Case 3:18-cr-04683-GPC Document 162-1 Filed 05/15/20 PageID.1460 Page 1 of 16
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`Thomas H. Bienert, Jr., SBN 135311
`James D. Riddet, SBN 39826
`Whitney Z. Bernstein, SBN 304917
`BIENERT | KATZMAN PC
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`Telephone: (949) 369-3700
`Facsimile: (949) 369-3701
`Email: tbienert@bienertkatzman.com
` jriddet@bienertkatzman.com
` wbernstein@bienertkatzman.com
`Attorneys for Mohammed Abdul Qayyum
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`MOHAMMED ABDUL QAYYUM,
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`Defendant.
`
`Case No. 18-CR-04683-GPC-3
`Hon. Gonzalo P. Curiel
`Date: June 26, 2019
`Time: 2:30 p.m.
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`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT OF
`MOTION TO SUPPRESS STATEMENT
`AND HOLD AN EVIDENTIARY
`HEARING
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`Case No. 18-CR-04683-GPC
`MOHAMMED ABDUL QAYYUM’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
`OF MOTION TO SUPPRESS STATEMENTS AND HOLD AN EVIDENTIARY HEARING
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`TABLE OF CONTENTS
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`INTRODUCTION. ................................................................................................... 1
`I.
`STATEMENT OF FACTS. ....................................................................................... 1
`II.
`III. MR. QAYYUM’S STATEMENTS SHOULD BE SUPPRESSED BECAUSE
`THEY WERE TAKEN IN VIOLATION OF MIRANDA AND BECAUSE
`THEY WERE INVOLUNTARY. ............................................................................. 4
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`This Court should suppress Mr. Qayyum’s statements because they were
`taken in violation of Miranda. ............................................................................ 4
` Mr. Qayyum was in custody at the time of his questioning. .................... 5
` Mr. Qayyum statements were made in response to the agent’s
`interrogation. .......................................................................................... 7
`This Court should suppress Mr. Qayyum’s statements as involuntary. .............. 8
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`This Court should hold an evidentiary hearing. ............................................... 10
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`IV. CONCLUSION ....................................................................................................... 10
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`Case No. 18-CR-04683-GPC
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
`Blackburn v. Alabama, 361 U.S. 199 (1960)……………………………………….………….8
`Bram v. United States, 168 U.S. 532 (1897)……………………………………………..…….8
`California v. Beheler, 463 U.S. 1121 (1983)……………………………………………………5
`Colorado v. Connelly, 479 U.S. 157 (1986)…………….………………………………....…….8
`Haynes v. Washington, 373 U.S. 503 (1963)…………………………………….………...…....8
`Hutto v. Ross, 429 U.S. 28 (1976)……………………………………………………….……8
`Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)………………………………....……………...…...8
`Lego v. Twomey, 404 U.S. 477 (1972)…………………………………………………………8
`Malloy v. Hogan, 378 U.S. 1 (1964)…………………………………………………….…….8
`Miranda v. Arizona, 384 U.S. 436 (1966)………………………………………………..passim
`Orozco v. Texas, 394 U.S. 324 (1969)………………………………………………….…...5, 6
`Rhode Island v. Innis, 100 S. Ct. 1682 (1980)……………………………………….………….7
`Stansbury v. California, 511 U.S. 318 (1994)…………………………………………………...5
`Townsend v. Sain, 372 U.S. 293 (1963)………………………………………………………...8
`United States v. Basher, 629 F.3d 1161 (9th Cir. 2011)………………………………………...5
`United States v. Bland, 908 F.2d 471 (9th Cir. 1990)……………………………….………….5
`United States v. Blanford, 2012 WL 235631, 467 F. App’x. 624 (9th Cir. 2012)…………….….6
`United States v. Brobst, 558 F.3d 982 (9th Cir. 2009)……………………………………….6, 7
`United States v. Chavira, 614 F.3d 127 (5th Cir. 2010)……………………………….………. 7
`United States v. Craighead, 539 F.3d 1073 (9th Cir. 2008)………………………….………….6
`United States v. Green, 541 F.3d 176 (3d Cir. 2008)…………………………………………...7
`United States v. Harrison, 34 F.3d 886 (9th Cir. 1994)……………………………...…...….9, 10
`United States v. Hernandez, 476 F.3d 791 (9th Cir. 2007)……………………………………...7
`United States v. Kim, 292 F.3d 969 (9th Cir. 2002)……………………………………………5
