Govermnent has produced none. The only case cited Illinois v. Abbott & Associates, Inc. 460 U.S. 557 relates to confidentiality of Grand Jury proceedings and the protection of the innocent targets of the investigation even after completion of the Grand Jury's investigation.
The court already indicated that any Grand Jury subject matter would remain sealed. However the case cited by the government and it's holdings have no application to the rest of the proceedings. There being no legal basis for the remaining portion of the proceedings to be sealed; same should be unsealed pursuant to and consistent with the directives of this court
CONCLUSION
For the reasons stated above the court must in the exercise of either it's summary powers pursuant to 18 U.S.C. 401 or under its supervisory powers hold a hearing to determine what conduct agent [word redacted] engaged in, whether any sanctions should be imposed or pursued and those portions of the record which are not subject matter of the Grand Jury be unsealed.
Respectfully submitted,[Signature]
Robert S. Dunn, Esq.
cc: AUSA David Kelley
THE NEW YORK TIMES
229 WEST 43rd STREET
NEW YORK, N.Y. 10036
July 12, 2002
Hon. Jed S. Rakoff
United States District Court
500 Pearl Street
New York, NY 10007
Dear Judge Rakoff,
I hereby ask on behalf of the New York Times that you unseal all letters, transcripts, and other documents pertaining to the inquiry you are conducting (or considering) concerning Abdallah Higazy.
The Times has already written a number of articles about Mr. Higazi. A June 29 article said you have been considering an inquiry into how the F.B.I. obtained a criminal confession ftom Mr. Higazy after he was detained in connection with the attack on the World Trade Center.
If the court considers certain aspects of his case to be confidential because he was first detained as a material witness, I ask nonetheless that materials pertaining specifically to the confession inquiry be released, as they would not raise the same security considerations.
Thank you very much.
Sincerely,
[Signature]
Ben Weiser
staff writer
daytime number: 212-964-1565
pager: 1-877-226-2588
UNITED STATES DISTRICT COURT
UNITED STATES COURTHOUSE
500 PEARL STREET
NEW YORK, NEW YORK 10007
JED S. RAKOFF
UNITED STATES DISTRICT JUDGE
July 15, 2002
Re: United States of America v. Abdallah Higazy, 02 M 53
Dear Counsel:
Enclosed please find a letter the Court has recently received from the New York Times, asking for unsealing of the materials in the above captioned matter. Judge Rakoff is preparing to issue his opinion in the miatter shortly, but would first like to have your views, if any, regarding the question of whether any of the materials should be unsealed, and, if so, which. He will defer issuing his opinion until after he receives your views on this issue, but he would therefore like to have you submit your views to him, in letter form, by no later than this Friday, July 19, 2002.
Very truly yours,
[Signature]
Jennifer C. Daskal
Law Clerk to Judge Rakoff
enc.
cc (w/o enc) Ben Weiser, NY Times
Robert S. Dunn
Attorney at Law
225 Boradway, Suite 1401
New York, New York 10007
212/528-0898 Fax: 212/385-3525
email: rsdesq@aol.com
July 18, 2002
Honorable Judge Jed S. Rakoff
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street, Room 1340
New York, NY 10007
RE: Material Witness Abdallah Higazy 01 Misc. 1750 (JSR)
Dear Judge Rakoff.
I write to inform the Court of my view on the question of unsealing of the material relating to the above referenced matter. It is both my and Mr. Higazy's position, that the entire matter should be unsealed. Transparency of the judicial process should be the order of the day.
This is a well established principle of our body politic and system of jurisprudence. It is only in exceptional instances which have been clearly identified and firnily rooted in our system of justice, that this rule does not apply. The government has failed to provide any authority to support continuing the shroud of secrecy currently blanketing the matter.
I note for the umpteenth time that this case has never actually been subject matter of any grand jury proceedings. Although it initially came before Your Honor on a proffer of a material witness order, relative to a grand jury's investigation of the events of September 11, 2001, it has long since become evident that was a fallacy.
However, the events which have unfolded thereafter, are of great importance to the American public, as it concerns how our government has gone about its business investigating this case. I truly believe that there are valuable lessons to bc learned from an examination of the investigation herein and public discourse thereof.
Clearly, none of this can occur in a vacuum, therefore, it is imperative that the facts of this come to light. I trust this Court will do what is just and proper, and unseal the subject material herein.
Sincerely yours,
[Signature]
Robert S. Dunn
[By hand] Redacted andUnsealed
U.S. Department of JusticeUnited States Attorney
Southern District of New York
The Silvio J. Moll Building
One Saint Andrew's Plaza
New York, New York 10007
July 19, 2002
TO BE FILED UNDER SEAL
BY HAND
The Honorable Jed S. Rakoff
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street
Room 1340
New York, New York 10007
Re: Material Witness Abdallah Higazy
01 M 1750-38
Dear Judge Rakoff:
The Government respectfully submits this letter in response to The New York Times's request, set forth in a one-page letter from Benjamin Weiser, a staff writer, that the Court "unseal all letters, transcripts, and other documents pertaining to the inquiry [the Court is] conducting (or considering) concerning Abdallah Higazy." Mr. Weiser further requests that "if the court considers certain aspects of [Higazy's] case to be confidential because [Higazy] was first detained as a material witness, that materials pertaining specifically to the confession inquiry be released ..." For the following reasons, the Government submits that the Court should deny Mr. Weiser's request in its entirety, and that the various submissions by counsel and transcripts of proceedings relating to this inquiry should remain sealed.
As the Court is aware, the "confession inquiry" stems from the issuance of a material witness warrant for Higazy, which was based on certain facts known at the time that demonstrated that Higazy might have rdlevant testimony for the grand jury investigating the September 11th attacks. Although those facts initially suggested that an aviation radio found in Higazy's room belonged to Higazy, another individual later claimed the radio and a Millenium Hotel employee admitted to having provided false information about where within Higazy's hotel room the radio was found. As a result, criminal charges against Higazy were dropped, criminal charges against the employee were instated, and questions remain regarding the circumstances under which Higazy made apparently incriminating statements about the aviation radio to an FBI agent who conducted a polygraph examination of Higazy. All of the matters in question are inextricably related to Higazy's detention as a material witness -- a matter that is unquestionably part of a qrand jury proceeding. [8 lines redacted]
Under these circumstances, the Government submits that the submissions of counsel and transcripts of proceedings, including those relating to the "confession inquiry," should remain under seal. Traditionally, matters pertaining to ongoing investigations, including those before the grand jury, are conducted under seal in order to avoid compromising the investigation, discouraging witnesses from coming forward, and prematurely and unfairly tarnishing the reputations of individuals who may be under investigation. Notably, Mr. Weiser's one-page letter provides no basis for deviating from these settled principles. In particular, he identifies no basis for any right of access to the sealed materials, and, as set forth more fully below, there is no First Amendment or common-law right of access to any of the sealed materials. Accordingly, the Government respectfully submits that Mr. Weiser's request should be denied.
