Case 3:18-cr-04683-GPC Document 180 Filed 06/12/20 PageID.1904 Page 1 of 8
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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
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` jriddet@ bienertkatzman.com
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` wbernstein@ bienertkatzman.com
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`Attorneys for Mohammed Abdul Qayyum
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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`UNITED STATES OF AMERICA,
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`v.
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`MOHAMMED ABDUL QAYYUM,
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`Plaintiff,
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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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`REPLY IN SUPPORT OF MOTION TO
`SUPPRESS STATEMENTS AND HOLD
`AN EVIDENTIARY HEARING
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`MOHAMMED ABDUL QAYYUM’S REPLY IN SUPPORT OF MOTION TO SUPPRESS STATEMENTS
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`Case 3:18-cr-04683-GPC Document 180 Filed 06/12/20 PageID.1905 Page 2 of 8
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`I.
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`Introduction.
`FBI Agents Chabalko and Pearson interrogated Mr. Qayyum at his home on September
`9, 2016. They did not video record this interaction. They did not audio record this interaction.
`According to AUSA Melanie Pierson, no notes exist from this interaction. At the time this
`motion was filed, the only government recollection of this interrogation disclosed to defense
`counsel was captured in Agent Chabalko’s 302 Report.1
`After filing this motion, on June 1, 2020, the government disclosed Agent Chabalko’s
`October 31, 2018 testimony about this interaction. On June 9, 2020, the government disclosed
`additional information, subject to a restrictive protective order, that bears directly on this
`motion. Mr. Qayyum has since asked whether any other relevant discovery exists, but as of
`the time of this filing, the government has yet to answer.
`In his May 15, 2020 motion, Mr. Qayyum demonstrated that his answers to the FBI’s
`interrogation on September 9, 2016 should be suppressed under Miranda and as involuntary.
`Motion to Suppress Statements and Hold an Evidentiary Hearing, Dkt. 162-1 (“Motion”). The
`government agrees with Mr. Qayyum as to both the well-defined body of law that applies to
`custodial interrogations and involuntary statements and also that an evidentiary hearing is
`appropriate. Government Opposition to Motion to Suppress, Dkt. 174 (“Opp’n”) at 2, 4-5, 8,
`11. The government does not dispute that the interrogation, as described by Mr. Qayyum,
`would warrant suppression of his statements both under Miranda and also as involuntary.
`Instead, through the declaration of just one of the interrogating agents, the government simply
`disputes certain critical facts. Declaration of FBI Special Agent Charles W. Chabalko IV, Dkt.
`174-1 (“Chabalko Decl.”). To decide Mr. Qayyum’s motion and determine what occurred, this
`Court must hear testimony from and the judge the credibility of relevant witnesses.
`II. Mr. Qayyum’s statements were taken in violation of Miranda.
`Mr. Qayyum argued that his statements must be suppressed because they were taken in
`violation of Miranda v. Arizona, 384 U.S. 436, 444 (1966). See Motion at 8-11. Mr. Qayyum
`explained how the atmosphere on September 9, 2016 was dominated by federal agents in
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`1 See ADCONION-DISC02-REPORTS-000609-000610.
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`Case 3:18-cr-04683-GPC Document 180 Filed 06/12/20 PageID.1906 Page 3 of 8
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`control of the interrogation and how an objective analysis of the facts indicate that Mr. Qayyum
`reasonably believed that he was confined and in custody. Id. Further, it is undisputed that the
`agents failed to tell Mr. Qayyum, who is not a citizen and had never previously had any law
`enforcement contact, that he was a target of their investigation, could refuse to speak to them,
`could consult an attorney before speaking to them, or could refuse to allow them to enter his
`apartment. See, e.g., Declaration of Mohammed Abdul Qayyum, Dkt. 162-2 (“Qayyum Decl.”),
`¶ 9. It is similarly undisputed that the agents never read Mr. Qayyum any Miranda warnings.
`See Motion at 11-12; Qayyum Decl., ¶ 29.
`The government does not dispute that the interrogation, as described by Mr. Qayyum,
`would constitute a violation of his rights. Rather, the government’s opposition rests on the
`position that no Miranda violation occurred because Mr. Qayyum was not in custody; this
`position hinges entirely on crediting the facts the government asserts. Opp’n at 6-8. It claims
`that the agents were invited in as opposed to “demanding entry pursuant to a search warrant”
`(when no search warrant existed), “did not restrain Qayyum with force or by threats” and
`“spoke in a professional tone,” “never isolated” him, and “at some point . . . offer[ed] Qayyum
`the option to stop the discussion and go to work.” Opp’n at 6; Chabalko Decl., ¶¶ 3, 4, 5, 6,
`7. Because of these four contested factual assertions, the government argues that Mr. Qayyum
`was not in custody and no Miranda warnings were required. Id.