`United States v. LaPierre, 998 F.2d 1460 (9th Cir. 1993)………………………………………7
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`TABLES OF CONTENTS & AUTHORITIES
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`Case No. 18-CR-04683-GPC
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`United States v. Miller, 984 F.2d 1028 (9th Cir. 1993)…………………………...…………….8
`United States v. Montana, 958 F.2d 516 (2d Cir. 1992)………………………………………...7
`United States v. Prieto-Villa, 910 F.2d 601 (9th Cir. 1990)……………………...…………….10
`United States v. Rogers, 659 F.3d 74 (1st Cir. 2011)…………………………………………...5
`United States v. Tingle, 658 F.2d 1332 (9th Cir. 1981)………………………………..…8, 9, 10
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`Statutes
`18 U.S.C. § 3501(a)……………………………………………………..…………………10
`18 U.S.C. § 3501(b)……………………………………………………………………...9, 10
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`TABLES OF CONTENTS & AUTHORITIES
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`Case No. 18-CR-04683-GPC
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`Case 3:18-cr-04683-GPC Document 162-1 Filed 05/15/20 PageID.1464 Page 5 of 16
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`I.
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`INTRODUCTION.
`Mr. Qayyum’s answers to the FBI’s interrogation on or about September 9, 2016 should
`be suppressed under Miranda and as involuntary. Mr. Qayyum was interrogated in home,
`objectively not free to leave, and never given any Miranda warnings. Further, the agents’ threats
`and intimidation throughout the interrogation render Mr. Qayyum’s alleged statements
`involuntary and thus inadmissible at trial. Should the government contest this motion, the
`Court should hold an evidentiary hearing and receive testimony from the agents and any other
`relevant witnesses to resolve the factual disputes.
`II.
`STATEMENT OF FACTS.1
`In the early morning of September 9, 2016, FBI Special Agents Charles W. Chabalko IV
`and Jason Pearson appeared at Mr. Qayyum’s apartment building. See Declaration of
`Mr. Qayyum (“Declr.”) ¶ 7. The agents did not provide any advance warning of their visit.
`They approached Mrs. Qayyum, who was in the driveway getting into her car to go to work
`and demanded to speak with Mr. Qayyum. Id. ¶ 6. Mr. Qayyum’s wife had never in her life
`had any contact with law enforcement. Like Mr. Qayyum, she is an Indian citizen and was
`terrified of the FBI. She acquiesced to the agents and brought them to the front door of the
`apartment that she shared with Mr. Qayyum. Id. ¶¶ 6, 7.
`Mr. Qayyum was getting dressed, ironing his shirt, and about to leave for work. Id. ¶ 5.
`His wife let herself back into their home, with the agents behind her and outside of their
`apartment. See id. ¶¶ 6, 7. The agents loudly announced that they were from the FBI and
`wanted to ask Mr. Qayyum a few questions. Id. ¶ 7. He was startled and terrified to see two
`FBI agents in suits at his door, speaking loudly about needing to talk to him, in front of his
`neighbors who were also leaving their homes and starting their day. Id. ¶ 8. Like his wife,
`Mr. Qayyum, whose first name is Mohammed Abdul, is of Indian descent; though he had no
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`1 Unless otherwise noted, this statement of facts is based on the government’s discovery.
`Mr. Qayyum does not accept this statement of facts as his own and reserves the right to take a
`contrary position at the motion hearing and trial. The facts alleged in this motion are subject
`to supplementation and modification at the time this motion is heard.
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`Case No. 18-CR-04683-GPC
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`MOHAMMED ABDUL QAYYUM’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
`OF MOTION TO SUPPRESS STATEMENTS AND HOLD AN EVIDENTIARY HEARIN
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`idea why the FBI was there, the sad reality is that he was deeply concerned that his neighbors
`might think he was being investigated for being a terrorist or religious extremist given the FBI’s
`obvious and loud presence at his door with his wife. See Declr. ¶ 8. He did not want them to
`say anything derogatory or draw any further attention to him or his wife. Id. ¶ 10. Mr. Qayyum
`did not know that he could ask them to leave or refuse to let them “ask him a few questions.”
