U.S. v. Kourani

OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO SUPPRESS AND FOR A BILL OF PARTICULARS On June 28, 2017, defendant Ali Kourani (“Defendant” or “Kourani”) was indicted of a number of terrorism-related offenses. See 18 U.S.C. 2339B. The core allegation linking all of the charges is that Kourani was a member of, and offered material support to, Hizballah, a designated foreign terrorist organization. The indictment is largely based on a series of non-custodial interviews between Kourani and two FBI agents, Joseph Costello and Keri Shannon. Kourani’s then-lawyer, Mark Denbeaux, was present at each of the meetings. Through a series of motions filed on January 1, 2018, Kourani claims that the agents offered him immunity or otherwise indicated that his statements would not be used against him, thereby rendering his statements involuntary. The government claims that no such offer of immunity was given, and any references to “confidentiality” before and during the interviews referred only to keeping the fact of Kourani’s cooperation from reaching members of Hizballah, in Lebanon, where members of his extended family resided, and in the United States, where he lived. Kourani had told the agents that Hizballah already suspected that he had been cooperating, had engaged in various acts of intimidation against his family, and threatened to do more.The Court held an evidentiary hearing on March 26-28, 2018. For the reasons stated on the record and supplemented herein, I find that no such offer of immunity or non-prosecution was made, and that the totality of the circumstances indicate that Kourani’s statements were voluntary. The motion is denied.BackgroundThe defendant, Ali Kourani, was born in Lebanon in 1984. He came to the United States in 2003, obtained a Bachelor of Science in biomedical engineering in 2009, and a Masters of Business Administration in 2013. He became a naturalized citizen of the United States in 2009.Between 2012 and 2016, FBI agents questioned Kourani a number of times on suspicion of being affiliated with Hizballah, the foreign terrorist organization. After their first meeting, Kourani testified that agents provided him with a burner phone in the hopes of convincing him to cooperate. See Trans. at 235:11-12. Kourani met with agents in New York City and Chicago numerous times during this period, but the agents came to believe that Kourani was not being completely forthcoming, and communication between the parties ceased by September 2016.In their testimony, agents Costello and Shannon described two meetings with Kourani that are particularly relevant to the disposition of defendant’s motion. First, in August 2016, Agent Joseph Costello met with Kourani at the United States embassy in Beirut, Lebanon.¹ Kourani told Agent Costello that he had been involved in a child custody dispute the previous month that escalated into a dangerous altercation between himself and members of his wife’s family, many of whom were affiliated with Hizballah. As a result of the altercation and ensuing attack, his wife and children fled to Canada. But Kourani denied having any personal involvement with Hizballah, and Agent Costello told Kourani that unless he was willing to cooperate fully, the FBI would not assist him with his family dispute. The parties reached an impasse, and the interview was terminated. Second, upon his return to the United States in September 2016, Agent Shannon met with Kourani at Newark International Airport and questioned him about his involvement in Hizballah. Agent Shannon told Kourani that this was his last chance to cooperate, but Kourani continued to deny having any affiliation with Hizballah. Kourani testified that he cut off all communication with the FBI at that time.When he returned to the United States in the fall of 2016, Kourani’s family situation began to deteriorate. He was fearful that he could not remove his children from Canada, where they lived with their mother, and would not receive visitation rights. He was also fearful that his family in Lebanon was vulnerable, for they had been attacked by members of Hizballah at least once. As a result of his worsening family situation, and believing that the FBI alone could help him, Kourani decided to arrange a meeting with the FBI. To facilitate his cooperation, Kourani was introduced through a mutual acquaintance to Mark Denbeaux, an experienced criminal defense lawyer and law professor at Seton Hall Law School, who agreed to represent him. Kourani was attracted to Denbeaux because he had experience working with the FBI,² even though he had no experience in immigration or family law, the subjects touching upon his needs. Kourani believed that, using Denbeaux’s skillset with the FBI, he could trade his knowledge of Hizballah agents and plans for effective assistance in moving his family from Lebanon to the United States, and improve his chances of custody, or at least visitation, regarding his children in Canada.Denbeaux contacted