A. There Is No First Amendment Right Of Access To The Sealed Materials
Although Mr. Weiser identifies no basis for any right of access to the sealed materials, his request is presumably based at least in part on the First Amendment to the United States Constitution. The Supreme Court has recognized a First Amendment right of access to most criminal proceedings. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578 (1980). However, the Supreme Court also "has implicitly recognized that the public has no right of access to a particular proceeding without first establishing that the benefits of opening the proceedings outweigh the costs to the public." The Times Mirror Company v. United States, 873 F.2d 1210, 1213 (9th Cit. 1989). In determining whether the First Amendment right of public access applies, "[c]ourts are required to examine whether 1) historical experience counsels in favor of recognizing a qualified First Amendment right of access to the'proceeding and 2) whether public access would play a 'significant positive role in the functioning of the particular process in question.' " Id. (quoting Press Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986) (Press Enterprise II)); see also In Re Grand Jury Subpoena, (Doe No. 4 v. Doe No. 1), 103 F. 3d 234, 242 (2d Cit. 1996) (adopting Press Enterprise II test). Neither consideration favors a First Amendment right of access to the materials in question.
First, historical experience dictates that the materials in question relate to proceedings that are not traditionally subject to a First Amendment right of access. Indeed, all of matters under inquiry are specifically protected from disclosure by the rules of grand jury secrecy. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979); In re Motions of Dow Jones & Co., Inc., 142 F.3d 496, 499 (D.C. Cit. 1998) ("there is no First Amendment right of access to grand jury proceedings"); In Re Grand Jury Subpoena, 103 F.3d at 236. Courts have recognized that "among the few limitations to the First Amendment right of access in criminal hearings, none is more important than protecting grand jury secrecy." In re Newark Morning Ledger Co., 260 F- 3d 217, 221 (3rd Cir. 2001). Moreover, "[t]he plain language of the Rule shows that Congress intended for its confidentiality provisions to cover matters beyond those actually occurring before the grand jury: Rule 6(e)(6) provides that all records, orders, and subpoenas relating to (emphasis in original) grand jury proceedings be sealed, not only actual grand jury materials; similarly, Rule 6(e)(5) refers to matters affecting a grand jury proceeding, not only the proceedings themselves." In Re Grand Jury Subpoena, 103 F. 3d at 237; see also In re Newark Morning Ledger Co., 260 F.3d at 222 ("not only are grand jury materials themselves to be kept secret, but so are all materials that relate to grand jury proceedings" (quoting United States v. Smith 123 F. 3d 140, 149 (3d Cit. 1997)).
Consistent with the broad scope of the secrecy of grand jury proceedings and matters relating to those proceedings, courts have maintained both grand jury proceedings and proceedings ancillary to those proceedings under seal. For example, proceedings related to a material witness warrant issued in the course of a grand jury proceeding are to be kept under seal. See In Re Application of the United States for a Material Witness Warrant, Pursuant to 18 U.S.C. 9 3144, for John Doe, Opinion and Order at 1 (S.D.N.Y. July 11, 2002) (Mukasey, Chief Judge) ("[t]he witness who has filed the current motion was taken into custody pursuant to a warrant issued in aid of a grand jury subpoena, and the docket and the record of all appearances in this matter have been sealed as proceedings ancillary to grand jury proceedings. See Fed. R. Crim. P. 6(e)(2), (5) and (6) (setting forth general rule of secrecy and rules for closing of hearings and sealing of records).") Similarly, in In Re Grand Jury Subpoena, 103 F.3d 234, the Second Circuit denied a motion by the press for access to a closed hearing regarding a motion filed by the recipient of a grand jury subpoena demanding that the Government disclose any electronic surveillance that had been conducted of him. The Court found that the hearing pertained to matters that affected the grand jury, and therefore even if the press established a qualified First Amendment right of access, that right "is overcome in the grand jury context by the overriding interest in secrecy." Id. at 242. The Court further explained that "[t]he facts surrounding the grand jury investigation are so integrally linked to Doe 4's motion to disclose as to render them inseparable, at least until the investigation has been completed." Id. See also In re Motions Of Dow Jones & Co., Inc., 142 F.3d 496 (D.C. Cir. 1998) (press did not have First Amendment right of access to district court proceedings ancillary to the ongoing grand jury investigation of alleged violations of federal law by witnesses and others associated with civil case against President Clinton, even if the matter was of utmost public concern and interest); In re Newark Morning Ledger Co., 260 F.3d 217 (3rd Cir. 2001) (district court properly sealed matter related to motion by Senator to find prosecutors in contempt for alleged leak of grand jury information to the media).
Here, all of the matters in question are protected by the rules of grand jury secrecy. [11 lines redacted] Accordingly, none of the submissions by the parties or the proceedings before the Court should be unsealed.
Perhaps in recognition of the rule of grand jury secrecy, Mr. Weiser does not seriously contest the continued sealing of "certain aspects of [Higazy's] case" that the Court may consider "to be confidential because [Higazy] was first detained as a material witness." Mr. Weiser thus focuses his request on "materials pertaining specifically to the confession inquiry." Even assuming that such materials are not grand jury materials that could be separated from other aspects of Higazy's case, however, such materials, which pertain to an ongoing, preliminary inquiry, are also traditionally maintained under seal. In The Times Mirror Company v. United States, 873 F.2d 1210 (1989), the Ninth Circuit considered whether a search warrant application should be unsealed "while a pre-indictment investigation is still ongoing," id. at 1214, and noted that such an application, which occurs at a time when an investigation is ongoing but before indictments have been returned, is traditionally carried out in secret, id.1 Similarly, a preliminary inquiry such as the one being considered here into the conduct of the polygrapher, before a grand jury proceeding is even opened and long before charges are even considered, has traditionally been conducted in secret. See Times Mirror, 873 F.2d at 1215-16 ("If proceedings before and related to evidence presented to a grand jury . . . can be kept secret, a fortiori, matters relating to a criminal investigation leading to the development of evidence to be presented to a grand jury may be kept secret.") (quotation omitted).
