UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

UNITED STATES OF AMERICA, 

S(7)R98 Cr. 1023 (KTD) 

-againstMEMORANDUM & ORDER 

MOHAMED RASHED DAOUD AL-'OWHALI, 

Defendant. 

................................... X 

KEVIN THOMAS DUFFY, U.S.D.J. : 

INTRODUCTION 

Mohamed Rashed Daoud alL'Owhali was convicted of numerous 

terrorism-related crimes on May 29, 2001, after a five-month jury 

trial before the Honorable Leonard B. Sand. AlL'Owhali's conviction 

stems from his activities with a1 Qaeda during his participation in 

the 1998 synchronized attacks on the United States Embassies in Dares-Salaam, Tanzania and Nairobi, Kenya (the 'Bombings"). Based on 

these convictions, al-'Owhali was sentenced to life in prison. 

Al-'Ohwali had been injured in the bombing at Nairobi and had 

been hospitalized there to treat his injuries. He was arrested by 

the Kenyan authorities shortly after his release from hospital. He 

was kept in the custody of the Criminal Investigation Division of 

the Kenyan National Police ("CID") but was also questioned by agents 

of the U.S. Government. This interrogation originally started in 

English, but the agents soon decided to use an interpreter. The 

first interpreter the agents obtained translated during the first 
three days of al-'Owhali's interrogation. As part of its own 

investigation, the Kenyan CID held an "identification parade" in 

which a witness identified the defendant as a participant in the 

Bombings. The U.S. government agents also continued their 

investigation and, after nine days, confronted al-'Owhali with some 

of the evidence that had been collected against him. At that point, 

al-'Owhali agreed to tell the truth about his involvement in the 

Bombings. The next day, after receiving Miranda rights and 

obtaining assurances that he would be tried in a U.S. court, the 

defendant gave his real name and identity for the first time, and he 

confessed to his participation in the Bombings, long after the first 

interpreter had been replaced by a Federal Bureau of Investigation 

("FBI") Language Specialist. This confession and the other 

statements made by the defendant over the next several days played a 

major role in his trial and conviction. 

AlL'Owhali appealed the entire matter, including the denial of 

his original motion for the suppression of evidence, to the Second 

Circuit on October 19, 2001. On November 24, 2008, the Second 

Circuit affirmed al-'Owhali's conviction, rejecting his arguments 

that his confession was involuntary based on the same reasoning in 

the opinion of this court. See In re Terrorist Bombings of U.S. 

Embassies in East Africa ("In re Terrorist Bombings"), 552 F.3d 177, 

213-14 (2d Cir. 2008), aff'g United States v. Bin Laden, 132 F. 

Supp. 2d 168 (S.D.N.Y. 2001). 
THIS MOTION 

On or about December 12, 2008, the United States Attorney's 

Office for the Southern District of New York advised al-'Owhali that 

it had a summary report of a recent interview of the interpreter who 

worked during the first three days of al-'Owhali's interrogation 

after his arrest in Kenya (the "Interpreter") . The summary report 

indicated that the Interpreter had made statements during the 

interview contrary to what was shown at the suppression hearings and 

at trial. Due to the disclosure of this redacted summary report of 

the interview conducted by a contract employee, al-'Owhali sought 

remand of his appeal from the Second Circuit on the sole issue of 

voluntariness. 

The Second Circuit granted his request on April 30, 2009. On 

the basis of this newly discovered evidence, al-'Owhali now requests 

that I vacate the findings of Judge Sand on the voluntariness of al- 

'Owhali's confession; suppress all confessions he made to the 

Government while in Kenya; and grant any other relief required under 

the circumstances 

BACKGROUND 

The Bombings of the two U.S. Embassies occurred on August 7, 

1998. Two officers of the Kenyan CID arrested al-'Owhali at 

approximately 10:OO a.m. on August 12, 1998. Upon arrest, al- 

'Owhali falsely identified himself as "Khalid Salim Saleh Bin 

Rashed" and represented that he was from Yemen. Found on his person 

were $800 in U.S. currency, some Kenyan currency, and a hospital 
stub showing that al-'Owhali had received medical treatment on 

August 7, 1998, the day of the Bombings. Al- 'Owhali had cuts and 

abrasions on his wrist and elsewhere as a result of his role in the 

Bombings. 