`Mr. Qayyum flatly contradicts each of the government’s predicate facts. See, e.g., Motion
`at 7 (describing how Agent Chabalko made Mr. Qayyum aware of his firearm as the
`conversation escalated); Motion at 7, 10 (describing how agents repeatedly aggressively told
`Mr. Qayyum that he was guilty of what they accused him of, was going to jail, and would be
`away from his family); Qayyum Decl., ¶¶ 17, 18, 22, 26 (same); id., ¶¶ 14, 18 (describing agents’
`escalating voices and demeanor).
`To decide Mr. Qayyum’s motion, the Court must hold an evidentiary hearing and
`evaluate testimony from relevant witnesses.
`III. Mr. Qayyum’s statements were involuntary.
`Mr. Qayyum additionally argued that his statements were the product of the agents’
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`MOHAMMED ABDUL QAYYUM’S REPLY IN SUPPORT OF MOTION TO SUPPRESS STATEMENTS
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`psychological pressure and thus involuntary. Motion at 12-14; see also Hutto v. Ross, 429 U.S.
`28, 30 (1976); Malloy v. Hogan, 378 U.S. 1, 7 (1964); Townsend v. Sain, 372 U.S. 293, 307 (1963),
`overruled on other grounds in Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992); United States v. Harrison, 34
`F.3d 886, 891-92 (9th Cir. 1994); United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981)
`(“Law 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.” (internal quotations omitted); United States v. Miller, 984 F.2d 1028, 1030-31 (9th Cir.
`1993). Mr. Qayyum established that the agents exerted subtle psychological coercion through
`their conduct and speech. Motion at 12-14; see also, e.g., Qayyum Decl., ¶¶ 7, 8, 9, 10, 14, 15,
`16, 17, 18, 22, 23, 24, 25, 27, 30. He further explained that, like in Tingle, the agents here became
`increasingly aggressive and threatening when he denied their allegations, told him that he would
`be away from his family, and that if he continued to deny their allegation he would be in jail
`for twenty years. Motion at 13; Qayyum Decl., ¶¶ 22, 26. He also explained that, like in
`Harrison, the agents here told him he would be in jail for twenty years and away from his family
`if he did not admit to what they alleged and agree to help them. Id.
`The government does not dispute that the interrogation, as experienced by Mr. Qayyum,
`would render his statements involuntary. Rather, again, the government’s opposition is
`premised on its version of the facts. Opp’n 8-11. The government does not attempt to address
`each incidence of psychologically coercive statements and actions that Mr. Qayyum described.
`Opp’n at 8-9 (selectively summarizing just three examples of the agents’ psychological
`coercion). Instead, the government disputes that the agents told Mr. Qayyum that he could
`face twenty years in jail or removal from his family. Id. at 9; Chabalko Decl., ¶ 8. The
`government also contends that Mr. Qayyum exercised free will and rational intellect because
`he decided how to respond to questions and because he later responded to Agent Chabalko’s
`communications before engaging an attorney. Opp’n at 8-9; Chabalko Decl., ¶¶ 8, 9, 10. But
`the government fails to explain how either of these assertions overcome the agents’
`psychological coercion during the September 9, 2016 interview. Finally, while the government
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`Case 3:18-cr-04683-GPC Document 180 Filed 06/12/20 PageID.1908 Page 5 of 8
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`attempts to distinguish Tingle and Harrison, this again depends on disbelieving Mr. Qayyum’s
`sworn declaration and instead crediting the government’s contested factual assertions.
` The government does meet its burden to establish that Mr. Qayyum’s statements were
`voluntary by disputing selective facts. See Lego v. Twomey, 404 U.S. 477, 489 (1972). To decide
`Mr. Qayyum’s motion, the Court must hold an evidentiary hearing and evaluate the testimony
`and credibility of relevant, percipient witnesses.
`IV.
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`In advance of an evidentiary hearing, the Court should compel the government
`to disclose requested discovery and allow Mr. Qayyum an opportunity to be
`heard on the confidential discovery.
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`In advance of the evidentiary hearing, Mr. Qayyum requests: (1) any additional discovery
`related to the government’s interrogation of Mr. Qayyum; (2) any other statements, recordings,
`reports, or writings, including but not limited to any documents, notes, reports, recordings,
`messages, voicemails, emails, calendars, grand jury testimony, etc., related to the government’s
`interrogation of Mr. Qayyum; and (3) a government response to the question of whether the
`FBI, government, or agents ever had any written notes of their interrogation of Mr. Qayyum,
`including but not limited to any documents, notes, reports, recordings, messages, voicemails,
`emails, calendars, grand jury exhibits, etc., and (3a) if so, when those notes ceased to exist and
`why.