____________________
1 In In re Application of Newsday, 895 F.2d 74 (2d Cir. 1990), withhout deciding whether it agreed with the Ninth Circuit's holding in Times Mirror, the Second Circuit dec1ined to apply a rule of secrecy to a request to unseal wiretap applications during the post-conviction stage of a criminal case, at a time when "the government admits that its need for secrecy is over, and the time has arrived for filing the application with the clerk." Id. at 79
[By hand] Proposed redactions not approved JSR [for the following paragraph] The second prong of the "experience and logic" test algo favors keeping the proceeding sealed. Public access to a preindictment criminal investigation will not play a significant positive role in the various investigations that are implicated.
To the contrary, disclosure of the existence of and the materials obtained in a pre-indictment criminal investigation may "frustrate criminal investigations and thereby jeopardize the integrity of the search for truth that is so critical to fair administration of justice." Times Mirror, 873 F.2d at 1213. As the Times Mirror Court recognized, the factors that weigh in favor of maintaining grand jury secrecy apply with equal force to the investigative tools, including search warrants, that are obtained in the course of, and often prior to, the grand jury stage. Id. at 1215. The traditional reasons for maintaining the secrecy of grand jury proceedings include:
First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appear before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.
Douglas Oil Co., 441 U.S. at 218-19. The Times Mirror Court concluded that "secrecy is no less important to the process of investigating crime for the purpose of obtaining evidence to present to the grand jury." 873 F.3d at 1215.
It is particularly important to protect individuals who are the subject of criminal investigations whether before, during or ancillary to grand jury proceedings from having premature accusations levied against them without having a forum in which to respond. See, e.g., In re Smith, 656 F.2d at 1106 ("[N]o legitimate governmental interest is served by an official public smear of an individual when that individual has not been provided a forum in which to vindicate his rights."); United States v. Briggs, 514 F.2d 794, 804 (5th Cir. 1975) (no substantial legitimate governmental interest served "by stigmatizing private citizens as criminals while not naming them as defendants or affording . . . access to any forum for vindication"); United States v. Anderson, 55 F. Supp. 2d 1163, 1168 (D. Kan. 1999) ("The very real stigmatization suffered by the movants from this government action far outweighs the nonexistent government interest in publicly naming them as coconspirators.") [By hand] Proposed redactions not approved JSR [for the following sentence] Here, public disclosure of the investigation of the FBI agent would subject the agent to public censure and possibly irreparably damage his reputation before any meaningful investigation can be completed and before the results can be referred to an appropriate forum for redress.
The legitimacy of third parties' interests in not being the subject of governmental allegations of wrongdoing outside the criminal prosecution process was recognized by Congress in enacting, and by courts in interpreting, the Freedom of Information Act. That statute allows the public to request executive branch documents, but exempts from disclosure "investigatory records compiled for law enforcement purposes . to the extent that production of such records would . . . constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). This exemption properly covers files "tending to indicate that a named individual has been "investigated for suspected criminal activity." Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 863 (D.C. Cir. 1981). Indeed, "[t]here can be no clearer example of an unwarranted invasion of personal privacy" than to "announce to the world that [an individual was the] target [ ] of an FBI investigation." Id. at 864 (internal quotations and citations omitted); see Landano v. DOJ, 956 F.2d 422, 426 (3rd Cir. 1992) ("Suspects of the investigation have the most obvious privacy interest in not having their identities so revealed."), vacated in part on other grounds, 508 U.S. 165 (1993). Thus, even where the individual is a public figure, release of the fact that an individual has been investigated "represents a severe intrusion on [his or her] privacy interests" that should not ordinarily be "overridden by a general public curiosity." Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d at 866. Disclosure would "produce the unwarranted result of placing the named individuals in the position of having to defend their conduct in a public forum outside of the procedural protections normally afforded the accused in criminal proceedings." Id. at 865.
Although FOIA law does not govern the instant application, the same considerations regarding the interests of uncharged third parties that animate the FOIA exception discussed above should result in a finding here that the record of the instant proceeding, even assuming it is not subject to grand jury secrecy rules, should not be presumptively available under the First Amendment.
B. There Is No Common Law Right Of Access To The Sealed Materials
Nor is disclosure warranted under the common law right of access to judicial records. The Supreme Court has recognized that the public has a right, founded in the common law, "to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (footnotes omitted). This right is based on the need for courts to be accountable and for the public to have confidence in the administration of justice. See United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995); Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 660 (3d Cir. 1991). This right, however, "is not absolute." Nixon v. Warner Communications, Inc., 435 U.S. at 598. The public "right of inspection has bowed before the power of a court to insure that its records" do not, for example, promote scandal, serve as a repository for libelous statements, or provide information that might harm a business's competitive standing. Id.; see Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d at 662 (common law right of access "not absolute" and must be weighed against countervailing factors) (internal quotations and citations omitted).
Thus, this "common law right of access is qualified by recognition of the privacy rights of the persons whose intimate relations may thereby be disclosed." In re Application of Newsday, Inc., 895 F.2d 74, 79 (2d Cir. 1990). "Intimate relations " are not limited to bedroom conversations or other highly personal interactions, United States v. Amodeo, 71 F.3d at 1051 n.1, but can extend to, for example, business transactions. See id. at 1051 & n.1. The interests of third parties, "while not always fitting comfortably under the rubric 'privacy,' are a venerable common law exception to the presumption of access." Id. at 1051. It is left to the sound discretion of the District Court to balance the privacy interests of uncharged third parties against the public right of access, and to order appropriate redactions. See In re Application of Newsday, Inc., 895 F.2d at 79-80. In assessing the privacy issues, the court should focus on whether the subject matter is traditionally private rather than public, the nature and degree of injury, the reliability of the information, and whether there is a fair opportunity for those mentioned to respond. United States v. Amodeo, 71 F.3d at 1051.
These considerations weigh decisively against a common law right of access here. Aside from the fact that grand jury proceedings are closed to the public, a right of access to preliminary, investigative proceedings, as discussed above, would have a chilling effect on the manner in which information is generally sought and obtained in a criminal investigation. Further, uncharged third parties could suffer serious reputational or other injury; and such third parties would have no judicially supervised forum for response. Given that "'[t]he privacy interest of innocent third parties . . . should weigh heavily in a court's balancing equation," Amodeo, 71 F.3d at 1050 (quoting In re Application of Newsday, Inc., 895 F.2d at 7980), the common law right of access does not outweigh the privacy interests of uncharged third parties in this case.