AlL'Owhali was transported from his hotel, where he was 

apprehended without incident, to CID headquarters in Nairobi. At 

approximately 11:OO a.m. on August 12, 1998, al-'Owhali's 

interrogation began in English. Present for the initial 

interrogation were, in relevant part, FBI Special Agent Gaudin, New 

York City Police Detective Parola (both members of the Joint 

Terrorist Task Force based in New York City), and the two CID 

officers. This first session continued for about an hour in 

English, but due to communication difficulties, Agent Gaudin 

determined that an Arabic interpreter would be preferable. 

Accordingly, Agent Gaudin suspended the interview and procured a 

government interpreter employed by a U.S Government agency other 

than the FBI who agreed to interpret al-'Owhali's interrogation. 

This interpreter is the "Interpreter" referred to above. This 

interpreter worked only the first three days of al-'Owhali's 

interrogation, being replaced by FBI Language Specialist Feghali. 

Al-'Owhali made no incriminating statements during the first three 

days when the Interpreter was present. 

On August 20, 1998, much after the Interpreter had left, as 

part of its own investigation, the CID conducted an "identification 

parade" whereby witnesses to the Bombings were asked to identify 
potential suspects out of a group of eight men of similar height and 

build. One witness identified al-'Owhali. On August 21, 1998, the 

FBI fingerprinted al-'Owhali for the first time since his arrest. 

Then, after the Government agents told al-'Owhali about all the 

evidence that had already been amassed against him, al-'Owhali 

finally indicated that he was willing to tell the truth about his 

involvement in the Bombings. 

On August 22, 1998, an Assistant United States Attorney 

("AUSA") advised al- 'Owhali of his Miranda rights in the presence of 

two FBI agents, two CID agents, and FBI Language Specialist Feghali. 

Before deciding whether to waive his rights and confess his role in 

the Bombings, al-'Owhali demanded to be tried in the United States. 

After receiving reasonable assurance that he would be tried in this 

country, al-'Owhali stated more than once that he was comfortable 

proceeding without an attorney present. Only then did al-'Owhali 

reveal his true name and nationality and proceed over the next four 

days to inculpate himself in the Bombings. 

In determining that al-'Owhali's confession was voluntary and 

denying his motion to suppress the incriminating statements that he 

made during his interrogation in Kenya on or after August 22, 1998, 

Judge Sand made several factual findings, including that: (1) al- 

'Owhali was never handcuffed during any of his interviews in Kenya; 

(2) all interviews took place in a library-like room; (3) frequent 

food, bathroom, and prayer breaks were taken; (4) al-'Owhali could 

get bottled water upon request and food often from the agents; (5) 
no threats or promises were made by the U.S. agents; (6) al-'Owhali 

was held incommunicado for fourteen nights, as permitted under 

Kenyan law; (7) al-'Owhali received medical care as needed for the 

wounds he sustained as a result of his role in the Bombings; and (8) 

al-'Owhali was a well-read, intelligent person with two years of 

university education, significant military experience, a familiarity 

with political and world events, and who had a basic understanding 

of spoken English. See Bin Laden, 132 F. Supp. 2d at 178-79. The 

Second Circuit affirmed al-'Owhali's conviction and the district 

court's findings that al-'Owhali's confession was voluntary, 

stating, "All of this evidence [as set out above] militates 

powerfully against the potentially coercive effects of [al- 

'Owhali's! detention and in support of the findings of the District 

Court." In re Terrorist Bombings, 552 F.3d at 214. 

ANALYSIS 

The starting point for our inquiry is the summary report of the 

interview of the Interpreter by the Government contract employee. 

