TERRORISM TRIALS & CULTURAL EXPERTS: Trial Court excludes foreinsic linguist expert testimony

A trial court judge in Ohio has granted the government's motion to exclude testimony from three defense experts, including the testimony of a forensic linguist. 2008 U.S. Dist. LEXIS 38287, United States of America, Plaintiff v. Mohammed Zaki Amawi, et al., Defendants
Case No. 3:06CR719, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, WESTERN DIVISION

The defendants are charged with having conspired to kill and maim American service personnel in Iraq, provide material support and resources to persons seeking to kill U.S. Nationals outside the United States, and some defendants are charged with having unlawfully distributed a "how to" video and manual relating to bomb making. The trial court had also excluded some portion of the government expert's testimony.

Regarding the testimony of a forensic linguist, the Court found that "Roger W. Shuy, Ph.D., is Emeritus Professor of Linguistics at Georgetown University. He founded and then for thirty years directed Georgetown's sociolinguistic program. According to his Preliminary Report, Prof. Shuy is familiar with and able to apply "standard and accepted analytical procedures to discover and analyze language structure and principles."With regard to this case, Prof. Shuy engaged in "discourse analysis," based on a review of the conversations that Griffin recorded. This analysis encompassed: 1) topic analysis; 2) response analysis; and 3) "conversation strategy analysis."The first two of these analyses -- topics and responses -- as presented in Prof. Shuy's report, constitute little, if any, more than a recitation of what is readily discernible in the recorded conversations.As to topics, Prof. Shuy notes the topics El-Hindi raises and their recurrent incidence, the physical setting in which he raises them, and the frequent disconnect between what El-Hindi and Griffin want to talk about.Prof. Shuy's response analysis likewise consists, in essence, of a recapitulation of readily ascertainable aspects of how El-Hindi and Griffin interacted, or failed to interact, during their various encounters and conversations.Thus, the first two segments of the proposed testimony provide nothing beyond that which the jury can hear for themselves, or from which counsel can urge them to draw the inferences they seek to have the jurors draw.

The same is true with regard to the remaining segment of Prof. Shuy's proposed testimony -- "conversation strategy analysis." According to Prof. Shuy's report, "[s]peakers use language strategies consciously or unconsciously in their conversations with others." The principal such strategy emphasized in Prof. Shuy's report is ambiguity, particularly with the term "training." But, as Prof. Shuy observes, the recorded conversations provide a basis on which El-Hindi's counsel can argue that his "various referential meanings of 'training' remain constant even though Mr. Griffin tries very hard to convert them to his own meaning."The jury will be as able, especially when guided by the arguments of counsel, to reach the same conclusions [to the extent supported by the evidence] about Griffin's "conversational strategies" as contained in Prof. Shuy's proposed report, despite its semi-academic dressage. The jurors will not need the aid of his testimony to perceive and understand the significance of the evidence and arguments of counsel.Based on his understanding of Griffin's deployment of these strategies, Prof. Shuy's report offers several conclusions about the ways in which Griffin's mode of conversing with El-Hindi impaired commonality of understanding, especially with regard to the term "training."According to him, an undercover agent -- presumably, he means, an experienced and competent undercover agent seeking and generally able to obtain clear expressions of illegal intent on the part of his or her target -- will: 1) let the targets speak freely; 2) failing that to elicit useful evidence, offer hints of illegality to evoke an incriminating response; and 3) if still not successful, speak directly and unambiguously.As Prof. Shuy points out, Griffin did not follow this pattern. He was, as he himself admits, "proactive," often dominating the conversation and "talking over" other speakers. Aside from his admissions, the recordings speak for themselves with regard to the accuracy, or lack thereof, of this self-assessment of how he sought to accomplish his "information gathering" goals.Each of the points made in Prof. Shuy's conclusions can be made readily by El-Hindi's counsel: namely, that Griffin did not let El-Hindi talk freely, which is how one participant in a conversation typically finds out what another has on his or her mind, means, and wants to communicate. Counsel can point out that Griffin never once asked, "What do you want to do" or "What would you like me to do," much less, "What sort of 'training' are you talking about?" Counsel can point out the extent to which Griffin, rather than El-Hindi, raised and, in effect, sponsored certain topics, and sought to direct the conversations in ways other than they might, perhaps, have taken but for how he went about his work. They can, as well, point out where and how, in their view, El-Hindi was inattentive, distracted, preoccupied, unresponsive and/or uncomprehending. Counsel can argue that Griffin diminished the likelihood of comprehension, and thus conspiratorial agreement, by the strategies that he was employing.The fact that Griffin's use of those strategies was unconscious, rather than deliberate or directed by the F.B.I., does not matter. The effect on El-Hindi's understanding of what Griffin was talking about was the same regardless of whether Griffin was merely inarticulate and unaware of how he was employing certain strategies, or knew exactly what he was doing in that regard. To the extent the recordings support Prof. Shuy's observations and conclusions, they show what, whether conscious or not, was going on, and further expert commentary is not necessary. I conclude, accordingly, that El-Hindi's counsel, to make their points, and the jury, to understand the evidence and those points, do not need Dr. Shuy's assistance.Other courts have found testimony of the sort proffered here, including testimony by Prof. Shuy, not to be admissible for similar reasons.