C. Disclosure Is Not Warranted In Light Of A Previous Report In The Press Concerning The Court's Inquiry
Finally, in his letter, Mr. Weiser notes that many press articles have already been written about Higazy, including an article published in The New York Times on June 29, 2002. Mr. Weiser thus implies that the public dissemination of these articles has rendered any attempt to maintain the secrecy of this matter moot and that further public disclosure of these proceedings will not result in any additional harm. The continued need for secrecy is not necessarily defeated, however, by the appearance of articles in the press. Indeed, Courts have held that judicial and criminal proceedings, both pre-indictment and post-indictment, can be properly sealed even after numerous press articles have appeared. See, e.g., In Re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994) ("Rule 6(e) does not create a type of secrecy which is waived once public disclosure occurs," however, "when information is sufficiently widely known . . . it has lost its character as Rule 6(e) material"); United States v. Cojab, 996 F.2d 1404 (2d Cir.. 1993) (affirming district court's sealing of pretrial hearing.even after over twenty news articles related to the defendant had appeared in local papers during period surrounding trial).
[29 lines redacted]
Conclusion
For the foregoing reasons, the Government respectfully submits that all of the proceedings before the Court should remain under seal unless and until the underlying, ongoing investigations are concluded. At a minimum, before any materials are unsealed, the Court should require The New York Times or any other interested party to provide a sufficient basis for public access to the sealed materials.
Respectfully submitted,JAMES B. COMEY
United States AttorneyBy: [Signature]
Edward C. O'Callaghan
Assistant United Stal Attorney
Telephone: (212) 637-2634
cc: Robert Dunn, Esq.
[By hand] Unsealed
U.S. Department of JusticeUnited States Attorney
Southern District of New York
The Silvio J. Moll Building
One Saint Andrew's Plaza
New York, New York 10007
July 23, 2002
TO BE FILED UNDER SEAL
BY HAND
The Honorable Jed S. Rakoff
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street
Room 1340
New York, New York 10007
Re: Letter Request from Benjamin Weiser
Dear Judge Rakoff:
Pursuant to the Court's instructions during yesterday's telephone conference, enclosed please find a modified version of the Government's letter, dated July 19, 2002, submitted in response to a letter from Benjamin Weiser of The New York Times. The Government objects to disclosing any portion of the July 19 letter to The Times, and maintains that, at the very least, The Times should bear the initial burden of formally moving to unseal the proceedings and setting forth the specific bases for such relief before the Government should be required to respond.
Nevertheless, the Government respectfully submits the enclosed letter in an effort to comply with the Court's order. The original letter was not written with the understanding that it would eventually be disclosed by the Court to The Times. Therefore, while the Government attempted to redact the original letter in a manner that adequately protected the secrecy of the proceedings before the Court, such an exercise proved unavailing. As the Government stated during the telephone conference with the Court, the facts surrounding the various stages of the proceedings before the Court were so intertwined with the legal analysis contained in the letter that simple redaction of portions of the letter was insufficient to guard against disclosure of the nature of the proceedings that are pending before Your Honor.
Thus, in the modified version of the letter, the Government has attempted to provide most of the general legal principles and authority which support continued sealing of the matter, without a detailed analysis of how the law would apply to the present case. Should The Times formally move to unseal the proceedings, the Government will of course provide a fuller briefing.
Respectfully submitted,JAMES B. COMEY
United States AttorneyBy:
[Signature]
Edward C. O'Callaghan
Assistant United States Attorney
Telephone: (212) 637-2634
CC: Robert Dunn, Esq.
________________________
[Revised letter, 4 pages]
[By hand] Unsealed
U.S. Department of JusticeUnited States Attorney
Southern District of New York
The Silvio J. Moll Building
One Saint Andrew's Plaza
New York, New York 10007
July 23, 2002
BY HAND
The Honorable Jed S. Rakoff
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street
Room 1340
New York, New York 10007
Re: Letter Request from Benjamin Weiser
Dear Judge Rakoff:
The Government respectfully submits this letter in response to The New York Times's request, set forth in a one-page letter from Benjamin Weiser, a staff writer, that the Court "unseal all letters, transcripts, and other documents pertaining to the inquiry [the Court is] conducting (or considering) concerning Abdallah Higazy." Mr. Weiser further requests that "if the court considers certain aspects of [Higazy's] case to be confidential because [Higazy] was first detained as a material witness, that materials pertaining specifically to the confession inquiry be released . . ." While Mr. Weiser's letter does not set forth the specific basis for his request that any sealed materials relating to the Higazy matter be disclosed, general principles governing the First Amendment right of access to court proceedings counsel against granting Weiser's request.
The Supreple Court has recognized a First Amendment right of access to most criminal proceedings. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578 (1980). At the same time, however, the Supreme Court also "has implicitly recognized that the public has no right of access to a particular proceeding without first establishing that the benefits of opening the proceedings outweigh the costs to the public." Times Mirror Company v. United States, 873 F.2d 1210, 1213 (9th Cir. 1989). "The Supreme Court has established a two-part inquiry for determining whether a particular proceeding is one to which the First Amendment right of access attaches. This test requires a court to consider both 'experience' and 'logic.'" United States v. Smith, 123 F.3d 140, 146 (3d Cir. 1997) (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986) ("Press-Enterprise II")). Thus, "[c]ourts are required to examine whether 1) historical experience counsels in favor of recognizing a qualified First Amendment right of access to the proceeding and 2) whether public access would play a 'significant positive role in the functioning of the particular process in question.' " Times Mirror Company, 873 F.2d at 1213 (quoting Press-Enterprise II, 478 U.S. at 8); see also In Re Grand Jury Subpoena, (Doe No. 4 v. Doe No._1), 103 F. 3d 234, 242 (2d Cir. 1996) (adopting Press-Enterprise II test). Further, "even if experience and logic favor a presumption of access, a court may still seal a proceeding if closure is justified by overriding principles." In re Newark Morning Ledger Co., 260 F. 3d 217, 221 n. 7 (3rd Cir. 2001).
