## Facts

- Ahmed Khalfan Ghailani, alleged to have participated in the 1998 bombings of U.S. embassies in East Africa, was prosecuted in the Southern District of New York.
- Ghailani was captured abroad in 2004 and transferred to CIA custody, where he was held at an overseas site and interrogated using coercive techniques.
- During that CIA detention, Ghailani provided information that led the United States to identify and locate Hussein Abebe, a Tanzanian national allegedly connected to procurement of explosives used in the bombings.
- After the government located Abebe, he was questioned through a sequence of interactions involving Tanzanian authorities and later U.S. agents, culminating in Abebe’s agreement to cooperate and testify for the government.
- Ghailani moved to preclude Abebe’s live testimony as “fruit” of statements allegedly obtained in violation of the Fifth Amendment privilege against self-incrimination (and related statutory/treaty constraints referenced by the defense).
- In an earlier provisional ruling, the court had indicated Abebe’s testimony would be excluded; after an evidentiary hearing, the court issued this opinion as its final ruling on admissibility.

## Issues

1. Does the exclusionary rule and derivative-evidence doctrine apply to bar live witness testimony when the witness was identified through the defendant’s allegedly coerced statements made during intelligence-oriented CIA interrogation?
2. If the witness was found as a result of coerced statements, is the witness’s live testimony nevertheless admissible because intervening events and the witness’s own decision to cooperate sufficiently dissipated any taint?
3. Did the government prove that the witness would have been discovered inevitably through lawful means, independent of the defendant’s coerced statements?

## Decision

- The court held that the exclusionary rule and fruit-of-the-poisonous-tree principles can apply even when the initial interrogation was conducted for intelligence purposes; the government could not avoid suppression analysis by characterizing the interrogation as intelligence gathering rather than law enforcement.
- The court rejected the government’s inevitable-discovery claim, concluding the government did not show by a preponderance of the evidence that Abebe would have been found absent Ghailani’s statements.
- The court denied Ghailani’s motion to exclude Abebe’s testimony because, applying the attenuation framework for live witnesses, the connection between any coercion of Ghailani and Abebe’s proposed testimony was sufficiently attenuated.
- Relying on United States v. Ceccolini and Second Circuit authority (including United States v. Leonardi), the court concluded that Abebe’s decision to cooperate and testify was driven primarily by intervening lawful investigative steps and Abebe’s own choices, rather than exploitation of the coercion used against Ghailani.
- The government was permitted to call Abebe as a witness at trial.

## Legal Principles

- The Fifth Amendment privilege against self-incrimination can bar not only the direct use of compelled statements, but also derivative use of evidence obtained from compelled statements, unless the taint is dissipated.
- There is no categorical “national security” or “intelligence gathering” carveout from Fifth Amendment suppression principles when the government later seeks to use derivative evidence in a criminal trial.
- Inevitable discovery requires proof, by a preponderance of the evidence, that lawful investigative steps already underway (or that would have been pursued) would have led to the evidence; speculation is insufficient.
- Live witness testimony is evaluated under attenuation principles that consider, among other things: (a) the witness’s willingness to testify, (b) whether the government exploited the illegality to obtain cooperation, (c) temporal distance between the illegality and cooperation, and (d) intervening events that bear on deterrence and causation.
- Even where coerced statements are a but-for cause of learning a witness’s identity, the testimony may be admitted if the witness’s later cooperation results from independent acts and free choice such that the deterrent value of suppression is marginal compared to the truth-seeking cost.

## Conclusion

United States v. Ghailani held that suppression principles apply to derivative evidence traced to coercive CIA interrogation even in an intelligence context, rejected inevitable discovery on the record presented, but ultimately allowed Hussein Abebe’s live testimony because intervening events and Abebe’s own decision to cooperate sufficiently attenuated any taint from Ghailani’s allegedly coerced statements.


United States v. Ghailani, 743 F. Supp. 2d 261 (2010)