Thus, in US v Evans, (11th Cir. 1990) the court, confirming the trial court's disallowance of Prof. Shuy's testimony, stated:
In deciding not to admit the testimony, the court concluded that while a jury in an appropriate case might be aided by testimony from a linguistic expert, the case at bar was not appropriate for such testimony. The court based this conclusion on several grounds. First, it noted that the recordings and transcripts that formed the basis of Dr. Shuy's conclusions were in evidence, had been played and read in court, and could be played and read again by the jury during deliberations. The court also found that the expert's testimony would not assist the jury because the subject matter of the testimony, conversation, was one which could be expected to be within the general knowledge of jurors. Finally, the court found that the testimony could be confusing and misleading to the jurors because it took matters out of context and, in some instances, was in the nature of conclusions regarding the appropriate interpretations to make of the recorded conversations.We hold that the district court acted within its discretion in excluding Dr. Shuy's testimony.

Shuy would have testified as to Kupau's intent based on the expert's analysis of an ordinary, brief conversation from aspects such as linguistics, discourse analysis, conversational analysis, structural analysis, topic recycling, topic clustering, response analysis, referencing analysis, language function analysis, and contrastive analysis. Such testimony was aimed not at explaining technical terms used in the conversation . . . . Instead, this expert sought to interpret language in ordinary usage, which the district court found would have confused, not assisted, the jury."

FOREIGN NATIONALS DETAINED UPON ENTRY TO US

The New York Times reports that an Italian national who was detained and later sent to an immigration jail in West Virginia, whose only purpose in coming to the United States was to visit an American woman he met in Europe. Italy is one of twenty-seven countries from which visitors are not required to obtain visas in advance of entry.

"He was a carefree Italian with a recent law degree from a Roman university. She was “a totally Virginia girl,” as she puts it, raised across the road from George Washington’s home. Their romance, sparked by a 2006 meeting in a supermarket in Rome, soon brought the Italian, Domenico Salerno, on frequent visits to Alexandria, Va., where he was welcomed like a favorite son by the parents and neighbors of his girlfriend, Caitlin Cooper.

But on April 29, when Mr. Salerno, 35, presented his passport at Washington Dulles International Airport, a Customs and Border Protection agent refused to let him into the United States. And after hours of questioning, agents would not let him travel back to Rome, either; over his protests in fractured English, he said, they insisted that he had expressed a fear of returning to Italy and had asked for asylum. "

“Now an innocent European, who has never broken any laws, committed any crimes, or overstayed his visa, is being held in a county jail,” Ms. Cooper wrote in an e-mail message to The New York Times last Wednesday, prompting a reporter’s inquiries."

ASK THE EXPERT: IMMIGRATION ATTORNEY JOHN OVINK

The Editor knows that one of the biggest frustrations for a criminal defense attorney, is helping a client avoid removal from the United States. In spite of pulling rabbits out of the hat in resolving the criminal case, a client could face deportation. The Editor asked immigration attorney and expert John Ovink "Whats a criminal defense attorney to do?

