UNITED STATES OF AMERICA v. MUHAMMAD PAHLAWAN, et al.
Criminal No. 3:24cr41 (DJN)
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division
April 29, 2025
DJN
This matter comes before the Court on various pretrial motions filed by Defendants Muhammad Pahlawan (“Pahlawan“) and Mohammad Mazhar (“Mazhar“) (collectively, “Defendants“).1 First, Defendants Pahlawan and Mazhar move to suppress un-Mirandized statements made to Chief Petty Officer Justin Mulkey (“Mulkey“) during both their group and individual interviews on board the Yunus, and Defendant Pahlawan additionally moves to suppress his Mirandized statements made to FBI agents on board the USS Lewis B. Puller (the ”USS Puller“). (ECF Nos. 113, 117.) Second, Defendants filed a motion to dismiss pursuant to
The motions have been fully briefed, and the parties submitted supplemental briefing regarding the suppression and presentment issues. (ECF Nos. 300, 311, 314, 326.) The Court conducted an evidentiary hearing from March 25, 2025 to March 28, 2025, (ECF Nos. 351–53 (“Hr‘g Tr.“)), and the parties submitted further supplemental briefing to address additional issues that arose during the evidentiary hearing, (ECF Nos. 358, 360, 361), rendering the issues ripe for resolution. For the reasons set forth below, the Court will DENY Defendants’ Motions to Suppress, Rule 5(a) Motion and Spoliation Motion. (ECF Nos. 103, 104, 113, 117.)
Pahlawan, a Pakistani citizen who lived in Iran, purportedly worked with two Iranian brothers, Shahab Mir‘Kazei and Yunus Mir‘Kazei, who supported Iran and the Islamic Revolutionary Guard Corps (“IRGC“), to smuggle materials from Iran to various recipients, including the Houthi rebel forces (the “Houthis“) in Yemen. (ECF No. 239 (“2d Sup. Ind.“) ¶ 2.) From August 2023 through January 2024, Pahlawan and members of his crew, which included Mazhar, purportedly completed multiple smuggling voyages, traveling with cargo from Iran to the coast of Somalia and transporting that cargo to another vessel for a ship-to-ship transfer. (Id.)
On January 5, 2024, Pahlawan allegedly departed Konarak, Iran on a maritime vessel (the ”Yunus” or “dhow“) and traveled to Chabahar, Iran. (Id. ¶ 34.) According to the Government, Pahlawan — as the captain of the Yunus — instructed his crew of thirteen mariners, including Mazhar, to load cargo into the net hold of the Yunus while docked in Chabahar. (Id. ¶ 35.) As directed, the crew loaded several blue and white bags, along with two large black corrugated tubes. (Id. ¶¶ 46–47.) These bags and tubes contained missile components, including a warhead and propulsion and guidance components for medium-range ballistic missiles and anti-ship cruise missiles. (Id. ¶ 47.) After loading the cargo, the mariners departed Chabahar on the Yunus and headed south towards the coast of Somalia. (Id. ¶¶ 36, 38.)
The charges against Defendants arise from a military operation conducted on January 11, 2024 to interdict the Yunus. (Id. ¶¶ 1–2.) On board the Yunus, United States Central Command Navy forces, including Navy SEALs, as well as members of the Coast Guard Maritime Safety and Security Team (collectively, the “Boarding Team“), discovered suspected Iranian-made advanced conventional weaponry (“ACWs“). (Id. ¶ 1.) During the interdiction, Pahlawan allegedly instructed his crew members not to identify him as the captain of the vessel, and to instead falsely identify him as a mechanic and to lie about the cargo on the vessel. (Id. ¶¶ 1, 42–
As relevant to Defendants’ suppression and Rule 5(a) motions, the Government seeks to introduce statements made by Defendants in several interviews, both during and after the interdiction. Specifically, the Government intends to admit the following exchanges:
- From a January 12, 2024 un-Mirandized group interview aboard the Yunus: Mazhar‘s statements (or lack of response) and Pahlawan‘s silence in the face of Chief Mulkey‘s questions regarding the identity of the “captain” of the dhow;
- From January 13, 2024 un-Mirandized individual interviews with Mazhar and Pahlawan aboard the Yunus: the entire exchange between Chief Mulkey and Mazhar, and the entire exchange between Chief Mulkey and Pahlawan;
- From January 31 and February 1, 2024 Mirandized substantive interviews with Mazhar and Pahlawan aboard the USS Puller: both sets of exchanges between federal agents and Pahlawan, and the entire exchange between federal agents and Mazhar.
In addition, the Government seeks to introduce statements from its February 4, 2024 interviews with Defendants Pahlawan and Mazhar concerning device attribution. The Government does not seek to introduce in its case-in-chief any statements made by Pahlawan or Mazhar during un-Mirandized intelligence interviews conducted by Department of Defense (“DOD“) officials aboard the USS Puller between January 27 and 29, 2024.
A. Factual Findings
During the Court‘s evidentiary hearing from March 25, 2025 to March 28, 2025, the Government called the following witnesses, whose testimony the Court finds credible: (1) Chief
On or about October 7, 2023, Hamas breached the border between the Gaza Strip and Israel, infiltrated Israel and launched a wave of attacks on civilians by land, sea and air.6 More than 1,200 Israelis and foreign nationals, including 46 Americans, were killed.7 Others, including Americans, were kidnapped, taken hostage and brought into Gaza by Hamas.8
Beginning in and around mid-October 2023, the Houthis began launching attacks against Israeli interests in a purported effort to stop Israel‘s military efforts against Hamas forces in and around Gaza.9 During this time, the USS Carney, an American military vessel operating in the area, shot down various Houthi missiles and drones launched in the direction of Israel.10
On or around November 8, 2023, the Houthis shot down an American MQ-9 Reaper drone, claiming that the drone was operating in the area off the coast of Yemen.11
On November 29, 2023, the USS Carney, while operating in the Red Sea, shot down an Iranian-produced KAS-04 unmanned aerial vehicle (“UAV“) launched from Houthi-controlled areas of Yemen.14 Although its intentions are unknown, the UAV was heading in the direction of the warship.15
On December 3, 2023, the Houthis launched four attacks against three separate commercial vessels operating in international waters in the southern Red Sea.16 At approximately 9:15 a.m. Sanaa time, the USS Carney detected an anti-ship ballistic missile fired
A few hours later, at approximately 12:00 p.m. Sanaa time, the USS Carney engaged and shot down a UAV launched from Houthi-controlled areas in Yemen.18 The drone was headed toward the USS Carney, although its specific target was unclear.19 Then, at approximately 12:35 p.m. Sanaa time, the Unity Explorer reported that it was struck by a missile fired from Houthi-controlled areas in Yemen.20 The USS Carney responded to the distress call.21 While assisting with the damage assessment, the USS Carney detected another inbound UAV and destroyed the drone without sustaining any damage or injuries aboard either ship.22
Roughly three hours later, at approximately 3:30 p.m. Sanaa time, the M/V Number 9, another bulk carrier, was struck by a missile fired from Houthi-controlled areas in Yemen while operating in international shipping lanes in the Red Sea.23 The bulk carrier reported damage and no casualties.24 Finally, at approximately 4:30 p.m. Sanaa time, the M/V Sophie II, a Panamanian-flagged bulk carrier crewed by sailors from at least eight countries, sent a distress
After these attacks, Ali al-Qahoum, a member of Houthi leadership, stated in an interview that: “[t]he Houthis will not abandon the Palestinian cause, regardless of any U.S., Israeli or Western threats.”28 Indeed, the Houthis announced on December 9, 2023, that they were expanding their list of potential maritime targets to include all ships of any nationality that are heading to Israeli ports.29
By December 18, 2023, the United States assumed a more active role in preventing further Houthi violence in the region, announcing “Operation Prosperity Guardian” — a multinational initiative focused on security in the Red Sea. (Hr‘g Tr. 292:9–12.)30 The Houthis,
On January 12, 2024, while the interdiction of the Yunus was ongoing, U.S. Central Command (“CENTCOM“) forces, in coordination with the United Kingdom and with support from Australia, Canada, the Netherlands and Bahrain, conducted joint strikes on Houthi targets aimed at degrading their capability to continue attacks on United States and international vessels in the Red Sea.32 This multinational action targeted radar systems, air defense systems, and storage and launch sites for one-way attack drones, cruise missiles and ballistic missiles.33 At the time of these first United States strikes on the Houthis, CENTCOM emphasized that, “[s]ince Oct. 17, 2023, Iranian-backed Houthi militants have attempted to attack and harass 27 ships in international shipping lanes. These illegal incidents include attacks that have employed anti-ship ballistic missiles, unmanned aerial vehicles and cruise missiles in the Red Sea and the Gulf of Aden.”34
The Houthis began responding to these attacks on January 14, 2024, when an anti-ship cruise missile was fired from Houthi-controlled areas of Yemen toward the USS Laboon, which
One day later, on January 15, 2024, the Houthis fired an anti-ship ballistic missile from Houthi-controlled areas of Yemen and struck the M/V Gibraltar Eagle, a Marshall Islands-flagged, American-owned and operated container ship.37 In claiming responsibility for this attack, Houthi military spokesman Yahya Saree reiterated that the Houthis “consider all American and British ships and warships participating in the aggression against our country as hostile targets.”38
Earlier that same day, United States forces had already detected an anti-ship ballistic missile fired toward the Southern Red Sea commercial shipping lanes.39 That missile failed in flight and impacted on land in Yemen.40
The following day, the Houthis launched two anti-ship ballistic missiles at M/V Chem Ranger, a Marshall Island-flagged, American-owned, Greek-operated tanker ship.42 The crew observed the missiles impact the water near the ship.43
On January 24, 2024, the Houthis fired three anti-ship ballistic missiles from Houthi-controlled areas of Yemen at the American container ship M/V Maersk Detroit, which was transiting the Gulf of Aden.44 One missile made impact in the sea.45 The two other missiles were successfully engaged and shot down by the USS Gravely.46
In the midst of this latest wave of attacks, the United States Department of State designated the Houthis as a Specially Designated Global Terrorist group on January 17, 2024,
On or around January 29, 2024, the Houthis publicly announced a missile attack targeting the USS Puller in the Gulf of Aden.49 In making this announcement, Houthi spokesperson Saree also asserted that the Houthi attacks would continue “until the aggression is stopped, and the siege is lifted on the people of Palestine in the Gaza Strip.”50 The veracity of the Houthis’ claim concerning this purported attack on the USS Puller in the wake of the interdiction against the Yunus remains unconfirmed. See Gambrell, supra note 49 (quoting U.S. defense official denying the attack on the USS Puller); (Hr‘g Tr. 123:22–25).
To this day, the Houthis remain hostile to the United States and continue their violent conduct in the area surrounding the Red Sea and the Gulf of Aden, making it “one of the most volatile and dangerous areas in the world[.]” (Hr‘g Tr. 23:9–24:14, 43:23–44:2.)
2. The Boarding (January 11, 2024)
The boarding of the Yunus that ultimately led to Defendants’ charges was led by Chief Petty Officer Justin Mulkey, a member of the United States Coast Guard (“USCG“) and a federal law enforcement officer. (Id. 355:2–8.) As a member of the Maritime Security Response Team, a USCG counterterrorism unit, Chief Mulkey “work[s] overseas . . . to stop or deter any illicit smuggling activities.” (Id. 355:13–18.) At the time of the interdiction, Chief Mulkey was stationed on the USS Puller and was conducting maritime operations “in and around the Arabian Sea” to “stop the flow of ACWs to the Houthis” in support of Operation Prosperity Guardian. (Id. 367:23–17.)
On the night of January 11, 2024, the Boarding Team, operating from the USS Puller, proceeded to approach the Yunus in international waters off the coast of Somalia, south of the island of Socotra in the Arabian Sea. (Id. 245:22–246:4, 370:6–11.) Chief Mulkey testified that, while approaching the target vessel in four smaller Navy support vessels, also known as CCAs, the Boarding Team looked for any indicia of nationality, as well as any impediments to the Boarding Team‘s safety. (Id. 247:4–8; 373:5–11.) The Boarding Team members also “held cover” on approach, meaning that they pointed their rifles at the Yunus crew members in the event that they became violent. (Id. 361:17–21, 375:5–11.) Multiple members of the Boarding Team were also calling out “stop your vessel” to the Yunus crew members. (Id. 440:6–10.)
Upon boarding the Yunus, the Boarding Team immediately conducted a protective sweep to identify any additional crew members that were not immediately apparent and searched for any devices, such as “booby traps” or improvised explosive devices, that could harm the Boarding Team. (Id. 362:9–13, 373:23–374:8.) The Boarding Team discovered three crew members sleeping underneath an elevated floor in the living quarters. (Id. 379:5–19.) The Boarding Team then escorted all fourteen crew members, with rifles trained on their foreheads, to sit at the bow of the vessel. (Id. 379:20–380:6.)
Once the mariners were gathered at the bow of the vessel, the Boarding Team instructed the crew members to remain silent and “keep their heads down and their hands out” until the Boarding Team completed the initial security sweep. (Id. 363:8–364:18, 381:4–5, 383:3–11.) Chief Mulkey testified that the Boarding Team pointed their rifles at the crew members “to ensure that they [were] not able to act in any violent [way] or take any action against the boarding team.” (Id. 362:24–363:1.) Chief Mulkey testified that allowing the crew members to move freely around the boat at this point would have created unsafe conditions for the Boarding
From the evening of January 11, 2024 through the morning of January 12, 2024, the mariners were held at the front of the Yunus, where they slept overnight. (Id. 386:6–10.) During this time, an armed member of the Boarding Team was staged near the mariners at all times, maintaining his weapon in an “inside carry” position with its muzzle pointed toward the ground. (Id. 385:14–386:5.) Following the initial protective sweep, the Boarding Team did not point its rifles at the mariners, and they were no longer required to keep their heads down. (Id. 383:25–384:5.) The Boarding Team permitted the crew to eat, drink, use the restroom and otherwise leave the holding area with an armed escort. (Id. 445:24–446:4, 455:22–23; ECF No. 273-9 (“Farooq Dep.“) 119:8–17; ECF No. 273-2 (“Ahmad Dep.“) 117:13–18.) However, Chief Mulkey testified that the crew members were “being isolated to one area so they cannot move freely” and that they were “not free to leave.” (Hr‘g Tr. 444:3–10.)
At one point during the evening of January 11, 2024, the Yunus physically made contact with the USS Puller. (Id. 420:10–12.) As a result, the Yunus sustained minimal damage above
As a result of its focus on finding the missing Navy SEALs, the Boarding Team did not initiate any questioning of the mariners until the morning of January 12, 2024, approximately eight to ten hours after the initial security sweep. (Id. 384:13–18, 386:14–18, 387:18–20.) Chief Mulkey subsequently interviewed the mariners as follows: (1) a short group interview on the morning of January 12, 2024; and (2) individual questioning with an Urdu interpreter over a satellite phone on January 13, 2024.
3. Group Interview Aboard the Yunus (January 12, 2024)
During the morning of January 12, 2024, Chief Mulkey conducted initial questioning with the mariners positioned in a group on the deck of the Yunus. (Id. 388:15–21.) By this point, additional Boarding Team members had arrived on the Yunus, for a total of approximately 10 military personnel on board. (Id. 388:23–389:3.) However, the Boarding Team had not yet discovered the weapons components aboard the vessel. (Id. 388:10–14.) For security purposes, Chief Mulkey conducted the group questioning in the presence of two other Boarding Team members, who were carrying their rifles at an inside carry position pointed away from the mariners. (Id. 389:4–20.) The two helicopters supporting the interdiction had been tasked to personnel recovery by this point, and the USS Puller sat between 200 to 1,000 yards away. (Id. 389:21–390:2.) Chief Mulkey did not have an interpreter present during this group questioning, because the Boarding Team had already determined that the two linguists aboard the USS Puller did not speak the same languages as the mariners and were unable to communicate with them. (Id. 390:3–12, 449:20–21, 450:18–23.)
Chief Mulkey testified that he approached the group and began asking questions in English. (Id. 392:10–11.) Specifically, he asked the crew to identify the “captain,” the “master”
Using Ullah as a translator, Chief Mulkey again asked whether anyone in the group was the master, captain or person in charge of the vessel. (Id. 393:7–9.) Again, no mariners responded. (Id. 393:12–14.) Using Ullah as a translator, Chief Mulkey then asked whether anyone served as the engineer. (Id. 393:17–21.) In response, Ullah pointed to Mazhar and identified him as the Yunus‘s engineer. (Id. 393:21–24.) The testimony presents two different accounts of what occurred next. Under one telling, when Chief Mulkey asked Mazhar, through Ullah, to identify the captain, master or person in charge of the Yunus, Mazhar stated that he did not know who served as the captain. (Id. 393:21–24, 480:25–481:2.) Chief Mulkey also testified that when he asked Mazhar, through Ullah, to identify the captain, master or person in charge of the Yunus, Mazhar gave no response at all.55 (Id. 393:25–394:4.) Nothing in the record suggests that Defendant Pahlawan responded to any of Chief Mulkey‘s questions during the group interview. (See generally id. 392:7–394:13.) By the end of the group questioning, the Boarding Team still had no definitive information as to whether a captain or engineer was on board the Yunus, and if so, who among the crew performed those roles. (Id. 396:22–25.)
Chief Mulkey acknowledged in his testimony that he does not know what languages the mariners spoke or whether Ullah in fact spoke the same language as Pahlawan and Mazhar. (Id. 481:3–16.) He further testified that the language barrier between him and Ullah prevented
Chief Mulkey did not issue Miranda warnings in advance of this group interview. (Id. 425:12-18, 415:17-21, 418:11-14.)