In applying these principles, courts have found that "experience" does not dictate a First Amendment right of access to certain types of pretrial proceedings, including:
(a) grand jury proceedings, see In re Newark Morning Ledger Co., 260 F. 3d at 221 (noting that "among the few limitations to the First Amendment right of access in criminal hearings, none is more important than protecting grand jury secrecy."); In re Motions of Dow Jones & Co., Inc., 142 F.3d 496, 499 (D.C. Cir. 1998) ("there is no First Amendment right of access to grand jury proceedings");
(b) proceedings ancillary to or relating to grand jury proceedings, see In re Newark Morning Ledger Co., 260 F.3d at 222 ("not only are grand jury materials themselves to be kept secret, but so are all materials that relate to grand jury proceedings") (quoting United States v. Smith 123 F. 3d 140, 149 (3d Cir. 1997)); In Re Grand Jury Subpoena, 103 F. 3d at 237 ("[t]he plain language of the Rule shows that Congress intended for its confidentiality provisions to cover matters beyond those actually occurring before the grand jury: Rule 6(e)(6) provides that all records, orders, and subpoenas relating to (emphasis in original) grand jury proceedings be sealed, not only actual grand jury materials; similarly, Rule 6(e)(5) refers to matters affecting a grand jury proceeding, not only the proceedings themselves."), such as contempt proceedings arising out of alleged violations of grand jury secrecy rules, see In re Newark Morning Ledger Co., 260 F.3d at 224-28 (district court properly sealed matter related to motion by Senator to find prosecutors in contempt for alleged leak of grand jury information to the media), or litigation relating to grand jury subpoenas, see In re Motions of Dow Jones & Co., Inc., 142 F.3d 496, 503-04 (D.C. Cir. 1998) (press did not have First Amendment right of access to district court proceedings ancillary to the ongoing grand jury investigation of alleged violations of federal law by witnesses and others associated with civil case against President Clinton, even if the matter was of utmost public concern and interest); and
(c) applications that are preliminary to grand jury investigations or intended to gather evidence to be presented to a grand jury, such as search warrant applications, see Times Mirror Company, 873 F.2d at 1215-16 ("If proceedings before and related to evidence presented to a grand jury . . . can be kept secret, a fortiori, matters relating to a criminal investigation leading to the development of evidence to be presented to a grand jury may be kept secret.") (quotation omitted)1, or proceedings relating to material witness warrants issued for grand jury witnesses, see In Re Application of, the United States for a Material Witness Warrant, Pursuant to 18 U.S.C. § 3144, for John Doe, Opinion and order at 1 (S.D.N.Y. July 11, 2002),(Mukasey, Chief Judge) ("[t]he witness who has filed the current motion was taken into custody pursuant to a warrant issued in aid of a grand jury subpoena, and the docket and the record of all appearances in this matter have been sealed as proceedings ancillary to grand jury proceedings. See Fed. R. Crim. P. 6(e)(2), (5) and (6) (setting forth general rule of secrecy and rules for closing of hearings and sealing of records).").
____________________
1 In In re Application of Newsday, 895 F.2d 74 (2d Cir. 1990), without deciding whether it agreed with the Ninth Circuit's holding in Times Mirror, the Second Circuit declined to apply a rule of secrecy to a request to unseal wiretap applications during the post-conviction stage of a criminal case, at a time when "the government admits that its need for secrecy is over, and the time has arrived for filing the application with the clerk." Id. at 79.
In finding that "logic" also does not support a finding of a First Amendment right of access in these sorts of proceedings, courts have considered the traditional interests cited in support of grand jury secrecy, including encouraging prospective witnesses "to come forward voluntarily," and "testify fully and frankly," and "assur[ing] that persons who are accused but exonerated by the grand jury will not be held up to public ridicule." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19 (1979); see Times Mirror Co., 873 F.3d at 1215 (noting that "secrecy is no less important to the process of investigating crime for the purpose of obtaining evidence to present to the grand jury."); In re Newark Morning Ledger Co., 260 F.3d at 221; In re Smith, 656 F.2d at 1106 ("[N]o legitimate governmental interest is served by an official public smear of an individual when that individual has not been provided a forum in which to vindicate his rights.").
Because matters relating to the Higazy matter are currently (and properly) under seal, the Government cannot detail the specific reasons why a correct application of these precedents would support continued sealing. But suffice it to say that all of the sealed proceedings relating to the Higazy matter fall comfortably within these categories of proceedings that "experience" has found to fall outside the First Amendment right of access and that the interests considered under the "logic" inquiry which traditionally counsel against finding a First Amendment right of access compel a similar result here.
For the foregoing reasons, the Government respectfully submits that all of the proceedings before the Court in the Higazy matter should remain under seal.
Respectfully submitted,JAMES B. COMEY
United States AttorneyBy: [Signature]
Edward C. O'Callaghan
Assistant United States Attorney
Telephone: (212) 637-2634
cc: Robert Dunn, Esq.
UNITED STATES DISTRICT COURT
UNITED STATES COURTHOUSE
500 PEARL STREET
NEW YORK, NEW YORK 10007
JED S. RAKOFF
UNITED STATES DISTRICT JUDGE
Ben Weiser
The New York Times
229 West 43rd Street
New York, NY 10036
July 24, 2002
Dear Mr. Weiser:
By letter of July 15, 2002, on which you were copied, the Court requested counsel in the Higazy matter to respond to your letter of July 12, 2002 requesting unsealing of materials pertaining thereto. In response, a letter dated July 18, 2002 was received from Higazy's counsel, a copy of which is here enclosed, supportive of your position. A letter dated July 19, 2002 was also received from the Government, opposing your position, but it included references to matter that the Government argues should remain sealed. Accordingly, the Court ordered the Government to prepare a revised version of their letter, excising the references as to which sealing was requested, so that, if you wished, you could respond to the arguments therein. A copy of that letter, dated July 23, 2002, is here enclosed.
Counsel for Mr. Higazy has been given until 5 P.M. next Monday to respond to the Government's letter, if he so wishes. If you (or counsel on your behalf) also wish to respond to the Government's letter, such response, in letter form and not to exceed the length of the Government's letter, must be delivered to the Court by no later than 5 p.m. next Monday, July 29, 2002. A copy should also be delivered at the same time by hand to counsel for the Government (as well as to Higazy's counsel by mail) so that, if it so wishes, the Government may respond in turn by no later than Thursday, August 1 (with copy to you and counsel for Mr. Higazy) to any letter from you and/or counsel for Mr. Higzay. The Court is anxious not to delay this matter further and will rule promptly after August 1.
Very truly yours,
[Signature]
Jennifer Daskal
Law Clerk to Judge Jed S. Rakoff
enc. cc (w/o enc.): Edward C. O'Callaghan, AUSA
Robert S. Dunn, Esq.
The New York Times
Company
David McCraw
Counsel
229 West 43rd Street
New York, NY 10036
tel 212-556-4031
fax 212-556-4634
mccrad@nytimes.com
July 26, 2002
BY HAND
The Honorable Jed S. Rakoff
United States District Judge
Southern District of New York
United States District Court
500 Pearl Street, Room 1340
New York New York 10007
Re: United States v. Higazy (02 M 53)
Dear Judge Rakoff,
On behalf of The New York Times and its reporter, Ben Weiser, we respectfully submit this letter in response to the Government's letter of July 23, 2002 (the "Letter") opposing our request that materials pertaining to Mr. Higazy be unsealed.
