## Facts

- In September 2012, an extremist Islamic group attacked U.S. facilities in Benghazi, Libya, killing U.S. personnel.
- U.S. authorities identified Ahmed Salim Faraj Abu Khatallah (Khatallah) as a leader of the extremist group connected to the attack.
- In June 2014, U.S. special forces captured Khatallah in Libya and transferred him to a U.S. naval warship for transport to the United States, a trip that lasted about 13 days.
- Shortly after capture, an intelligence team questioned Khatallah without Miranda warnings, using coercive tactics. The questioning primarily targeted the group’s current operations and future plans, though it also touched on the Benghazi attack.
- About two days later, FBI agents conducted a separate set of interviews aimed at the Benghazi criminal investigation.
- The FBI team was intentionally kept separate from the intelligence team and had no contact with it and no knowledge of what Khatallah had previously said.
- The FBI agents interviewed Khatallah in a different, less severe setting. They were unarmed, dressed in civilian clothes, and permitted Khatallah to pray; he received regular meals, breaks, and rest.
- Before questioning, the FBI agents repeatedly provided Miranda warnings in Arabic through an interpreter and told Khatallah he did not have to speak to them even if he had spoken to other U.S. personnel.
- Khatallah repeatedly waived his Miranda rights, including by signing written waivers, and agreed to speak while stating he wanted a lawyer “at trial.”
- During the FBI interviews, Khatallah declined to answer certain questions but also made self-incriminating statements about the Benghazi attack.
- After being charged in federal court, Khatallah moved to suppress his FBI statements, arguing that the government’s two-stage interrogation approach made his Miranda waivers involuntary and required suppression.

## Issues

1. Whether Khatallah’s Mirandized statements to the FBI had to be suppressed under *Missouri v. Seibert* because they followed earlier unwarned intelligence questioning.
2. Whether, under the totality of the circumstances, Khatallah’s Miranda waivers and subsequent FBI statements were involuntary under the Fifth Amendment due process standard.
3. Whether the delay in presenting Khatallah to a magistrate judge after his overseas capture required suppression under Rule 5(a) and the McNabb–Mallory prompt-presentment doctrine.

## Decision

- The court denied Khatallah’s motion to suppress his shipboard statements to the FBI.
- The court held that the FBI interviews were not the product of a deliberate “question-first, warn-later” scheme barred by *Seibert*, and the Miranda warnings given by the FBI were effective.
- The court held that Khatallah’s Miranda waivers and statements to the FBI were voluntary under the totality of the circumstances.
- The court held that the delay in presentment was reasonable given the realities of an overseas military capture and transport and did not justify suppression.

## Legal Principles

- A Miranda waiver must be knowing, intelligent, and voluntary under the totality of the circumstances; voluntariness turns on whether the choice to speak was the product of coercion that overbore the suspect’s will.
- Under *Missouri v. Seibert*, post-warning statements may be suppressed when officers deliberately use a two-step method—eliciting unwarned admissions and then obtaining a Mirandized confession in a way that makes the warnings ineffective.
- When there is no deliberate two-step strategy to weaken Miranda, *Oregon v. Elstad* generally permits admission of a later Mirandized statement if the later waiver and statement are voluntary.
- Separation between an earlier intelligence interrogation and a later law-enforcement “clean team” interview—such as lack of coordination, lack of shared information, different setting, and warnings that prior conversations do not require continued talking—supports a finding that Miranda warnings were effective and that *Seibert* does not apply.
- A suspect’s willingness to refuse to answer some questions can support a conclusion that his will was not overborne during questioning.
- Under Rule 5(a) and the McNabb–Mallory doctrine, statements may be suppressed when they are the product of an unreasonable delay in presentment; however, courts consider whether the delay was justified by practical limits and safety needs, including foreign capture and secure transportation, rather than by a desire to obtain statements.

## Conclusion

The district court admitted Khatallah’s Mirandized statements to the FBI made aboard a U.S. naval warship, finding that the FBI’s warnings and waivers were voluntary and effective despite earlier unwarned intelligence questioning, that the government did not employ a deliberate *Seibert* two-step tactic to bypass Miranda, and that the delay before presentment was reasonable in light of the circumstances of capture and transport.


United States v. Abu Khatallah, 2017 WL 3534989 (2017)