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United States of America v. Ilyas Kashmiri

January 3, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ILYAS KASHMIRI, ET AL., (TAHAWWUR HUSSAIN RANA) DEFENDANTS.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Tahawwur Hussain Rana's ("Defendant") Motion to Suppress Post-Arrest Statement and Request for Evidentiary Hearing. For the reasons stated below, Defendant's Motion is denied.

I. INTRODUCTION

Defendant has been charged in three counts of a twelve-count superseding indictment for providing material support to terrorists, brought pursuant to 18 U.S.C. § 2339(A), in connection with the November 2008 attacks in Mumbai, India, and a plot to attack a newspaper building in Denmark. Defendant was arrested on October 18, 2009, and taken to the Federal Bureau of Investigation's (the "FBI") Chicago office for questioning by two FBI agents. Prior to this interrogation, the agents provided Defendant Miranda warnings. In providing these warnings, the agents told Defendant that he had "the right to talk to a lawyer for advice before we ask you any questions," "the right for the lawyer to be here present with you during any questioning," and "if you [Rana] would like to have an attorney, you can have an attorney, you can have an attorney here." Defendant waived his Miranda rights, both orally and in writing. According to a time stamp on the video of the questioning, the interrogation began at 8:48 a.m.

Almost three-and-a-half hours into the interrogation, at approximately 12:10 p.m., Defendant asked the agents if he could use the washroom. One agent left the room to apparently make arrangements for this request. At this time, Defendant asked the agent still present in the room if the government was charging him with a crime. The agent told Defendant that he had been placed under arrest that morning. Then, at approximately 12:12 p.m., the period of the interrogation at which Defendant contends he requested an attorney occurred. The exchange proceeded as follows:

Defendant: So, the, I mean, generally I'm not aware of the criminal part. When you say that you are arrested, generally don't they give you a charge sheet that they are charging you with so much? Or can they have somebody under suspicion and just, you know, take that person in? Agent 1: Yes, I think that a judge would advise you of everything that you are being charged with.

Defendant: So then if I am going to [a] judge, (the door opens and the agent who left the room apparently returns) then I should have an attorney. Regardless, at that time I will need an attorney.

Agent 1: Uh, you are welcome to get an attorney at any time you want.

Defendant: Ok, so I mean, if I am going to the judge, there will be an attorney required to represent me, right?

Agent 1: Um, you have to, um . . .

Agent 2: You have the right to an attorney, absolutely. Agent 1: Yeah, you definitely have the right to an attorney.

Defendant: Yeah, I mean, if it has to be later on then he should be, he will have to go through all this, whatever is going on so he knows. Let me pee and then make a decision (Defendant walks out to use the washroom and agents talk at same time) because if I have to go to the judge, then definitely there should be somebody who is supposed to . . . (Defendant leaves, still talking). Defendant left the room at 12:13 p.m. He returned at approximately 12:20 p.m., and the interrogation resumed. He did not raise the subject of having an attorney at the interrogation upon his return. The questioning lasted until almost 3 p.m.

Defendant contends that he invoked his right to counsel before he went to the washroom, and at this point the agents should have ceased their interrogation until an attorney was present with him, or until he initiated the conversation. He asks the Court to suppress all statements he made after he invoked his right to counsel, and any evidence related to these statements in this and any other matter. He ...


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