`Id. ¶ 9. He felt that he had no choice but to let the agents inside his apartment. Id.
`The agents never advised Mr. Qayyum that he was a target of their investigation, that he
`had the right to refuse to be interviewed, that he had a right to stop the interview, or that he
`had the right to consult an attorney. Id. ¶ 9. Mr. Qayyum had never previously interacted with
`any law enforcement and did not know that he had any of these rights. Id. Had he known, he
`would not have spoken to the agents. Id. ¶ 11.
`Once inside, the agents began questioning Mr. Qayyum. Id. ¶ 12. One agent was doing
`most of the initial speaking, and the other agent was taking notes throughout the interview.2
`Id. ¶ 13. They asked him if he knew various other people, and then accused him of forging
`documents and hijacking IP addresses. Id. ¶¶ 15(a), (b), (d). The agents told Mr. Qayyum that
`everyone else also said he had done these things. Id. ¶ 15(e). Mr. Qayyum unequivocally denied
`this. Id. ¶ 14. The agents were extremely dismissive of his responses. Id. ¶¶ 14, 16. They kept
`accusing him, telling him to just say that he did it over and over again. Id. ¶ 14. They told him
`that they knew he did it, he can’t hide it, they were special agents, not regular cops, and he
`should just come out and say he did it. Id. Mr. Qayyum was panicked and confused; how
`could the FBI have it so wrong? Id. ¶ 19. The agents continued flashing documents in front
`of him, saying he forged them, and that other people were saying this as well. Id. ¶¶ 15(c), (d),
`(e), 16. Mr. Qayyum became aware of the agent’s holstered gun at his side as he kept
`gesticulating with the documents, and Mr. Qayyum became more fearful. Id. ¶¶ 17, 18, 19.
`The agent repeatedly told Mr. Qayyum that he did this, he fabricated the documents, the FBI
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`2 In order to acquire all information that would be needed to file this motion, counsel sought
`informal discovery from the government of all notes taken by agents at this interview. The
`government asserts that no notes exist.
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`Case No. 18-CR-04683-GPC
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`MOHAMMED ABDUL QAYYUM’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
`OF MOTION TO SUPPRESS STATEMENTS AND HOLD AN EVIDENTIARY HEARIN
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`can prove that he did it. Declr. ¶ 14. The agents’ voices and demeanor escalated and got louder
`and angrier the more Mr. Qayyum denied their allegations. Id. ¶¶ 14, 18. The agent referenced
`his file and said he had five counts of wire fraud in there and he could prove it at any time. Id.
`¶ 14(f). He told Mr. Qayyum that he was going to go to jail, he could do twenty years, and that
`he would be separated from his family and his wife. Id. ¶¶ 22, 26.
`Mr. Qayyum was terrified. The agents hadn’t listened to anything he was saying, they
`kept accusing him of wrongdoing he never committed, they had guns, and he was beginning
`to believe he was in trouble. Id. ¶ 19. He desperately wanted the interrogation to end but did
`not feel that he was free to get up and leave or that he could ask the agents to leave. Id. ¶ 24.
`He felt that they were offended by him already, and he felt that they had so much power. Id.
`¶ 23. He didn’t want to go to jail, he didn’t want to be separated from his family, and he didn’t
`want to be deported. See id. ¶¶ 8, 22, 26.
