The federal material witness statute, 18 U.S.C. §3144, authorizes the detention of witnesses for grand jury proceedings, the U.S. Court of Appeals for the Second Circuit held Nov. 7, resolving a split of authority within the circuit. The court also declined to apply the Fourth Amendment's exclusionary rule to evidence offered to prove that the defendant committed perjury following the illegal searches and seizures. (United States v. Awadallah, 2d Cir., No. 02-1269, 11/7/03)

In the weeks following the Sept. 11 terrorist attacks, federal agents suspected the defendant of being involved. The agents illegally seized the defendant, searched his property, and subjected him to a polygraph examination in the course of determining whether he had information material to the grand jury investigating the attacks. The defendant was subsequently detained as a grand jury witness pursuant to Section 3144.

When called before the grand jury, the defendant gave conflicting testimony as to whether he knew one of the two hijackers on American Airlines Flight 77, which crashed into the Pentagon. Those statements were later used to indict the defendant on charges of perjury to a grand jury in violation of 18 U.S.C. §1623.

Judge Shira A. Scheindlin of the U.S. District Court for the Southern District of New York held that Section 3144 does not apply to grand jury witnesses and dismissed the indictment in a ruling made without briefing or argument. 202 F. Supp. 2d 61, 71 CrL 141 (S.D.N.Y. 2002). Recognizing the possibility of reversal of that order, the district court also ordered the suppression of evidence obtained in the illegal searches and seizures. A few weeks later, in an unrelated case, In re Application for Material Witness Warrant, 213 F. Supp. 2d 287, 71 CrL 511 (S.D.N.Y. 2002), Judge Michael B. Mukasey disagreed with Scheindlin and held that Section 3144 does authorize the detention of material witnesses for grand jury proceedings. Expressing doubts about whether the Fourth Amendment permits the detention of a witness for grand jury proceedings, the district judge invoked the doctrine of constitutional avoidance, under which a court should construe an ambiguous statute so as to avoid constitutional problems if a viable alternative interpretation exists.

Legislative History Conclusive.

The court of appeals reinstated the perjury indictment in an opinion by Judge Dennis Jacobs. The key question was whether the term "criminal proceeding" as used in Section 3144 includes a grand jury proceeding.

In answering this question in the negative, Scheindlin observed that the statute refers to detention based on "an affidavit filed by a party," and she noted that there are no "parties" to a grand jury proceeding. Moreover, Section 3144 specifically references the bail procedures set out in 18 U.S.C. §3142, which governs detentions "pending trial." She also reasoned that, at the grand jury stage, it is very difficult, if not impossible, for a judge to determine whether a witness's information is "material" as required by the statute.

The court of appeals concluded that the text of the statute was ambiguous but that the legislative history shows Congress clearly intended to include grand jury proceedings within the meaning of "criminal proceeding." Congress reenacted Section 3144 in its current form in language almost identical to the text of the predecessor statute, 18 U.S.C. §1349, which the Ninth Circuit, in Bacon v. United States, 449 F.2d 933 (9th Cir. 1971), construed as encompassing grand juries. The Senate Judiciary Committee Report that accompanied Section 3144 stated that "[i]f a person's testimony is material in any criminal proceeding, and if it is shown that it may become impracticable to secure his presence by subpoena, the government is authorized to take such person into custody." In a footnote the report cited approvingly to Bacon and stated categorically that "[a] grand jury investigation is a 'criminal proceeding' within the meaning of this section."

Because the court of appeals determined that congressional intent to include grand jury proceedings was clear, it found irrelevant the district judge's struggle with the canon of constitutional avoidance. The court explained that, even if two viable interpretations of Section 3144 did exist, the detention of material witnesses for the purpose of securing grand jury testimony has withstood constitutional challenge. In New York v. O'Neill, 359 U.S. 1 (1959), the U.S. Supreme Court held that a Florida statute authorizing courts to subpoena witnesses from outside the state in criminal proceedings or grand jury investigations did not violate the Privileges and Immunities Clause of the Fourteenth Amendment. The O'Neill court stated that "[a] citizen cannot shirk his duty, no matter how inconvenienced thereby, to testify in criminal proceedings and grand jury investigations in a State where he is found. There is no constitutional provision granting him relief from this obligation to testify even though he must travel to another State to do it." The Second Circuit also pointed out that it has previously upheld against a Fourth Amendment challenge the constitutionality of detaining grand jury witnesses under a New York material witness statute.

The district court failed to account for these precedents in detecting a constitutional problem in the defendant's detention on a federal material witness warrant, the court decided. Certainly "arrest and detention are significant infringements on liberty," the court said, but "we conclude that §3144 sufficiently limits that infringement and reasonably balances it against the government's countervailing interests." Thus, such warrants are not barred by the Fourth Amendment's prohibition on unreasonable searches and seizures, the court concluded. It also rejected challenges to the affidavit submitted in support of the material witness warrant used to detain the defendant.

Exclusionary Rule.

The government conceded that the initial seizures and searches of the defendant's property violated the Fourth Amendment. However, it maintained that the Fourth Amendment's exclusionary rule does not require suppression of illegally obtained evidence of perjury that was committed after the constitutional violation.

The Second Circuit agreed with the government. It emphasized that the exclusionary rule itself is not constitutionally required and is, instead, a judicially fashioned tool designed solely to deter police misconduct. Concluding that exclusion of the evidence illegally obtained by the federal agents would not yield significant deterrent value, the court observed that the perjury charged in the indictment occurred 20 days after the improper searches and seizures. Moreover, in light of what the agents believed they knew about the defendant at the time they detained him as a material witness, they must have thought it likely that their investigation would evolve into a criminal prosecution, the court said. That expectation was sufficient incentive to deter conduct that could result in suppression, the court concluded. No significant incremental deterrence could be achieved by prohibiting use of the evidence at the defendant's perjury prosecution, the court ruled.

The court said that the case was factually similar to United States v. Varela, 968 F.2d 259 (2d Cir. 1992), in which it held that, because the police were already prohibited from using in a narcotics prosecution statements obtained from the defendant following his illegal arrest, any incremental deterrent value in excluding the same evidence in a perjury prosecution was outweighed by the public's need for all probative evidence.

Judge Chester J. Straub concurred in the opinion except with respect to the court's conclusion that the material witness arrest warrant was valid. The concurrence agreed, however, that sufficient grounds existed to reverse the district court's rulings.

Robert J. Boyle, Lawrence Mark Stern, and Jesse Berman, all of New York, represented the defendant. James B. Comey Jr., Robin L. Baker, Karl Metzner, Celeste L. Koeleveld, and Christine H. Chung, of the Office of the U.S. Attorney for the Southern District of New York, represented the government.