Recent Terrorism Related Arrests Illustrate Need to Consult Lawyer Before Interviewing with Law Enforcement
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
This legal maxim is rooted in the very soul of every criminal defense attorney. Even if an individual is innocent, no one should ever talk to the police once the police make it clear they are investigating a crime, or a potential crime, and they feel the individual has either some involvement or knowledge about the crime. This advice is especially true when it comes to the FBI whose agents are skilled in the art of interrogation and proficient at tricking a person into making a false statement.
This FBI strategy was recently highlighted in a suspected al-Qaeda terror plot involving Najibullah Zazi, a lawful permanent resident of the United States who hails from Afghanistan. News media reports, based on official accounts or leaked accounts by the FBI, have linked Zazi and at least three other Denver-area men, along with a number of suspected or unknown individuals in New York and other cities in the United States, with an alleged al-Qaeda plot to use hydrogen peroxide bombs carried in backpacks to attack New York City’s mass transit system or other mass transit systems in this country.
(The following fact pattern is taken from FBI affidavits, which are notoriously one-sided, and news reports and may be incorrect, misleading or wrong. These men are presumed innocent and the use of these facts in this article is for illustrative purposes only.)+
Zazi and his father, Mohammed Zazi (a naturalized U.S. citizen from Afghanistan), and a New York City imam named Ahmad Wais Afzali (also a lawful permanent U.S. resident from Afghanistan) were arrested on September 19, 2009 by the FBI for allegedly making false statements to federal agents in violation of 18 U.S.C. Sec. 1001(a)(2). The “false statement” charges indicated that the FBI, and Homeland Security agents, had not yet compiled enough evidence to bring terror-related conspiracy charges under 18 U.S.C. Sec. 371 or specific acts of “international terrorism” under 18 U.S.C. Sec. 2331(1) against anyone they suspect were involved in the alleged New York City mass transit terror plot. The government has since indicted Najibullah Zazi on terrorism related charges.
The FBI affidavits used to establish probable cause for these arrests state that Najibullah Zazi flew to Pakistan in August 2008 where he reportedly (according to news reports) received bomb making instructions from an al-Qaeda operative. The FBI affidavits also said Zazi returned from Pakistan to the United States in January 2009. The affidavits do not indicate whether he remained in Pakistan from August 2008 to January 2009.
Zazi, and the Denver-based “terror cell”, had been under FBI surveillance for some time. That surveillance picked him up leaving Denver in a rental car on September 9, 2009 and traveling to a residence in Flushing, Queens where he met with a number of unnamed individuals federal authorities believe are involved in the terror plot.
According to the FBI affidavits, on September 10, 2009 New York City police detectives met with Ahmad Wais Afzali. The FBI affidavits indicate that Afzali has worked as an “informant” for the NYPD. The New York City detectives reportedly showed Afzali photographs of Zazi and others, and he informed the detectives that he recognized Zazi and several of the other men in the photographs.
The FBI affidavits state that on September 11, 2009 the agency intercepted a 20-minute telephone call from Mohammed Zazi to Afzali. That same day FBI agents also intercepted a telephone conversation between Mohammed Zazi and his son, Najibullah Zazi. During this latter conversation, Mohammed Zazi told his son that Afzali told him that he (Afzali) had been visited by the NYPD and they had been shown him photographs of Najibullah and others. Mohammed Zazi advised his son to speak with Afzali “before anything else,” according to the affidavits.
While Najibullah Zazi was talking to his father, the FBI affidavits state that the suspected terrorist received a telephone call from Afzali who reportedly stated: “I was exposed to something yesterday from law enforcement. And they came to ask me about your characters.” Afzali then allegedly asked Najibullah Zazi about his last trip to Pakistan and warned, “Listen, our phone call is being monitored.”
That same day FBI agents intercepted yet another telephone conversation between Najibullah Zazi and Afzali during which Zazi stated his rental car had been stolen and he feared he was being “watched.” The FBI affidavits state that Afzali then asked Zazi if there was any “evidence in the car” to which Zazi said no.
FBI agents quickly secured a search warrant for Zazi’s rental vehicle which was still parked in front of the Queens residence. The FBI affidavits state the agents recovered a laptop computer which contained handwritten notes regarding the handling and manufacture of explosive materials that could be used to make a bomb. News reports would later cite anonymous sources to say the handwritten notes had been written by Najibullah Zazi.
The FBI affidavits state that on September 12, 2009 Najibullah Zazi boarded a flight at the La Guardia Airport in New York and returned to Denver
On September 14, 2009 heavily armed FBI agents raided the Queens apartment and other surrounding apartments. The “terror investigation” exploded in the national news media that same day. The FBI and Justice Department officials quickly met with key members of Congress to explain the nature and the direction of the “terror investigation.”
On September 16, 2009 FBI agents interviewed Najibullah Zazi. News reports indicate he was represented by an attorney named Arthur Folsom who immediately dismissed as “rumor” reports that his client had played a major role in any terror plot. Associated Press writers Solomon Banda and Steven K. Paulson reported (September 20, 2009) that court documents filed in a Denver federal court disclosed that Zazi agreed to speak with the FBI “under an agreement where he might avoid prosecution.”
The FBI affidavits stated that during the September 16 interview Najibullah Zazi reportedly made false statements that he never seen the handwritten notes discovered on his computer and had not written them. In subsequent interviews conducted on September 17 and 18, Zazi reportedly admitted to federal agents that he had received training at an al-Qaida camp in Pakistan about weapons and explosives.
The FBI also interviewed Mohammed Zazi in Denver on September 16, 2009, according to their affidavits. This interview focused on whether anyone had called him about his son’s activities and possible difficulties with law enforcement officials. The affidavits state Mohammed Zazi falsely responded to these questions by saying he had never received or made any telephone call to anyone in New York other than with his son. He also denied knowing anyone named Afzali.