`At one point, one of the agents said that they were just trying to help him out, and they
`could help him with recommendations and by talking to higher authorities if he would
`cooperate with them. Declr. ¶ 20. Mr. Qayyum thought his best course of action was to
`appease them, tell them what they seemed to want to hear, try to end the interrogation and get
`away from them as quickly as possible. Id. ¶¶ 23, 24, 25. Mr. Qayyum asked to see the
`documents. Id. ¶ 20. The agent told him not to go in circles, not to think about it, that they
`were there to help him, just listen to them. Id. The agents told him that K.P., the then CEO
`of the company, was the one who did this. Id. ¶ 21. They said they just needed help bringing
`her down. Id. Mr. Qayyum told them they were wrong about her, that there was no way she
`could have done the things they were accusing her of. Id. The agents told him that she makes
`millions of dollars, that Mr. Qayyum gets no part of that, that she has a big house, that everyone
`on Mr. Qayyum’s team has a big house, and that the agents wouldn’t even be talking to him
`and trying to help him if he himself had a big house. Id. Mr. Qayyum didn’t understand what
`this meant and asked them to explain. The agents said that they wouldn’t come talk to
`Mr. Qayyum if he was like the others, and that they know that the others are the ones who
`really did wrong things and made money off of it. Id. ¶ 21. The agents again told Mr. Qayyum
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`Case No. 18-CR-04683-GPC
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`MOHAMMED ABDUL QAYYUM’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
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`that they could help him if he would help them bring K.P. down. Declr. ¶ 22, 26.
`Mr. Qayyum asked them what that meant. One agent counted off various things on his
`hand; he said it wouldn’t be anything like James Bond, they would tell Mr. Qayyum what to do.
`Id. ¶ 26. Mr. Qayyum said he wasn’t sure that he could help them. Id. The agents responded
`by threatening him with jail time. Id. They said he would go away for at least twenty years and
`would be separated from his family, and that he should just do what they were asking to help
`himself. Id. To accelerate the end of the conversation, Mr. Qayyum told them he would help
`them. Id. ¶ 25. The agents asked to see Mr. Qayyum’s driver’s license and for his cell phone
`number, gave him a business card, and said to be in touch. Id. ¶ 28.
`Over two years later, Mr. Qayyum was indicted in this case.
`III. MR. QAYYUM’S STATEMENTS SHOULD BE SUPPRESSED BECAUSE
`THEY WERE TAKEN IN VIOLATION OF MIRANDA AND BECAUSE
`THEY WERE INVOLUNTARY.
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`This Court should suppress Mr. Qayyum’s statements because they were
`taken in violation of Miranda.
`The Supreme Court has held that the prosecution may not use statements, whether
`exculpatory or inculpatory, stemming from a custodial interrogation of the defendant unless it
`demonstrates the use of procedural safeguards effective to secure the privilege against self-
`incrimination. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). The law imposes no
`substantive duty upon the defendant to make any showing other than that the statement was
`taken from the defendant during custodial interrogation. Id. at 476.
`On September 9, 2016, when FBI appeared at Mr. Qayyum’s residence, they did not
`advise him of his constitutional rights to remain silent and consult an attorney before
`interrogating him for several hours. See Declr. ¶ 30. Instead, the agents accused him of crimes,
`demanded he help them, and made clear that harm would come if he refused. See id. ¶ 27. For
`these reasons, and those detailed below, the Court should find that Mr. Qayyum was under
`custodial interrogation at the time the interrogation and therefore suppress his statements
`pursuant to Miranda.
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` Mr. Qayyum was in custody at the time of his questioning.
`Custodial interrogation is questioning initiated by law enforcement officers after a
`person has been taken into custody or otherwise deprived of his freedom of action in any
`significant way. Miranda at 477; see Orozco v. Texas, 394 U.S. 324, 327 (1969). The Court’s
`“initial determination of custody depends on the objective circumstances of the interrogation,
`not on the subjective views harbored by either the interrogating officers or the person being
`questioned.” Stansbury v. California, 511 U.S. 318, 323 (1994). The Ninth Circuit has held that
`a suspect will be found to be in custody if the actions of the interrogating officers and the
`surrounding circumstances constrained the suspect’s freedom of movement in such a way that
`a reasonable person in that situation would not have felt free to leave. See United States v. Basher,
`629 F.3d 1161, 1166 (9th Cir. 2011). In determining whether a person is in custody, a reviewing
`court considers “(1) the language used to summon the individual; (2) the extent to which the
`defendant is confronted with evidence of guilt; (3) the physical surroundings of the
`interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain
`the individual.” United States v. Kim, 292 F.3d 969, 974 (9th Cir. 2002) (noting that other factors
`may also be pertinent to the ultimate determination whether a reasonable person would have
`believed he could freely walk away from the interrogators).