After the initial group questioning, the Boarding Team moved the Yunus crew members from the front of the vessel to the living quarters near the rear of the vessel, where the mariners were held until their transfer to the USS Puller the following day. (Id. 251:23-25, 252:24-253:5, 394:16-17.) The mariners remained under constant guard by an armed member of the Boarding Team. (Id. 395:1-396:2, 456:3-4.) When using the restroom, the mariners remained under surveillance and were “not allowed to close the door and use the bathroom in privacy.” (Id. 455:24-456:4.)
4. Determination of Statelessness, Further Search and Discovery of the Weapons Components
On the morning of January 12, 2024, after he ended the initial group questioning, Chief Mulkey conducted a preliminary search of the pilothouse. (Id. 396:6-11.) At this point, the Boarding Team still had not discovered any indicia of a claim of nationality or registry. (Id. 396:12-21.) Nor had any crew member identified himself as the captain, master or person in charge. (Id. 396:22-25.) During this initial search, Chief Mulkey searched for any documentation, registration, placard, flag or any other indicia of nationality that were in plain view. (Id. 397:7-10, 397:20-398:1.) Chief Mulkey did not open drawers or cabinets, in accordance with standard operating procedure. (Id. 397:11-18.) Chief Mulkey testified that he did not discover any indicia of nationality and reported this information to the ground force commander. (Id. 397:25-398:8.)
The Boarding Team subsequently began a thorough search of the Yunus. (Id. 202:14-17.) This search involved opening all cabinets and drawers and included, among other places, the cabin area, the pilothouse, the “crawl space just below the captain‘s quarters,” the living quarters, the engine room, the structure surrounding the engine room, the deck, two flash freezers, the net hold and the hull of the vessel. (Id. 202:23-206:2, 398:18-400:3.) During this extensive search, the Boarding Team looked for weapons, ledgers, documentation, flags, electronics and any other items that could provide information. (Id. 205:15-16, 207:8-11.)
The Boarding Team did not discover any registration paperwork on the dhow. (Id. 208:1-7, 400:16-18.) Aside from two red fishing buoy markers, the Boarding Team also did not discover any flags. (Id. 213:19-214:4, 400:22-23.) Nor did the Yunus bear any decals or markings indicating nationality. (Id. 214:13-15, 400:24-401:3.)
The Boarding Team did, however, discover electronic devices, including personal cell phones, a course plotter navigation system, a VHF radio and an Automatic Identification System (“AIS“), which it collected and retained. (Id. 208:11-18, 209:4-16, 400:8-13.)
Mr. Marangola also received authorization to conduct two destructive searches, which involved “mechanically or manually open[ing]” up hidden compartments “to see inside of an area and confirm that we have exposed everything.” (Id. 209:23-210:5.) Mr. Marangola conducted the first of these destructive searches above the captain‘s quarters, creating a small hole to be able to see inside of the dead space. (Id. 210:24-211:5.) He conducted the second destructive search forward of the engine room in what appeared to be fish holds, using a circular saw to cut a hole wide enough to view the hidden compartment. (Id. 211:24-212:15.) Neither of these destructive searches caused any damage below the waterline or otherwise impacted the seaworthiness of the Yunus. (Id. 213:3-16.)
5. Water Problems and Attempts to Tow the Yunus
By the time that Mr. Marangola boarded the Yunus on the morning of January 12, 2024, an “abnormal amount of water” had accumulated in the engine room.56 (Hr‘g Tr. 222:1-14.) Mr. Marangola testified that he first checked the water level at the propeller shaft, “as it‘s the deepest and most dependent, lowest part of the ship and it would give an accurate depiction of how low the water is.” (Id. 223:24-224:6.) Mr. Marangola used a five- or six-foot broomstick to test the water level. (Id. 224:7-12.) Laying on the planks, Marangola fully extended his arm and the broomstick below the shaft, and the water level reached all the way up to his arm. (Id. 224:10-225:1.) He mentally noted the water level, observing that it remained below the shaft at that time. (Id. 225:7-9.)
Multiple Yunus crew members, including Muhammad Rashid (“Rashid“) and Mehandi Hassan (“Hassan“), testified during their material witness depositions that the Yunus regularly took on water in the engine room. (ECF No. 378-3 (“Rashid Dep.“) 143:23-144-3; ECF No. 378-2 (“Hassan Dep.“) 59:21-60:23.) Rashid explained that the water entered through the propeller shaft and that one of the crew members — usually Defendant Mazhar — activated a pump every four to five hours to drain the engine room of water. (Rashid Dep. 159:23-160:15.) No such pumping took place once the interdiction began. (Id. 160:16-20.)
Mr. Marangola noted that he sought to limit his time in the engine room due to the “tremendous amount of hazards” present. (Id. 232:7-8.) Aside from the water accumulation, Marangola also noticed a raw fuel leak near electric extension cords that were already soaked in a combination of water and fuel. (Id. 215:13-17, 216:11-20.) Due to the risk of electrocution and drowning (if the Yunus were to capsize), Mr. Marangola decided not to risk addressing the fuel leak. (Id. 231:14-19, 232:7-11.)
As the water situation on the Yunus worsened, Mr. Marangola navigated the Yunus alongside the USS Puller, albeit with difficulty. (Id. 218:14-17.) To protect the two vessels from damaging one another in the event of a collision, the Navy put down large buoys and fenders — approximately 15 feet in circumference and 6 to 15 feet tall. (Id. 218:7-13.)
At some point, the Boarding Team attempted to secure the Yunus to the USS Puller by wrapping ropes around three connection points at the front of the Yunus. (Id. 218:18-219:6.) However, Mr. Marangola testified that these connection points turned out to be unsuitable as tow points, because “[t]he tow point in the stern failed” and the others “were not solid enough structures to hold the dhow alongside the Puller.” (Id. 219:11-16.) While the stern of the vessel sustained some damage during this process, Mr. Marangola noted that none of this damage impacted the seaworthiness of the Yunus, because it was “[w]ell above the waterline.” (Id. 219:21-221:9.)
In addition to the Navy‘s inability to tow the Yunus to a port due to the lack of connection points, Mr. Marangola also noted that craning the Yunus onto the USS Puller was not an option, since the available crane lacked sufficient capacity to lift the Yunus. (Id. 231:4-13.)
6. Individual Interviews Aboard the Yunus (January 13, 2024)
On the morning of January 13, 2024, Chief Mulkey turned his focus to individual interviews with the mariners. (Id.) To help perform these interviews, Chief Mulkey had been provided with an Urdu interpreter over a satellite phone. (Id. 401:24-402:6.) Chief Mulkey proceeded to conduct individual interviews with several Yunus crew members, including Defendants Pahlawan and Mazhar. (See Gov‘t Ex. 85 (Chief Mulkey‘s interview notes).)
As to the circumstances of the individual interviews on January 13, 2024, Chief Mulkey conducted these interviews on the Yunus‘s breezeway on the back, starboard side of the dhow. (Id. 402:10-22.) The USS Puller remained anywhere from 200 to 1,000 yards from the Yunus during this time. (Id. 405:1-4.) Chief Mulkey and the other Boarding Team members carried only their sidearm pistols, which remained holstered during the interviews. (Id. 280:1-6, 401:20-23.) The mariners were not handcuffed before or during these interviews. (Id. 424:16-18.) However, the mariners “still knew that they could not leave.” (Id. 405:22-25.) Defendants and the other crew members remained “confined to [an] area in the aft” and were “not free to move around the dhow.” (Id. 405:15-21.)
Defendants were taken by the arm and separated from the other crew members for their individual interviews with Chief Mulkey. (Id. 406:2-5; Farooq Dep. 135:19-25.) At one point,
In terms of the nature of the questioning, Chief Mulkey referred to his interview technique as employing “tactical questioning.” (Id. 402:19.) The first step of this approach in situations where “we . . . have discovered something” is primarily about “trying to figure out who was in charge,” since those persons are likely to possess “more knowledge of the crew and of their purpose of voyage.” (Id. 366:21-367:5, 367:14-17, 367:20-22.) Once key members have been identified, the second step involves asking those individuals more substantive questions to extract further information for intelligence-gathering purposes. (Id. 367:16-22, 407:20-408:9.) For instance, Chief Mulkey would ask questions about “where the vessel came from,” “who supplied the weapons” and “who they‘re going to give them to.” (Id. 476:22-477:4.) Such information about the weapons smuggling network could then be used to “stop the flow of the missiles.” (Id. 408:1-6.)
Chief Mulkey testified that “[i]t was very difficult to hear anything that the interpreter was saying, and we kept on losing connection with the sat phone.” (Id. 406:8-10.) Whenever the call disconnected, they “[h]ad to wait until we could reestablish connection.” (Id. 406:11-12.) At times, Chief Mulkey had difficulty understanding the interpreter, and “[i]t took several attempts and communicating back and forth to clear up what he was saying.” (Id. 406:13-19.) Although “[i]t took a while,” Chief Mulkey was “ultimately able to understand the message [that the interpreter] was conveying.” (Id. 406:20-22.)
During his individual interview with Mazhar, Chief Mulkey asked Mazhar about the Yunus‘s port of origin. (Id. 412:22-413:1.) Mazhar responded that the vessel had come from Gwadar, Pakistan. (Id.)
Chief Mulkey then asked Mazhar to identify the captain or the person in charge of the vessel. (Id. 413:2.) In response, Mazhar responded that the captain was not on board and provided two conflicting accounts. First, Mazhar stated that when the crew saw the Navy helicopter approach their vessel, the captain called to get picked up by another dhow. (Id. 413:2-6.) Second, Mazhar said that another vessel had recently called the Yunus on the crew‘s satellite phone and communicated that it was having engine problems. (Id. 413:8-15.) The captain was then picked up from the Yunus and transferred to the other vessel to help fix that vessel. (Id.) Mazhar identified “Raheem Baksh” as the captain of the Yunus. (Id.; Gov‘t Ex. 85 at 4.) Mazhar also claimed that the captain had taken the Yunus‘s registration paperwork with him when he went to the other vessel. (Hr‘g Tr. 413:16-20.)
Chief Mulkey proceeded to ask Mazhar about the timing of the Yunus‘s departure from Gwadar, Pakistan. (Id. 413:21-23.) Mazhar responded that the crew departed ten days before the Navy‘s interdiction of the Yunus. (Id.)
Chief Mulkey then asked Mazhar about the cargo on board and who was responsible for retrieving supplies for the Yunus. (Id. 414:1-3.) Mazhar responded that “Raheem Baksh” was responsible for the supplies and logistics and had already loaded the cargo onto the Yunus in advance of Mazhar‘s arrival. (Id. 414:1-7; Gov‘t Ex. 85 at 4.)
Finally, Chief Mulkey asked Mazhar about who had ownership of the satellite phone, in a further attempt to determine the person in charge aboard the Yunus. (Hr‘g Tr. 415:4-9.) Chief Mulkey did not provide testimony as to Mazhar‘s response to this question.
b. Interview with Pahlawan
During his individual interview with Pahlawan, which took place after his interview with Mazhar, Chief Mulkey “had the interpreter ask roughly the same questions as previously asked to Mr. Mazhar and then gave Mr. Pahlawan the phone to begin talking.” (Id. 416:16-22.) When Mr. Pahlawan returned the phone, the call dropped. (Id. 416:22-23.) Chief Mulkey reestablished the connection, at which point the interpreter conveyed that Pahlawan “was basically saying the same things [as Mazhar] as far as the captain leaving due to hearing the helicopter, and that he got onto another dhow.” (Id. 416:25-417:3.) However, the interpreter did not mention anything about “Raheem” or the paperwork. (Id. 417:7-10.)
Chief Mulkey also asked Pahlawan about his role on the dhow. (Id. 417:23-24.) Pahlawan responded that he was a fisherman and just a crew member. (Id. 418:1-3.)
Chief Mulkey inquired about who controlled the satellite phone, to which Pahlawan responded that nobody controlled it. (Id. 418:4-10.)
Chief Mulkey‘s interview with Pahlawan was cut short when the ground force commander indicated that the Yunus had become unseaworthy, necessitating the Boarding Team‘s and crew‘s evacuation from the Yunus. (Id. 410:23-411:1, 418:23-25.) As such, Chief Mulkey never reached the second phase of questioning regarding the ACWs or the operational network during the individual interviews at issue here, because he never successfully ascertained who the captain was. (Id. 410:15-17, 415:10-13, 485:4-10.)
Chief Mulkey did not issue Miranda warnings in advance of his individual interview with Pahlawan. (Id. 418:11-14.) He also testified that, during his questioning with both Mazhar and
7. Transfer to the USS Puller and Sinking the Yunus
By the afternoon of January 13, 2024, the Navy had decided to scuttle the Yunus. (Id. 238:16-21.) The Navy made this decision for “a plethora of reasons.” (Id. 215:10-11.) To begin, water had continued rising below deck; by the time that Mr. Marangola left the dhow, the water level “was all the way up to the floorboards, past the shaft.” (Id. 225:19-23.) This created a grave risk of capsizing if the water in the bottom of the vessel shifted to one side. (Id. 216:8-10.) In addition, there was raw fuel leaking in the engine room, which could lead to fire, combustion and a lack of egress. (Id. 215:13, 216:11-13.) This fuel had mixed with water that “slosh[ed] and disperse[d] . . . all the way up past the shaft throughout the entire engine room” as the Yunus rocked back and forth. (Id. 268:15-18.) Water and fuel were also soaking electrical lines. (Id. 216:14-20.) Furthermore, the Yunus was unmarked and could not be safely maneuvered, rendering it a hazard to navigation. (Id. 215:18-21, 241:2-3.) The Yunus had become unseaworthy and, in that condition, put “lives in danger.” (Id. 240:25-241:8.)
In preparation for scuttling the Yunus, the Boarding Team transferred all collected evidence to the USS Puller and captured photo and video footage of the Yunus. (Id. 238:25-239:2, 422:2-9; see, e.g., Gov‘t Exs. 51, 82, 83, 84 (photographs and video footage of the Yunus).) At some point, Chief Mulkey also recorded rough measurements for the Yunus. He approximated that the Yunus extended about 130 feet long, equivalent to three or four CCAs in length. (Id. 437:18-438:1.) To Chief Mulkey‘s knowledge, no one from the Boarding Team obtained a formal measurement of the Yunus. (Id. 438:2-4.) The Boarding Team also escorted the mariners to the USS Puller under guard. (Id. 278:6-7, 467:13-15.)
Mr. Marangola testified that the Navy had no plans to scuttle the Yunus in advance of the interdiction and that the deaths of the two Navy SEALs had no effect on the Boarding Team‘s decision-making in this regard. (Id. 241:9-18.) Rather, the Boarding Team scuttled the Yunus entirely due to safety concerns. (See id. 240:25-241:1 (testifying to the Yunus‘s unseaworthiness and lack of safety), 241:7-8 (testifying that “if we were to leave [the Yunus] in that condition, we would have been putting [the mariners‘] and other lives in danger“).) As Mr. Marangola explained, as a “partially sunk vessel in the middle of the ocean,” the Yunus presented “a massive hazard to navigation.” (Id. 240:8-13.) The Yunus “wasn‘t transponding any sort of signal to other marine traffic, as well as didn‘t have any lights to notify people transiting throughout the area. And we, as Americans, took responsibility for the dhow and morally and ethically didn‘t feel that it was safe to others to leave that in the condition that it was in.” (Id. 240:13-18.)
The entirety of the boarding lasted approximately two full days. (Id. 254:2-6.)
8. Interviews Aboard the USS Puller
After being transferred from the Yunus to the USS Puller on January 13, 2024, the Yunus crew members remained aboard the USS Puller until their arrest on February 14, 2024. Two
FBI investigators took several steps in advance of meeting with Defendants to prevent the FBI and NCIS‘s interviews from being “tainted” by DOD interviews for purposes of admissibility at any future trial. As part of these preparations, federal prosecutors met with FBI SA Joseph Ahonen and Task Force Officer (“TFO“) Benjamin Lam in advance of their departure for the USS Puller and established certain protocols to ensure that the mariners’ un-Mirandized interviews with DOD were sufficiently separated in time and space from any Mirandized interviews with the FBI and NCIS. These included the FBI team‘s efforts to “form[] a wall” aboard the USS Puller. (Id. 116:21.) Pursuant to this “wall,” the FBI team remained “completely separate” from the DOD team. (Id. 116:23-25, 119:20-23.) The FBI team maintained this barrier by removing agents from email distribution lists that might have included discussion or results of DOD‘s un-Mirandized interviews, eating at different tables from DOD interviewers on the USS Puller and limiting conversations between the FBI team and DOD team to logistical and chain-of-custody questions. (Id. 117:2-118:13, 119:25-120:5.) SA Ahonen
SA Ahonen also testified that, in preparation for this case, he reviewed the standard FBI Miranda rights advisement. (Id. 112:13-14.) He then reviewed relevant case law and worked with federal prosecutors to modify the standard FBI advice of rights to incorporate curative steps that would ensure an appropriate two-step process without any potential taint from the prior un-Mirandized DOD interviews. (Id. 112:13-20.) SA Ahonen submitted these revised Miranda warnings to language services so that a verbatim translation could be prepared. (Id. 115:3-8.)
The FBI team arrived aboard the USS Puller on January 26, 2024, in the vicinity of Country A.58 (Id. 123:18, 125:1-3.) That same day, the FBI team obtained a federal search warrant to search and seize the electronic devices from the Yunus‘s crew members, and federal agents began extracting data from these devices. (Id. 178:12-25.) SA Ahonen testified that soon after his team‘s arrival, the captain of the USS Puller indicated that they would have to immediately depart the area due to the Houthi threat. (Id. 123:10-13.) This was due to the fact that the USS Puller remained in the Houthis’ weapons engagement zone, where it sat within target range of Houthi missiles stationed in Yemen. (Id. 123:14-16.)