As The Times has reported, the Court is considering an inquiry into how the F.B.I. obtained a confession from Mr. Higazy, who, it is now conceded, was innocent. The Government contends that the unsealing of materials pertaining to Mr. Higazy would violate grand jury secrecy. We of course are not privy to the underlying facts, and the Government did not address the facts because the matter is under seal. Nonetheless, we believe the Government misconstrues the relevant law and that under the very precedents cited in the Letter the documents pertaining to Mr. Higazy's case generally -- and to the circumstances of his confession specifically -- should be made public.
The Government correctly notes that there is a First Amendment right of access and sets forth the two-prong test for when a First Amendment right attaches to a proceeding. (Letter, pp. 1-2.) We would note that there is also a common law right of access, the application of which is left to "the sound discretion of the trial court, a discretion to be exercised "in light of the relevant facts and circumstances of the particular case." Nixon v. Warner Communications, Inc., 435 U.S. 589, 599 (1978), United States v. Eastern Air Lines, Inc., 923 F.2d 241, 245 (2d Cir. 1991).
Concededly, as tile Government notes, no right of access attaches to grand jury proceedings, and courts have extended grand jury secrecy to collateral proceedings that "affect" or "relate to" grand jury proceedings. In re Newark Morning Ledger Co., 260 F.3d 217, 223 (3d Cir. 2001), United States v. Smith, 123 F.3d 140, 149 (3d Cir. 1997); In re Grand Jury Subpoena (Doe No. 4 v. Doe No. 1), 103 F.3d 234, 237 (2d Cir. 1996). However, the Government completely ignores the operative question that must be addressed in a case like this where access is sought to a collateral proceeding: When does a collateral proceeding "affect" or "relate to" a grand jury proceeding?
The courts have answered that question. In In re Grand Jury Matter (Catania), 682 F.2d 61, 63 (3d Cir. 1982), the Third Circuit held, "The policy of secrecy is designed to protect from disclosure only the essence of what takes place in the grand jury room, in order to preserve the freedom and integrity of the deliberative process [internal citation and quotation omitted]." The Catania Court found that no violation of grand jury secrecy had occurred when materials developed during an FBI investigation were disclosed to a district attorney even though the FBI's investigation paralleled a grand jury investigation into the same conduct. "The information developed by the FBI, although perhaps developed with an eye toward ultimate use in a grand jury proceeding, exists apart from and was developed independently of grand Jury processes." Catania, 682 F.2d at 64.
Other Circuits, including the Second Circuit, have followed the Catania approach in distinguishing between protected and unprotected material. In Eastern Air Lines, 923 F.2d at 244, the Second Circuit held that information developed in an investigation independently of a grand jury could be disclosed even though the information might later be presented to a grand jury. Cf. Doe No. 4, 103 F.3d at 238. Similarly, the Tenth Circuit held in Anaya v. United States, 8 15 F.2d 1373, 1379-80 (10`11 Cir. 1987):
When documents or other material will not reveal what actually has transpired before a grand jury, their disclosure is not an invasion of the protective secrecy of its proceedings, nor is it an interference with the grand jury as a principal tool of criminal accusation.
See also In re Grand Jury Subpoena (United States v. Under Seal), 920 F.2d 235, 242-43 (4th Cir. 1990); Larson v. United States, 833 F.2d 758, 759 (8th Cir. 1987), cert. denied, 486 U.S. 1008 (1988).
In the cases relied upon by the Government, the courts found that allowing access to collateral proceedings and material would disclose matters occurring before a grand jury. In Doe No. 4, 103 F.3d at 239, the Second Circuit found that a hearing on potentially illegal surveillance activities might collaterally reveal the "naines of other witnesses and targets of the grand jury investigation." In Newark Morning Ledger, 260 F.3d at 224, the Third Circuit said an inquiry into whether grand jury material had been improperly disclosed could not be conducted without disclosing what material had in fact been presented to the grand jury. Likewise, in Smith, 123 F.3d at 151, the court's hearing on whether a prosecutor had disclosed grand jury material was closed because the government needed to reveal information about the grand jury to mount its defense.
The facts presented in those cases are dramatically different from the facts here. First, as Mr. Higazy's lawyer states in his letter of July 18, 2002 to the Court, "this case has never actually been [the] subject matter of any grand jury proceedings." Moreover, the issue presented here -- the circumstances under which federal agents were able to obtain a confession from an individual with no connections to any criminal act or conspiracy -- does not present the problems encountered in Doe No. 4, Newark Morning Ledger, and Smith, where the evidence to be presented in the collateral proceeding was intertwined with matters actually before the grand jury. The treatment of Mr. Higazy by investigators is separable -- logically, legally, and factually -- from any grand jury proceeding.
Significantly, Smith and Doe No. 4 acknowledge that cases involving allegations of governmental misconduct are precisely the kind of cases where the right to access should attach, but for the grand jury concern. "[W]e agree with the newspapers that there is a significant public interest in gaining access to proceedings that investigate allegations of government misconduct." Smith, 123 F.3d at 150. Likewise, in Doe No. 4, 103 F.3d at 242, the Second Circuit said: "We believe that the presence of the press in a hearing on a motion to disclose electronic surveillance often can play a significant positive role for society and the legal system for society and the legal system.... [P]ublic scrutiny of the legal process ... serves as a check on potential governmental abuse in both the fact-finding and trial stages of a case." Here, unlike those cases, there is no grand jury secrecy to prevent the right of access from attaching.
Where the qualified right of access attaches, public access call be denied only where the court's findings meet the four-part test derived from Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 8-10 (1986). United States v. Doe, 63 F.3d 121, 128 (2d Cir. 1995). As set forth in Doe, 63 F.3d at 128, the district Court must: (1) "determine, in specific findings made on the record, if there is a substantial probability of prejudice to a compelling interest", (2) if a substantial probability of prejudice to a compelling interest is found, consider reasonable alternatives to closure" (3) if reasonable alternatives to closure are not available, determine whether the prejudice to the compelling interest overrides the qualified First Aniendinent right; and (4) if closure is warranted, devise a closure order that is narrowly tailored to its purposes.
Because grand jury secrecy is not implicated here, there is no compelling interest to support the Government's efforts to keep the public from knowing what happened to Mr. Higazy. To the contrary, the First Amendment interests are particularly powerful. This is the kind of case that shakes the public's confidence in the criminal justice system. Access assures the public that questions entailing governmental conduct are thoroughly and aggressively investigated and that, if wrongdoing is found, those responsible are made accountable.
We appreciate the Court's consideration of this matter.