`Once a person is in custody, Miranda warnings must be given prior to any interrogation.
`Miranda warnings must advise the defendant of each of his or her “critical” rights. See United
`States v. Bland, 908 F.2d 471, 473-74 (9th Cir. 1990).
`An individual does not need to be detained at a police station to be in custody. Even
`when a formal arrest has not yet occurred, a person may be in custody for Miranda purposes if
`his or her freedom of movement is restrained to “the degree associated with a formal arrest.”
`California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam). Indeed, courts have found custody
`in a number of domestic circumstances. See, e.g., Orozco, 394 U.S. at 325-26 (Miranda warnings
`required because several officers questioned suspect in his bedroom at 4 a.m.); United States v.
`Rogers, 659 F.3d 74, 77-78 (1st Cir. 2011) (custody at home because defendant was ordered
`home by military superior and police officers executing search warrant never told him he was
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`MOHAMMED ABDUL QAYYUM’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
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`free to leave); United States v. Craighead, 539 F.3d 1073 (9th Cir. 2008) (“When law enforcement
`agents restrain the ability of the suspect to move—particularly through physical restraints and
`through threats or intimidation—a suspect may reasonably feel he is subject to police
`domination within his own home and thus not free to leave or terminate the interrogation.”).
`Mr. Qayyum was in custody at the time of the agent’s interrogation. The facts of this
`case are analogous to those in United States v. Blanford, 2012 WL 235631, 467 F. App’x. 624 (9th
`Cir. 2012) (unpublished). In Blanford, the Ninth Circuit found that a defendant was in custody
`during a 45-minute in-home interview, even though he invited agents into his home, because
`the agents were armed with guns, advised defendant not to have a lawyer present, and
`confronted him with substantial evidence of his guilt for fraud in order to stop him from
`terminating the interview. 467 F. App’x at 625. The Court emphasized that agents
`outnumbered the defendant and restrained him by threatening criminal charges if he did not
`cooperate and answer questions, and agents never informed him he was free to leave or
`terminate the interview. Id.
`Here, like in Blanford, the circumstances would lead a reasonable person to believe he
`was not at will to terminate the interview. The agent arrived at Mr. Qayyum’s apartment in the
`early morning with no advance warning and interviewed him for several hours. Like in Blanford,
`the agents were wearing suits and were armed, and they outnumbered Mr. Qayyum. Further,
`during the interview, the agents made numerous aggressive and intimidating statements in
`which they accused Mr. Qayyum of illegal conduct and informed him that he could go to jail
`for up to twenty years and would be away from his family. Similar to Blanford, the agents
`repeatedly tried to get Mr. Qayyum to incriminate himself and agree to cooperate with them.
`In an attempt to get inculpatory information from him, the agents repeatedly told him that he
`was going to jail. Mr. Qayyum was not told that he could terminate the interview.
`In these circumstances, where the atmosphere was dominated by federal agents in
`control of the interrogation, any objective analysis of the facts must result in a finding that
`Mr. Qayyum reasonably believed he was confined, and was therefore “in custody” during the
`course of the extended multi-hour interrogation. See United States v. Brobst, 558 F.3d 982, 995-
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`Case No. 18-CR-04683-GPC
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`MOHAMMED ABDUL QAYYUM’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
`OF MOTION TO SUPPRESS STATEMENTS AND HOLD AN EVIDENTIARY HEARIN
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`96 (9th Cir. 2009) (Miranda warnings required though defendant was briefly interrogated at
`home, not handcuffed, and never told that he was under arrest, because armed officers
`approached defendant saying, “you need to come with me,” and defendant was given copy of
`search warrant and told that child pornography was found in her house).
` Mr. Qayyum statements were made in response to the agent’s
`interrogation.
`Once custody is established, the Court must determine if the incriminating statements
`were made in response to government interrogation. The agents’ questions of Mr. Qayyum
`qualify as an interrogation as they were “reasonably likely to elicit an incriminating response.”