Beginning on January 31, 2024, the FBI team engaged in substantive interviews with the mariners. (Id. 130:16-18.) In all of these interviews, the FBI team used a different translator than the one employed by the DOD team. (Id. 131:25-132:6.) The FBI team also read
Before we question you, you must understand your rights:
You have the right to remain silent. We understand that you may have already spoken to others. We do not know what, if anything, they said to you, or you said to them. Likewise, we are not interested in any of the statements you may have made to them previously. We are starting anew. You do not need to speak with us today just because you have spoken with others in the past.
If you previously made statements to others in the U.S. Government, it is likely that those statements will not be useable against you in a U.S. court. Anything you now say can be used against you in court.
You have the right to talk to a lawyer for advice before we ask you any questions.
You have the right to have a lawyer with you during questioning.
If you cannot afford a lawyer, you have the right to have one appointed for you before any questioning if you wish.
However, our ability to provide you with counsel at this time may be limited by the decisions of the local authorities or the availability of an American-trained attorney.
If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.
(Gov‘t Ex. 93N; Hr‘g Tr. 114:17-24.) In addition, the FBI team provided a written version of the Miranda warnings, which was translated into Urdu. (Id. 115:3-15, 144:17-23.) Both Pahlawan and Mazhar acknowledged that they understood the verbal translation of the revised Miranda warnings and consented to proceeding with a voluntary interview without consulting with an attorney. (Gov‘t Exs. 93A, 94A, 95A, 99A, 100A.) They also confirmed that they had read and understood the written, translated version of the Miranda warnings and agreed to
SA Ahonen testified that Pahlawan‘s substantive interviews took place aboard the USS Puller in Room 4, a different room from where the DOD team conducted any previous interviews. (Hr‘g Tr. 130:1-5.) The FBI team interviewed Mazhar in a distinct area within Room 3 from where he had previously been interviewed. (Id. 142:21-143:8; Gov‘t Exs. 90B, 90C.)
On January 31, 2024, SA Ahonen and NCIS SA Robert Wilson conducted Pahlawan‘s first substantive interview, which lasted about four hours. (Gov‘t Exs. 93A-M.) That same day, TFO Lam and NCIS SA Patrik Paszek conducted Mazhar‘s only substantive interview, which lasted about two hours. (Gov‘t Exs. 99A-G.)
On February 1, 2024, SA Ahonen and SA Wilson conducted Pahlawan‘s second substantive interview, which lasted nearly four hours. (Gov‘t Exs. 94A-K.)
On February 4, 2024, the FBI team conducted one additional interview with Pahlawan to identify which electronic devices belonged to him. (Gov‘t Ex. 95A.) That same day, TFO Lam, SA Paszek and SA Wilson interviewed Mazhar in Room 4 to have him identify which electronic devices belonged to him. (Gov‘t Ex. 100A.)
Throughout these interviews on the USS Puller, Defendants were provided breaks as needed. (Hr‘g Tr. 144:3-9.) The FBI team also offered Defendants food, drinks and snacks at every interview. (Id. 127:7-10.)
9. Interagency Communications Concerning Defendants
Due to the various complexities resulting from the interdiction, including the presence of foreign mariners on board a Navy vessel and the possibility that American laws had been broken by some or all of these mariners, a coordinated government response involving several U.S.
During this time, the USS Puller was operating in support of Operation Prosperity Guardian, an ongoing military operation in the Gulf of Aden and the surrounding region. (Id. 368:4-24.) The USS Puller‘s original operational schedule in the aftermath of the interdiction was as follows. Between January 24, 2024 and January 27, 2024, the USS Puller was scheduled for a port call in Country A. (Gov‘t Ex. 110 at 33.) From there, the USS Puller planned to spend several days in active, ongoing military operations in the Gulf of Aden before docking in Country B from February 5, 2024 through February 7, 2024, after which it would again depart for military operations in the Gulf of Aden. (Hr‘g Tr. 322:9-12.) However, as outlined more fully below, these plans ultimately changed.
On January 17, 2024, SA Larsen began making inquiries about “FBI/DOJ interest in this [case.]” (Gov‘t Ex. 110 at 36.)
On January 18, 2024, a Marine Operational Threat Response (“MOTR“)59 teleconference was held to discuss interagency coordination as to “the disposition of crewmembers from a stateless vessel interdicted by U.S. naval forces.” (Gov‘t Ex. 110 at 3.) The participating
On January 19, 2024, another MOTR teleconference was held with representatives from the same agencies as well as the FBI. (Id. at 5.) SA Larsen testified that this was the first MOTR call that he attended for this matter. (Hr‘g Tr. 311:1-2.) At that time, DOD wanted to offload the crew members from the USS Puller in Country A between January 24, 2024 and January 27, 2024. (Id. 315:23-316:2.) The FBI hoped to interview the Yunus crew members before that time, because DOD would have no legal authority to hold the mariners once the USS Puller docked in Country A. (Id. 316:3-12.) The expectation was that, once the USS Puller reached Country A, “pending coordination with [the] host nation, if [it] would accept [the mariners], [DOD] would release them to that host nation.” (Id. 316:10-12.)
Three days later, on January 22, 2024, representatives from DOD, DHS, DOJ, FBI and DOS held another MOTR teleconference. (Gov‘t Ex. 110 at 7.) DOD still planned for the USS Puller to port in Country A from January 24, 2024 to January 27, 2024. (Id. at 8; Hr‘g Tr. 319:18-21.) As to next steps, the FBI was planning to coordinate with Navy personnel to transport federal agents to the USS Puller to conduct interviews on January 24, 2024, and DOD would discuss the location of these interviews with DOS to clarify whether they could be conducted inside Country A‘s territorial sovereignty. (Gov‘t Ex. 110 at 8.)
Another MOTR call took place the following day, on January 23, 2024. (Gov‘t Ex. 110 at 11.) During that call, the FBI and DOJ expressed an interest in prosecuting some of the mariners and stated that the “[r]esults of NCIS and DOJ interviews” would be one of the deciding factors in “ultimately determin[ing] classification of [the] crewmembers.” (Hr‘g Tr.
That same day, Acting Director Christopher Deutsch of DOS sent an email stating (in reference to the Yunus crew members) that: “The Pakistanis are currently being held on the [USS Puller], which is tentatively scheduled to dock in [Country B] on February 5 or return to . . . [Country C] for maintenance. The [USS Puller] will dock in [Country A] January 25-26, but [the Bureau of African Affairs] has advised that the [Country A] government will not agree to the disembarkation of the Pakistanis.” (Gov‘t Ex. 133 at 1.) As Mr. Deutsch explained in his testimony, given the context of the interdiction — that is, the United States Navy‘s interception of Iranian weapons enroute to the Houthis in Yemen — Government A, which did not support the United States‘s effort to address the Houthi threat in the Red Sea, was unwilling to be implicated in the regional conflict. (Hr‘g Tr. 22:2-10.) Therefore, DOS assessed that Country A did not present a feasible option for disembarkation of the mariners. (Id. 26:1-3.)
As of January 23, 2024, DOS was also considering Countries B and C as potential alternative locations to disembark the 14 mariners. (Id. 25:1-4.) However, DOS recognized that those countries would likely have reservations about becoming involved in the operation due to fears of reprisal. (Id. 25:8-25.)
As of January 25, 2024, the USS Puller‘s next port call was “tentatively scheduled for [Country B] on approximately 29-30 January but [was] subject to change.” (Id. at 17.)
That same day, Mr. Deutsch emphasized in an email that offloading the mariners “without a plan for their immediate onward travel elsewhere is a terrible idea, and in the case of [Country B] is an absolute non-starter.” (Gov‘t Ex. 136 at 1.)
By January 26, 2024, DOD shifted the USS Puller‘s scheduled port call in Country B back to February 5, 2024, “subject to change.” (Gov‘t Ex. 110 at 20.) The January 26, 2024 MOTR call summary also listed “[c]ompletion of DOJ request to DoD to hold crewmembers on board until charging decisions are made” among its “next steps.” (Id.)
That same day, DOS also began efforts to verify the identities and nationalities of the 14 mariners. (Gov‘t Ex. 135 at 2-3.) However, there was “some back and forth between our government and the Pakistani government” that delayed this process. (Hr‘g Tr. 37:11-14.) The national elections scheduled to take place in Pakistan further delayed efforts to verify the mariners’ nationalities. (Id. 39:12-16.) Ultimately, DOS‘s efforts to confirm the mariners’ identities and nationalities extended “well into February.” (Id. 40:14-19.)
The FBI team arrived on the USS Puller on January 26, 2024, and began the process of searching electronic devices and interviewing the mariners. (Id. 125:1-3.)
By January 29, 2024, the USS Puller had begun “mak[ing] its way to [Country C] and expected to port on/around 5 FEB.” (Gov‘t Ex. 110 at 22.) The Navy indicated that it “could port earlier if DOJ makes a charging determination.” (Id.) Following a January 29, 2024 MOTR
Following their final interviews with Yunus crew members on February 4, 2024, the FBI team determined that its investigative activities on board the USS Puller were complete and arranged to be flown off of the vessel.
The following day, on February 5, 2024, a DOD member sent an email, stating that “DoJ came over the top and stated they have not made a decision on how many mariners they will prosecute.” (Def. Ex. 2 at 1.)
Later that same day, a DOD member stated in an email that “[t]he USS LEWIS B PULLER ports in [Country C] on the 8th of FEB. . . . FBI told us today that they intend to prosecute all [14 mariners], which would require a flight from [Country C] back to the United States, hopefully as soon as the 8th when the LBP ports[.]” (Def. Ex. 3 at 2.) In that same email, the author acknowledged that “if DoJ comes back and says they do not intend to prosecute all,” then “a repatriating flight of some, not likely all, back to Pakistan” would be required. (Id.)
At some point during the week of February 5, Deputy AAG Newman expressed DOJ‘s view at an Interagency Policy Committee (“IPC“) discussion that “we were probably a few days away from making a decision one way or the other, that we had not decided either whether to charge or how many individuals to charge, and that my expectation was that we would make that decision within a handful of days, probably three to five days.” (Id. 78:15-20.)
On February 8, 2024 at 2:10 a.m.,60 a Navy Commander sent an email, indicating that “DoJ stated they are not ready to issue charges at this time and will require at least 5 additional days before pressing charges.” (Def. Ex. 7 at 1.)
On February 8, 2024 at 8:26 a.m., a DOD member stated in an email that the USS Puller “is remaining at sea to give DoJ more time.” (Def. Ex. 5 at 1.)
On February 8, 2024 at 2:15 p.m. Eastern Time,61 SA Larsen stated in a Skype message: “I got word from J33 and the guys on the boat this was happening. They are doing it based on the DOJ request to hold for 5 days, till 11/12 FEB.” (Gov‘t Ex. 144 at 5.) SA Larsen sought to clarify at the evidentiary hearing that “J33,” “the element within U.S. Central Command that runs maritime operations within the CENTCOM AOR,” contacted him and “indicated that they had heard that there was going to be a request from DOJ to request five additional days.” (Hr‘g Tr. 303:14-18.) However, according to SA Larsen, he had never conveyed that “DOJ or FBI wanted the Puller to stay offshore.” (Id. 304:1-3.) Moreover, he testified that “CENTCOM
Mr. Newman similarly emphasized, in his testimony, that, to his knowledge, DOJ never requested DOD to alter its operational plans to allow greater time to investigate. (Id. 75:17-22.) Rather, Mr. Newman sought to “send a very clear message that at the highest levels [DOJ] intended to take as much time as was needed before deciding whether to charge and that other departments needed to make their own decisions under their own authorities.” (Id. 85:18-22.)
SA Larsen also testified that, to his knowledge, the FBI never asked DOD to alter its operational plans to allow greater time for the FBI to investigate. (Id. 304:18-21.) Nor, to his knowledge, did DOJ ever request the same. (Id. 304:22-25.)
Likewise, Mr. Deutsch stated that, although DOJ expressed its view that it needed more time to complete its charges, to his knowledge, DOJ never asked for the mariners to be detained on the USS Puller. (Id. 55:1-21, 56:24-25.) Rather, “DOJ acknowledged [the] reality” that DOD “cannot hold the mariners, and that if it has an opportunity to offload them (including, for example, a ship-to-ship transfer sometime before February 5), it will do so, even if DOJ has not completed its investigation.” (Gov‘t Ex. 137 at 2.) Mr. Deutsch testified that DOD vocalized their “operational requirements and that they were not willing to simply wait indefinitely for DOJ to take action, and that if they had an opportunity to remove these individuals from the ship before DOJ was ready, they would do so.” (Hr‘g Tr. 56:3-8.)
Ultimately, Country C agreed to assist with the resolution of the “displaced mariner” situation, but with conditions. (Id. 43:9-15.) Country C would permit the USS Puller to dock as long as its involvement was “minimized to the maximum extent possible.” (Id. 43:17-20.)
On February 11, 2024, at approximately 10:30 p.m. Eastern Time, following the Government‘s application for arrest warrants for four Yunus crew members as defendants and ten crew members as material witnesses, United States Magistrate Judge Summer L. Speight signed a complaint and arrest warrants for all four initial defendants in this matter — Muhammad Pahlawan, Izhar Muhammad, Ghufran Ullah and Mohammad Mazhar. (ECF No. 3.) At that same time, Judge Speight also signed and authorized ten material witness warrants for the remaining mariners on board the USS Puller. (See, e.g., United States v. Zulfiqar, No. 3:24mw1, ECF No. 4.) The Yunus crew members remained on board the USS Puller at this time.
Between February 11, 2024 and February 14, 2024, the Navy transformed an office building on its Country C base into a holding facility where the mariners could be temporarily detained. (Hr‘g Tr. 162:15-22.)
On February 13, 2024, DOJ sent its first formal request, via an “Exec Sec,” to DOD, requesting the detention of the Yunus‘s crew members (either as defendants or as material witnesses) in Country C until transportation to the United States could be arranged. (Id. 337:19-25; Gov‘t Ex. 110 at 66, 69.) DOJ also intended “to formally request DoD provide transportation for the arrestees and security detail to the United States (Eastern District of Virginia; airfield TBD).” (Gov‘t Ex. 110 at 66.)
On February 14, 2024, FBI agents made multiple trips out to the USS Puller to arrest and transport each of the mariners to the temporary detention facility erected on the Navy base in Country C. (Hr‘g Tr. 162:7-13.) Upon arrival, the agents ensured that all of the defendants and material witnesses had adequate food, water, clothing and hygiene materials, as well as access to medical care. (Gov‘t Ex. 164 at 3; ECF No. 6 at 4.)
a. Interviews in Country C (February 15, 2024 and February 19, 2024)
On February 15, 2024, FBI TFO Lam and FBI SA Rashid Hassanpoor interviewed Defendant Pahlawan in Country C following his formal arrest and transfer from the USS Puller. (Gov‘t Ex. 164 at 3.) During the interview, the FBI team advised Pahlawan that he was under arrest. (Id.) The agents also asked Pahlawan about whether he had a fear of returning to Pakistan. (Id.) The agents then asked Pahlawan if he wanted to participate in a voluntary interview. (Id.) Pahlawan agreed. (Id.)
On the same day, TFO Lam and NCIS SA Jermaine Davis interviewed Mazhar in Country C. (Id.) During the interview, the FBI team advised Mazhar that he was under arrest and asked him about whether he had a fear of returning to Pakistan. (Id.) Mazhar also agreed to participate in a voluntary interview. (Id.)
On February 19, 2024, TFO Lam and FBI SA Annalise Stone conducted additional interviews with Pahlawan and Mazhar in Country C. (Gov‘t Exs. 98, 103.) The focus of these interviews was to inform Defendants of their right to notify the Pakistani consulate about their arrest and to inquire whether they wanted to notify the consulate.
b. Coordination of Military Air Transportation (February 15-21, 2024)
While FBI agents advised Defendants of the charges against them, DOD began working to arrange military air transportation of the crew members to the United States. DOD indicated that it required a 96-hour coordination window to have an aircraft in Country C. (Gov‘t Ex. 110 at 69.)
Mr. Newman testified that the agencies explored “a menu of options” for transporting the defendants and material witnesses to the United States. (Id. 82:10-13.) He stated that DOJ “felt a lot of urgency, first and foremost, to bring the charged defendants to the United States given our obligation of prompt presentment.” (Id. 82:14-16.) Mr. Newman further indicated that, “[a]s to the material witnesses, there was some question about whether they would be transported on the same flight as the charged defendants or whether logistically it would be more prudent and appropriate to bring the defendants first and the witnesses once an aircraft was available.” (Id. 82:17-21.) Ultimately, however, DOJ sent a second Exec Sec request to DOD on February 15, 2024, the day after the crew members were arrested, requesting transportation for all 14 mariners in a single trip. (Id. 343:7-11.)
On February 20, 2024, a military aircraft arrived in Country C to transport the 14 mariners to the United States. (Id. 165:14-20.) Shortly thereafter, the plane departed Country C with all 14 mariners, as well as the federal agents serving as their security detail, on board. (Id. 166:13-21.) Following a refueling stop in Spain, the plane landed in Richmond, Virginia on February 21, 2024. (Id. 166:2-9.)
c. Presentment in the Eastern District of Virginia (February 22, 2024)
The defendants and material witnesses all appeared in the Eastern District of Virginia before two United States Magistrate Judges beginning on February 22, 2024. (ECF No. 9.)