Luck would have it that we had a videotape of the interview that was 

viewed by counsel and the court. Because the object of the 

interview had little or nothing to do with this case or with law 

enforcement by any stretch, the video was never marked in evidence 

and was turned back to the agency that was its custodian. The very 

few portions of the tape that are relevant to this matter are 

discussed below. I am sure that if some reviewing court wishes to 

see the video that the Government will make a viewing available. 
On the basis of that viewing and the various documents 

submitted at the hearings conducted herein, it is crystal clear that 

the report was grossly inaccurate and warped what the Interpreter 

actually said. The Government contract employee who conducted the 

interview testified that he prepared the report some time after the 

interview from memory and some sketchy notes. He tried to pass these 

inaccuracies off as mere lapses of memory and mistakes. It is 

unnecessary for me to speculate as to the reasons that these 

mistakes were made. The end result, however, is that the supposed 

statements of the person being interviewed contained in the report 

never happened in real life. 

Having made this finding, it is clear that the disposition of 

this matter is quite simple and compelling. But I believe that it is 

well to point up some of the many other reasons why the motion must 

be denied. 

Voluntariness in Light of the Summary Report 

As written, the redacted summary report read in the light most 

favorable to al-'Owhali could be understood to show that he was 

physically abused or tortured. However, al-'Owhali does not now, 

nor has he ever, alleged that he was physically mistreated in any 

way or that any such physical abuse coerced his confession. And, as 

already noted, the redacted summary report that the Government 

turned over to al-'Owhali was materially inaccurate. In relevant 

part, based on the videotape and a transcript of the interview, the 

following portions of the report are just wrong. 
First, the redacted report said that the Interpreter "stated 

she believed that from sounds emanating from the interrogation room, 

ial-'Owhalil was being beaten." In a sworn declaration and in sworn 

testimony before me, the contract employee who wrote the report has 

confirmed what my own viewing of the video of the interview 

revealed: the Interpreter never said that she believed al-'Owhali 

was being beaten. Rather, as the contract employee has since 

acknowledged, in response to his question asking whether she thought 

al-'Owhali was being beaten, the Interpreter refused to speculate, 

stating, "You know what, . . . I heard the banging but I didn't see 

it . . . . So I cannot tell you something I did not see." This 

material difference reflects more than just an inadvertent 

inaccuracy; it presents a reckless misrepresentation. 

Second, the redacted report says that: "At one point, [the 

Interpreterl stated that [al-'Owhalil shouted to her, 'sister, 

please make them stop beating me.' [The Interpreterl stated she was 

terrified and ran from the room. [The Interpreter] was later 

convinced to resume her duties as an interpreter . . . . " This 

statement as recorded in the contract employee's report is a 

damning, but completely erroneous, snapshot of a sequence of events 

that actually occurred much differently. 
1 In reality, the Interpreter said that she heard banging, along 

with what she characterized as the agents playing "bad cop good 

cop", and ran from the room where al-'Owhali's interrogation was 

taking place, the library of CID headquarters. The video shows that 

she further told the contract employee, "I thought, my God, this guy 

[al-'Owhalil is going to come out and he is going to find out who am 

I." What is clear after watching the video and reviewing all the 

relevant documents is that the Interpreter was afraid of al-'Owhali 

for her own life and safety, not that she had any concern for his 

safety. Outside the room, the Interpreter was assured that 

everything was under control, and she reentered prepared to resume 

interpreting the interrogation. She told the contract employee that 

when she returned to the library, she remembered al-'Owhali saying 

"sister, sister, please tell them to stop beating me."2 In the 

video, she calmly recalled that she translated his words, reflecting 

no genuine concern that he had in fact been beaten. 

Once again, considered after a complete viewing of the 

videotaped interview with the Interpreter, conducting several 

hearings, and carefully reviewing the relevant documents, I conclude 

' AlL'Owhali and Detective Parola consistently recalled that one of the agents 

slapped a bottle of water from the table in front of alL'0whali up against the 

wall or onto the Eloor during his interrogation while the Interpreter was present. 

(Al-'Owhali Aff. f 9, Oct. 14, 2000, Gov't's Mem. Ex. A; Brown Aff. f 7, Aug. 13, 

2009, Gov't's Mem. Ex. 0). The Interpreter has said that the sounds she heard were 

consistent with an object being thrown up against the wall or a person slamming 

his hand down on the table. (Brown Aff. 7 8) (attesting to the recollection of 

now U.S.D.J. Ken Karas.) 

