Thursday we began a series on the Second Circuit of Court of Appeals decision in United States v. Sattar (Stewart; Yousry). Today we shall continue the series by discussing some of the issues faced by the appellate court.

The prosecution stemmed from Lynne Stewart’s representation of Sheikh Omar
Ahmad Ali Abdel Rahman who was convicted of various terrorist crimes resulting from the investigation of the 1993 bombing of the World Trade Center. He was sentenced to life in prison. While in prison he was subject to Special Administrative Measures (SAM) since he was considered particularly dangerous. The SAMs limited his ability to communicate with the outside world, particularly the press as well as his political and religious followers in Egypt.

Lynne Stewart, Mohammed Yousry, and Ahmed Abdel Sattar were charged in a seven count indictment and convicted on all counts. Specifically, all three defendants were convicted of conspiring to defraud the United States by violating SAMs imposed upon Abdel Rahman, and various related offenses. Sattar was convicted of conspiring with Taha, Abdel Rahman, and others to murder persons in a foreign country, and with soliciting persons to commit crimes of violence — murder and conspiracy to commit murder. Stewart and Yousry were convicted of providing and concealing material support to the conspiracy, and with conspiracy to provide and conceal such support. Stewart was also convicted of making false statements.

The evidence at the trial showed that after Rahman was convicted Stewart and other lawyer on his legal team visited him in prison. Prior to visiting him they would sign a current copy of the SAMs. The SAMS prohibited him from communicating with his supporters in Egypt and with the press. However on several occasions they delivered messages to and from him regarding activities in Egypt. He was the spiritual leader of al-Gama’a al-Islamiyya. During this period al-Gama’a al-Islamiyya was considering ending a cease-fire with its political opponents in Egypt. Ending the cease-fire could result in terrorist acts and death in Egypt and elsewhere.

To find the defendants guilty of conspiring to defraud the government, the jury had to find that they entered into an agreement to obstruct a lawful function of the government (the administration and enforcement of the SAMs) by deceitful or dishonest means and at least one overt act in furtherance of the conspiracy. The appellate court used the fact that Stewart, on several occasions signed copies of the SAMs. She did this in order to get permission to visit Rahman at the Federal penitentiary. According to the court she signed the SAMs with no intention to comply with them and therefore she was acting in a deceitful manner.

In Count Five Stewart and Yousry were charged with providing and concealing material support for the conspiracy involving Sattar charged in Count Two to murder political enemies in Egypt. The Court found that the government provided sufficient evidence that Stewart and Yousry provided support to the conspiracy in the form of personnel. According to the government the conspiracy could not have been successful without the blessings of Rahman. By publicizing his support for ending the cease fire they provided material support for the conspiracy.

Stewart argued that as an attorney she had a duty to zealously represent her client and that this representation including assisting him in communication with the outside world. Her intent was to zealously represent her client, not to aid the Islamist group. But the appellate court found that in the process she violated the law. But presumably the matter will be decided by the Supreme Court.

The defendants also argued that their First, Fourth, Fifth and Sixth Amendments rights were violated. The trial and appellate courts refused to allow the defendants to challenge the constitutionality of the SAMs. The SAMs limit Rahman’s freedom of religion and his freedom of speech. They certainly also limit his ability to communicate with his attorney under the Sixth Amendment. When Stewart visited Rahman in jail a guard was placed outside the door in a way that he could read their lips. On at least one occasion the government secretly videotaped the attorney-client conference.

On Monday we shall conclude this series with an article discussing some of the issues raised by the trial for criminal defense attorneys and their clients.

Attorney General Eric Holder announced that five detainees, including alleged 9/11 mastermind Khalid Shaikh Mohammed will be tried in New york City and another five will be tried by military tribunals, including Abd al-Rahim al-Nashiri, who is accused of planning the bombing the U. S, navy destroyer, the USS Cole in Yemen.

The trial of Mohammed promises to be the biggest trial since the OJ trial. It carries risks and benefits for the United States. The difference between military tribunals and trials in the United States District Court is that a District Court trial must follow all of the rights found in the Bill of Rights, while the defendant’s rights are more limited in a trial before a military tribunal. Specifically the Supreme Court has ruled that testimony obtained by torture or coercion cannot be used in a court but it is permissible before the military tribunals.

Some family members of those who died and conservative Republicans argue that terrorists do not deserve the same rights as American citizens. But by giving terrorist the same rights as we give to others accused of crimes we exhibit our belief in our judicial system and our humanity. What if some of the detainees are innocent. We believe that people are innocent until proven guilty and none of the detainees have been proven guilty in a court of law. Certainly innocent people deserve the full benefit of our laws and the Bill of Rights.