On December 4, 2024, the grand jury returned a Second Superseding Indictment (ECF No. 239) against Defendants, which charges Pahlawan with one count of conspiracy to provide material support or resources to terrorists; one substantive count of providing material support or resources to terrorists; two counts of participating in weapons of mass destruction threats to the United States; one count of conspiracy to commit violence against maritime navigation and maritime transport involving weapons of mass destruction; one substantive count of committing violence against maritime navigation and maritime transport involving weapons of mass destruction; two counts of witness tampering through intimidation or threat; and one count of providing materially false information to a federal law enforcement officer during a boarding of a vessel. (Id. at 12-20.) Mazhar faces one count of providing materially false information to a federal law enforcement officer during a boarding of a vessel, in violation of
The Court has since dismissed Count Two of the Second Superseding Indictment (providing material support or resources to terrorists) on multiplicity grounds and has ordered that, should the jury return a conviction on Counts Three and Four (participating in weapons of mass destruction threats to the United States), these counts shall be merged. (ECF Nos. 269, 329.) The Court has also dismissed Count Eight (witness tampering), because the Government failed to provide sufficient notice of this additional charge before the material witness depositions, thereby creating a Confrontation Clause issue if the depositions were admitted at trial. (ECF No. 302.)
A. Suppression Motions
The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.”
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court instituted procedural measures to protect the privilege against self-incrimination. With “the advent of modern custodial police interrogation,” there arose “an increased concern about confessions obtained by coercion” in violation of this right. Dickerson v. United States, 530 U.S. 428, 434-35 (2000).
that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
Miranda, 384 U.S. at 444. In the absence of Miranda warnings, the prosecution generally may not use any statements procured through custodial interrogation in its case-in-chief. Id. at 444, 479.
Although Miranda‘s rules are “constitutionally based,” Dickerson v. United States, 530 U.S. 428, 440 (2000), Miranda and its progeny make clear that Miranda imposed a set of prophylactic safeguards but did not create a constitutional right to be warned. Vega, 597 U.S. at 142, 144; see Michigan v. Tucker, 417 U.S. 433 (1974) (“[Miranda‘s] suggested safeguards were not intended to create a constitutional straightjacket, but rather to provide practical reinforcement for the right against compulsory self-incrimination.“); United States v. Sanchez, 859 F.2d 483, 485-86 (7th Cir. 1988) (Easterbrook, J.) (”Miranda warnings are not themselves required by the Constitution, but are simply ways of bringing home to suspects the underlying rights“). Consequently, suspects do not possess a constitutional right to Miranda warnings, and a Miranda violation does not necessarily establish a Fifth Amendment violation. Vega, 597 U.S. at 144, 150. For instance, in New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court held that unwarned statements obtained in violation of Miranda need not be suppressed when the questioning occurs to address an ongoing “public safety” concern. Id. at 654-57. The Court reasoned that Miranda warnings are “not themselves rights protected by the Constitution” and that “the need for answers to questions in a situation posing a threat to the public safety outweigh[ed] the need for the prophylactic rule.” Id. at 654, 657.
B. Rule 5(a) Motion
The defendant carries the burden of proving unnecessary (and therefore unreasonable) delay in arraignment. E.g., Tillotson v. United States, 231 F.2d 736, 738 (D.C. Cir. 1956); United States v. Boche-Perez, 755 F.3d 327, 336 (5th Cir. 2014); United States v. Van Poyck, 77 F.3d 285, 288 (9th Cir. 1996); Miller v. United States, 396 F.2d 492, 496 (8th Cir. 1968).
C. Spoliation Motion
A criminal defendant “has a constitutionally protected privilege to request and obtain from the prosecution evidence that is . . . material to the guilt of the defendant.” California v. Trombetta, 467 U.S. 479, 485 (1984) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). “Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant‘s guilt.” Id. (citing
A defendant may establish a due process violation based on the prosecution‘s failure to preserve evidence if the evidence “possess[es] an exculpatory value that was apparent before the evidence was destroyed” and if it is “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Trombetta, 467 U.S. at 489. “A showing of bad faith is required, however, when the lost evidence can only be said to be ‘potentially useful’ to the defendant because the contents of the evidence are unknown.” United States v. Johnson, 996 F.3d 200, 206 (4th Cir. 2021) (quoting Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988)).
III. ANALYSIS
A. Suppression Motions
Defendants seek to suppress three categories of statements on Miranda grounds. First, Defendants challenge the admissibility of Pahlawan‘s silence and Mazhar‘s statements (or silence) in response to un-Mirandized group questioning on the Yunus.62 Second, Defendants seek to suppress their statements to Chief Mulkey during un-Mirandized individual questioning on the Yunus.63 Third, Defendant Pahlawan moves to suppress his Mirandized statements to the
The Government does not dispute that foreign nationals questioned outside the United States enjoy the constitutional rights protected by Miranda. Instead, the Government contends that no constitutional violation exists, because Defendants were neither in custody nor interrogated for purposes of Miranda. (ECF No. 161 (“MTS Opp.“) at 2.) Furthermore, even assuming that Defendants’ un-Mirandized statements on the Yunus were procured through custodial interrogation, the Government argues that the public safety exception applies, placing the statements outside the ambit of the exclusionary rule. (ECF No. 300 (“Gov‘t Suppl. Br.“) at 69.) The Government further argues that Defendants’ alleged false statements would still be admissible as to the false statement charges, because “the Fifth Amendment does not prohibit the use of an unmirandized false statement where the false statement is itself the crime.” (MTS Opp. at 2, 20.) As to Defendant Pahlawan‘s claim that his Mirandized statements on the USS Puller should be suppressed, the Government contends that Pahlawan received sufficient Miranda warnings and that he made a voluntary and knowing waiver of his rights. (Id.)
For the reasons set forth below, the Court finds that Defendants were not in custody for Miranda purposes during the initial group interview on the Yunus, and therefore, Defendants’ statements (or silence) in response to Chief Mulkey‘s questions during this interview are admissible. In addition, the Court finds that Defendants’ statements to Chief Mulkey during
1. Defendants’ un-Mirandized statements (or silence) during the group interview on the Yunus are admissible.
Absent formal arrest, a suspect stands entitled to Miranda warnings only “where there has been such a restriction on [his] freedom as to render him ‘in custody.‘” United States v. Colonna, 511 F.3d 431, 435 (4th Cir. 2007) (citations omitted). An individual qualifies as “in custody” for Miranda purposes when, under the totality of the circumstances, his “freedom of action is curtailed to a degree associated with formal arrest.” United States v. Parker, 262 F.3d 415, 419 (4th Cir. 2001). Facts relevant to this objective inquiry include:
the time, place and purpose of the encounter, the words used by the officer, the officer‘s tone of voice and general demeanor, the presence of multiple officers, the potential display of a weapon by an officer, and whether there was any physical contact between the officer and the defendant.
United States v. Hashime, 734 F.3d 278, 283 (4th Cir. 2013).
Courts engage in a two-step inquiry to determine whether a suspect‘s freedom of action is curtailed to a degree associated with a formal arrest. Howes v. Fields, 565 U.S. 499, 509 (2012). A court must first ascertain “whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.” Id. (cleaned up). If a reasonable person would not have felt at liberty to leave, then a court must ask “the additional question [of] whether the
As the Fourth Circuit explained, “[d]istinguishing between these two steps helps explain why the Supreme Court and the Fourth Circuit have concluded that a person might not be free to leave but might also not be in custody under Miranda.” United States v. Leggette, 57 F.4th 406, 410 (4th Cir. 2023). For instance, a motorist may not be free to leave during a traffic stop, but such stops do not ordinarily constitute “custody,” because they lack the necessary coercion. Berkemer v. McCarty, 468 U.S. 420, 438 (1984). Likewise, the “temporary and relatively nonthreatening detention involved in a . . . Terry stop does not constitute Miranda custody.” Howes, 565 U.S. at 509.
The Court finds that Defendants were not in Miranda custody during the group interview on the Yunus. Although Defendants were not free to leave, the circumstances of the group interview do not reveal the “same inherently coercive pressures as the type of station house questioning at issue in Miranda.” Howes, 565 U.S. at 509. Chief Mulkey, who was accompanied by two other Boarding Team members for security purposes, questioned Defendants once the emergency personnel recovery efforts ceased. Using a Yunus crew member as a translator, Chief Mulkey asked only a handful of questions targeted at determining the identity of the captain and locating any registration paperwork. Far from the isolated setting of the police interview in Miranda, the interview here occurred in a group setting with all fourteen mariners present and over only a brief period of time, since Chief Mulkey subsequently paused questioning to procure an interpreter who could communicate with the mariners. Although the Boarding Team interdicted the Yunus with weapons drawn, gathered the crew members at the bow of the vessel and instructed them to remain silent and keep their heads down and their hands
The Court next considers whether Defendants’ un-Mirandized statements to Chief Mulkey during their individual interviews on the Yunus resulted from custodial interrogation. If so, their statements must be suppressed unless an exception applies.
a. Defendants were in custody during their individual interviews on the Yunus.
Defendants argue that the Boarding Team‘s use of overwhelming force during the boarding and its continued control over the crew from the evening of January 11, 2024 through the morning of January 13, 2024, when Defendants were eventually questioned, placed Defendants in custody for Miranda purposes. In response, the Government relies on what it terms an “overwhelming consensus” among courts that routine boardings of vessels do not place a crew “in custody” for purposes of Miranda. (Gov‘t Suppl. Br. at 49.) In the Government‘s view, the show of force, restriction of movement, length of the boarding and discovery of missile components do not set this boarding apart from routine boardings. (Id. at 53-58.) The Government further notes that the Boarding Team did not place Defendants in handcuffs or restraints while on board the Yunus and claims that the Boarding Team provided the mariners “sufficient freedoms to navigate their vessel during the boarding process,” pointing to the fact that crew members were permitted “to go to the restroom (with an escort) when they wanted, grab[] blankets to stay warm when they were cold, [eat] when they were hungry, and sle[ep] when they were tired.” (Id. at 52.) For the reasons stated below, the Court finds that Defendants’ freedom of action during the boarding was curtailed to a degree associated with a formal arrest, and that Defendants were therefore in custody for Miranda purposes.
To determine whether Defendants were in Miranda custody, this Court must first ascertain “whether a reasonable person would have felt he or she was not at liberty to terminate
Moreover, the circumstances under which the individual interviews took place on the Yunus served as the functional equivalent to a station house interrogation. Although the interviews were limited in duration, other circumstances highlight the inherently coercive pressures that elevate this boarding to a custodial arrest for Miranda purposes. Defendants were taken by the arm and isolated from the other crew members for individual questioning with Chief Mulkey, who remained armed with a sidearm pistol. By the time that Chief Mulkey conducted individual interviews, the USS Puller had towered over the Yunus for several hours as craning
The Government resists this outcome by arguing that Defendants “retained a level of freedom and control during the boarding,” as they “were able to go to the restroom (albeit, with an escort) when they wanted, grab blankets to stay warm when they were cold, [eat] when they were hungry, and sleep when they were tired.” (MTS Opp. at 14.) The Government emphasizes that Defendants also “made tea when they wanted and that at least one member of the Boarding Team shared some tea with the mariners during the boarding.” (Id. (emphasis in original).) Yet, the fact remains that for nearly 36 hours, members of the Boarding Team confined Defendants and kept them under constant guard in the middle of the Arabian Sea. Such confinement stands “tantamount to having been placed in a modern day jail pod, where inmates cook for themselves, are free to walk around the pod and associate together, but all the while being confined to a secure space.” United States v. Portocarrero-Reina, 2006 WL 1460277, at *2 (M.D. Fla. May 23, 2006).
The instant case presents similar circumstances to those in United States v. Hasan. There, the defendant faced charges for piracy and related crimes in connection with an assault on a United States Navy frigate, the USS Nicholas, off the coast of Somalia. Hasan, 747 F. Supp. 2d at 654-55. During an interview on board the USS Nicholas, which was translated through an interpreter on a satellite phone, the defendant “immediately confessed to being a pirate.” Id. at
Likewise, in this case, the evidence before the Court demonstrates that Defendants were similarly held captive on board the Yunus. As in Hasan, Chief Mulkey conducted brief interviews of Defendants with the aid of an interpreter on a satellite phone. The evidence also demonstrates that, like the defendant in Hasan, Defendants were being held at the mercy of the Boarding Team, who isolated Defendants in specified areas of the Yunus and surveilled Defendants at all times, even when they used the restroom. Although Defendants were not physically restrained in handcuffs, as the Government repeatedly notes, Defendants remained under constant guard by an armed escort in the middle of the high seas. Such a degree of restraint imposed on Defendants’ movements illustrates their captivity on board the Yunus. Moreover, the fact that the USS Puller lingered “as close . . . as possible [to the Yunus] without making contact” for multiple hours before the individual interviews, and remained as close as 200 yards from the Yunus while Chief Mulkey interviewed Defendants, would have strongly suggested to the mariners that they would not be released and free to leave at the end of the questioning.67 (Hr‘g Tr. 218:1-3.) Under these circumstances, like in Hasan, Defendants were restricted from moving freely and were therefore in custody for Miranda purposes.
Likewise, the Court rejects the Government‘s notion that the boarding of the Yunus stands analogous to a Terry stop. (MTS Opp. at 16.) The nature and duration of the boarding at issue in this case simply does not compare to the “temporary and relatively nonthreatening detention” involved in such a stop. Leggette, 57 F.4th at 411. The Boarding Team was not only armed, but they also rounded up the mariners at gunpoint and held them at the front of the Yunus to conduct the protective sweep. Moreover, by the Government‘s own account, the boarding extended nearly two days — from the evening of January 11, 2024, through the afternoon of January 13, 2024. Such duration stretches the term “temporary” in the context of Terry well beyond its ordinary meaning. Case law concerning Terry stops thus proves inapposite here.
The Government seeks to rebut Defendants’ argument that the Boarding Team‘s discovery of the weapons before the individual interviews further contributed to a “custodial” atmosphere for Miranda purposes, arguing that “nothing changed from [Defendants‘] viewpoint based on the Boarding Team‘s actions.” (Gov‘t Suppl. Br. at 57.) The Government‘s argument falls flat. First, the custodial inquiry constitutes an objective one that asks whether a reasonable person in the suspect‘s position would have understood that he was in custody. Hashime, 734 F.3d at 283. Here, even if the Boarding Team did not expressly announce that they had discovered weapons, and even if the crew members had no direct line of sight to the Boarding
Even aside from the Boarding Team‘s discovery of the weapons, the circumstances of the boarding had undoubtedly changed by the time that Chief Mulkey questioned Defendants on January 13, 2024. The USS Puller‘s presence and the additional military personnel on board the Yunus enhanced the coercive atmosphere. Defendants’ prolonged detention and physical restrictions also vitiated any sense of freedom. And unlike the initial interview on January 12, 2024, which occurred in a group setting, Defendants were isolated from the other crew members to conduct their individual interviews. The totality of these circumstances demonstrate that the boarding became custodial by the time of Defendants’ individual interviews on the Yunus.
b. Defendants were interrogated during their individual interviews on board the Yunus.
The Government next asserts that Defendants were not interrogated for purposes of Miranda, because Defendants were only asked “routine boarding and biographical questions.” (Gov‘t Suppl. Br. at 58.) According to the Government, Chief Mulkey‘s questions were designed to inquire about the statelessness of the vessel and the identity of the captain — “routine initial topic[s] for all boarding processes” — and were therefore not reasonably likely to elicit an incriminating response, falling outside of Miranda‘s purview. (Id. at 59.) The Government analogizes these boarding questions to the routine booking questions that courts have consistently found beyond the reach of Miranda. (Id. at 59–60.) The Court rejects the Government‘s arguments and finds that Chief Mulkey conducted a custodial interrogation on board the Yunus.
For purposes of Miranda, an “interrogation” consists of “words or actions on the part of the police (other than those normally incident to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). This inquiry employs an objective standard. See Grueninger v. Dir., Virginia Dep‘t of Corr., 813 F.3d 517, 527 (4th Cir. 2016) (noting that the state court improperly substituted “a subjective standard (‘designed to’ elicit) for Innis‘s objective standard (‘should know are reasonably likely to’ elicit)“).
Here, Chief Mulkey should have reasonably expected his questions to elicit an incriminating response. The Government‘s assertion that these questions constituted routine boarding questions ignores both the timing and the substance of the interviews. By the time that Chief Mulkey questioned Defendants on January 13, 2024, the Boarding Team had already discovered weapons on the Yunus and transferred them to the USS Puller. Chief Mulkey then proceeded with “tactical questioning” related to the cargo, the vessel‘s origin and the identity of the captain in an attempt to identify key crew members for further substantive questioning. After uncovering evidence of a weapons smuggling operation, Chief Mulkey had every reason to expect that his questions, under the guise of routine boarding questions, could lead to an incriminating response; an admission that Pahlawan served as the captain of the Yunus or that Pahlawan was responsible for the cargo on the Yunus, for instance, would draw a link between Pahlawan and the Iranian weapons found on the vessel, subjecting him to criminal liability. The
The Government insists that Chief Mulkey did not interrogate the mariners on the Yunus, because Chief Mulkey was purportedly acting under his authority pursuant to Title 10 of the United States Code, as opposed to Title 14, during the entirety of the interdiction. (ECF No. 361
The Court rejects this argument, because the interrogation inquiry does not turn on Chief Mulkey‘s subjective intent. See Grueninger, 813 F.3d at 527 (noting the state court‘s improper use of a subjective standard). The Boarding Team acted on suspicion that the Yunus was transporting ACWs when it interdicted the Yunus, did in fact discover these ACWs and then employed a questioning technique to elicit information that would help stop the flow of ACWs to the Houthis. Whether Chief Mulkey believed that he acted pursuant to his Title 10 or Title 14 authority does not alter the Court‘s analysis, because Chief Mulkey had reason to believe that his questions about the “cargo” could lead to an incriminating response.