' AlL'Owhali denies that he sald this. (Cohn Aff. 1 6, April 14, 2000, Gov't's 

Mem. Ex. T.) Rather, he asserts that he begged the agents to stop hurting him 

when, during the second session of his interrogation, they squeezed the wrist that 

he injured in the Bombings, which caused some paln that al-'Owhali acknowledges 

did not amount to torture. (%I 
that the picture painted by the redacted report is inaccurate at 

best. It is important that the reader remember that a1'-Owhali did 

not claim during the suppression hearings, nor does he now, that he 

was coerced into confessing by torture or beatings. I find nothing 

in the redacted summary report or in the underlying interview of the 

Interpreter to upset Judge Sand's prior determination of 

voluntariness, already affirmed by the Second Circuit. I remain 

convinced that: 

what truly motivated [a] 1- 'Owhali to inculpate 

himself was his own overriding desire that he be 

tried in the United States. As he declared to 

the U.S. agents interviewing him, it was the 

United States which was his enemy, not Kenya. 

Particularly significant is the fact that the 

suggestion that he be tried in America was 

initiated entirely by [a] 1- 'Owhali. And when al- 

'Owhali was dissatisfied by the less-than-firm 

assurances offered in the first [document of 

understanding], he demanded that AUSA [redacted] 

do better. All of the above confirms our belief 

that [all-'Owhali's decision to waive his rights 

and confess to the Americans was a decision borne 

of his own volition. 

Bin Landen, 132 F. Supp. 2d at 194. Thus, there is no factual basis 

for al-'Owhali's motion, and it must be denied. 

Further, even if there were factual inconsistencies between 

what the Interpreter recalled about the treatment of a1'-Owhali 

during the first three days of his interrogation and the testimony 

that was introduced by the Government at the suppression hearings, 

they would not matter because al-'Owhali did not make any 

incriminating statements while the Interpreter was present. And, 

even if he had, all of al-'Owhali's statements made before receiving 
his Miranda rights on August 22, 1998, were suppressed, -- see Bin 

-- 

Laden, 132 F. Supp. 2d at 195, so any hypothetical error would have 

been harmless. -- See United States v. Gambino, 59 F.3d 353, 364 (2d 

Cir. 1995) (stating that to require a new trial, "newly discovered 

evidence must be of a sort that could, if believed, change the 

verdict") 

Alleys Violations 

In addition to raising the question of voluntariness based on 

the Government's disclosure of the redacted summary report, al- 

'Owhali argues that the Government may have neglected its disclosure 

obligations under Brady v. Maryland, 473 U.S. 667 (1963), by failing 

to disclose "information that tends to support the position of the 

defendant." (Def.'s Mem. 4.) Specifically, al-'Owhali argues that 

the Government neglected its obligations by failing to disclose 

that: (1) the Interpreter suggested that al-'Owhali had been 

mistreated when she was interviewed by the Government in 2001 as a 

prospective witness at the suppression hearings; and (2) there may 

have been other Government agents present during his interrogation 

that were not mentioned in the testimony of Agent Gaudin or 

Detective Parola at the suppression hearings, as can be inferred 

from the video and transcript of the Interpreters interview. 

To begin, "'the current Brady law' imposes a disclosure 

obligation narrower in scope than the obligation to disclose all 

evidence favorable to the defendant . . . .'I United States v. 

, 267 F.3d 132, 141 (2d Cir. 2001) (quoting Kyles v. Whitley, 
5i4 U.S. 419, 433 (1995)). Rather, to trigger the disclosure 

obligations under Brady and its progeny, the defendant must show 

that the evidence in question: (1) was suppressed, either willfully 

or inadvertently, by the Government; (2) is favorable to the 

defendant; and 13) is material to either guilt or punishment. - See 

Coppa, - 267 F.3d at 140. For "Brady purposes, 'evidence is material 

only if there is a reasonable probability that, had the evidence 

been disclosed to the defense, the result of the proceeding would 

have been different. A 'reasonable probability' is a probability 

sufficient to undermine con£ idence in the outcome. " C*, 267 F .3d 

at 141 (quoting United States v. Baa, 473 U.S. 667, 682 (1985)). 

