FBI’s two-step interview did not violate ‘Miranda’

Where an FBI attaché interviewed the defendant about his association with the Islamic State of Iraq without providing him Miranda warnings, and a different team of FBI agents interviewed him 10 days later after giving Miranda warnings, there was no Miranda violation. Even if the government’s two-step interview was deliberate, the break in time and place, different interview personnel and thorough explanation about the distinction between the Mirandized and the prior interviews were sufficient.

Background

In December 2015, Mohamad Jamal Khweis traveled to territory in Syria and Iraq controlled by a foreign terrorist organization known as the Islamic State of Iraq and the Levant, or ISIL. On March 14, 2016, Khweis was captured by Kurdish Peshmerga fighters and transported to a Kurdish Counter-Terrorism Directorate, or CTD, detention center in Iraq.

At the detention center, the FBI Assistant Legal Attaché for Iraq, Michael Connelly, interviewed Khweis to gather intelligence about ISIL without providing him Miranda warnings. Ten days after Connelly’s interviews concluded, a different team of FBI agents interviewed Khweis for purposes of a potential United States criminal prosecution. This second team advised Khweis of his Miranda rights before each interview.

Khweis waived his rights and made inculpatory statements that the government later introduced at his trial. The jury convicted Khweis on all counts. Khweis now appeals the admission of his statements to the second team of FBI agents, contending that the midstream Miranda warnings he received were ineffective.

Miranda

The district court here determined that the government did not employ a deliberate two-step strategy designed to undermine Miranda. The court need not address this question, however, because, even assuming the FBI used a deliberate two-step strategy, they instituted sufficient curative measures “designed to ensure that a reasonable person in [Khweis’s] situation would understand the import and effect of the Miranda warning and of the Miranda waiver.”

The Mirandized interviews here began 10 days after the unwarned interviews had ended—a period longer than any break during the series of unwarned interviews. Although conducted at the CTD detention center, the warned interviews were held in a different room than the unwarned interviews. Entirely different American and Kurdish personnel attended the Mirandized interviews. Agents Martinez and Czekela, who conducted those interviews, did not receive any information about Connelly’s intelligence interviews, nor did they ask Khweis about what he told Connelly.

Importantly, the agents told Khweis they did not know what, if anything, he had said in prior interviews, a disclosure that would indicate a reset to a reasonable person in Khweis’s position. In addition to informing Khweis of his right to remain silent, they also advised him that he did “not need to speak with [them] today just because [he] h[ad] spoken with others in the past.” The advice-of-rights form elaborated that the agents were “not interested in any of the statements [he] may have made to [others] previously.” It explicitly stated: “We are starting anew.” And in addition to apprising Khweis of his right to counsel, the agents informed him that his family had retained counsel for him in the United States.

The break in time and place, total separation of personnel and thorough explanation to Khweis about the distinction between the Mirandized interviews and anything that had come before sufficed to communicate to him “the import and effect of the Miranda warning and of the Miranda waiver.”

924(c)

Khweis separately challenges his conviction for violating 18 U.S.C. § 924(c). The court agrees with Khweis and the government that this conviction cannot stand. Because conspiracy to provide material support to ISIL does not have as an element the use, attempted use or threatened use of physical force, it does not qualify as a crime of violence. Khweis’s conviction on Count Three is vacated. Because a remand for resentencing must occur, the court does not address Khweis’s sentencing arguments.

Affirmed in part, vacated in part and remanded.

Dissenting opinion

Floyd, J., dissenting:

I agree with my colleagues in the majority that Khweis’s conviction for using and carrying a firearm during and in relation to a crime of violence under 18 U.S.C.§ 924(c)(1)(A) must be vacated. But I would not affirm the district court’s ruling on Khweis’s motion to suppress the Mirandized statements he made to the second group of FBI agents. Those statements should have been excluded at trial under Missouri v. Seibert, 542 U.S. 600 (2004). Therefore, I respectfully dissent.

United States v. Khweis, Appeal No. 17-4696, Aug. 11, 2020. 4th Cir. (Rushing), from EDVA at Alexandria (O’Grady). John Mann Beal for Appellant. Daniel Taylor Young for Appellee. VLW 020-2-223. 40 pp.