But there are certainly risks involved. It may lead to further terrorist attacks on New York City. They may come on the day set for trial, the day the verdict comes down or on the date of sentencing. While the world may admire our Bill of Rights it will not admire the death penalty if the defendants are convicted. Some may say the death penalty is as barbaric as some of the terrorist acts. Furthermore the government will be rightly blamed for bringing Abd al-Rahim al-Nashiri to trial before the tribunal and not in a court of law. The use of testimony obtained through torture will and should be condemned. Furthermore, the use of the death penalty may make the detainees martyrs in many parts of the world and lead to revenge on the United States.

The Bill of Rights, various other provisions of the Constitution, Congressional legislation and Court interpretations of these documents set certain rights that people in the United States enjoy. While a state cannot take away a right guaranteed by the Constitution or the Supreme Court it can grant people who live in the state greater rights than are guaranteed by the Federal government.

For example, in Miranda the Supreme Court ruled that Courts can only use statements made in response to interrogation by a person who was in custody at the time the statement was given if the person was warned that they have a right to remain silent, that anything they say may be used against them, that they have a right to an attorney and that if they cannot afford an attorney an attorney would be appointed for them. There are exceptions to the rule but the generally the rule remains in effect. But states can give greater rights.

For example, under Article 38.22, Section 2(a) of the law of the State of Texas the accused must be warned that:

(1) he has the right to remain silent and not to make any statement at all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time.

Furthermore, and maybe more importantly, Section 3(a) of the law requires:

First, “an electronic recording” of the statement must be made. (12) Second, “prior to the statement but during the recording the accused [was] given the warning in Subsection (a) of Section 2 . . . and the accused knowingly, intelligently, and voluntarily waive[d] any rights set out in the warning.”

The requirement that the statement be taped is crucial for all. It prevents unnecessary trials when a defendant realizes what the jury is going to hear and encourages guilty verdicts. At the same time it keeps the police honest.

In Nguyen v. Texas The Texas Court of Criminal Appeals ruled on an appeal from the State of Texas in a matter interpreting Article 38.22.

At 4:00 am Dallas Police Officer Vance Johnson stopped a car driven by Nguyen for traffic violations. Michael Sanchez, the owner of the car, was a passenger in the vehicle. Johnson asked for permission to search the vehicle and Sanchez gave him permission. After finding methamphetamine in the car Johnson arrested Sanchez.

Sanchez waived his Miranda rights and told the officer that the methamphetamine belonged to Nguyen. Johnson arrested Nguyen for the traffic violations. Johnson gave Nguyen partial Miranda rights which did not comply with Article 3822 Johnson attempted to interrogate Nguyen but he asserted his right to an attorney. Not surprisingly, Johnson decided not to interrogate Nguyen.

The officers put both men in the back seat of Johnson’s vehicle. Without telling Sanchez and Nguyen their conversation was taped. Sanchez begged Nguyen to take responsibility for the drugs and Nguyen eventually agreed. He called Johnson, but Johnson was too busy searching Sanchez’s vehicle to pay attention.

Johnson returned to the police car. Sanchez told him that the drugs belonged to Nguyen. But Johnson, rightly remembered that Nguyen invoked his Miranda rights and refused to question him. Sanchez said he would not go down for “Nguyen’s shit.” Nguyen stated that he was charged with the same thing as Sanchez. Johnson corrected him and said he was only charged with traffic violations. Nguyen said that the drugs did not belong to either of them. Sanchez started yelling at Nguyen urging him to take responsibility. Johnson went back to searching Sanchez’s vehicle.

Sanchez continued to beg. Nguyen gave in again. Sanchez called Johnson and Nguyen reluctantly told the officer the methamphetamine was his. Sanchez was allowed to get out of the police vehicle. Nguyen was crying. Johnson found an ecstacy tablet in Sanchez’s vehicle. Sanchez was arrest for the ecstacy.

Nguyen was convicted of hindering apprehension. The Fifth Court of Appeals reversed and the state appealed to the Court of Criminal Appeals.

The state argued that since the officer’s violation of section three came prior to Nguyen alleged illegal acts (hindering) the statements should not be excluded. The Court disagreed. Section 3822 is a procedural evidentiary and rule and there is no exception in it for crimes committed after the officer’s violation.

Second the state argued that the statement should be admissible because at the time the statement was given Nguyen was in custody for vehicle violations, not for hindering. The Court found that a person is in custody when either they are arrested or their movement is restricted. Thus even if Nguyen had not been arrested for hindering his movement was restrained and therefore he was in custody.

Finally the state argued that Nguyen’s statements were not offered for the truth of the matter asserted but the plain language of the statute is to the contrary. It says:

“No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless” the five statutory conditions are met.

The Court of Criminal Appeals confirmed the Court of Appeals decision reversing the conviction.

Yesterday, we considered a case decided by the California Supreme Court, Sheehan v. San Francisco 49ers, Ltd which involved the pat search of attendees at San Francisco 49ers games. The pat search was performed at the direction of the 49ers in conformance with directions from the NFL.