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`Mr. Qayyum initially requested discovery related to the FBI’s interrogation via email
`correspondence to the government beginning on January 14, 2020. On January 15, 2020, the
`government responded that the interview was not recorded, the report names all persons
`present, no documentation regarding contact with Mr. Qayyum other than the September 6,
`2016 interview had been found, and no rough notes were located. On January 16, 2020, the
`government again confirmed that no rough notes of the interview exist, but informed that it
`did discover additional communications between the FBI and Mr. Qayyum (see Chabalko Decl.,
`Exhibit A). On the basis of this information and the discovery disclosed, Mr. Qayyum filed
`his motion on May 15, 2020.
`Subsequent to filing his motion, on June 1, 2020 the government first disclosed sworn
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`Case 3:18-cr-04683-GPC Document 180 Filed 06/12/20 PageID.1909 Page 6 of 8
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`testimony by Agent Chabalko on October 31, 2018 describing his September 9, 2016
`interrogation of Mr. Qayyum. That same day, Mr. Qayyum specifically requested the above
`three categories of additional discovery and information. As of this filing, the government has
`yet to respond to these three requests. Therefore, Mr. Qayyum moves the Court to compel
`the disclosure of this material prior to determining the motion or holding an evidentiary
`hearing.
`Further, the government disclosed “confidential” additional discovery highly relevant to
`this motion on June 9, 2020.2 Prior to disclosing this information, the government filed an ex
`parte, in camera application to redact the discovery and obtain a protective order. The court
`granted the government’s application and imposed a narrow and unduly restrictive protective
`order on June 8, 2020. The protective order prevents Mr. Qayyum from sharing the documents
`or their contents with investigators, witnesses, or the broader defense group, and thereby
`severely limits Mr. Qayyum’s ability to investigate the government’s alternate facts as put forth
`in its Opposition and Chabalko’s Decl., question appropriate witnesses, and prepare for a
`motion hearing or evidentiary hearing. Unless the protective order is modified, Mr. Qayyum
`is unable fully argue this motion and vindicate his rights. Thus, prior to the Court hearing
`argument on or deciding this motion, and prior to any evidentiary hearing, Mr. Qayyum
`requests an opportunity to be heard regarding both this discovery’s redactions as well as the
`protective order’s restrictions.
`V.
`Conclusion.
`As indicated above, material factual disputes remain regarding the issue of custody,
`voluntariness, and government coercion. To decide Mr. Qayyum’s motion, this Court should
`hold an evidentiary hearing and receive testimony from and judge the credibility of relevant
`witnesses. In advance of deciding this motion, this Court should also order the government
`to provide the requested discovery and allow Mr. Qayyum an opportunity to be heard regarding
`the protected discovery and associated protective order.
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`Mr. Qayyum believes that Dkts. 171-173 contain the government’s ex parte, in camera
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`motion for a protective order and related Exhibits A and B, but has no way to confirm.
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`MOHAMMED ABDUL QAYYUM’S REPLY IN SUPPORT OF MOTION TO SUPPRESS STATEMENTS
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`Case 3:18-cr-04683-GPC Document 180 Filed 06/12/20 PageID.1910 Page 7 of 8
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`Respectfully submitted,
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`BIENERT | KATZMAN PC
`s/ Whitney Z. Bernstein
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`Thomas H. Bienert, Jr.
`James Riddet
`Whitney Z. Bernstein
`Attorneys for Mohammed Abdul Qayyum
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`Dated: June 12, 2020
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`Case 3:18-cr-04683-GPC Document 180 Filed 06/12/20 PageID.1911 Page 8 of 8
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`CERTIFICATE OF SERVICE
`Counsel for Defendant Mohammed Abdul Qayyum certifies that the foregoing pleading
`has been electronically served on the following parties by virtue of their registration with the
`CM/ECF system:
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`David W. Wiechert
`Jessica C. Munk
`William J. Migler
`Attorneys for Jacob Bychak
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`Randy K. Jones
`Attorney for Mark Manoogian
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`Gary Lincenberg
`Naeun Rim
`Attorneys for Petr Pacas
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`Melanie Pierson
`Sabrina Feve
`Randy Grossman
`Assistant U.S. Attorneys
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`Dated: June 12, 2020
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`Respectfully submitted,
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`BIENERT | KATZMAN PC
`s/ Whitney Z. Bernstein
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`Thomas H. Bienert, Jr.
`James Riddet
`Whitney Z. Bernstein
`Attorneys for Mohammed Abdul Qayyum
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