Because Defendants’ statements during their individual interviews were procured through custodial interrogation, the Court proceeds to assess whether an exception to the Miranda requirement applies.
i. Background on Quarles
The Government contends that, even if Defendants’ un-Mirandized statements were obtained through custodial interrogation, the public safety exception applies, placing the statements outside the ambit of the exclusionary rule. (Gov‘t Suppl. Br. at 69.) The Government notes that, at the time of the boarding, the Houthi rebel forces had engaged in numerous maritime attacks on international commercial and military vessels in the aftermath of the October 7, 2023 Hamas attack on Israel. (Id. at 73–79.) According to the Government, these circumstances prompted concerns that the Yunus contained additional warheads or that “other actors were operating nearby with similarly dangerous weapons of mass destruction,” constituting an imminent public safety threat. (Id. at 72–73.)
The Supreme Court announced, in New York v. Quarles, 467 U.S. 649 (1984), a “public safety exception” to the requirement that Miranda warnings be given before a suspect‘s answers might be admitted into the evidence. Id. at 655. In that case, an armed suspect ran into a supermarket where he was apprehended by the police. Id. at 651–52. An officer searched the suspect and discovered an empty shoulder harness. Id. at 652. Without providing Miranda warnings, the officer asked the suspect where he had placed the gun. Id. The suspect indicated that the gun lay under some empty cartons in the store, and the officer immediately retrieved the loaded gun. Id. The Quarles Court reasoned that:
The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.
The Court‘s primary purpose in fashioning the public safety exception was straightforward: to permit police officers “to follow their legitimate instincts when confronting situations presenting a danger to the public safety.” Id. at 659. In so doing, the Quarles Court emphasized the importance of granting law enforcement officers the necessary flexibility in situations where the safety of the public or their own wellbeing stand at risk. See id. at 656 (declaring that “we do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety” and emphasizing that, in such situations, “spontaneity rather than adherence to a police manual is necessarily the order of the day“). While characterizing the exception as “narrow,” the Court also emphasized the case-by-case evaluation necessary to assess the exception‘s scope, underscoring that “in each case [the exception] will be circumscribed by the exigency which justifies it.” Id. at 658 (emphasis added).
A key feature of the Quarles Court‘s opinion involves the manner that it pragmatically weighed costs and benefits in arriving at its holding. Finding that the “need for answers . . . outweighs the need for” Miranda protections in this case, the Court assessed Miranda‘s “primary social cost” in ordinary cases as “the possibility of fewer convictions,” given that the warnings might deter suspects from providing potentially inculpatory responses to questions from law
The Court recently reaffirmed the integral nature of this cost-benefit approach to its Miranda jurisprudence in Vega v. Tekoh, 597 U.S. 134 (2022). After rejecting the argument that a Miranda violation necessarily constitutes a violation of the Constitution — a result that would have nullified the Court‘s ability to craft exceptions to Miranda in the first place — the Court proceeded to clarify the fundamental cost-benefit assessment that underlay its prior efforts to “chart[] the dimensions” of Miranda. Id. at 142–144. In the Court‘s words, “all the post-Miranda cases” it discussed, including Quarles, “engaged in cost-benefit analysis to define the scope of these prophylactic rules,” based on what remains, at core, a “pragmatic judgment.” Id. at 148, 151. The Court also cited its opinion in Maryland v. Shatzer, 559 U.S. 98 (2010), where it expressly found that a judicially-crafted rule like Miranda “applies only where its benefits outweigh its costs.” Vega, 597 U.S. at 144 (citing Shatzer, 559 U.S. at 106). Viewed in tandem with Quarles‘s emphasis on assessing “in each case” what constitutes the particular exigency that
In practice, the vast majority of cases implicating the public safety exception have presented scenarios similar to the one in Quarles, with the potential danger to the public or law enforcement officers stemming from a single individual and a (potentially) missing or discarded firearm.72 United States v. Mobley, 40 F.3d 688 (4th Cir. 1994), the only Fourth Circuit case that provides a substantial discussion of the public safety exception,73 features such a fact pattern.
There, law enforcement officials entered a suspected drug dealer‘s apartment on a search warrant, whereupon they secured the defendant, conducted a security sweep and concluded that he was the only person in the apartment. Id. at 690. The Court noted that the defendant was naked when he answered the door and that, as such, it was “quite apparent that he was unarmed.” Id. at 690. Officers subsequently asked him if there were any weapons in the apartment.74 Id. at 690–91. The defendant acknowledged that there was a weapon in the bedroom closet. Id. at 691. He was subsequently indicted and convicted as a felon in possession of a firearm under
Recognizing the public safety exception as a “valid and completely warranted exception” to Miranda, the Fourth Circuit proceeded to find that the facts before it did not, however, justify its application. Id. at 693. According to the court, the exception was inapplicable, because the officers faced neither “extraordinary circumstances” nor an “objectively reasonable concern for immediate danger to police or public,” given that the defendant was alone, unarmed and secured. Id. Significantly, the Fourth Circuit emphasized the fact-specific, cost-balancing nature of its inquiry, stressing that “each case must be examined on its own facts to determine whether the
Since Quarles and Mobley were decided, courts have increasingly applied the public safety exception beyond Mobley‘s one-suspect, one-gun scenario to events involving acts of terrorism. To make sense of this growing body of jurisprudence and extrapolate governing principles for how to best apply the public safety exception in such scenarios, the Court reviews three cases where courts grappled with the dimensions of the exception in the terrorism context, and whose findings inform the Court‘s analysis here: United States v. Abdulmutallab, 2011 WL 4345243 (E.D. Mich. Sept. 16, 2011); People v. Holmes, 2013 Colo. Dist. LEXIS 1474 (Dist. Ct. Nov. 1, 2013); and United States v. Bowers, 676 F. Supp. 3d 403 (W.D. Pa. 2022).
In United States v. Abdulmutallab, the district court considered whether the un-Mirandized questioning of Umar Farouk Abdulmutallab, also known as the “underwear bomber,” fell within the public safety exception. Abdulmutallab had tried to detonate plastic explosives sewn into his underwear while on a commercial flight to the United States, which carried 288 other persons on board. Abdulmutallab, 2011 WL 4345243, at *1. After the plane landed safely in Michigan, emergency responders transported Abdulmutallab to the hospital, where he received treatment for third degree burns. Id. FBI agents began questioning him approximately three hours after his arrival at the hospital. Id. By that point, agents had learned that Abdulmutallab claimed to have acted on behalf of the al-Qaeda terrorist network, which the agents knew had coordinated large plots and attacks in the past. Id. The FBI agents questioned Abdulmutallab for
The court found that the circumstances present at the time of the defendant‘s questioning warranted application of the public safety exception. Id. at *5. The court began by noting Second Circuit authority extending Quarles to situations involving the questioning of terrorism suspects. Id. (citing United States v. Khalil, 214 F.3d 111, 121–22 (2d Cir. 2000); In re Terrorist Bombings, 552 F.3d at 203 n.19, 204). The court proceeded to find that the questioning of Abdulmutallab was “intended to shed light on the obvious public safety concerns in this case” and therefore satisfied Quarles‘s requirement of being “necessary to secure . . . the safety of the public.” Id. (citing Quarles, 467 U.S. at 659). The court also found that the agent had reason to believe, based on his training and experience concerning al-Qaeda attacks, that “this was not a solo incident” and that “the potential for a multi-prong attack existed.” Id. Consequently, the court found that the agents “logically feared that there could be additional, imminent . . . attacks in the United States and elsewhere,” and that the questions “sought to identify . . . [i]nformation that could be used . . . to identify and disrupt such imminent attacks.” Id. at *6. The court also highlighted that the agents “immediately passed that information on” to relevant agencies worldwide, “further underscoring that it was obtained for purposes of public safety” and “to deal with other possible threats.” Id. As such, and viewing all these circumstances in the aggregate, the court found that the public safety exception applied to this 50-minute interview.
The court held that the officers’ un-Mirandized questions fell within the public safety exception. In finding that the logic of Quarles extended to the circumstances of this case, the court invoked a host of case law that endorsed greater flexibility for law enforcement in terms of (a) the timing of officer questioning relative to the incident, id. at *22–23 (quoting United States v. Ferguson, 702 F.3d 89, 95–96 (2d Cir. 2012), for the proposition that the public safety exception‘s applicability “does not necessarily hinge on the amount of time between the defendant‘s arrest and questioning by law enforcement“); (b) the specific situational context, id.
Finally, United States v. Bowers provides the most recent reference point for applying the public safety exception in the context of terrorism. There, the district court examined
Officers subsequently handcuffed Bowers and pulled him into a separate room. Id. at 413. At that point, officers conducted a “ruse,” asking him where his partner was, to which he answered that he was acting alone. Id. Officers next asked him how he arrived at the synagogue, leading him to disclose the make and model of his car. Id. Following some emergency medical treatment, but before the scene was secured, Bowers was carried out of the synagogue. Id. at 414. During that time, another officer asked him about a suspected explosive device found inside one of the rooms, which Bowers confirmed was a “distraction device,” not a bomb. Id. Officers provided Bowers with Miranda warnings in the ambulance before its departure, at
In assessing the applicability of the public safety exception to this case, the court found the exception applicable to the full range of questioning. Id. at 420. In support, the court stressed the “imminent threat to public safety” that existed from the moment that officers were dispatched to the time of their departure from the hospital many hours later, given the “unprecedented large scale attack,” the use of “high powered weapons,” the significant number of victims, the “potential use of explosives” and numerous other aggravating circumstances. Id. at 419. In such a scenario, information about the quantity and location of firearms, explosive devices and potential accomplices was essential to “ensure the safety of the officers . . . and the surrounding community“; the officers’ questions “served those purposes” and “furthered the goal of ensuring safety.” Id. The Court also noted that, to the extent that the officers’ questions were focused on ascertaining the whereabouts of Bowers’ weapons, this line of questioning “alone would justify application of the exception in this case,” given its similarity to the questions posed by the officer in Quarles. Id. Yet, in seeking to distinguish this case from the “single gun in a grocery store” scenario that constitutes the bulk of public-safety-exception case law, the court found that cases like this one require a broad construction of the exception, “as the threat to the public and responding officers is commensurately greater.” Id. at 420. The court stressed that
These three cases illuminate several important principles that guide the public safety exception‘s application in terrorism-related events. First, the larger context of the suspected terrorist activity may inform the exigency‘s scope. In Abdulmutallab, for instance, that context included previous attacks perpetrated by Al-Qaeda, in which actors rarely operated “solo” and “the potential for a multi-prong attack” always remained present. Abdulmutallab, 2011 WL 4345243, at *5. In Holmes, meanwhile, the Court considered the exigency in the context of mass shootings (including the Columbine High School shooting) and the fact that these shootings “often involve multiple assailants” as it sought to define the scope of the exigency for purposes of applying the public safety exception. Holmes, 2013 Colo. Dist. LEXIS 1474, at *28. In that spirit, courts may extend the exception to cover questions that concern separate (but related) actions and events from the ones that officers are on the scene to investigate. See Abdulmutallab, 2011 WL 4345243, at *6 (permitting questioning that sought information “to identify and disrupt” “imminent . . . attacks in the United States and elsewhere“); see also United States v. Rogers, 2013 WL 6388457, at *4 (D. Minn. Dec. 6, 2013) (permitting broad questioning of potential domestic terrorist concerning his future attack plans in other locations).
Second, so long as the questioning remains “reasonably prompted by a concern for the public safety,” the scope of permissible questioning is broader than in one-suspect, one-gun cases and requires a less direct nexus to the immediate situation confronted by law enforcement
Third, the end of an acute emergency at the site of law enforcement intervention — for example, when weapons have been secured or suspects arrested — does not preclude law enforcement from continuing to interview suspects under the public safety exception when the exigency transcends the current location or personnel. See Bowers, 676 F. Supp. 3d at 415 (allowing admission of statements made in response to hospital questioning that took place after the mass murder site had been declared safe); Abdulmutallab, 2011 WL 4345243, at *5–6 (permitting questions hours after the attempted attack had occurred and the suspect had been arrested). In other words, the geographic scope of the exigency may extend beyond the scene of the crime and the site of the questioning.
Fourth, and relatedly, law enforcement enjoys greater latitude regarding the length and timing of the un-Mirandized questioning. See Abdulmutallab, 2011 WL 4345243, at *1 (questioning falls within the public safety exception despite beginning more than three hours after the defendant‘s arrest and lasting 50 minutes); see also Holmes, 2013 Colo. Dist. LEXIS
Finally, evidence demonstrating that officers immediately shared the fruits of their un-Mirandized questioning with other authorities supports a finding that such questioning falls within the public safety exception. See Abdulmutallab, 2011 WL 4345243 at *6 (highlighting that agents “immediately passed [the] information on” to relevant agencies worldwide and finding that this fact “further underscor[ed] that it was obtained for purposes of public safety”); Rogers, 2013 WL 6388457, at *2 (arriving at the same conclusion on similar facts).
In adapting the contours of the public safety exception to the novel context of terrorism, these courts expressly embraced and sought to build on the very purpose that animated the Quarles Court in the first place: to better support law enforcement officers in situations where their ability to defuse a public safety emergency might otherwise be hindered by Miranda. See, e.g., Bowers, 676 F. Supp. 3d at 420 (quoting Quarles in support of a broad construction of the public safety exception in the terrorism context, because the alternative places officers “in the untenable position” of weighing safety against the ability to prosecute). These courts also framed their decisions squarely within Quarles’s cost-benefit framework, weighing the relative costs of deterring information-sharing by suspects against the importance of extending Miranda’s prophylactic protections. See, e.g., Holmes, 2013 Colo. Dist. LEXIS 1474, at *30, *34 (finding that the threat posed by explosive devices at the defendant’s apartment “outweighed the need for” Miranda’s prophylactic warnings and emphasizing that, had warnings been given, “the cost [could] have been something more” than merely the loss of evidence in a future prosecution); Bowers, 676 F. Supp. 3d at 420 (arguing that the public safety exception must be “broadly construed” in the terrorism context, because the threats to the public are
ii. Application of Quarles
The Government here argues that Defendants’ statements made in response to un-Mirandized questioning aboard the Yunus on January 13, 2024 — the morning after the Boarding Team discovered Iranian weapons components aboard the vessel and about 36 hours after members of the Boarding Team first boarded the Yunus — fall within the public safety exception. Whether this exception applies to custodial interrogations of persons who, like Defendants, are purportedly acting on behalf of a terrorist organization and operating in an area of active hostilities presents a question of first impression. The Court finds that the public safety exception applies here. This finding rests on the text of Quarles, its animating principles and the development of those principles in the case law applying Quarles to the terrorism context. It also comports with the Supreme Court’s Miranda jurisprudence, which lends support to limiting Miranda’s prophylactic protections to accommodate the needs of law enforcement in the ongoing war on terror that continues to threaten the safety of the public, including American military members and civilians, here and around the world.
The interdiction of the Yunus on January 11, 2024 occurred under circumstances replete with a host of acute and serious dangers to the public safety. As revealed during the evidentiary hearing, the region where the Boarding Team interdicted the Yunus constituted part of the focal area of Operation Prosperity Guardian, a multinational initiative formed in response to dozens of attacks by the Houthis against military and commercial vessels in the wake of Hamas’ incursion
The flow of advanced conventional weaponry from Iran to the Houthis via smugglers constituted a particular focus of Operation Prosperity Guardian. (Id. 368:16–17, 369:12–13.) These illicit weapons shipments provided the Houthis with the armaments necessary to wage their violent assault on commercial and military vessels in the region, including against United States Navy ships, both within and outside the Red Sea. As such, every weapon smuggled to the Houthis in early 2024 carried with it the potential for untold calamity and destruction of human lives and presented a direct threat to the safety of the public throughout the region. Any successful efforts to frustrate the transport of such weapons, and any information leading to such successes, thus directly reduced the ongoing exigency in the region by eliminating the very source of death and destruction underlying that exigency.
Several pieces of evidence before the Court document the imminence of these dangers, specifically to members of the United States military aboard the USS Puller. SA Ahonen testified that the USS Puller’s captain and executive officer were acutely aware of a possible attack by the Houthis, explaining that the USS Puller could not safely remain in its position near the port of Country A, because it was within the “weapons engagement zone” of the Houthis and thus within range of its missiles. (Hr’g Tr. 123:11–17.) Indeed, the Houthis released a public
Defendants’ activities aboard the Yunus formed an integral part of this acute threat to the safety of U.S. military members and the public at large. As both SA Larsen and Chief Mulkey testified, the interdiction against the Yunus formed part of Operation Prosperity Guardian and was executed on the suspicion that the Yunus’s crew was smuggling Iranian-made weapons to the Houthis. (Hr’g Tr. 293:20–22, 367:23–368:17.) The discovery of a warhead and numerous missile components — itself a source of grave danger to all aboard the Yunus and the USS Puller — confirmed these suspicions and brought the Yunus’s crew firmly within the ambit of the exigency enveloping the region. It also confirmed the ongoing ability of the Houthis to restock missiles for the purposes of their attacks, via Defendants’ crew and other smugglers operating in a similar manner, and vividly demonstrated the continued existence of an acute and ongoing threat. Defendants’ smuggling of highly lethal weaponry for imminent use by the Houthis — a highly combustible event presenting serious danger for law enforcement officials and military personnel on board or close to the Yunus — brought the Boarding Team’s interdiction directly
On the basis of these uncontroverted facts, the Court finds that the Boarding Team faced a scenario on the Yunus where “an objectively reasonable need to protect [law enforcement] or the public from any immediate danger associated with [a] weapon” existed. Quarles, 467 U.S. at 659 n.8. Stated differently, the Court finds that the evidence amply supports the determination that the Boarding Team encountered a sufficiently “volatile” situation to reasonably prompt a “concern for the public safety.” Id. at 656, 658.