Background.

John was born and raised in The Netherlands. He lived and worked in Africa and Asia for 5 years and in 1988 sailed across the Atlantic. He personally experienced the lengthy, and difficult process of immigration before he was allowed to live, work, and study in the United States.

John received his Juris Doctor, Cum Laude from the University of Miami, and in October, 1996, John opened his law office in Tampa, Florida. He concentrates his practice exclusively on immigration law. His clients live in 12 States, and originate from over 50 countries.


Q: Are criminal defense attorneys able to analyze the potential immigration consequences for their clients, just by looking at federal statutes?

Criminal attorneys who specialize in immigration law and have intimate knowledge of the Immigration Act, as well as immigration case law, would certainly be able to do so. However, because the immigration act uses their own definitions of, for instance, a “conviction” or an “aggravated felony”, it becomes increasingly more complicated to analyze whether a plea bargain is good for the non-U.S. citizen defendant. For instance, a crime of theft could, depending on the circumstances and the plea agreement, be either a “petty crime” with no consequences, or an aggravated felony, for which virtually no remedy exists. A defense attorney who fails to ask whether his client is a non-U.S. citizen commits, in my opinion, malpractice!

Additionally, prior records, even if expunged and sealed, may still have immigration consequences. Even a pre trial intervention agreement may make a non-U.S. citizen ineligible for certain benefits under the Immigration Act. Therefore, a good defense attorney will make inquiries with an immigration lawyer who is up to date with the immigration consequences of criminal arrests. It really requires the analysis by an experienced immigration attorney who keeps up to date with the case law.

Q: If the client is a lawful permanent resident alien (LPR), and has a family, can a routine criminal charge, such as theft or driving under the influence, have any consequence?

As I stated above, yes, a crime of theft is considered a crime involving moral turpitude, which most likely will have immigration consequences. The fact that the permanent resident has a family has no immediate influence on the consequences of the conviction. For instance, whether the permanent resident is married and has children may still make her removable under the Immigration Act. That depends solely on how long she has been a LPR, when the LPR was convicted, and how many other convictions there are. Once a LPR is found to be removable from the United States, the existence of a United States citizen (USC) spouse and children may help her obtain relief from removal, such as re-instatement of LPR status by an immigration judge.


Q: What is DHS's primary focus for law enforcement involving immigrants?

DHS consists of several departments. Three of those focus on immigration. Previously, they were combined in the Immigration and Nationality Service, or I.N.S. Several years ago, I.N.S. was moved to the new Department of Homeland Security, and the legendary I.N.S. split up in three departments.

Citizenship and Immigration Services (U.S.C.I.S.) concentrates on the benefits side, and their focus is on adjudicating applications for LPR status, citizenship, work permits, and other benefits.

The Department of Customs and Border Protection (C.B.P.) focuses on protecting our borders, and making a determination whether someone is admissible to the usa. For instance, a lpr who has at any time in the past been convicted (INA definition!), anywhere, may be stopped at the border when returning from foreign travel and not be re-admitted. CBP may refer that person to secondary or deferred inspection, where the lpr is required to present a record of their arrest and conviction (even if sealed!), and may be placed in removal proceedings.

The third department, Immigration and Customs Enforcement (I.C.E.), is responsible for tracking and removing undesirable non-citizens. For instance, I.C.E. officers could be involved in finding a person who received a final order of removal (even an order issued in their absence) at some time in the past and who has failed to leave the usa; Their work may include having to arrest people while attending a “benefits” interview at USCIS, for instance in cases of suspected marriage fraud; or it may include a raid in the strawberry fields, construction sites or walmart to find undocumented workers. They are also required to follow up is anybody calls to report an undocumented immigrant. Once caught, a non-U.S. citizen (including LPR) will be detained, usually without bond, and transported to a D.H.S. detention facility. This facility may be hundreds of miles from where the non-U.S. citizen was arrested. In rare cases, the non-U.S. citizen will be able to file a motion with an immigration judge to set a bond hearing. If granted, a judge may set or deny a bond. During that hearing, I.C.E. is represented by an attorney, who can effectively block any request for bond, even if a judge grants one! It is very important to prepare well for such a hearing, and an immigration attorney can help. In most cases, non-U.S. citizens will be detained until a travel document has been obtained for them, and transported out of the usa. An immigration attorney may be able to obtain a “stay” of final removal if an immigration benefit is arguably available.

