13-4561-cr
United States v. Shehadeh

                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 8th day of October, two thousand fourteen.

PRESENT:            PIERRE N. LEVAL,
                    DENNY CHIN,
                    SUSAN L. CARNEY,
                                Circuit Judges.

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UNITED STATES OF AMERICA,
                    Appellee,

                              v.                                                   13-4561-cr

ABDEL HAMEED SHEHADEH, AKA ABU
BAHEERA, AKA ABUL-QASIM IBN ABU
MUHAMMAD, AKA ABUL-QASIM, AKA
SUNNAH101,
                   Defendant-Appellant.

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FOR APPELLEE:                             JAMES P. LOONAM (David C. James,
                                          Alexander A. Solomon, on the brief), Assistant
                                          United States Attorney, for Loretta E. Lynch,
                                          United States Attorney for the Eastern District
                                          of New York, Brooklyn, New York.

FOR DEFENDANT-APPELLANT:                  FREDERICK H. COHN, The Law Office of
                                          Frederick H. Cohn, Jersey City, New Jersey.

              Appeal from the United States District Court for the Eastern District of

New York (Vitaliano, J.).

              UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

              Defendant-appellant Abdel Hameed Shehadeh appeals from a judgment

entered November 25, 2013 in the United States District Court for the Eastern District of

New York (Vitaliano, J.) convicting him, following a jury trial, of three counts of making

materially false statements to federal agents in violation of 18 U.S.C. § 1001(a)(2). On

appeal, Shehadeh challenges the district court's denial of his motion to suppress his

post-arrest statements. He also argues that his conviction on Count One should be

vacated because the district court erred in instructing the jury that the government did

not need to prove that he knew he was lying to an F.B.I. agent. We assume the parties'

familiarity with the facts, procedural history, and issues on appeal, which we reference

only as necessary to explain our decision.




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   1.         Post-Arrest Statements

              Custodial statements are admissible at trial only if the government

establishes by a preponderance of the evidence that the defendant knowingly,

intelligently, and voluntarily waived his rights against self-incrimination. Colorado v.

Connelly, 479 U.S. 157, 168-69 (1986); United States v. Jaswal, 47 F.3d 539, 542 (2d Cir.

1995). "Whether a confession is a product of coercion may only be determined after a

careful evaluation of the totality of all the surrounding circumstances, including the

accused's characteristics, the conditions of interrogation, and the conduct of law

enforcement officials." United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). Here, in

a 16-page opinion filed August 31, 2012, following an evidentiary hearing, the district

court denied Shehadeh's motion to suppress statements he made in custody after twice

being read his Miranda rights.

              We review a district court's factual findings for clear error and conclusions

of law de novo. United States v. Rodriguez, 356 F.3d 254, 257 (2d Cir. 2004). Additionally,

"[c]redibility determinations are the province of the trial judge, and should not be

overruled on appeal unless clearly erroneous." Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d

423, 435 (2d Cir. 2001).

              On October 22, 2010, Shehadeh was arrested in Honolulu, Hawaii for

making materially false statements to federal agents in violation of 18 U.S.C.




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§ 1001(a)(2). He was interviewed for four hours, during the course of which he made a

number of incriminating statements.

             The district court's factual findings were not clearly erroneous, and its

conclusion that Shehadeh's waiver of his Fifth Amendment rights was "uncoerced,

knowing and voluntary" was well supported by the record. G. App. at 174. Shehadeh

was a 21-year-old man of "at least average intellectual ability," who was comfortable in

his interactions with the agents and prosecutors. G. App. at 168. He was not

handcuffed during the interrogation, and the atmosphere in the room was "relaxed,"

"cordial," and "professional." G. App. at 169. Although the district court observed that

some of the conduct of the agents and prosecutor was perhaps ill-advised, it

nonetheless held that Shehadeh was not misled or coerced. To the contrary, he

understood that he had the right to remain silent and the right to a lawyer.

             Shehadeh argues specifically that Agent Tinning deceived him into

thinking that if he invoked his right to counsel, he would lose any opportunity to later

cooperate with the government. The district court rejected this argument, as a factual

matter, and found that Agent Tinning's suggestions were truthful and not misleading.

The district court found that Tinning's statement "that the current, casual nature of

Shehadeh's interactions with law enforcement would change in tenor" once lawyers

were involved "was actually truthful and was not misleading." G. App. at 172.

Accordingly, we affirm the district court's denial of Shehadeh's motion to suppress.


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   2.         Count One

              Shehadeh also argues that his conviction on Count One should be vacated

because, under the court's charge to the jury, the government was not required to prove

that he knew or should have known that his lies were addressed to an F.B.I. agent. In

accordance with our ruling in United States v. Bakhtiari, 913 F.2d 1053 (2d Cir. 1990), that,

with respect to proof of a violation of 18 U.S.C. § 1001, "no mental state is required with

respect to federal involvement," id. at 1060, the district court's instructions to the jury

did not require a finding that the defendant knew he was lying to an F.B.I. agent.

              Shehadeh acknowledges that this panel is bound by the holding of

Bakhtiari. He explains that he included this argument in his briefing to solely preserve it

as the basis of a petition for en banc review by the full court, or review by the Supreme

Court. The argument he seeks to preserve is that, under the Bakhtiari rule and the

district court's instructions to the jury, he could have been inappropriately convicted for

lying in circumstances that gave him no reason to believe that his lies were addressed to

a federal agent or that they constituted a violation of law.

              As the defendant properly anticipates, we must adhere to our Circuit's

prior holding in Bakhtiari, and on that basis we reject the defendant's contention that his

conviction on Count One should be vacated. We note, however, that the record in this

case does not support the defendant's argument that he could have been convicted

without knowing that his lies were addressed to a federal agent and without reason to


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believe that lying in these circumstances might be illegal. While it is true that Shehadeh

would not have known that Special Agent Panetta, who questioned him together with

Officer Patrick Gormley of United States Customs and Border Protection, was an agent

of the F.B.I., Panetta was presented to the defendant as a Customs official. There was no

doubt the defendant understood him to be a federal official. For the purposes of

liability under § 1001, it makes no difference whether Panetta was an official of the F.B.I.

or of Customs. Further, the court instructed the jury that, in order to convict Shehadeh,

it needed to find that he acted "willfully." The court defined the term "willfully" as

acting "with the bad purpose to disobey the law." G. App. at 80-81. Accordingly, under

the court's instructions, the jury could not find the defendant guilty unless it found that

the defendant understood his lies to be forbidden by law.

              We have considered Shehadeh's remaining arguments and conclude they

are without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                          FOR THE COURT:
                                          Catherine O'Hagan Wolfe, Clerk




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