Today we look at another search. This time performed by bounty hunters in Oklahoma. In this case, the Tenth Circuit upheld the use of evidence found by bounty hunters while making an arrest. Both cases of course involve searches. But the other significant fact is that both cases involve searches by people who are not state actors, ie. not employed by the government or working at the direction of the government. This is important because the Fourth Amendment only applies to searches performed by state actors.

In United States v. Poe, the Tenth Circuit Court of Appeals found that a search by a bounty hunter was not performed by a state actor and therefore it was not subject to exclusion at trial under the Fourth Amendment regardless of whether or not it was supported by probable cause.

Five bounty hunters, hired by a bail bonds company, surveilled the Oklahoma City home of Kim Wilson, the former girl friend of Aaron Dale Poe who skipped bond in an Oklahoma state case. Wilson left home about 10:30 pm. Two of the bounty hunters followed her to AutoZone where she worked. They questioned her and found out that Poe was at her residence. She did not give permission for them to search her house but she said that Poe planned to sell drugs from the house and that there was a gun in the house.

They returned to Wilson’s house. Three of the bounty hunters watched the front door while the other two watched the back of the house. They saw Chris McGill drive up to the house and approach the back door. He attempted to leave shortly thereafter but he was apprehended by the bounty hunters.

The bounty hunters then arrested Poe. He resisted and one of the bounty hunters was attached by a pit bull. The dog was tased and both the dogs and Poe surrendered.

The bounty hunters found methamphetamine and a nine-millimeter pistol in the residence. They called the police.

Poe was charged with possession of methamphetamine for sale (McGill’s attempt buy methamphetamine was interupted by the bounty hunters)and possession of a weapon by a convicted felon. He moved to suppress the evidence found by the bounty hunters claiming that the search was without a search warrant and therefore in violation of the Fourth Amendment. The District Court rejected his claim on the basis that he did not have standing to object to the search of Wilson’s house.

On appeal the Tenth Circuit found that he had standing since he had a reasonable expectation of privacy. He was a social guest with sufficient ties to the residence. He had a “degree of acceptance into the household” and “an ongoing and meaningful connection to the home.”

But it rejected his claim on the basis that the bounty hunters were not state actors. The bounty hunters were neither state agents nor were they working at the direction of state agents. The court considered two factors in determining whether the bounty agents were working at the direction of state agents.

First, we determine whether the government knew of
and acquiesced in the [individual’s] intrusive conduct. . .Second, we consider whether the party performing the search intended to assist law enforcement efforts or to further his own ends.

The court found that there was no evidence that the bounty hunters were working with the knowledge or acquiescence of government agents. Furthermore it found that their goal was not to help the government, but rather to obtain payment for their own use from the bail bonds agency. Since the bounty hunters were not state actors the evidence that they seized was not subject to suppression for violation of the Fourth Amendment.

Sheehan was decided based upon the California Constitutions right to privacy. The Federal right to privacy is not coextensive to the California right and therefore Poe was based on the Fourth Amendment. The California constitutional right to privacy extends to the acts of private citizen and organizations which are nor necessarily state actors. The Fourth Amendment right is limited to state actors. Thus, while. the search of people attending 49ers games may be illegal under state law, the search of Poe by bounty hunters is legal under the Fourth Amendment.

The release of nine Department of Justice memos written in the months following the 9/11 attacks, during the Bush presidency, shows the total contempt the government had for the Bill of Rights.

In an October 23, 2001 memo Deputy Assistant Attorney General John Yoo and Special Counsel Robert J. Delahunty stated that not only could he military be used to arrest terrorists in the United States but that they did not have to comply with Fourth Amendment requirements regarding the use of search warrants. In a September 25, 2002 memo Yoo justified amending the law to allow warrantless searches in the United States to obtain intelligence.

Also in the October 23, 2001 memo Yoo stated that, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” Deputy Assistant Attorney General John Yoo wrote, in another memo: “The current campaign against terrorism may require even broader exercises of federal power domestically.”

A cardinal rule of statutory interpretation is that when the language of the statute (or the Constitutional amendment) is clear the plain language supersedes other interpretations. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It has no exception for terrorists or for al-Qaeda or for the whims of George Bush and John Yoo. As Benjamin Franklin said,

They who would give up an essential liberty for temporary security, deserve neither liberty or security.

As Edward R. Morrow said,

We cannot defend freedom abroad by deserting it at home

As Abraham Lincoln said,

Those who deny freedom to others deserve it not for themselves.

The memos point out the need for Senator Patrick Leahy’s Truth Commission. Such a commission would investigate torture, illegal wiretaps, and other violations of human rights.

For it is clear that if we violate our own rights we cannot cry when others violate rights.