Respectfully submitted,
[Signature]
David E. McCraw (DM7708)
cc: Edward C. O'Callahan, AUSA (by hand)
Robert S. Dunn, Esq. (by facsimile and first class mail)
29331
[By hand] Redacted and Unsealed
U.S. Department of JusticeUnited States Attorney
Southern District of New York
The Silvio J. Moll Building
One Saint Andrew's Plaza
New York, New York 10007
August 1, 2002
TO BE FILED UNDER SEAL
BY HAND
The Honorable Jed S. Rakoff
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street
Room 1340
New York, New York 10007
Re: Material Witness Abdallah Higazy
01 M 1750-38
Dear Judge Rakoff:
The Government writes in response to the July 26, 2002 letter from The New York Times ("The Times"), in which The Times argues that this Court should unseal the record of the "confession inquiry" in the above-referenced proceeding. Because a complete response to The Times' letter requires reference to the sealed matters pending before the Court, the Government does not feel that it can adequately counter The Times' arguments in an unsealed letter. Accordingly, the Government has provided the Court and The Times with a separate letter addressing generally some of the arguments raised by The Times, and is filing this letter under seal, with a copy to Higazy's counsel, to provide a fuller explanation of the reasons why continued sealing is required under the circumstances.
The Times rests its argument in support of unsealing the record on its narrow interpretation of what the courts have considered to be "collateral proceedings that 'affect' or 'relate to, grand jury proceedings." Relying principally on the Third Circuit holding in In re Grand Jury Matter (Catania), 682 F.2d 61, 63 2d Cir. 1982), The Times argues that courts have answered the question narrowly by interpreting Rule 6(e)'s secrecy provisions as covering "only the essence of what takes place in the grand jury room." (Times Letter at 2 (citing In re Grand Jury Matter (Catania), 682 F.3d at 63). According to The Times, the matters that are the subject of this Court's inquiry (of which The Times presumably should not be fully aware since the proceeding is still under seal) do not implicate grand jury secrecy at all because they are not "intertwined with," and are "separable" from, matters occurring before the grand jury. (Times Letter at 3). But The Times's view of what matters relate to, or are intertwined with, the grand jury is simply too narrow, both as matter of law and on facts presented here.
In In re Grand Jury Subpoena (Doe No. 4), 103 F.3d 234 (2d Cir. 1996) ("Doe No. 4"), the Second Circuit found that "a proceeding is related to or affects a grand jury investigation [and falls within the secrecy provisions of Fed. R. Crim. P. 6(e)(5)] if it would reveal matters actually or potentially occurring before the grand jury." It thus held that a hearing challenging the propriety of electronic surveillance should be sealed until the grand jury investigation was completed, because the hearing posed "a significant risk of disclosing information which has occurred or which may occur before the grand jury," including "the names of other witnesses and targets of the grand jury investigation."' Id. at 238-39. Similarly, in The Times Mirror Company v. United States, 873 F.2d 1210, 1216 (9th Cir. 1989), the Ninth Circuit held that "the First Amendment does not establish a qualified right of access to search warrant proceedings and materials while a preindictment investigation is still ongoing." The Court noted that "[i]f proceedings before and related to evidence presented to a grand jury can be kept secret, a fortiori, matters relating to a criminal investigation leading to the development of evidence to be presented to a grand jury may also be kept secret." Id. at 1215-16 (quotations and citations omitted).
In each of these situations, the courts recognized that the concerns underlying disclosure of grand jury information that have resulted in the universal recognition of the need for grand jury secrecy -- such as (a) the need to "prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at trial of those indicted by it," Doe No. 4, 103 F.3d at 237 (quoting United States v. Moten, 582 F.2d 654, 662 (2d Cir. 1978); (b) the danger that "persons identified as being under suspicion of criminal activity might destroy evidence, coordinate their stories before testifying, or even flee the jurisdiction," Times Mirror, 873 F.2d at 1215; (c) the fact that "if preindictment proceedings were made pubiic, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they would testify would be aware of that testimony," Times Mirror, 873 F.2d at 1215 (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979); and (d) the danger that an open process would expose "persons who are accused but exonerated by the grand jury . . . to public ridicule," Times Mirror, 873 F.2d at 1216 (quoting Douglas Oil, 441 U.S. at 219) -- are implicated by disclosure of matters that are either preliminary to, or intertwined with, the grand jury proceedings, even if the actual grand jury proceedings themselves were not disclosed. Indeed, in Doe No. 4, the Court expressly rejected the press's argument that proceedings related to a grand jury investigation "should be closed only if the government can show a specific risk of disclosure of actual matters occurring before the grand jury" as interpreting Fed. R. Crim. P. 6(e)(5) and (6) "too narrowly." Doe No. 4, 103 F.3d at 240.
[20 lines redacted] In response to the Court's request for information relating to the Higazy matter, the Government has disclosed to the Court numerous facts relating to Higazy's confession, including information relating to the Higazy matter, the Government has disclosed to the Court numerous facts relating to Higazy's confession, including certain statements by the FBI agent who took the confession. [16 lines redacted]
That one article specifically referring to the sealed inquiry being conducted by this Court appeared in The Times on June 29, 2002 is not a sufficient basis upon which to conclude that the matters before the Court are already in the public domain, thereby supporting further disclosure. In United States v. Smith, 123 F.3d 140 (3d Cir. 1997), the Third Circuit held that even though many newspapers had already published portions of a sentencing memorandum which gontained information obtained during a grand jury investigation and which had been inappropriately disclosed by the prosecutor, the Court was not powerless to attempt to limit further dissemination of the materials. The Court held, "it is clear to us that a court is simply not powerless, in the face of an unlawful disclosure of grand jury secrets, to prevent all further disclosures by the Government of those same grand jury secrets. In other words, even if the grand jury secrets are publicly discloed, they may still be entitled to at least some protection from disclosure." Id. at 154. See, also In Re North, 16 F.3d 1234, 1245 (D.C.Cir. 1994) ("Rule 6(e) does not create a type of secrecy which is waived once public disclosure occurs," however, when information is sufficiently widely-known . . . it has lost its character as Rule 6(e) material"); United States v. Cojab, 996 F.2d 1404 (2d Cir. 1993)(affirming district court's sealing of pretrial hearing even after over twenty news articles related to the defendant had appeared in local papers during period surrounding trial). The Court should not be complicit in what seemingly was an unauthorized disclosure of information regarding sealed matters to The Times, by further unsealing the record to allow for widespread, premature distribution of even further details of the proceedIngs before the Court.