Agent Shannon on February 28, 2017, identified Kourani as his client, and told the agents that his client “wish[ed] to speak with the FBI.” Declaration of Mark Denbeaux, ECF 28, at 2. The parties apparently had difficulty setting a date for the interview, and the next substantive discussion came during a March 22, 2017 call between Denbeaux and Agents Costello and Shannon. On the call, Denbeaux explained to the agents that Kourani “was very nervous about his and his family’s physical safety should anyone find out that he was talking to the FBI.” Id. In response, the agents told Denbeaux that any meetings between Kourani and the FBI would “remain confidential.” Id. The meaning of the term “confidential” has since been disputed, but the agents, Denbeaux, and Kourani all testified that the promise of confidentiality related solely to keeping Kourani’s cooperation from leaking to the Lebanese community, both in the U.S. and abroad. More generalized confidentiality, or immunity, was never discussed.After the initial conversation between Denbeaux and the agents on March 22, 2017, Kourani participated in five non-custodial interviews with the FBI on March 23, April 3, April 5, April 14, and April 26. All meetings took place at Seton Hall Law School where, it was thought, there was less chance of arousing the suspicion of Hizballah.³ It is undisputed that before, during, and after each of these meetings, the agents explained to Kourani that they were not authorized to make any promises or guarantees about potential benefits for Kourani’s cooperation. This understanding was confirmed by Denbeaux through a text message, which stated “I understand that you can’t promise or guarantee.” Gov’t Ex. 301.⁴ Consistent with this representation, the agents testified that they never promised Kourani any of the benefits he sought. For instance, while the agents told Kourani that they would use their best efforts to secure certain immigration benefits for his family, including bringing his children from Canada to the United States by the end of the summer of 2017, the agents and Denbeaux credibly testified that the agents told Kourani that they could not make any specific promises about the success of any of their efforts.Much of the dispute in this case centers on a memorandum drafted by Denbeaux and handed to Agents Costello and Shannon immediately before the second interview began on April 3, 2017. The document stated in relevant part: “[Kourani] is not seeking any kind of immunity or protection, because as it has already been agreed, he has committed no crime and faces no prosecution.” Gov’t Ex. 703. After receiving this document from Denbeaux, agents Costello and Shannon stepped out into the hall to confer. They reviewed the documented briefly, determined that it did not accurately capture the understanding of the parties, returned the document to Denbeaux without comment, and proceeded to interview Kourani.As the meetings went on, the agents again became convinced that Kourani was holding back vital information. The meetings were ended, and Kourani was arrested on June 1, 2017, charged with providing material support to a foreign terrorist organization. Kourani’s statements were important to the government’s case. Kourani now makes this motion, challenging the admissibility of his inculpatory statements.DiscussionA. Specific EnforcementKourani first attempts to specifically enforce the alleged offer of immunity as a matter of contract law. Even if such an offer of immunity had been made — and I find that it was not — Kourani cannot specifically enforce it.“It is well settled that the government may in its discretion make agreements in which it exchanges various levels of immunity from prosecution for the defendant’s cooperation.” United States v. Aleman, 286 F.3d 86, 89 (2d Cir. 2002). Courts interpret such agreements “according to the principles of contract law,” and “construe [them] strictly against the government in recognition of its superior bargaining power.” Id. at 90. It is also clear that immunity agreements may be made orally, see id. at 89, but the defendant bears the burden of proving the existence of such an agreement, see United States v. Rosario, 237 F. Supp. 2d 242, 245 (E.D.N.Y. 2002) (collecting cases).To specifically enforce a promise made by the government, a defendant must show (1) “that the promisor had actual authority to make the particular promise,” and (2) “that he (the defendant) detrimentally relied on it.” United States v. Rudaj, No. 04 CR. 1110 (DLC), 2005 WL 2508404, at *2 (S.D.N.Y. Oct. 11, 2005) (internal quotation marks omitted) (quoting United States v. Flemmi, 225 F.3d 78, 84 (1st Cir. 2000)). “If either part of this showing fails, the promise is unenforceable.” Id. (internal quotation marks omitted) (quoting Flemmi, 225 F.3d at 84). As the Second Circuit has explained in a related context, “it is axiomatic that the United States is not bound by the unauthorized acts of its agents,” and “[w]hatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority.” See Doe v. Civiletti, 635 F.2d 88, 96 (2d Cir. 1980).Applied here, it is undisputed that Agents Costello and Shannon lacked actual authority to make an offer of immunity, and they made that clear to Kourani and Denbeaux. Such offers can be conferred only by the Department of Justice, and Denbeaux testified that he never met with anyone other than Agents Costello and Shannon, nor did he understand that the agents had secured authorization to offer Kourani immunity from the U.S. Attorney’s Office at any time during the series of interviews. Because the agents lacked authority to make an offer of immunity, Kourani cannot specifically enforce it.B. VoluntarinessKourani’s primary argument is that the conduct of the FBI agents in this case rendered his statements involuntary under the Due Process Clause of the Fifth Amendment. For the reasons that follow, I find that his statements were voluntary, and the defendant’s motion to suppress is denied.“When, as here, a defendant seeks to suppress non-custodial statements made to law enforcement authorities, the single issue before the court is whether the statements were voluntary, i.e., the ‘product of an essentially free and unconstrained choice by [their] maker,’ or coerced by police activity in violation of constitutional rights not to incriminate oneself and due process.” United States v. Haak, 884 F.3d 400, 409 (2d Cir. 2018) (internal citations omitted) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)).“While ‘coercive police activity’ is a ‘necessary predicate’ to holding a confession constitutionally involuntary, a finding that police conduct is ‘false, misleading, or intended to trick and cajole the defendant into confessing’ does not necessarily render the confession involuntary.” Id. (first quoting Colorado v. Conelly, 479 U.S. 157, 167 (1986), and then quoting United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991)). The core question is whether, in “the totality of the surrounding circumstances…the defendant’s will was overborne by the” agents’ conduct. Id. In reviewing the surrounding circumstances, I must consider “(1) the accused’s characteristics, (2) the conditions of the interrogation, and (3) the conduct of the police.” Parsad v. Greiner, 337 F.3d 175, 183 (2d Cir. 2003). To prevail on a claim of “trickery and deception,” as Kourani has raised here, it must be shown “that the [FBI] agents affirmatively misled [him] as to the true nature of [their] investigation.” United States v. Mitchell, 966 F.2d 92, 100 (2d Cir. 1992) (internal quotation marks omitted) (quoting United States v. Okwumabua, 828 F.2d 950, 953 (2d Cir. 1987)).The Second Circuit’s recent decision on this issue in United States v. Haak is instructive. In Haak, the defendant was charged with possession with intent to distribute a controlled substance resulting in death, in violation of federal narcotics laws. Haak, 884 F.3d at 402-03. The charges were based largely on the defendant’s statements in a non-custodial, video-recorded interview at the police station. Id. During the interview, the officers “were dressed in casual street clothes with no weapons visible,” and the defendant “was not handcuffed or otherwise restrained.” Id. at 403. After the defendant admitted that he had sold the victim the drugs that killed him, the detective pushed him to reveal his drug supplier, telling him: “I’m not looking to mess with you, I’m not looking to come after you, but you gotta get on board or you, you shut your mouth and then the weight of the federal government is gonna come down on you.” Id. at 405. The officer went on, warning the defendant, “Either you can get on board, put the team jersey on here, play for this team, or you can be on the losing team.” Id. The district court found that the detective’s comments created an offer of immunity, rendering the defendant’s statements involuntary and therefore inadmissible. Id. at 407-08. But the Second Circuit reversed, holding that “neither the words spoken by [the detective] nor the context in which he spoke them communicated a clear and unmistakable promise of immunity in return for cooperation.” Id. at 413 (emphasis added). Without the alleged offer of immunity, the Court held that the totality of the circumstances did not warrant suppression. Id. at 414-16. 