CRIMINAL LAW - DELIBERATE USE OF TWO-STEP INTERROGATION METHODS ARE PERMISSIBLE WHEN APPROPRIATE CURATIVE MEASURES ARE EMPLOYED - UNITED STATES V. KHWEIS, 971 F.3D 453 (4TH CIR. 2020).

• Author: Coppola, Rebecca

The Fifth Amendment's Self-Incrimination Clause asserts that individuals cannot be compelled to incriminate themselves. (1) The Supreme Court has endeavored to protect this guarantee by requiring that officers give criminal suspects "Miranda warnings" prior to custodial interrogation. (2) In recent years, courts have grappled with the legality of the "two-step interrogation," where officers first question a suspect unwarned, and then later provide the suspect with the proper Miranda warnings and repeat the interrogation. (3) In United States v. Khweis, (4) the Fourth Circuit Court of Appeals, reviewing a denied motion to suppress, evaluated the admissibility of a Mirandized confession elicited during the second phase of a two-step counterterror interrogation. (5) The Court affirmed the denied motion, finding that even if initial interviewers deliberately avoided Mirandizing the defendant to evade Miranda, the second team of interviewers employed appropriate curative measures, which created the effect of a distinctly new interview and rendered the defendant's Miranda waiver and subsequent confessions voluntary and admissible. (6)

The defendant, Mohamad Jamal Khweis, left the United States in December 2015 to travel to territory controlled by the Islamic State of Iraq and Syria (ISIS) to join ISIS and train with ISIS fighters. (7) Soon after his arrival, on March 14, 2016, Kurdish Peshmerga fighters captured Khweis and brought him to an Iraqi detention center in Erbil, Iraq. (8) While at the detention center, Khweis frequently received U.S.-affiliated visitors including eleven visits from Federal Bureau of Investigation (FBI) Assistant Legal Attache for Iraq, Michael Connelly, who facilitated the first phase of Khweis's interrogation. (9) Due to Connelly's main focus of obtaining intelligence information and the Kurds' hesitancy to permit Connelly access to Khweis, during their first meeting Connelly interrogated Khweis without first administering Miranda, and continued this practice in all subsequent interrogations. (10) When Khweis expressed a desire to be extradited back to the United States, Connelly informed Khweis that his extradition was dependent on his honesty; Khweis then redacted previous untruthful narratives, which caused Connelly to restart the interview process multiple times. (11) Connelly initially met with Khweis daily, however, the interviews were eventually conducted days apart, and on the date of Connelly's last interview with Khweis, Connelly provided no notice that he had finished his series of interviews. (12)

On April 20, FBI Special Agents Brian Czekala and Victoria Martinez began the second step of the two-step interrogation, which focused on building a criminal case against Khweis. (13) Czekala and Martinez did not have any information regarding Khweis's prior intelligence interviews, and while Connelly had communicated his confidence to other FBI agents regarding Khweis being "tee'd [sic] up" for the next set of interviewers, Connelly did not have meaningful contact with the agents conducting phase two of Khweis's interrogation. (14) Before speaking with Khweis, Czekala and Martinez issued Miranda warnings, obtained a written waiver, and informed Khweis that his parents had retained legal counsel for him in the United States. (15) The agents met with Khweis at the detention center on two additional occasions, each time re-Mirandizing him and securing numerous inculpatory statements. (16) On May 11, using statements Khweis made during interviews with Czekala and Martinez as key evidence, the government filed a complaint charging Khweis with both conspiring to provide and providing material support or resources to a designated foreign terrorist organization, as well as possessing, using, and carrying firearms during and in relation to a crime of violence. (17)

Before trial, Khweis sought to have the evidence obtained during his interviews with Czekala and Martinez suppressed, alleging that the FBI deliberately evaded Miranda and obtained a confession in violation of his Fifth Amendment right against self-incrimination. (18) Both parties acknowledged the use of a two-step interrogation, but, despite emails sent by Connelly alluding to his reasoning for interviewing Khweis without Miranda, the lower court found that the FBI did not deliberately undertake a two-step interrogation to purposefully upend Miranda. (19) In reaching this conclusion, the district court focused on the unique counterterrorism context and Connelly's subjective motivation to initially interview Khweis for intelligence information. (20) Following a suppression hearing, the district court denied Khweis's motion to suppress, finding that the agents complied with Miranda. (21) On appeal, the Fourth Circuit examined whether the FBI's use of a two-step interrogation process violated the defendant's Fifth Amendment right against self-incrimination, holding that in light of Khweis's circumstances--and regardless of whether interviewers deliberately intended to diminish the effectiveness of subsequent Miranda warnings--the U.S. government undertook sufficient curative measures to ensure a reasonable person in the defendant's position would have understood the warnings, thereby creating a distinctly new environment. (22)