The Court also finds that Chief Mulkey’s questioning was sufficiently tethered to the exigency to qualify as “necessary” for purposes of protecting the Boarding Team or the public. As Chief Mulkey testified, following the Boarding Team’s discovery of the ACWs, Chief Mulkey asked Mazhar “where the vessel departed from” and “where the captain was or the person in charge of the vessel.” Chief Mulkey also asked “about the paperwork,” date of departure, supplies and cargo (specifically, “how the captain would get logistics or any kind of supplies”), how the mariners had “c[o]me about to get on board the boat” and “who had ownership of the satellite phone.” (Id. 412:22–414:7, 415:1–9.) Chief Mulkey asked Pahlawan essentially the same questions, including what his role was aboard the Yunus and who controlled the satellite phone. (Id. 417:23–418:10.) By asking these questions, Mulkey sought to “narrow down the key individuals [so] that I would focus . . . more of the intelligence questioning to them.”76 (Id. 407:6–8.) These questions constituted the first part of what Chief Mulkey intended to be a two-part process: first, identifying the captain or person in charge, and then, once the
Despite his efforts being thwarted by the early termination of the boarding, the Court finds that the evidence establishes that Chief Mulkey’s questions were reasonably necessary to reduce the volatile situation existing aboard the Puller and in the region at large. As Chief Mulkey credibly testified, his questioning of both Defendants was focused on ascertaining the identity of the vessel’s captain, whom Chief Mulkey would then ask more targeted questions aimed at better understanding, and ultimately neutralizing, the threat to public safety that stemmed from Iranian weapons smuggling to the Houthis. While the Court acknowledges that the questions asked and the (minimal and allegedly false) answers provided did not meaningfully improve the Boarding Team’s ability to neutralize that threat, this fact does not render the questions any less reasonable or “essential to elicit[ing] information necessary to neutralize the threat to the public.” Berkemer, 468 U.S. at 429 n.10. Indeed, Chief Mulkey’s testimony that he sought ultimately to engage in “intelligence questioning” comports with the Court’s finding that his questions were a necessary response to the public safety emergency, given that such questioning may well have revealed important details about the smuggling operation that Defendants allegedly participated in, thereby allowing U.S. officials to stem or stop the flow of
Application of the public safety exception in this case also satisfies Quarles’s implicit cost-benefit requirement, which demands that the hypothetical cost of providing Miranda warnings must consist of “something more than” just the failure to gather evidence in support of a criminal prosecution, and where “the need for answers . . . [must] outweigh[] the need for the prophylactic rule.” Quarles, 467 U.S. at 657; see also Vega, 597 U.S. at 148, 151 (discussing the Court’s consistent use of “cost-benefit analysis to define the scope of these prophylactic rules” based on exercises of “pragmatic judgment”); Shatzer, 559 U.S. at 106 (reaffirming that judicially crafted rules, including Miranda, “appl[y] only where [their] benefits outweigh [their] costs”). As in Quarles itself, that cost-benefit analysis is not a close call here. The potential cost of providing Miranda warnings to Defendants — alleged smugglers in a sophisticated network supplying dangerous weapons to a highly volatile and belligerent terrorist group — and thereby deterring them from sharing information about their operation is best measured in numbers of lives lost. Their silence would allow missiles to continue flowing to the Houthis, who would continue to fire them at commercial and military vessels, targeting and murdering unsuspecting mariners in the process. In Quarles, the Court held that the cost of deterring a secured suspect’s willingness to answer questions about a loose gun in a supermarket “outweighs the need” for “protecting the
Applying the public safety exception to Defendants’ statements fits neatly within the growing body of jurisprudence applying Quarles to incidents involving terrorism. As previously discussed, the Boarding Team’s actions and Chief Mulkey’s questioning were informed by the broader goals of Operation Prosperity Guardian and the Boarding Team’s awareness of key contextual information, including Iran’s ongoing efforts to smuggle weapons to the Houthis and the “active military zone” in which the Boarding Team operated. (Hr’g Tr. 368:16–24, 369:4–
Critically, the Court’s decision not to exclude Defendants’ statements also stands consonant with the Supreme Court’s exclusionary rule jurisprudence and its “twin rationales” for excluding evidence obtained in violation of Miranda:77 trustworthiness and deterrence. Elstad, 470 U.S. at 308. Concerning trustworthiness, a defendant who makes un-Mirandized statements that fall within the public safety exception may still seek to have them excluded for lack of voluntariness, as the Quarles Court itself pointed out. Quarles, 467 U.S. at 655 n.5 (“[R]espondent is certainly free on remand to argue that his statement was coerced under traditional due process standards.”) Such a claim — which neither Defendant has made here — triggers an inquiry that would ultimately lead to exclusion of coerced or otherwise involuntary statements that would threaten the integrity of the evidence and the underlying judicial proceedings. See Elstad, 470 U.S. at 307–08 (“Where an unwarned statement is preserved for use in situations that fall outside the sweep of the Miranda presumption, the primary criterion of admissibility remains the ‘old’ due process voluntariness test.” (cleaned up)). Application of the public safety exception therefore poses no threat to trustworthiness, here or elsewhere.
More importantly, exclusion of Defendants’ statements would fail to deter undesirable police practices in any way. As Quarles recognized, and as the facts here amply illustrate, holding officers “accountable” for a failure to provide Miranda warnings when they stand “in the
As the Quarles Court emphasized, a framework that “penaliz[ed] officers for asking the very questions which are the most crucial to their efforts to protect themselves and the public” was not an outcome the Court was willing to support. Quarles, 467 U.S. at 658 n.7; see also Withrow v. Williams, 507 U.S. 680, 707 (1993) (O’Connor, J., concurring in part) (emphasizing that “the damage Miranda does to the truth-seeking mission of the criminal trial can become intolerable”); Pryor, 32 F.3d at 1196 (“An exclusionary rule that does little to reduce the number of unlawful seizures, and much to increase the volume of crime, cannot be justified.”). The Court also emphasized the lack of any “constitutional imperative requiring the exclusion” of evidence obtained in this way. Quarles, 467 U.S. at 658 n.7. The exclusionary rule is not a game of “gotcha.” As such, and because its “twin rationales” of trustworthiness and deterrence are simply not implicated in this case, this Court finds no reason to second-guess its application of the public safety exception on Miranda grounds.
Defendants argue that the January 13, 2024 questioning aboard the Yunus does not fall within the public safety exception, because no “extraordinary circumstances related to an immediate danger” existed. (Pahlawan 2d Suppl. Br. at 7 (quoting Quarles, 467 U.S. at 659 n.8).) In support of their contention, Defendants point out that the location of the interdiction was “hundreds of miles away” from the area that Chief Mulkey identified as the primary region where Houthi missiles were sighted, and that consequently, “Mulkey was not in danger of immediate attack” during the questioning. (Id. at 8.) Chief Mulkey’s lack of any “intelligence about a specific, imminent attack on the Puller” purportedly supports this argument further. (Id.
Underlying Defendants’ factual arguments is the contention that the public safety exception essentially requires a highly limited construction as a matter of law. Defendant Pahlawan cites Mobley — the Fourth Circuit’s first and only significant opinion interpreting Quarles — as standing for a categorically narrow interpretation of Quarles. (See Pahlawan Suppl. Br. at 37 (citing Mobley and discussing “[t]he narrow scope of the public safety exception in the Fourth Circuit”).) Pahlawan also provides an extended discussion of this Court’s opinion in Hasan, where the Court found the public safety exception inapplicable and which Pahlawan contends “further exemplifie[s]” the narrowness of the exception’s scope under Fourth Circuit law. (Id.) Defendant Mazhar, meanwhile, emphasizes the danger of applying the public safety
Defendants’ argument that the facts fail to demonstrate a sufficiently imminent danger to justify application of the public safety exception does not persuade the Court. During the evidentiary hearing, the Court heard testimony confirming that the region where the USS Puller operated in early 2024 was one of the most volatile regions in the world. (Hr’g Tr. 43:23–44:6.) It also learned that the USS Puller traveled within the “weapons engagement zone” of the Houthis, an actively belligerent terrorist group that remains hostile to the United States and that attacked multiple U.S. vessels in the immediate lead-up to the Yunus’s interdiction. (Id. 123:14–20.) While Chief Mulkey testified that the bulk of the Houthis’ attacks centered on the Red Sea, the Court also heard testimony concerning the USS Puller captain’s grave safety concerns about operating within range of Houthi missiles — including outside of the Red Sea itself — as well as the Houthis’ claim of an attack on the USS Puller in the interdiction’s immediate aftermath. (Id. 123:11–25.) And although DOD ultimately rated the latter as a false claim, the Houthis’ statement nonetheless indicates a sophisticated awareness of and unabated intent to harm U.S. military personnel. This evidence, and in particular the ongoing hostilities in what constituted an active theater of war, justifies a reasonable apprehension of imminent danger on the part of Chief Mulkey and anyone else involved in the interdiction. Chief Mulkey’s purported lack of “intelligence about a specific, imminent attack” does nothing to reduce the reasonableness of that apprehension, (Pahlawan 2d Suppl. Br. at 8); if anything, it makes his questioning of Defendants more reasonable on public safety grounds, given the dangerous overall environment and the urgent need to obtain additional information.
Defendants’ invocation of the roughly 36-hour period between the beginning of the interdiction and the January 13, 2024 interviews does not alter the Court’s calculus. As a threshold matter, the Court disagrees with Defendants’ premise that the Boarding Team’s arrival on the Yunus constitutes the proper reference point for this inquiry. At that point in the interdiction, the Team’s suspicions about the vessel’s participation in illicit activity connected to the public safety dangers throughout the region remained unconfirmed, rendering any in-depth
Chief Mulkey’s decision to hold off on questioning Defendants immediately upon discovering a cache of unsecured, lethal weaponry does not diminish the applicability of the public safety exception. For one, the public safety exigency was emphatically not “dispelled” in the hours between the Boarding Team’s discovery of the weapons components and the commencement of questioning, as evidenced by the ongoing Houthi attacks in the days and weeks following the interdiction. In addition, as discussed above, the case law concerning the public safety exception in the context of terrorism consistently affords greater latitude, in terms of timing, to law enforcement officers confronting multiple public safety concerns at the same time. See, e.g., Abdulmutallab, 2011 WL 4345243, at *1 (finding multi-hour delay before questioning acceptable for public safety exception); see also Ferguson, 702 F.3d at 95–96 (recognizing that application of the public safety exception “does not necessarily hinge on the amount of time between the defendant’s arrest and questioning by law enforcement”); People v. Oquendo, 685 N.Y.S.2d 437, 439 (N.Y. App. Div. 1999) (“The entire thrust of Quarles is that the police should have flexibility to respond to true emergency circumstances, whether the danger is momentary or ongoing. That purpose would not be served by setting artificial limits as to the
Defendants’ claim that the United States military’s longstanding efforts at disrupting weapons smuggling operations in the Arabian Sea renders the threat from such illicit activity less imminent lacks merit for similar reasons. As the Government adduced during the evidentiary hearing, the United States recently redoubled its efforts in the region due to an unprecedented barrage of attacks by the Houthis — mounted in direct retaliation for Israel’s military operation in Gaza — which had begun barely three months before the interdiction in question. That testimony permits the inference that the overall level of danger to the public throughout the region was distinctly higher than what had existed previously and was undoubtedly imminent for anyone sailing within missile range of the Houthis in early 2024. As such, the notion that prior efforts of the United States military dispelled or diminished the imminence of the danger faced by members of the public in the Arabian Sea in January 2024 stands contradicted by the facts on the ground. The Court therefore disregards Defendants’ argument to this end.
Defendants’ law-based objections fare no better. Defendants contend, in essence, that the Fourth Circuit’s decision in Mobley requires this Court to take a narrower approach to the public safety exception than the facts of this case demand. In support, Defendants appear to argue that
Defendants seek to bolster their argument for a narrowed reading of the public safety exception by citing United States v. Hasan, where this Court found that the public safety exception was inapplicable in the context of an interview following an attack by Somali pirates. Hasan, 747 F. Supp. 2d at 664. In that case, U.S. forces captured the defendants after they helped launch an attack on the USS Nicholas off the coast of Somalia. Id. at 655. One of the defendants subsequently confessed, during an un-Mirandized interview, to being a pirate. Id. at 660. In asking the Court to find the public safety exception applicable, the Government noted the possibility of terrorist involvement in the attack and indicated the danger of an additional attack, given that “a third vessel tracked on radar . . . might have remained in the vicinity, preparing to launch another attack.” Id. at 664. The Court disagreed and declined to apply the exception, finding that the questions posed were not necessary to address an imminent threat. Id. at 666. Specifically, the Court noted that (a) the interview occurred a day and a half after the
The Court stands unpersuaded by Defendants’ reliance on Hasan for several reasons. As to the nature of the questioning, the Court notes that in the instant case, Chief Mulkey’s questions were focused on ascertaining the identity of the vessel’s captain, not Defendants’ biographical background. The Court credits Mulkey’s testimony that, had his questioning not been interrupted, he would have performed precisely the kind of “extensive follow-up” and “more specific inquiries directed toward concerns of immediate danger” that the court found lacking in Hasan. Id. at 665. In the same vein, the Court does not find that Chief Mulkey’s questioning demonstrated a lack of a “ticking time bomb scenario,” as the court found in Hasan, since his line of questioning was cut short by circumstances beyond his control. Id. As to a lack of specific concerns about “hidden traps and discarded weapons” at the time of questioning, the Court finds no support in Quarles, Mobley or Quarles’ other progeny for such a specific requirement — particularly where the evidence demonstrates that law enforcement’s public safety concerns were of a significantly greater magnitude.79 Cf. Berkemer, 468 U.S. at 429 n.10
Finally, Defendants emphasize the “exceptive nature” of the public safety exception, warning that its application in this case would both violate precedent requiring a narrow
When it decided Quarles, the Supreme Court sought to strike a fair balance between guaranteeing the ability of law enforcement officers to protect public safety and safeguarding defendants’ Fifth Amendment rights. It did so in the context of a grocery-store arrest in the 1980s. The world has changed significantly since then. Law enforcement officers now question arms smugglers in the middle of the open seas, surrounded by hostile terrorist actors capable of pinpointing their location and firing lethal weapons at them. Such officers should not be placed
d. The false statement exception applies.
Alternatively, the Government argues that Defendants’ alleged false statements during their interviews aboard the Yunus are also admissible as to the charges under
Supreme Court and Fourth Circuit precedent make clear that the Fifth Amendment privilege does not encompass the right to commit perjury. United States v. Kennedy, 372 F.3d 686, 693 (4th Cir. 2004) (“It is well established that a defendant cannot immunize acts of perjury through suppression of false statements that were taken in violation of the defendant‘s constitutional rights.“); United States v. Mandujano, 425 U.S. 564, 576–78 (1976) (plurality opinion); United States v. Wong, 431 U.S. 174, 178–79 (1977). In Mandujano, a grand jury witness claimed that his false statements before a grand jury should have been suppressed from
Other circuits have invoked this principle to deny motions to suppress in false statement prosecutions where the Government obtained statements in violation of Miranda. See United States v. Melancon, 662 F.3d 708, 712 (5th Cir. 2011) (“The exclusionary rule does not act as a bar to the prosecution of a crime where the statements themselves are the crime.“); United States v. Vreeland, 684 F.3d 653, 661 (6th Cir. 2012) (finding that a defendant “cannot invoke the Fifth Amendment to protect the falsehoods made to [a probation officer] that resulted in his conviction under
Although the Fourth Circuit has yet to address the issue, this Court finds no reason to depart from the persuasive authority of the circuit courts, especially in the absence of any case law to the contrary. Defendants submit that this Court should not adopt the reasoning of the Fifth and Sixth Circuits, because Miranda demands that “no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.‘” (ECF No. 220 at 8 (citing Miranda, 384 U.S. at 476–77); ECF No. 224 at 9.) However, as Justice Brennan explained, “even when the privilege against self-incrimination permits an individual to refuse to answer questions asked by the Government, if false answers are given the individual may be prosecuted for making false statements.” Mandujano, 425 U.S. at 584 (Brennan, J., concurring) (quoting Mackey v. United States, 401 U.S. 667, 705 (1971) (Brennan, J., concurring in judgment)). Although the Fifth Amendment guarantees the right to refuse to answer potentially incriminating questions, in answering falsely, Defendants chose “a course that the Fifth Amendment gave [them] no privilege to take.” Id. (quoting United States v. Knox, 396 U.S. 77, 82 (1969)). Defendants are not free to make false statements and then use Miranda as a shield to protect them from the consequences of those lies.
The Court sees no reason to limit the admissibility of Defendants’ purported false statements for purposes of their charges under
Police do not detain people hoping that they will commit new crimes in their presence; that is not a promising investigative technique, when illegal detention exposes the police to awards of damages. Thus the gains from extending the rule to exclude evidence of fresh crimes are small, and the costs high.