Reposted on May 15, 2008. Originally appeared March 12, 2008.

IMMIGRATION CRIMES: Union Rep Convicted of Harboring Illegal Aliens

A union representative for a Swift meat packing plant in Iowa was convicted on May 8, 2008 in federal court for harboring undocumented aliens. 8 USC 1324.

"Federal officials said the charges resulted, in part, because of union orientation speeches that Pereyra-Gabino gave to all new Swift employees of Hispanic descent. They said he told illegal workers to do things such as hide their identification in their boots and not tell anyone else which workers did or did not have legal authorization to work in the U.S.Earlier in the week, a prosecution witness testified that Pereyra-Gabino knew she was an illegal immigrant but told her how to obtain documents to work at the Swift plant. She taped the conversation with him as she cooperated with the federal investigation. " Link to article.

IMMIGRATION DETENTION: 4 day series on Medical Care

Careless Detention is a four-day series beginning in today's (May 11, 2008) Washington Post, on the care of detainees in immigration detention.
See also related 60 Minutes, Detention in America, May 11, 2008.

"Some 33,000 people are crammed into these overcrowded compounds on a given day, waiting to be deported or for a judge to let them stay here. The medical neglect they endure is part of the hidden human cost of increasingly strict policies in the post-Sept. 11 United States and a lack of preparation for the impact of those policies. The detainees have less access to lawyers than convicted murderers in maximum-security prisons and some have fewer comforts than al-Qaeda terrorism suspects held at Guantanamo Bay, Cuba."

"But they are not terrorists. Most are working-class men and women or indigent laborers who made mistakes that seem to pose no threat to national security: a Salvadoran who bought drugs in his 20th year of poverty in Los Angeles; a U.S. legal U.S. resident from Mexico who took $50 for driving two undocumented day laborers into a border city. Or they are waiting for political asylum from danger in their own countries: a Somalian without a valid visa trying to prove she would be killed had she remained in her village; a journalist who fled Congo out of fear for his life, worked as a limousine driver and fathered six American children, but never was able to get the asylum he sought.

The most vulnerable detainees, the physically sick and the mentally ill, are sometimes denied the proper treatment to which they are entitled by law and regulation. They are locked in a world of slow care, poor care and no care, with panic and coverups among employees watching it happen, according to a Post investigation.

The investigation found a hidden world of flawed medical judgments, faulty administrative practices, neglectful guards, ill-trained technicians, sloppy record-keeping, lost medical files and dangerous staff shortages. It is also a world increasingly run by high-priced private contractors. There is evidence that infectious diseases, including tuberculosis and chicken pox, are spreading inside the centers. "

INTERROGATION BY COAST GUARD: Not custodial

The case of USA v Fleet Management, 2008 U.S. Dist. LEXIS 37161 (E.D. Pa. 2008), addresses the government's failure to advise of Miranda warnings during an "administrative"proceeding which the defendants argued was a criminal investigation.
Practitioners will find the analysis of one trial court judge of interest, on the issue of whether a defendant first questioned on a vessel was subject to custodial interrogation. The fact that the crew member needed an interpreter but may have waived is likely a common scenario confronting practitioners. Question: Were any of the agency's subject to any regulation or SOP which would have required obtaining a qualified interpreter during their investigation?