In the 1966 seminal case, Arizona v. Miranda, the Supreme Court formally recognized the possibility for coercive interrogation methods to undermine a criminal suspect's Fifth Amendment right against self-incrimination. (23) As a result, the Miranda Court imposed a procedural safeguard by way of mandating criminal suspects be given certain warnings prior to custodial interrogation and further, created a bright-line rule rendering statements obtained from unwarned questioning inherently coerced and inadmissible. (24) However, in the years following the landmark decision, the Supreme Court carved out numerous exceptions to Miranda. (25) One such controversial Miranda exception allowed courts to admit a defendant's inculpatory statements obtained following unwarned questioning and a subsequent midstream warning. (26) The Supreme Court first addressed the effect of midstream Miranda warnings relating to admissibility in Oregon v. Elstad. (27) Focusing its decision on voluntariness and the interrogating officer's good faith error, the Supreme Court moved away from Miranda's absolute presumption that statements obtained in violation of Miranda are inherently coerced, and found that a non-coercive, unwarned question would not affect any subsequent confessions reiterated following proper Miranda warning. (28)

The Supreme Court addressed an intentional evasion of Miranda in Missouri v. Seibert, which involved the deliberate use of two-step interrogation as a strategic tactic employed by interrogators to elicit a defendant's confession. (29) Seibert developed an acceptable mechanism for curing purposeful Miranda violations, and the Siebert Court's divided majority yielded two tests: a broader test, featured in Justice Souter's plurality opinion and a narrower test, featured in Justice Kennedy's concurring opinion. (30) The split opinion caused a circuit split with Justice Kennedy's test followed by the vast majority of circuits. (31) The Seibert Court found the initial omission of Miranda warnings insufficiently cured and ultimately granted suppression, however, courts have continually demonstrated a willingness to find statements made during a two-step interrogation admissible. (32)

Although the use of two-step interrogation originated in the domestic criminal context, it has increasingly been employed in the counterterrorism context. (33) Since the terrorist attacks against the United States on 9/11, the United States has varied its policies regarding procedural rights of suspected terrorists and procedures for interrogating suspected terrorists. (34) Agencies tasked with investigating and interviewing suspected terrorists, including the FBI and the Department of Justice, have often justified delaying Miranda by various means, such as by utilizing two-step interrogation. (35) Courts have only recently started to examine the use of two-step interrogations in counterterrorism contexts, and there is currently no Supreme Court precedent specifically addressing these circumstances. (36) As a result, courts lack specific guidance on how the counterterrorism context affects the Seibert analysis, leaving courts to compare counterterror cases with domestic criminal case law. (37)

In United States v. Khweis, the Fourth Circuit of Appeals considered whether the FBI's use of a two-step interrogation violated Miranda and warranted suppression. (38) The Court's majority applied Justice Kennedy's two-prong Seibert test, which required first analyzing whether the FBI's failure to administer Miranda was deliberate, and subsequently, if any deliberate Miranda violations were sufficiently cured. (39) The majority concluded it did not need to determine if Connelly's lack of Miranda warnings was deliberate because, when considering the two interrogations in their totality, the Court found the actions taken by the interrogating officers sufficient to render each interview phase distinct. (40) Thus, the Court's threshold issue concerned whether curative measures undertaken by the FBI agents to distinguish phase one and two were sufficient to create two separate interviews, rendering the two interview phases distinct to a reasonable person in Khweis's position. (41) In concluding the interviewers sufficiently cured any potential Miranda violations, the Court examined various factors including the break in time and place between the two phases, the separation of personnel, and statements that phase two interviewers made to Khweis regarding starting "anew." (42)

The Court's dissenting opinion also applied Justice Kennedy's two-prong Seibert test, but reached the opposite conclusion, finding that the interviewers did not adopt...