Pryor, 32 F.3d at 1196. Accordingly, the Government may introduce Defendants’ alleged false statements on board the Yunus in its case-in-chief as to all charges under the false statement exception as well.82
3. Pahlawan‘s Mirandized statements on board the USS Puller are admissible.
Defendant Pahlawan next argues that his Mirandized statements on the USS Puller must be suppressed, because the Government‘s Miranda warnings were inadequate. (ECF No. 113 (“Pahlawan MTS“) at 13.) Specifically, Defendant Pahlawan argues that he was not adequately advised of his right to counsel before or during questioning and that the FBI improperly abridged his rights by informing him that counsel may be limited by “local authorities’ decisions or the unavailability of an American-trained attorney.” (Id. at 13–14; ECF No. 224 at 8.) Pahlawan further notes that “the FBI agent did not follow the FBI‘s standardized warnings when reading Pahlawan his rights.” (Pahlawan MTS at 15.) In response, the Government contends that there exists “no meaningful daylight” between the warnings that Pahlawan received and the standard FBI advice of rights. (MTS Opp. at 24.) The Court agrees with the Government. Assuming that
As an initial matter, the Court acknowledges that Defendants engaged in both un-Mirandized interviews with DOD and Mirandized interviews with the FBI team on board the USS Puller. However, the record stands devoid of any facts suggesting that the FBI team engaged in an intentional scheme to undermine the effectiveness of Miranda warnings. In Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court held that law enforcement intentionally frustrated the effectiveness of Miranda warnings by intentionally withholding them, obtaining a confession, and then immediately providing warnings and requestioning the defendant using the same questions to obtain a ”Mirandized” confession. Id. at 604–05. The Fourth Circuit previously determined that Justice Kennedy‘s concurring opinion, which provided the narrowest grounds for the holding, “represents the holding of the Seibert Court.” United States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005). In Justice Kennedy‘s view, courts must apply a narrowed voluntariness analysis “only in the infrequent case . . . in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.” Seibert, 542 U.S. at 622 (Kennedy, J., concurring in the judgment). In the event of such a “deliberate two-step strategy,” Justice Kennedy concluded that “postwarning statements that are related to prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made.” Id. Those curative measures must “ensure that a reasonable person in the suspect‘s situation would understand the import and effect of the Miranda warning and of the Miranda waiver,” and could include things such as “a substantial break in time and
Here, the Court finds that the FBI team did not engage in a deliberate two-step process as described in Seibert. The testimony demonstrates that the FBI team went to great lengths to “form[] a wall” between itself and DOD intelligence officials aboard the USS Puller. (Hr‘g Tr. 116:21.) The FBI team remained “completely separate” from the DOD team, (id. 116:23–25), with the FBI team conducting their interviews substantially separated in time and space from the DOD intelligence interviews. Furthermore, DOD did not discuss any substantive aspects of its interviews with the FBI, which negates a claim of a coordinated effort to circumvent Miranda. See United States v. Khweis, 2017 WL 2385355, at *14 (E.D. Va. June 1, 2017), aff‘d, 971 F.3d 453 (4th Cir. 2020) (“recognizing the rule that the police have not engaged in a deliberate two-step to circumvent Miranda where different officers questioned the suspect at different locations . . . and the second officer was not aware of the suspect‘s previous inculpatory statement” (internal quotations omitted)).
Even assuming that the FBI team deliberately employed a two-step strategy to undermine the Miranda warnings here (which it did not), Pahlawan‘s statements would still be admissible, because the FBI team took sufficient curative measures. The Fourth Circuit‘s decision in United States v. Elsheikh, 103 F.4th 1006 (4th Cir. 2024), stands directly on point. Here, as in Elsheikh, the FBI team questioned Pahlawan after a sufficient break in time from the un-Mirandized DOD interviews. See Elsheikh, 103 F.4th at 1019. In both cases, the warned interviews were held in a different space than the unwarned interviews and involved entirely different teams. Id. at 1019. Like in Elsheikh, the FBI team provided Pahlawan modified Miranda warnings based on United States v. Khweis, 971 F.3d 453 (4th Cir. 2020), which highlighted that the interview would be
The Court thus proceeds to assess whether the FBI team provided adequate Miranda warnings and whether Pahlawan voluntarily, knowingly and intelligently waived those rights. See Khweis, 971 F.3d at 461 (noting that in the “typical midstream warning case,” the admissibility of post-warning statements should continue to be governed by Elstad‘s voluntariness principles). Before any custodial interrogation takes place, a suspect must be advised:
that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
A comparison of Pahlawan‘s translated advice of rights and the standard FBI advice of rights illustrates that Pahlawan‘s right-to-counsel advisement reasonably conveyed his rights as required by Miranda.83 The standard FBI warnings provide, in relevant part, that: “You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning.” Powell, 559 U.S. at 64. Pahlawan received the following Urdu translation: “Before you ask us any questions or we ask you any questions, you have the right to consult with an attorney. You have the right to have the questions and answers take place in the presence of your attorney.”84 (Gov‘t Ex. 93N.) Although the Urdu translation
Furthermore, the Court rejects Pahlawan‘s assertion that the FBI agent improperly qualified his right to counsel by informing him that counsel may be limited by “local authorities’ decisions or the unavailability of an American-trained attorney.” (Pahlawan MTS at 14.) Pahlawan‘s translated warnings advised as follows: “While our ability to provide an attorney is currently limited due to local authorities’ decisions or the unavailability of an American-trained attorney[,] [i]f you decide to answer questions now in the absence of an attorney, you have the right to refuse to answer at any time.” (Gov‘t Ex. 93N.) This statement conveys that Pahlawan may elect to wait for an attorney before speaking with the FBI. Furthermore, the written version of the Miranda warnings, which was translated into Urdu, reiterated Pahlawan‘s right to an attorney before and during questioning.
Pahlawan‘s reliance on Lujan v. Garcia, 734 F.3d 917 (9th Cir. 2013), and United States v. Wysinger, 683 F.3d 784 (7th Cir. 2012), is misplaced. In Lujan, the defendant invoked his right to counsel, at which point the detective informed the defendant that a lawyer would not be available on a Sunday evening. 734 F.3d at 921. In contrast, here, Pahlawan never invoked his right to an attorney; the FBI agent informed Pahlawan that his ability to provide an attorney was limited by the existing circumstances but that Pahlawan nonetheless had the right to speak to an attorney before any questioning commenced. Moreover, in Wysinger, a DEA agent informed the defendant that he had the “right to talk to a lawyer for advice before we ask you any questions or have one — have an attorney with you during questioning.” 683 F.3d at 798. Taken literally, this warning incorrectly advised the defendant that he had the right to have an attorney present before or during questioning. Id. The FBI agent did not commit such an error here. (See Gov‘t
Moreover, the Court finds that Pahlawan made a voluntary, knowing and intelligent waiver of his rights. A suspect may waive his Fifth Amendment rights and voluntarily participate in a custodial interrogation. Miranda, 384 U.S. at 444. A valid Miranda waiver requires the following:
First, the relinquishment of the right must have been voluntary in the sense that it was the product of free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.
United States v. Cristobal, 293 F.3d 134, 139–40 (4th Cir. 2002). A court may conclude that a suspect validly waived his Miranda rights “if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension.” Moran v. Burbine, 475 U.S. 412, 421 (1986).
Here, an FBI agent provided Pahlawan with an accurate warning of his rights under Miranda. The FBI agent issued these warnings in English, which was then translated into Urdu. The FBI agent also provided Pahlawan with a written Urdu translation of his Miranda rights.
As a result, the Court will not suppress any Mirandized statements made by Pahlawan on board the USS Puller.
B. Rule 5(a) Motion
Defendants argue that some or all of their purported detention aboard the Yunus and the USS Puller and at a temporary facility in Country C constituted an unreasonable presentment delay in violation of
Before assessing the merits of Defendants’ Rule 5(a) Motion, the Court briefly addresses Defendants’ proposed remedies: dismissal of the Second Superseding Indictment or suppression of “all statements and evidence obtained on the Puller.” (Pahlawan 2d Suppl. Br. at 12.) The Supreme Court has long recognized that suppression of post-arrest statements made during a period of unreasonable delay constitutes the appropriate remedy for a prompt presentment violation. Corley v. United States, 556 U.S. 303, 322 (2009). In Corley v. United States, the Supreme Court discussed its landmark holdings in McNabb v. United States and Mallory v. United States, which together stand for the proposition that “confessions made during periods of detention that violat[e] the prompt presentment requirement of Rule 5(a)” are “generally . . .
Defendants’ initially proposed remedy — dismissal of the indictment — stands wholly inappropriate to address a Rule 5 violation. See United States v. Peeples, 962 F.3d 677, 685–86, 686 nn.22, 26 (2d Cir. 2020) (collecting Supreme Court cases “confirm[ing] that the remedy for [a
Defendants’ alternatively proposed remedy — suppression of all statements, including all pre-arrest statements, and all other non-testimonial evidence obtained during the interdiction — proves similarly overbroad and fails to comport with the governing case law and the purpose of
Before the Court can assess whether any of Defendants’ statements warrant suppression, however, it must first analyze what, if any, presentment delay occurred. While the parties agree that the period between Defendants’ formal arrest on February 14, 2024 and their appearances before Judge Speight in Richmond on February 22, 2024 constitutes a presentment delay, the parties disagree on two critical issues: (1) whether February 14, 2024 constitutes the proper trigger for the Government‘s “presentment clock,” and (2) whether the presentment delay — regardless of its length — qualifies as “unnecessary.” For the reasons set forth below, the Court finds that Defendants’ right to prompt presentment was triggered only by their arrest by federal law enforcement officials on February 14, 2024. Since Defendants fail to present sufficient evidence for a finding of an “impermissible working arrangement” between DOJ and DOD that would counsel for an earlier trigger date, and since the Government has already agreed to suppress all evidence collected after February 5, 2024, (Gov‘t Suppl. Br. at 91), the Court finds that it need not inquire as to whether the Government‘s presentment delay qualifies as “unnecessary,” as the Government‘s voluntary suppression of statements cures any presentment violation that may have occurred.
Defendants present three main theories in support of an earlier trigger date than February 14, 2024 for the start of the Government‘s “presentment clock.” In their
The Government, by contrast, submits that the “presentment clock” began running only upon Defendants’ formal arrest on February 14, 2024. (ECF No. 197 (“Rule 5(a) Opp.“) at 13.) While the Government concedes that
For the reasons set forth below, the Court finds that February 14, 2024 — the day that FBI agents formally placed Defendants under arrest for federal charges — constitutes the proper starting point for the Government‘s Rule 5(a) delay. The Rule‘s text, as well as relevant case law interpreting the rule‘s reach, indicate that an arrest on federal charges must occur to trigger the federal presentment requirement. The facts of this case fail to justify application of court-crafted exceptions concerning extreme situations where detention stands tantamount to arrest and “improper working arrangements” seek to circumvent presentment obligations. In their absence, the Court adheres to the rule‘s text and looks to the time of formal arrest: in this instance, February 14, 2024.
1. Defendants were not “arrested” for purposes of Rule 5(a) until their formal arrest on federal charges.
Formal arrest on federal charges constitutes the ordinary trigger for Rule 5(a)‘s presentment requirement. See
A small number of courts have recognized an exception to this general rule in the rare instance where a subject‘s detention, though not the result of a formal arrest on federal charges, “is legally tantamount to an arrest.” Gowadia, 760 F.3d at 995. In United States v. Robinson, 439 F.2d 553 (D.C. Cir. 1970), for instance, the D.C. Circuit found that a defendant‘s civil
Here, Defendants do not dispute that they were not formally in federal custody before February 14, 2024. They argue, however, that their purported detention, beginning on January 11, 2024 with the boarding of the Yunus and continuing through their formal arrest aboard the USS Puller, nonetheless constitutes “arrest” for purposes of
As a threshold matter, the Court reiterates its earlier findings concerning the conditions under which the Boarding Team held Defendants during and after its interdiction of the Yunus. See supra Section III.A.2.a. There, the Court found that Defendants were “in custody” on the Yunus for purposes of Miranda, because their freedom of action was curtailed to a degree
The Court disagrees with Defendants, however, that their detention aboard the Yunus and USS Puller, without more and in the absence of federal charges, triggers
To the extent that Defendants argue that their detention nonetheless triggered
The fact that the Government began contemplating criminal charges before February 14, 2024 does not alter the Court‘s analysis. Defendants claim that “the government was required to seek Mr. Pahlawan‘s prompt presentment to a judicial officer when it decided to pursue a criminal investigation,” citing two sources for support: Mallory and a 2016 law review student note. (Pahlawan Suppl. Br. at 53.) Neither source stands for the construction of
Given the absence of federal charges against Defendants during their time on the Yunus and USS Puller, and for all the reasons discussed above, the Court finds that Defendants’ detention by the Navy, without more, does not rise to the level of an “arrest” for purposes of
2. The “improper working arrangement” exception does not apply.
Notwithstanding the text of
To prevail under a “working arrangement” theory, a defendant must show that federal law enforcement deliberately sought to use the custody of another party to circumvent presentment, usually for the purpose of prolonging its own opportunity to gather evidence. See, e.g., United States v. Gaines, 555 F.2d 618, 622 (7th Cir. 1977) (requiring that the delay was “deliberately induced for the express purpose of producing evidence“); Jones v. Sec‘y, Fla. Dep‘t of Corr., 2024 WL 3552037, at *10 (S.D. Fla. July 26, 2024) (requiring a “pre-planned arrangement” between authorities “to obtain [the defendant‘s] incriminating statements“). In assessing the extent of improper influence that a federal law enforcement authority needs to exercise to rise to this level, courts consider a host of factors. One factor concerns what party exercised actual control and authority over the defendant at the time of the alleged presentment delay. See Bin Laden, 132 F. Supp. 2d at 210 (rejecting the defendants’ claim of an improper working arrangement, because Kenyan authorities — not United States law enforcement — exercised control over the defendants). Another factor concerns whether the detaining party possessed an “independent interest” in detaining or interrogating the defendant; where such an independent interest exists, courts have found this factor to mitigate against a finding of improper collaboration. United States v. Abu Ali, 528 F.3d 210, 227 (4th Cir. 2008). Courts also look to the timing of federal law enforcement‘s involvement, and specifically whether such involvement
Notably, courts have emphasized that the burden rests with defendants to make a significant showing of a collusive working arrangement; “mere suspicion” of such an arrangement proves “insufficient.” Coppola, 281 F.2d at 344; see Gaines, 555 F.2d at 622 (recognizing that “no court has ever determined that a bare suspicion of a working arrangement between federal and local authorities is sufficient to make
This Court has found only three prior cases where courts considered the working collaboration exception in situations involving defendants detained by another federal agency, branch or department. In Abel v. United States, 362 U.S. 217 (1960), U.S. Immigration and
In rejecting petitioner‘s argument that the trial court should have excluded this evidence due to improper collaboration between the INS and the FBI, the Supreme Court found that the record precluded a finding that INS‘s decision “to proceed administratively toward deportation was . . . carried out for a purpose of amassing evidence in the prosecution for crime.” Id. at 230. The Court further rejected the notion that it should “hold illegitimate . . . the cooperation between I.N.S. and F.B.I.,” emphasizing that the FBI “is not required to remain mute . . . merely because . . . [it] entertains the hope that criminal proceedings may eventually be brought against [petitioner].” Id. at 228-29. In support, the Court highlighted the INS‘s “independent decision to initiate proceedings” and underscored that such a decision should not bar the FBI “from continuing its investigation in the hope that it might result in a prosecution.” Id. at 229. The Court did, however, distinguish petitioner‘s case from the hypothetical scenario where an
The Fourth Circuit faced a similar set of facts in Boeckenhaupt v. United States, 392 F.2d 24 (4th Cir. 1968), this time involving the United States military. There, an Air Force sergeant was arrested by the Air Force Office of Special Investigation (“OSI“) after interactions with Soviet parties had caught the eye of both OSI and the FBI. Id. at 25. Following the defendant‘s OSI arrest, the FBI conducted several interviews, during which the defendant made confessions that led to the filing of federal espionage charges against him several days later, and for which he was later convicted. Id. at 25-26. On appeal, the defendant sought exclusion of these confessions, arguing that “the Air Force and the FBI schemed together in an unlawful working arrangement whereby the Air Force would accomplish the military arrest of [the defendant] for the purpose of enabling the FBI to evade
Finally, United States v. Jones, 184 F. Supp. 328 (N.D. Cal. 1960), involved a similar instance of alleged collusion between domestic law enforcement and the United States military. Based on a tip from foreign authorities, U.S. Customs Officers detained, questioned and searched
The court rejected the defendant‘s claim of improper collusion between Customs authorities and the Army. While acknowledging that “the civilian and military authorities may have conducted their detentions of defendant . . . cooperatively,” the Court found that the authorities acted “for separate purposes,” and that therefore, no “collusion or joint operation” that would “justify the application” of the working arrangement principle existed. Id. In arriving at this finding, the Court specifically highlighted the testimony of an Army official, who had asserted that the Army possessed “its own, considerable interest” in this case beyond supporting Customs’ prosecution of the defendant. Id.