`See Rhode Island v. Innis, 100 S. Ct. 1682, 1690 (1980). Interrogation is defined as “express
`questioning” or its “functional equivalent,” meaning any activity by law enforcement officers
`“reasonably likely to elicit an incriminating response.” Id. “In determining whether a suspect
`was being interrogated, the critical inquiry is whether in light of both the context of the
`questioning and the content of the question, the statements made by the officers were of the
`sort that the police should know [are] reasonably likely to evoke an incriminating response.”
`United States v. LaPierre, 998 F.2d 1460, 1466 (9th Cir. 1993) (internal quotation omitted)
`Here, Mr. Qayyum was clearly interrogated. The agents repeatedly tried to get
`Mr. Qayyum to incriminate himself and agree to cooperate with them. And, in an attempt to
`get inculpatory information from him, the agents repeatedly told him that he was going to jail.
`These facts alone constitute interrogation. See United States v. Montana, 958 F.2d 516, 518 (2d
`Cir. 1992) (functional equivalent of interrogation to tell suspect that any cooperation would be
`brought to prosecutor’s attention); United States v. Green, 541 F.3d 176, 187 (3d Cir. 2008)
`(functional equivalent of interrogation when police showed defendant video depicting
`defendant engaged in criminal activity); United States v. Chavira, 614 F.3d 127, 133 (5th Cir. 2010)
`(functional equivalent when police asked defendant questions about defendant’s immigration
`status, which they already knew, solely for the purpose of eliciting incriminating information);
`United States v. Hernandez, 476 F.3d 791, 796 (9th Cir. 2007) (functional equivalent when officer
`asked defendant, “What’s this?” when officer thought package contained drugs).
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`Case No. 18-CR-04683-GPC
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`MOHAMMED ABDUL QAYYUM’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
`OF MOTION TO SUPPRESS STATEMENTS AND HOLD AN EVIDENTIARY HEARIN
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`In sum, Mr. Qayyum was subjected to the equivalent of custodial interrogation, and
`Miranda warnings were required be given before any questioning. It is undisputed that Miranda
`warnings were not given, so Mr. Qayyum’s statements must be suppressed. See Declr. ¶ 29.
` This Court should suppress Mr. Qayyum’s statements as involuntary.
`Further, Mr. Qayyum’s statement were involuntary and inadmissible on this independent
`basis. An involuntary statement by a defendant violates the Due Process Clause of the Fifth
`Amendment, Colorado v. Connelly, 479 U.S. 157, 163 (1986), and is therefore inadmissible,
`Blackburn v. Alabama, 361 U.S. 199, 208 (1960).
`In order to be voluntary, a confession must be “the product of a rational intellect and a
`free will.” Blackburn, 361 U.S. at 208. “Both physical and psychological pressure can lead to
`involuntary confessions.” United States v. Miller, 984 F.2d 1028, 1030-31 (9th Cir. 1993) (citing
`Blackburn, 361 U.S. at 206). “The test is whether the confession was ‘extracted by any sort of
`threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the
`exertion of any improper influence.’” Hutto v. Ross, 429 U.S. 28, 30 (1976) (quoting Bram v.
`United States, 168 U.S. 532, 542-43 (1897)).
`A confession is involuntary whether coerced by physical intimidation or psychological
`pressure. Townsend v. Sain, 372 U.S. 293, 307 (1963), overruled on other grounds in Keeney v. Tamayo-
`Reyes, 504 U.S. 1 (1992). As the Ninth Circuit recognized in United States v. Tingle, “[l]aw
`enforcement conduct which renders a confession involuntary does not consist only of express
`threats so direct as to bludgeon a defendant into failure of the will. Subtle psychological
`coercion suffices as well, and at times more effectively, to overbear a rational intellect and a
`free will.” 658 F.2d 1332, 1335 (9th Cir. 1981) (internal quotations omitted). As the Supreme
`Court noted in Malloy v. Hogan, “[w]e have held inadmissible even a confession secured by so
`mild a whip as the refusal, under certain circumstances, to allow a suspect to call his wife until
`he confessed.” 378 U.S. 1, 7 (1964) (citing Haynes v. Washington, 373 U.S. 503 (1963)). It is the
`government’s burden to prove that a confession is voluntary by a preponderance of the
`evidence. Lego v. Twomey, 404 U.S. 477, 489 (1972).
`An agent’s promise to communicate a suspect’s cooperation to the prosecutor does not,
`Case No. 18-CR-04683-GPC
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`MOHAMMED ABDUL QAYYUM’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
`OF MOTION TO SUPPRESS STATEMENTS AND HOLD AN EVIDENTIARY HEARIN
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`in itself, render a subsequent confession involuntary, but a suspect’s will may be overborne if
`this promise is accompanied by threats or other coercive practices. See United States v. Harrison,
`34 F.3d 886, 891-92. (9th Cir. 1994). In Harrison, an officer informed an arrestee that she was
`facing up to twenty years of imprisonment and asked her whether she thought it would be
`better if her sentencing judge were told that she had cooperated with police or that she had not
`cooperated. The suspect then confessed. See id. at 890. The Ninth Circuit held that “there are
`no circumstances in which law enforcement officers may suggest that a suspect’s exercise of
`the right to remain silent may result in harsher treatment by a court or prosecutor.” Id. at 891-
`92 (emphasis in original).
`Tingle is also comparable. First, in Tingle, the agents accused the defendant of lying and
`became more aggressive and threatening when the defendant continue to deny the allegations
`the agents were making. Tingle, 658 F.2d at 1335. Likewise, in this case, the agents alleged
`numerous instances of misconduct, and, when denied by Mr. Qayyum, the agents became more
`threatening. Second, in Tingle, the agents informed the defendant that she could go to jail for
`over 25 years and be separated from her young child. Id. Likewise, the agents here told
`Mr. Qayyum that he could go to jail for twenty years and would be away from his family. Third,
`in Tingle, the agents advised the defendant the benefits of cooperating and that they would
`bring that cooperation to the attention of the prosecutor. However, they said that if she did
`not, they would inform the prosecutor that she was stubborn and hard-headed. Id. at 1334.
`Likewise, in this case, the agents told Mr. Qayyum that they were trying to help him and that if
`he continued to deny the allegations being made by the agents, he could do twenty years in jail.
`In determining whether a defendant’s will was overborne in a particular case, the court
`should also consider statutory factors laid out in 18 U.S.C. § 3501(b): “(1) the time elapsing
`between arrest and arraignment of the defendant; (2) whether the defendant knew the nature
`of the offense with which he was charged at the time of making the confession; (3) whether
`the defendant was aware that he was not required to make any statement and that any such
`statement could be used against him; (4) whether the defendant had been advised of his right
`to counsel; and (5) whether counsel was present at the time of defendant's confession.” Here,
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`Case No. 18-CR-04683-GPC
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`MOHAMMED ABDUL QAYYUM’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
`OF MOTION TO SUPPRESS STATEMENTS AND HOLD AN EVIDENTIARY HEARIN
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`Mr. Qayyum did not know and was never told of the nature of the offenses for which he was
`being investigated by the FBI, he was not aware and was never told that he was not required
`to make any statement and that any statement could be used against him, he did not know and
`was never advised of his right to counsel, and no attorney was present during the FBI’s
`interrogation.
`Moreover, the agents’ conduct here is the same type of “subtle psychological coercion”
`that was found to be present in both Harrison, 34 F.3d at 890-92, and Tingle, 658 F.2d at 1335.
`This Court should likewise find that the agents’ conduct rendered Mr. Qayyum’s responses
`involuntary and suppress his purported statements. Until the government meets its burden of
`showing that Mr. Qayyum’s statements were voluntary, they must be suppressed as involuntary.
` This Court should hold an evidentiary hearing.
`If the government opposes this motion, this Court must make factual determinations
`regarding Mr. Qayyum’s alleged statements on September 9, 2016. Specifically, this Court must
`determine whether the agents violated Miranda while questioning Mr. Qayyum, and, under 18
`U.S.C. § 3501(a), whether Mr. Qayyum’s statements were voluntarily given prior to their
`admission into evidence. Where factu