Monday, August 31, 2020

Second Post-Miranda Interview, After Initial Interview Without Warnings, Not a Violation

US v. Khweis: Khweis, an American citizen, was captured by Kurdish forces battling ISIS and taken to a detention center in Iraq. There an FBI agent questioned Khweis “to gather intelligence about ISIS,” but did not provide him with Miranda warnings. Ten days later, a separate team of FBI agents did a series of interviews with Khweis, advising him of his Miranda rights “before each interview.” He waived his rights and made inculpatory statements that helped form the basis of an indictment charging him with providing material support to ISIS and related charges. Kwheis was convicted at trial and sentenced to 240 months in prison.

On appeal, a divided Fourth Circuit affirmed Khweis’ conviction, rejecting his argument that his inculpatory statements from the second set of interviews should have been suppressed. The court concluded that even if the agents intentionally employed a “two-step” strategy, the second group of agents undertook “sufficient curative measures to ensure that a reasonable person . . . would understand the import and effect of the Miranda warnings and waiver.” The court noted that the agents who conducted the second set of interviews “were walled off from the intelligence team” and had not received any information obtained during the first interview. In addition, the second set of interviews were conducted in a different location and informed Khweis not only that he had a right to counsel, but that his family had retained counsel in the United States.

Judge Floyd dissented, arguing that the measures undertaken did not sufficiently apprise Khweis of the import and effect of Miranda warnings and that the agents had intentionally employed the two-step process.

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