1. Characteristics of the AccusedApplying the framework outlined above, I must first consider the characteristics of the accused. Ali Kourani is 33 years old and has an advanced educational background, having obtained a Bachelor of Science in biomedical engineering in 2009 and a Masters of Business Administration in 2013. He is intelligent and well educated, which cuts against a finding that his statements were involuntary. See United States v. Ruggles, 70 F.3d 262, 265 (2d Cir. 1995) (holding that statements voluntary where, “there [was] nothing in the record to indicate that [defendant] lacks maturity, education or intelligence” and considering the defendant’s “familiarity with police questioning”).Kourani understood the situation he faced and had some level of familiarity with the FBI. He had previously been offered (and rejected) a written confidentiality agreement in 2016, indicating that he was at least aware that he could obtain a formal agreement from the agents. He behaved strategically, seeking a meeting with FBI agents when his situation made doing so in his best interest, and he sought out Denbeaux knowing that he had no expertise in immigration or family law and could help him only insofar that he wanted the FBI’s help to resolve his immigration problems. There is nothing in the record to indicate that Kourani was particularly susceptible to coercion. 2. Conditions of the InterviewsSecond, in assessing the voluntariness of Kourani’s statements I must consider the conditions of the interviews. This factor also cuts against defendant’s motion. It is undisputed that Kourani was not in custody during the interviews, which took place in a conference room at Seton Hall Law School, rather than at an FBI facility. Kourani was assisted by a smart, experienced counsel, with a deep background of representing controversial defendants and negotiating with the FBI and prosecutors. Kourani was unrestrained throughout the interviews, see Parsad v. Greiner, 337 F.3d at 184; Green v. Scully, 850 F.2d 894, 902-03 (2d Cir. 1988), and the agents were dressed in business attire and never displayed their firearms, see Haak, 884 F.3d at 415. And it was Kourani who reached out to the FBI to set up the interviews, which took place over the course of several weeks, giving his attorney ample time to withdraw Kourani from the process. The conditions of the interview could hardly be deemed coercive, and I find that this factor also weighs against a finding of involuntariness. 3. Conduct of the OfficersFinally, I must consider the conduct of the law enforcement officers. Kourani claims that the FBI agents offered him immunity or otherwise indicated, either to him or to his lawyer, that his statements would not be used against him. Based on the testimony given at the evidentiary hearing and the sworn affidavits submitted by Kourani and Denbeaux, I find that no such offer of immunity or non-prosecution was made, and Kourani’s statements were voluntary.Kourani’s motion is based on two related arguments, neither of which has merit. The first is an attempt to transform the agent’s promise of “confidentiality” into an offer of immunity or non-prosecution. As a legal matter, at least one court in this district has held that generalized promises of confidentiality are of a different character than offers of immunity. See Rudaj, 2005 WL 2508404, at *3 (noting that the First Circuit had observed in Flemmi that “[a] promise of confidentiality and a promise of use immunity are separate and distinct assurances” (internal quotation marks omitted) (quoting Flemmi, 225 F.3d at 88)). The Ninth and Eleventh Circuits, however, have indicated in passing that generalized promises of confidentiality can render a defendant’s statements involuntary. See Valenzuela v. United States, 286 F.3d 1223, 1230 (11th Cir. 2002) (stating that the Court would not “countenance the Government’s conduct”); United States v. Brooklier, 685 F.2d 1208, 1217 (9th Cir. 1982) (stating in dicta that “[s]tatements made in confidence are not immune absent an unconditional promise of confidentiality”). The Second Circuit has not written on the issue.I need not resolve this dispute. As I have already explained, the only plausible interpretation of the agents’ promise of “confidentiality” is that it related only to keeping Kourani’s cooperation from reaching members of the Lebanese community, in the U.S. and abroad. It was not intended as an offer of immunity or non-prosecution, nor was it understood as such by Kourani or by his lawyer.⁵ Kourani’s argument that the agent’s promise of confidentiality renders his statements involuntary fails.Although Kourani attempts to weave the alleged promise of confidentiality throughout his claim, his motion ultimately relies on a document drafted by Denbeaux and provided to the agents at the start of their second meeting on April 3, 2017. That document, identified here as Government Exhibit 703,⁶ purports to be Denbeaux’s “status report,” outlining the progress of the first meeting and identifying areas of concern moving forward. As explained below, Kourani relies heavily on paragraph 2 of the memorandum, which states in substance that Kourani was not seeking immunity because it had already been agreed amongst the parties that he was not the subject of the FBI’s investigation.So what to make of Denbeaux’s memorandum? Much of it confirms the testimony of the agents, Denbeaux, and Kourani himself. Paragraphs 3 and 4 of the document explain that Kourani was “cooperating with his country because” the agents “believe that he possesses important and valuable information and he is willing to share.” Gov’t Ex. 703, at