Defendant Dyachenko moved to suppress his statements as having been made in violation of Miranda and otherwise involuntary.
"The only evidence regarding the circumstances of Dyachenko's questioning was provided by the Government, as Dyachenko chose not to testify at the hearing. Dyachenko was apparently summoned to the officers' mess room by the Coast Guard with the assistance of Captain Grewal. Four individuals were present at the interview -- Chief Jones, CWO Nay, EPA Agent Burgess and CGIS Agent Lukowiak. As Nay testified, Dyachenko stated at the beginning of the interview that his heart hurt and that he needed an interpreter, but he nevertheless stated that he was fine to continue with the interview. ....Dyachenko stated he would stop the interview if he failed to understand any questions, felt confused, or had trouble comprehending the questions in English. Dyachenko said that if he had trouble understanding English, he would want to perform the interview though an interpreter, but at this time he wanted to proceed...... Moreover, the agents told Dyachenko at the outset that if he felt like he needed to stop, they would stop.

As Nay testified, from the start of the interview, Dyachenko was standoffish, and appeared angry and annoyed as the interview proceeded. Indeed, both Nay and Jones indicated that at one point, Dyachenko told the agents to stop taking notes, saying that he did not want anything written down... Significantly, Dyachenko ultimately left the interview on his own volition, refusing to answer any more questions. ... He also refused to give Jones a notebook that he was carrying in his pocket, which contained information about waste oil tank levels. ...

Dyachenko argues in his brief that the inspection that the Coast Guard conducted in this case was far from a "routine" inspection, and that he was in custody during his interview. In support of this argument, he first notes that he was summoned for questioning after the Coast Guard received a "hot tip from a disgruntled former employee" that oil had been dumped from the Ship and that Dyachenko had been involved. ....Second, he concedes that he left the interview, but argues that there was no indication that he was free to leave during the heart of the interrogation. Third, he notes that he was not told at the outset of the interview either that he was not under arrest or that he was the target of an investigation and thus, he implies, he could not make an informed decision as to whether or not to provide information. Finally, he contends in his brief that (1) the investigators asked confrontational and intimidating questions; (2) he was confronted with the oil record book and sounding book and asked to explain them; (3) Chief Jones threatened him with criminal sanctions for impeding an investigation if he did not turn over his personal property; and (4) in the end, in ill health and without an interpreter, he remained for questioning "out of fear of reprisal for non-compliance and potentially impeding a [United States Coast Guard] investigation."

In many respects, Dyachenko's characterization of the questioning has no support in the record. Most notably, the undisputed hearing testimony was that the tone of his interview, like all of the interviews that day, was professional, and the investigators did not use hostile tones or raised voices. Although Dyachenko was, in fact, shown the Ship's books and questioned about them, CWO Nay credibly testified that the sole purpose of the interviews was simply to determine whether there had been discharges from the Ship and, if so, who knew about them. Jones specifically explained, and we credit, that he showed Dyachenko the books because "he had questions as [to] why tank levels had dropped and why they didn't match up with what the tank sounding log was reflecting and to see if there was any explanation for those drops." As Jones testified, the aim of the investigation was to find out if there had been any regulatory violations on the Ship.

Furthermore, contrary to Dyachenko's assertion, the evidence is not that Jones threatened Dyachenko with criminal sanctions, but only that Jones told him in the engine room after the interview was over that Dyachenko would be impeding a Coast Guard investigation if he did not provide them with his diaries. Finally, while Dyachenko argues that there was no indication that he was free to leave during the heart of the questioning, there is no evidence that he was not free to leave during that time. Moreover, the fact that he did leave the interview before the questioning concluded certainly supports a finding that he was free to leave at any time,

CULTURAL DEFENSES: No violation of Religious Freedom Restoration Act

In USA v Friday, the Tenth Circuit reversed the dismissal of a criminal indictment against the defendant. USA v Friday, (10th Cir. May 9, 2008).

" Winslow Friday, a member of the Northern Arapaho Tribe of Wyoming, shot a bald eagle for use in the tribe’s traditional religious ceremony, the Sun Dance. He was charged under federal law with shooting an eagle without a permit, which is forbidden by the Bald and Golden Eagle Protection Act. Mr. Friday responded that the Religious Freedom Restoration Act precludes the government from prosecuting him. After an evidentiary hearing, the district court agreed and dismissed the indictment. We disagree, concluding that the Eagle Act and its regulations are the least restrictive means of pursuing the government’s compelling interest in preserving the bald eagle. We therefore reverse and remand the prosecution for trial. "