In practice, this standard "obliges a prosecutor to make a 

prediction as to whether a reasonable probability will exist that 

the outcome would have been different if disclosure had been made." 

Id. at 142. 

Here, the Government considered the materiality of the 

Interpreter's 2001 statements in the context of all of the other 

evidence being offered at the suppression hearings and properly 

concluded that disclosure was not necessary. The statements at 

issue come from two interviews of the Interpreter conducted by an 

ALJSA prior to the January 23, 2001, suppression hearing before by 

Judge Sand. (Brown Aff. 1] 3.) The Interpreter was apprehensive 

about testifying because she was afraid that al-'Owhali would learn 

her identity and her safety would be jeopardized. (Brown Aff. 7 4.) 
In an interview with an AUSA, the Interpreter nonetheless 

described the scene of the interrogation much like she did in the 

videotaped interview. (Id. - f 5.) The interrogation took place in a 

room where she was partitioned off by a curtain to shield her 

identity, so she could hear and be heard but could not be seen or 

see anything that was happening on the other side. (Id.) During 

this first interview, the Interpreter said "that she heard a loud 

noise from the adjoining room, which led her to believe that al- 

'Owhali was being beaten." (Id. p f 6.) Due to her reluctance to 

testify and her demeanor, the AUSA conducting the interview thought 

she may have said this to avoid being called as a witness, and he 

told her that "all she had to testify to was the truth" because 

there was not a "version of her story that would preclude or 

guarantee her testimony." (z) 

The AUSA conducting the interview then consulted with others in 

the United States Attorney's Office for the Southern District of New 

York, and the agents who were to testify at the suppression hearing 

were interviewed separately about the first three days of al- 

'Owhali's interrogation. (Id. p 7 While they consistently denied 

that al-'Owhali had been beaten, one of the agents specifically 

recalled slapping a water bottle and sending it crashing into a 

wall. (Id.) When the AUSA met again with the Interpreter for a 

second interview, she no longer claimed that she thought al-'Owhali 

had been beaten. (Id. -~ f 8.) She stated that she did not know what 

caused the noise, but that it could have been caused by an object 

13 
being thrown against the wall or someone's fist slamming onto a 

table. (Id. ) 

Given the Interpreter's clarification, the agents' consistent 

descriptions of the interrogation, and the fact that al-'Owhali has 

never claimed that he was beaten, the Government correctly concluded 

that its - Brady disclosure obligation had not been triggered. This 

is especially true because, as stated above, al-'Owhali did not make 

any incriminating statements during the first three days of his 

interrogation, the only time the Interpreter was present. In fact, 

all of al-'Owhali's statements made prior to the oral recitation of 

his Miranda rights on August 22, 1998, were suppressed. 

Consequently, there is no possibility, let alone a reasonable 

probability, that the Government's decision not to disclose the 

Interpreter's recanted statement affected the outcome of the 

suppression hearing. 

I also find no Brady violation with respect to the allegation 

that there may have been other agents present at al-'Owhali's 

interrogation who were not mentioned during Agent Gaudin and 

Detective Parola's testimony at the suppression hearings. First, 

the fact that other Government agents were present at al-'Owhali's 

interrogation on August 12, 13, and 14, 1998, was not suppressed. 

While the identities of such agents were concealed, the fact of 

their presence was revealed in the disclosures made pursuant to the 

Jencks Act, 18 U.S.C. § 3500. (See -- Gov't's Mem. Exs. H, K, U.) 
Further, alL'Owhali has made no showing that the presence of 

other Government agents would even be favorable to him, let alone 

material, especially in light of the fact that al- 'Owhali has never 

claimed that the agents known to be present, or any other agents, 

beat him or physically coerced his confession with torture. 

Thus, under these circumstances, al-'Owhali's motion is DENIED. 

SO ORDERED. 

Dated: New York, N. Y. 

February -- ' , 2010