In its letter, The Times cites several cases that it claims uphold its argument that information developed in the course of an investigation independent of the grand jury that does not directly implicate matters that took place inside the grand jury room can be disclosed without violating the dictates of Rule 6(e). However, each of these cases involved an investigation that had either progressed to a stage where disclosure would not undermine the investigation or where the investigation had already been concluded. For example, in In re Grand Jury Matter (Catania), the Third Circuit held that a U.S. Attorney's Office did not violate Rule 6 (e) when they turned over to a District Attorney's office materials that had been developed in the federal investigation after such time as the federal grand jury investigation was concluded. Id. at 62. In United States v. Eastern Airlines, 923 F.2d 241 (2d Cir. 1991), the Second Circuit found that there was no violation of Rule 6(e) in the unsealing of an agent's affidavit in support of a search warrant that was filed after an indictment had already been returned and unsealed against Eastern. Id. at 243. The Court found that much of the information contained in the affidavit was already made public when the indictment was unsealed, and the additional information contained statements from confidential informants who had not testified before the grand jury that had returned the indictment and which were not obtained through the use of grand jury subpoenas from that grand jury. Id. at 244. The Court held that since the information contained in the affidavit did not implicate matters that had occurred before the already concluded grand jury, and since the Government did not seek to keep the affidavit under seal, there was no reason under Rule 6(e) to continue to seal the affidavit. Id. at 244-45.
[By hand] Proposed redaction not approved JSR [for the following sentence] Indeed, an important theme running through the cases cited by The Times and the Government is the, deference accorded to the effect that premature disclosure would have on the Government or grand jury investigation. For example, in Times Mirror, the Court noted that it had "necessarily been highly deferential to the government's determination that a given investigation requires secrecy and that warrant materials be kept under seal." 873 F.2d at 1214. Similarly, in Eastern Airlines, in deciding that disclosure of a search warrant affidavit did not violate Rule G(e), the Court highlighted the importance of the fact that "the government has taken the position that the confidentiality of the [search warrant) affidavit, which was essential until the search warrant was executed, is no lonqer needed." 923 F.2d at 245. [5 lines redacted]
Finally, even if the First Amendment qualified right of access attaches to these proceedings, it may be overcome "by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Doe 4, 103 F.3d at 242. Certainly, as noted above, there are overriding investigatory reasons for maintaining this matter under seal. Further, as the Government has previously argued, the rights of uncharged third parties would be infringed by premature public disclosure of this matter. As has been described in the context of Freedom of Information Act requests, even where the individual is a public figure, release of the fact that an individual has been investigated "represents a severe intrusion on [his or her] privacy interests" that should not ordinarily be "overridden by a general public curiosity." Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 866 (D.C. Cir. 1981).
Contrary to the assertions of Robert Dunn, Esq., in his July 29, 2002 letter to the Court, the appropriate inquiry here is not whether he or his client wish to unseal the record before the Court, [11 lines redacted]
Conclusion
For all the foregoing reasons, the record in this case should remain sealed. If the Court decides that it is inclined to grant an order unsealing any part'of the record in this case, the Government respectfully requests that the Court stay that order for a period of ten days to enable the Government the oppoftunity to appeal such an order.
Respectfully submitted,JAMES B. COMEY
United States AttorneyBy: [Signature]
DAVID N. KELLEY
Deputy United States Attorney
Telephone: (212) 637-1025
cc: Robert Dunn, Esq. (by fax)
Transcription and HTML by Cryptome.
Source: Purchased from the New York Times
August 16, 2002, Friday
By BENJAMIN WEISER
Newly released court documents show that a federal judge in Manhattan briefly considered appointing a special prosecutor to investigate how the F.B.I. had obtained a confession from an innocent Egyptian student detained in connection with the attack on the World Trade Center.
The documents show that the judge, Jed S. Rakoff of Federal District Court, raised questions of whether the student, Abdallah Higazy, was coerced into confessing to an agent from the Federal Bureau of Investigation who was administering a polygraph test about a radio that was said to be in his hotel room.
The judge also said he was ''apparently seriously misled'' into believing the confession was true, though it proved to be false.
The government vigorously opposed the appointment of a special prosecutor, or a second option, to have the judge hold a hearing into the circumstances of the confession. Judge Rakoff ultimately agreed on an option proposed by prosecutors, ordering them on Aug. 5 to conduct their own investigation and report back to him by Oct. 31.
Mr. Higazy's case remains one of the more unusual chapters in the Sept. 11 investigation. Mr. Higazy was first held last December as a material witness in the investigation after a hotel security guard said he found an aviation radio in the safe in the room where Mr. Higazy was staying at the time of the attack. The room overlooked the trade center.
Mr. Higazy was charged with lying when he denied owning the radio, and spent about a month in jail in solitary confinement. In January, Mr. Higazy was released and the charges dropped after the guard admitted making up the story about the radio.
The previously sealed court documents show that Judge Rakoff held a court conference on Jan. 18, one day after learning through the news media that the charges against Mr. Higazy had been dismissed, and he expressed concern that in keeping Mr. Higazy in jail, he had relied on the government's representation that the student had confessed.
The documents offer more detail than previously known about the confession. They say that Mr. Higazy, without his lawyer present, gave the F.B.I. agent three versions of how he had obtained the radio. He said that he had found it in a subway station near City Hall, had found it underneath the Brooklyn Bridge and had stolen it from the Egyptian Air Corps, in which he had once served. The assertions were all untrue.
The documents suggest that Judge Rakoff was seriously concerned that the F.B.I. agent, who is not named, was using an investigative tool of questionable reliability and may have taken advantage of an individual who was ''nervous and under stress'' to effectively transform a lie detector test ''into an uncounseled interrogation.''
The documents show Mr. Higazy complained to his lawyer, Robert S. Dunn, that the agent ''threatened the safety and security of both his family in Egypt as well as his younger brother who was attending school upstate,'' and that he felt he had no choice but to make some kind of admission ''to remove his family from harm's way.'' The agent denied making any such threats, the documents show. The New York Times and Mr. Dunn had asked the judge to unseal the documents.
Judge Rakoff makes clear in the documents that he has reached ''no conclusions'' about the agent's action; and he said earlier this month in ordering the government investigation that he believed that the prosecutor who cited the confession in court did so without realizing that it was false. The F.B.I. and prosecutors had no comment.
Mr. Dunn said the documents showed ''how zealously the government has pursued protecting any hint of impropriety on the part of the agent rather than getting to the truth of the matter.''
The government clearly disagrees. In the transcript of a March 18 court hearing, David N. Kelley, deputy United States attorney, told Judge Rakoff that ''the moment we had an inkling'' of a problem with the case, it was investigated aggressively and immediate action was taken to release Mr. Higazy.
''The government is terribly troubled by how this case unfolded,'' Mr. Kelley told the judge. ''It is the nightmare that we have all experienced as prosecutors, hoping it would never come true, and this is that instance where it did come true.''
Copyright 2002 The New York Times Company