Turning to the case at hand, the evidence before this Court unequivocally establishes extensive coordination between the FBI and DOJ on one side, and U.S. military personnel on the other, before Defendants’ arraignment on February 22, 2024. As outlined previously, dating back at least as far as January 18, 2024, DOJ and DOD officials participated in daily or near-daily
Defendants’ central argument for an improper working relationship is that DOD “took actions to extend the detention [of Defendants] at sea” so that “FBI agents could continue to build probable cause for a prosecution” against them. (Pahlawan 2d Suppl. Br. at 13, 15.) Specifically, Defendants point to various changes in the USS Puller‘s porting schedule and emails between different officials referencing DOJ‘s requests for additional time to finalize its charging decisions. (See Gov‘t Ex. 110 at 11 (“DOJ HQ will route formal request to DoD regarding keeping the 14 involved crewmembers onboard the LEWIS B. PULLER until interviews . . . can be completed.“); id. at 20 (listing among “next steps,” “[c]ompletion of DOJ
Defendants further allege that the relevant presentment delay based on their working arrangement claim begins “when the DOJ decided to initiate the criminal prosecution against the mariners.” (Pahlawan Suppl. Br. at 58.)96 Defendants assert that the delay in presentment was “purposeful and intentional,” with its “direct purpose” being to “gather[] additional evidence to justify the detention and arrest” of Defendants. (Rule 5(a) Mot. at 7-8.) More specifically, Defendants assert that DOJ “plainly requested that the Puller remain at sea for purposes of its prosecution of the defendants,” (Pahlawan Suppl. Br. at 60), and claim that the evidence “indisputably demonstrate[s] that DOJ sought to delay presentment ‘for the purpose of illegally
Such purposeful evasion of
The Court finds the evidence concerning DOJ‘s alleged attempts to influence DOD‘s decision making with regard to keeping the mariners at sea ultimately inconclusive. The evidence before the Court leaves no doubt that military decisionmakers were aware, when making their decisions concerning the USS Puller‘s port schedule, of the potentially deleterious effects on DOJ‘s prosecutorial efforts if the USS Puller made a port call before completion of DOJ‘s charging decisions. The Court also notes with some concern SA Larsen‘s February 8, 2024 Skype message describing “the DOJ request to hold for 5 days.” (Gov‘t Ex. 144 at 5.) While SA Larsen explained to the Court that this message referenced a perception, on the part of military officials, that “there was going to be a request from DOJ to request five additional days,” SA Larsen‘s unqualified reference to “the DOJ request” in his Skype message suggests an actual request, not a hypothetical one. (Hr‘g Tr. 303:14-18 (emphasis added).) This five-day delay request tracks other messages before the Court that confirm DOJ‘s need for “4-5 additional days to assess evidence [and] determine charging decisions.” (Def. Ex. 70 at 1.) At the same time, the Court finds credible Mr. Newman‘s representation that DOJ never expressly requested DOD to alter its operational plans to allow DOJ more time to investigate. (Hr‘g Tr. 75:17-22.) This representation also stands corroborated by Mr. Deutsch‘s testimony attesting to DOD‘s
Additionally, even if Defendants had shown that DOJ affirmatively sought a slowdown of the USS Puller, the record fails to substantiate Defendants’ claim that such a delay was effectuated “for the purpose of illegally extracting evidence.” (Pahlawan Suppl. Br. at 59.) The FBI team concluded its interviews and departed the USS Puller on February 4, 2024, several days before the exchanges cited above concerning potential DOJ requests for delay; it never sought to resume interviewing Defendants or any other crew members before the charges were filed. In other words, even if DOJ asked DOD to slow down the USS Puller‘s arrival in port, the Court finds that any such purported request was not for the purpose of gathering additional evidence — the key animating principle in the Supreme Court‘s “working arrangement” jurisprudence. Cf. Alvarez-Sanchez, 511 U.S. at 359 (describing the working arrangement rule as covering the scenario where non-federal authorities “detain someone in order to allow . . . federal agents to interrogate him” (emphasis added)).
Moreover, the factors commonly used by courts to assess working arrangement claims uniformly counsel against such a finding in this case. As the record and the hearing testimony demonstrate, the Navy acted on its own authority in conducting the interdiction of the Yunus on January 11, 2024, and pursued independent objectives in gathering intelligence from Defendants as part of its larger mission under Operation Prosperity Guardian. Cf. Abu Ali, 528 F.3d at 227 (examining whether the detaining party possessed an “independent interest” in detaining and/or
The Court finds support for this outcome in the two cases discussed above that share the closest factual predicates: Abel and Jones. In Abel, despite significant evidence that the FBI was pulling most investigatory strings, Justice Frankfurter still found that the record did not support a finding of improper collaboration, because Petitioner failed to show that his arrest by the INS was purely in service of FBI efforts to procure more evidence for a criminal prosecution. Abel, 362 U.S. at 230. The same remains true here: Defendants’ detention and questioning by military personnel after the discovery of smuggled weapons onboard their vessel undoubtedly served military motives unrelated to any potential criminal prosecution. Nor does any evidence before the Court support a finding that DOD‘s decisions surrounding Defendants’ custody were made “for a purpose of amassing evidence in the prosecution for crime,” as the Abel court would have required for a finding of improper collaboration. Id.
Meanwhile, in Jones, the trial court faced a similar scenario as the one presently before the Court: but for the Navy‘s power to control the defendant‘s whereabouts, law enforcement questioning related to a potential federal crime would have been impossible. Yet, there too the
For all of these reasons, the Court finds that no improper “working arrangement” existed between DOJ and the FBI on one hand, and DOD on the other, for purposes of circumventing
3. No additional remedy is required for the Government‘s purported Rule 5(a) violation.
Having determined that February 14, 2024 constitutes the date of arrest for purposes of Defendants’ right to presentment before a Magistrate Judge under
C. Spoliation Motion
Defendants argue that the Government violated their due process rights, because the Yunus contained exculpatory evidence that was destroyed when the United States Navy scuttled it. (ECF No. 104 (“Spol. Mot.“).) Defendants have identified several categories of evidence contained on or aboard the vessel that purportedly possess exculpatory value: (1) the Yunus‘s
The Government opposes Defendants’ motion. (ECF No. 166; ECF No. 195 (redacted version).) As a threshold matter, the Government disputes whether Trombetta and Youngblood articulate distinct tests for establishing a due process violation. In the Government‘s view, Youngblood refined the test articulated in Trombetta and incorporated a bad-faith requirement into all failure-to-preserve cases. (ECF No. 195 at 12 n.7.) In any event, the Government contends that Defendants’ claim must fail, because comparable evidence exists, the destroyed evidence did not possess exculpatory value and the Government did not act in bad faith. (Id. at 9-10.)
For the reasons set forth below, the Court will DENY Defendants’ Spoliation Motion. (ECF No. 104.)
1. Rules Governing the Duty to Preserve Evidence Under the Due Process Clause
The parties dispute the proper analytical framework for assessing whether the sinking of the Yunus deprived Defendants of due process of law. The Supreme Court‘s decisions in Trombetta and Youngblood govern the prosecution‘s duty under the Due Process Clause to preserve evidence on behalf of a defendant. Trombetta, 467 U.S. at 480, 488-89; Youngblood, 488 U.S. at 58. Because the parties set forth different interpretations of the collective meaning of Trombetta and Youngblood, the Court begins with an overview of the governing legal principles.
Four years later, in Arizona v. Youngblood, 488 U.S. 51 (1988), the Supreme Court considered a state‘s failure to preserve blood and semen samples that might have been useful to a criminal defendant. Id. at 51. Although the Supreme Court acknowledged that “the good or bad faith of the State [proves] irrelevant when the State fails to disclose to the defendant material exculpatory evidence,” the Court reasoned that “the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it . . . might have exonerated the defendant.” Id. at 57. The Court thus held that the “failure to preserve potentially useful evidence” does not violate due process “unless a criminal defendant can show bad faith on the part of the police.” Id. at 58.
Courts have fashioned different interpretations of the relationship between Trombetta and Youngblood. The Seventh Circuit, for instance, has interpreted Youngblood as adding a third element to Trombetta‘s test for materiality and reads both cases to stand for the same proposition: “the destruction of potentially exculpatory evidence violates the defendant‘s right to
Although the Fourth Circuit has not expressly addressed this issue, it has implicitly endorsed the interpretation adopted by the Fifth, Sixth, Ninth and Tenth Circuits. See Johnson, 996 F.3d at 215 (explaining that Trombetta “requir[es] that lost evidence have apparent exculpatory value and that comparable evidence be unavailable,” whereas Youngblood “allow[s] lost evidence to be just potentially useful but only with [a] showing of [the] Government‘s bad faith“); see also United States v. Matthews, 373 F. App‘x 386, 390-91 (4th Cir. 2010) (analyzing whether the government violated due process first under Trombetta and then under Youngblood). Such a reading comports with the Supreme Court‘s most recent opinion on this issue, Illinois v.
With this standard in mind, the Court considers whether Defendants can establish a due process violation based on the destruction of the Yunus.
2. Application of Trombetta and Youngblood
Defendants argue for relief pursuant to both Trombetta and Youngblood. (Spol. Reply at 7-8.) According to Defendants, further examination of the Yunus might have revealed a small flag or decal sufficient to make a claim of nationality, undermining the Government‘s basis for jurisdiction over Defendants. (Spol. Mot. at 13-14.) Defendants also claim that examination of the Yunus might have revealed that it qualifies as a small vessel (under 24 meters) exempt from any registration requirement in its country of origin, with similar jurisdictional ramifications for the Government‘s case. (Id. at 14.) Pahlawan further contends that evidence aboard the Yunus establishing its “intended route of travel” would have confirmed that Pahlawan was transporting weapons from Iran and therefore fails to demonstrate that he provided any material support to Iran and the IRGC‘s weapons of mass destruction program, purportedly undermining the Government‘s case under
The Court finds that the evidence cited by Defendants lacks apparent exculpatory value sufficient to satisfy the Trombetta standard. As the Court previously explained, the mere possibility that destroyed evidence might exculpate a defendant fails to satisfy Trombetta‘s requirement that the exculpatory value be “apparent” before destruction of the evidence. Youngblood, 488 U.S. at 56 n.*. Here, Defendants merely highlight potential avenues of investigation that might have led in any number of directions. For instance, Defendants speculate that further examination of the Yunus might have revealed a small flag or exterior markings indicating nationality, but they present no evidence suggesting that such a flag or markings ever existed. Rather, members of the Boarding Team credibly testified that, even upon an extensive search of the Yunus, they did not discover any indicia of nationality. (Hr‘g Tr. 397:25-398:8, 400:16-401:3.) Nor does any evidence in the record suggest that the Yunus qualified as a small vessel exempt from registration requirements; to the contrary, Chief Mulkey measured the Yunus at about 40 meters (or 130 feet) long — well beyond the 24-meter maximum for a small vessel. (Id. 437:18-438:1.) Defendants’ arguments concerning the route of travel and the vessel‘s physical condition are equally speculative as to the evidentiary showings and
In the context of a destruction-of-evidence claim, bad faith requires that “the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.” Youngblood, 488 U.S. at 58. The Government must “have intentionally withheld the evidence for the purpose of depriving the [defendant] of the use of that evidence during his criminal trial.” Jean v. Collins, 221 F.3d 656, 663 (4th Cir. 2000). Negligent destruction of evidence, without more, does not constitute bad faith. United States v. Adetayo, 682 F. App‘x 216, 217 (4th Cir. 2017); see also Lovitt v. True, 403 F.3d 171, 187 (4th Cir. 2005) (finding no bad faith despite “a serious error in judgment“). In addition, the destruction of evidence in accordance with an established procedure or regulation generally precludes a finding of bad faith. United States v. Elliott, 83 F. Supp. 2d 637, 647 (E.D. Va. 1999); see also Holdren v. Legursky, 16 F.3d 57, 60 (4th Cir. 1994) (finding no bad faith where physicians “followed standard procedures” in disposing of semen samples).
Here, Defendants cannot establish the requisite showing of bad faith. Upon his arrival on the Yunus, Mr. Marangola immediately noticed that an “abnormal amount of water” had accumulated in the engine room and explored various options to ameliorate this issue. (Hr‘g Tr. 222:1-14, 227:12-14.) The Boarding Team was unable to address the rising water level, however, and by the afternoon of January 13, 2024, the Yunus was in danger of capsizing. (Id. 216:8-10.) Raw fuel was also leaking in the engine room, creating a risk of fire and combustion. (Id. 215:13, 216:11-13.) In addition, the Yunus was unmarked and could not be safely
The Court remains unpersuaded by Defendants’ argument that United States v. Elliott requires a different outcome. In Elliott, the defendant faced charges for conspiracy to possess, manufacture and distribute methamphetamine. Id. at 639. Law enforcement officers seized glassware smeared with an unidentified residue from the defendant‘s vehicle, but a Drug Enforcement Administration (“DEA“) agent destroyed the glassware before testing the residue and retained no representative sample for future testing. Id. at 640, 645. Because the DEA agent destroyed evidence “contrary to applicable policies,” the Court found that the DEA agent acted in bad faith. Id. at 647.
Here, by contrast, Navy regulations permitted the destruction of the Yunus, precluding a finding of bad faith. As a partially sunk vessel in the middle of the Arabian Sea, the Yunus constituted a “massive hazard to navigation“; leaving the Yunus in such a condition would have endangered lives. (Hr‘g Tr. 240:8-13, 241:7-8.) Meanwhile, pumping, patching and preparing the Yunus for refloat would have siphoned essential resources from the USS Puller‘s ongoing military operations in support of Operation Prosperity Guardian. (Id. 368:4-24.) Thus, the Navy determined that sinking the Yunus presented the safest and most operationally sound option — a decision consonant with applicable regulations. See SALVAGE MANUAL § 14-2.1 (permitting wrecking in place when “it would take longer to patch, pump, and prepare a ship for
Moreover, the evidence before this Court demonstrates that, at the time that the Navy sunk the Yunus, it lacked any knowledge that the Yunus contained exculpatory value. See Youngblood, 488 U.S. at 56 n* (indicating that bad faith necessarily turns on the government‘s knowledge of the exculpatory value of the evidence). As the Court previously explained, the Navy had no reason to believe that any purported exterior markings on the Yunus bore exculpatory value, because no evidence suggests that any such markings were present. Likewise, the Navy had no reason to think that the Yunus might qualify as a small vessel exempt from registration, because Chief Mulkey reported the Yunus at over 24 meters long. Lastly, the Navy would not have recognized that the physical condition of the Yunus might be exculpatory, because there exists no genuine dispute that the Yunus constituted a “vessel” when Defendants committed their alleged crimes. Although the Yunus was eventually withdrawn from navigation when the Navy sunk it, at the time that Defendants committed their alleged crimes, the Yunus was necessarily able to transport people and cargo over water — even if it was simultaneously taking on water. See
In sum, Defendants cannot make a showing of bad faith, because the Navy followed established policy when it sunk the Yunus, and the Navy lacked any basis to believe that the Yunus possessed any exculpatory value at the time of its destruction. Accordingly, Defendants fail to establish a due process violation under both Trombetta and Youngblood.
IV. CONCLUSION
The Court will DENY Defendants’ motions to suppress. (ECF Nos. 113, 117.) Defendants were not in custody for Miranda purposes during the initial group interview on the Yunus, and therefore, their un-Mirandized statements or silence in response to Chief Mulkey‘s questions are admissible. As to Defendants’ statements to Chief Mulkey during their individual interviews on the Yunus, while the Court finds that these statements were procured through custodial interrogation, the public safety and false statement exceptions apply, rendering the statements outside the exclusionary rule‘s ambit. Lastly, Pahlawan‘s Mirandized statements to the FBI team on board the USS Puller are admissible, because Pahlawan was provided sufficient Miranda warnings and voluntarily, knowingly and intelligently waived his
The Court will also DENY Defendants’
Lastly, the Court will DENY Defendants’ Spoliation Motion. (ECF No. 104.) Defendants cannot establish a due process violation under Trombetta or Youngblood. The Court finds that the evidence cited by Defendants lacks apparent exculpatory value sufficient to satisfy the Trombetta standard; rather, Defendants merely point to evidence that might conceivably aid their defense. The Court further finds that the Navy did not act in bad faith, because it followed established policy when it scuttled the Yunus and lacked any basis to believe that the Yunus possessed any exculpatory value at the time of its destruction, thereby precluding relief under Youngblood.
An appropriate Order shall issue.
Let the Clerk file a copy of this Memorandum Opinion electronically and notify all counsel of record.
Richmond, Virginia
Date: April 29, 2025
/s/
David J. Novak
United States District Judge
Notes
In addition, the instant motions originally sought dismissal or suppression of certain statements in relation to the Superseding Indictment. (ECF No. 79.) The grand jury subsequently returned a Second Superseding Indictment. (ECF No. 239.) The parties confirmed that the issues raised in the instant motions remain ripe under the Second Superseding Indictment. (ECF No. 252 at 1; ECF No. 257 at 2; ECF No. 254 at 2–3.) The Court therefore considers the arguments put forward in Defendants’ motions relative to the Second Superseding Indictment.
In the Government‘s best case, United States v. Ortega, 2012 WL 12894242 (S.D. Fla. Dec. 3, 2012), the defendant argued that an initial show of force, and the associated protective sweep conducted to secure the vessel, transformed the routine boarding into a custodial arrest. Id. at *6. The court rejected this argument, because the show of force proved necessary to ensure officer safety. Id. Although an initial show of force alone may not necessarily create a custodial situation, see infra Section III.A.1, Ortega proves distinguishable from the instant case, given the significantly longer detention and heightened degree of control exerted over the crew between boarding and interrogation.
Defendants also raised concerns in their
The Court notes that Defendants appear to restyle this argument in their Reply to the Government Omnibus Opposition as a substantive due process claim under the Fifth Amendment, arguing that “dismissal as a remedy . . . is available for egregious government conduct that violates substantive due process.” (Pahlawan Suppl. Br. at 65.) However, Defendants’ cursory briefing on this issue fails, critically, to establish any legal basis for their claim that, despite being foreign nationals outside the United States, they were nonetheless entitled to substantive due process protections under the