The FBI affidavits and news reports do not indicate whether Mohammed Zazi was represented by counsel when he agreed to the FBI interview on September 16.
The FBI affidavits state that on September 17, 2009 federal agents in New York interviewed Afzali. The affidavits state Afzali provided agents with a written statement in which he denied telling either Najibullah Zazi or Mohammed Zazi that he had been approached by the NYPD seeking information about Najibullah Zazi. The Afzali statement also reportedly stated the imam denied ever telling Najibullah Zazi their telephone conversation was being monitored or asking Zazi if there was any evidence in his rental car.
The FBI affidavits and news reports likewise do not indicate whether Afzali was represented by counsel when he agreed to the FBI interview on September 17.
There are a number of things about this high-profile case that immediately call into question the “right to counsel” issue. First, Najibullah Zazi agreed to speak with the FBI on September 16. It is not clear whether this “agreement” was reached between him and the FBI or whether it was an agreement negotiated by his attorney, Arthur Folsom. Second, either Zazi did not receive or did not heed the standard legal advice to “tell the truth” once the agreement to be interviewed had been reached with the FBI.
Finally, neither Mohammed Zazi nor Admad Wais Afzali should have agreed to speak with the FBI without first consulting with an attorney.
It is evident from the information in the public record and the FBI affidavits that the alleged false statements made by Najibullah Zazi can be used against him. He was represented by counsel and had reached a formal agreement to cooperate with the FBI in an effort to avoid any criminal prosecution against him. The fact that Zazi allegedly chose to lie to the FBI [and it will be presumed for the sake of argument that his statements were in fact false within the meaning of Sec. 1001(a)(2)] breached whatever “agreement” he may have had with the government.
But the issue with Mohammed Zazi and Afzali is not so clear. Neither man had a “right” to counsel prior to the FBI interviews because they had not been placed in custody. 1/ This does not mean, however, that the two men had to take part in the interviews with the FBI. The Fifth Amendment “right to silence” trumps any law enforcement objective, although this constitutional protection extends only to acts that are communicative or testimonial. 2/ Nonetheless, it is significant to point out that law enforcement officials cannot compel a person to give statements or testimony against himself in any kind of “interview” setting. 3
Thus, Zazi and Afazali could have refused the FBI’s request for an interview until they had retained the advice and services of an attorney, even though the Supreme Court has held that “right to counsel” does not attach in these kinds of law enforcement interview settings. 4/ This is why the courts have uniformly held that incriminating statements made in pre-custodial interrogation settings are admissible as evidence and may be used as a basis for probable cause to arrest because the “right to counsel” attaches only after the initiation of the adversary judicial proceedings. 5/ These decisions notwithstanding, an individual, suspect or not, is not compelled to participate in these types of law enforcement interviews.
Based on the false statements Najibullah Zazi allegedly have given to the FBI, it can reasonably be assumed that federal agents believed Mohammed Zazi and Afzali would also make false statements during their interviews with the agents. And since the federal agents apparently did not have any real, or immediately available, evidence of either a conspiracy or actual “international terrorism” activities associated with either man, the agents moved quickly to interview them so the agents could nail them under Sec. 1001(a)(2) if they made a false statement.
The right to silence/counsel issue, therefore, turns on the approach the FBI used to get the two men to acquiesce to an interview without the presence of an attorney. For example, did the federal agents lead Afzali to believe that they were talking to him as a cooperating informant and not as a “target” of a terror investigation; or did the federal agents lead Mohammed Zazi to believe he could “help” his son avoid a terror-related prosecution by cooperating with them through the interview. While “deception” alone is not a basis for having incriminating statements declared inadmissible as evidence, 6/ this issue must be decided by the extent of the deception and motives for it. 7/
The federal and state law enforcement agencies involved in this and other “terror investigations” are to be commended for their investigative diligence and proactive investigations used to prevent possible terror attacks. However, investigations such as this take many twists and turns, and often involve a law enforcement focus on a wide net of people including many who are innocent. The FBI affidavits, standing alone, indicate that Mohammed Zazi and Admad Wais Afzali were not involved in any kind of “terror plot.” While it may ultimately be established that both men lied to the FBI, those lies appear not intended to aid any terror plot Najibullah Zazi may have been linked to or any desire to thwart the investigation into the alleged plot.
The situation faced by Mohammed Zazi and Afzali when confronted by the FBI’s request for an “interview” illustrates the time-honored legal maxim: never, ever talk to the police without an attorney present. Law enforcement officials do not have an individual’s “best interests” at heart, not even those they utilize as informants. Law enforcement officials have one fundamental interest: identify a crime, locate a suspect, and persuade (or compel) that suspect to incriminate himself (or others) in the crime. This fundamental interest does not lend respect for individual constitutional safeguards. That’s why, when faced with any law enforcement request for an “interview,” an individual must firmly and consistently assert, first, his right to silence, and, second, his right to procure the assistance of counsel.
Even if you have done nothing wrong and have nothing to hide, politely tell law enforcement investigators that you would like to cooperate but will do so only after consulting with, and in the presence of, your lawyer.
1/ Miranda v. Arizona, 384 U.S. 436 (1966)
2/ Schmerber v. California, 384 U.S. 757 (1966)
3/ Moran v. Burbine, 475 U.S. 412 (1986)
4/ McNeil v. Wisconsin, 501 U.S. 171 (1991)
5/ Nelson v. Fulcomer, 911 F.2d 928 (3d Cir. 1990)
6/ Frazier v. Cupp, 394 U.S. 731 (1969)
7/ Rogers v. Richmond, 365 U.S. 534 (1961); Lynumn v. Illinois, 372 U.S. 528 (1963)
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair