United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Bruce G. MacDonald, United States Magistrate Judge.
pending before the Court is Defendant Mustaf Adan Arale's
Motion to Suppress Involuntary Statement (Doc. 62). The
Government has filed its response, and there was no reply.
Govt.'s Response to Def.'s Mot. to Suppress
Involuntary Statement (Doc. 73). Defendant Arale is charged
with five (5) counts of making a false statement under oath
in an immigration matter, in violation of Title 8, United
States Code, Section 1546(a); two (2) counts of making false
statements to a Department or Agency of the United States, in
violation of 18 U.S.C. § 1001(a)(2); and one (1) count
of aiding and abetting false statements to a Department or
Agency of the United States, in violation of 18 U.S.C.
§§ 1001(a)(2) & 2. Indictment (Doc. 3).
Defendant Mustaf Adan Arale seeks suppression of his
statements because they were allegedly involuntary.
See Def.'s Mot. to Suppress (Doc. 62) at 9-13.
to LRCrim. 5.1, this matter came before Magistrate Judge
Macdonald for an evidentiary hearing and a report and
recommendation. On February 27, 2019, an evidentiary hearing
was held before Magistrate Judge Macdonald regarding the
motion. Minute Entry 2/27/2019 (Doc. 88). Subsequently,
Defendant filed his Supplemental Authorities in Support of
Motion to Suppress Involuntary Statement (Doc. 96) and the
Government filed its Response (Doc. 97). This matter is now
ripe for adjudication. The Magistrate Judge recommends that
the District Court, after its independent review, deny
24, 2017, Federal Bureau of Investigation (“FBI”)
Special Agent (“SA”) Benjamin T. Trentlage was
assigned to the Joint Terrorism Task Force
(“JTTF”) in Tucson, Arizona. Hr'g Tr.
2/27/2019 (Doc. 95) at 14:24-15:8, 17:21-24. SA Trentlage has
been employed with the FBI for approximately nine (9) years
and assigned to the JTTF for approximately eight (8) years.
Id. at 15:3-8, 73:13-14. SA Trentlage testified that
the JTTF investigates terrorism and national security
matters. Id. at 15:9-11. SA Trentlage further
testified that one of the terrorist organization that the
JTTF is tasked with investigating is al-Shabaab. Id.
at 15:12-14, 20:9-11. SA Trentlage described al-Shabaab as
the primary terrorist group active in East Africa in
countries such as Somalia and the area surrounding it.
Id. at 20:12-18. SA Trentlage further testified that
al-Shabaab's predecessor, the Islamic Courts Union,
controlled major portions of Somalia for a significant amount
of time. Hr'g Tr. 2/27/2019 (Doc. 95) at 20:12-18.
Trentlage is one of the case agents assigned to Mr.
Osman's case. Id. at 15:15-17, 37:7-9. SA
Trentlage confirmed that the charges in the indictment stem
from allegations that Mr. Osman made materially false and
fraudulent statements to the United States Citizenship and
Immigration Services in connection with several applications
that he submitted. Id. at 16:1-6. SA Trentlage
further confirmed that these applications included a
registration for classification as a refugee
(“I-590”) and an application for permanent
resident status (“I-485”). Id. at 7-15.
SA Trentlage also confirmed that Mr. Osman submitted written
applications, as well as participated in an oral interview.
Id. at 16-19. Among the misrepresentations that Mr.
Osman allegedly made were giving a false name of Mustaf Adan
Arale; stating that he was from Somalia; that his
father's name was Adan Arale Omar, born in Somalia;
denying that he ever used any other names; denying that he
was personally acquainted with anyone who had been involved
with a foreign terrorist organization or insurgent group;
denied ever having been affiliated with a rebel or insurgent
group or organization; and that he had been injured in an
attack by al-Shabaab at the Bakaara Market in Somalia in June
2010. Id. at 16:20- 17:20.
Search Warrant Execution
24, 2017, the FBI obtained and executed a search warrant on
Mr. Osman's home that he shared with his wife and
children. Hr'g Tr. 2/27/2019 (Doc. 95) at 17:21-25:2. SA
Trentlage testified that a variety of items, including
identification documents, such as passports or ID cards, and
electronic devices, such as cellular telephones and tablets,
were seized during the search. Id. at 18:3-9. SA
Trentlage further testified that at various times following
execution of the search warrant, agents returned property to
the defendant. Id. at 18:10-12. He explained that
items were returned if it was determined that the item was
not of evidentiary value, or if the item had been
forensically examined and the original device was no longer
needed. Id. at 18:10- 17.
Return of Evidence
22, 2017, FBI SA Jon Edwards was assigned to the JTTF in
Tucson, Arizona. Hr'g Tr. 2/27/2019 (Doc. 95) at 6:5-11.
SA Edwards has been employed with the FBI for approximately
eighteen (18) years and assigned to the JTTF for
approximately four and a half (4 1/2) to five (5) years.
Id. at 6:7-13.
approximately 2:30 p.m. on June 22, 2017, SA Edwards and SA
Ian Cruikshank of the Department of Homeland Security
(“DHS”) Homeland Security Investigations
(“HSI”) returned items of evidence seized during
the execution of a search warrant to Defendant Osman.
Id. at 7:2-14, 12:1-4. SA Edwards testified that he
and SA Cruikshank went to Mr. Osman's residence to return
the items. Id. at 7:2-16. SA Edwards further
testified that during that visit, he and SA Cruikshank spoke
with Mr. Osman for approximately thirty (30) minutes.
Id. at 7:17-24. SA Edwards also testified that Mr.
Osman appeared to understand English and did not ask for an
interpreter. Hr'g Tr. 2/27/2019 (Doc. 95) at 7:25-8:12.
SA Edwards testified that he and SA Cruikshank were returning
a cellular telephone, as well as retrieving a recovery key
for another electronic device, which SA Edwards believed to
be a tablet. Id. at 8:13-17, 11:6-20. SA Edwards
testified that during the time Mr. Osman was filling out the
receipt for the return of property or while they were
discussing the recovery key, Mr. Osman stated that he was
worried about the investigation, and that he had lied to
Immigration. Id. at 8:18- 9:4, 12:5-23. SA Edwards
mentioned to Mr. Osman that there were important issues that
the FBI would like to talk to him about. Id. at
9:5-13. SA Edwards testified that these issues included
potential terrorism cases that Mr. Osman might have knowledge
about overseas or here in the United States. Id. at
9:14-16. SA Edwards further testified that Mr. Osman was not
in custody during the meeting, and appeared concerned and
sincere regarding his worry. Hr'g Tr. 2/27/2019 (Doc. 95)
at 9:17-20, 10:12-15. SA Edwards also indicated that he was
not surprised by Mr. Osman's admission, noting it was
consistent with the environment and what was happening.
Id. at 13:25-14:5. SA Edwards explained that any
knowledge that Mr. Osman may have regarding possible
connections to terrorism would have been of interest to the
FBI for intelligence reasons. Id. at 10:2-11. SA
Edwards testified that neither he nor SA Cruikshank
questioned Mr. Osman regarding the facts of the instant case,
and that any questioning was limited to the recovery key.
Id. at 10:16-23. SA Edwards further testified that
there were no promises made to Mr. Osman during this meeting.
Id. at 13:2-13.
27, 2017, SA Trentlage and SA Cruikshank returned to Mr.
Osman's home for an interview. Hr'g Tr. 2/27/2019
(Doc. 95) at 19:1-20, 37:15-18. SA Trentlage testified that
they were interested in what Mr. Osman wanted to tell them,
and hoped that he would provide information regarding
al-Shabaab activity either in the United States or abroad.
Id. at 19:21-20:8. SA Trentlage further testified
that prior to this date, the FBI had information that Mr.
Osman had been connected with al-Shabaab. Id. at
20:19-22. SA Trentlage explained that the FBI had received
information from foreign partners that indicated that Mr.
Osman's brother, uncle, and aunt had all been convicted
in abstentia in Somaliland for their connection to a bombing
attack in Djibouti. Id. at 20:23-21:6. SA Trentlage
also testified that two of those relatives, including Mr.
Osman's brother, remain fugitives. Id. at
Trentlage testified that he and SA Cruikshank knocked on the
door of Mr. Osman's residence, he invited them in, and
they sat down and began to talk. Hr'g Tr. 2/27/2019 (Doc.
95) at 21:11-15. SA Trentlage further testified that only he
and SA Cruikshank were present, and they were wearing
business casual plainclothes, their firearms were not
visible, and they did not have visible handcuffs.
Id. at 21:18-22:7. SA Trentlage also testified that
it was his understanding that Mr. Osman had invited the
agents to his home and confirmed that Mr. Osman did not
appear surprised when he and SA Cruikshank appeared and
welcomed them both in. Id. at 22:8-15. SA Trentlage
identified Defendant Osman as the individual who was present
at the June 27, 2019 meeting. Id. at 22:16-23.
Trentlage testified that both he and SA Cruikshank carried
audio recorders and recorded the conversation. Id.
at 22:25-23:4, 29:6-9, 38:18-24. SA Trentlage further
testified that a review of the transcript from that recording
appeared accurate. Hr'g Tr. 2/27/2019 (Doc. 95) at
23:5-21; see also Id. at 38:25-39:2. The interview
started with SA Cruikshank indicating that the reason the
agents were there was due to his prior interaction with Mr.
Osman and Mr. Osman's statement that he had lied to
Immigration and wanted to talk. Id. at 24:5-11. SA
Trentlage testified that he and SA Cruikshank advised Mr.
Osman that he was welcome to ask any questions. Id.
at 24:12-15. SA Trentlage further testified that at the time
of the interview, Mr. Osman was not under arrest or charged
with a crime. Id. at 24:16-20. SA Trentlage also
testified that Mr. Osman brought up the Miranda advisement,
which he had been given when the search warrant was executed.
Id. at 24:25-25:14, 39:7-41:9. SA Trentlage
testified that he and SA Cruikshank again advised Mr. Osman
of his Miranda rights and reiterated that those rights
applied to Mr. Osman during the interview. Hr'g Tr.
2/27/2019 (Doc. 95) at 25:3- 23, 39:7-41:9.
Trentlage confirmed that Mr. Osman spoke and appeared to
understand English. Id. at 25:24-26:2. SA Trentlage
further testified that he did not recall Mr. Osman asking for
clarification or an interpreter, and SA Trentlage did not
have any problems understanding him. Id. at 26:3-8.
SA Trentlage also testified that Mr. Osman did not appear
fearful of the agents, but did ask them for some kind of
guarantee or promise that he would receive lesser charges.
Id. at 26:13-27:7, 54:21-55:13, 61:2-16. SA
Trentlage testified that the issue of a guarantee seemed
important to Mr. Osman, and the agents responded that the
only guarantee or promise that they could make was that if he
was honest with them, they would relay that information to
the prosecutor. Id. at 27:4-22, 29:19-30:1,
46:15-25, 47:17-49:10, 52:8-53:17, 55:3-57:3, 61:2-62:1,
73:18- 25. SA Trentlage confirmed that SA Cruikshank
indicated to Mr. Osman that there was a prosecutor assigned
to his case, and that SA Cruikshank had been in touch with
her. Hr'g Tr. 2/27/2019 (Doc. 95) at 53:18-54:17. SA
Trentlage further testified that he recalled telling Mr.
Osman that honesty was well regarded in the United
States' legal system an that people who were honest
usually had better legal outcomes than those who were not.
Id. at 27:23-28:3, 62:17-63:16, 77:7-16. SA
Trentlage acknowledged that SA Cruikshank had promised that
if Mr. Osman was honest with the agents, SA Cruikshank would
tell the prosecutor that the information obtained was more
important that the immigration charges. Id. at
57:12-58:20, 62:2-16, 71:3-20. SA Trentlage also confirmed
that SA Cruikshank indicated that he could not make any
guarantees, but could make recommendations to the prosecutor.
Id. at 59:1-12, 70:8-71:13, 74:16-23, 75:7- 76:12.
SA Trentlage testified that he spoke to Mr. Osman about the
desirability of developing trust between the JTTF and Mr.
Osman, as well as suggesting that if Mr. Osman assists them,
it might be possible to meet with the prosecutor regarding
the immigration charges. Id. at 59:13-61:1.
Trentlage confirmed that SA Cruikshank indicated to Mr. Osman
that he had the opportunity to tell the agents what they
hoped to know; information which related to intelligence
matters that were more important to the agents than the
immigration charges. Hr'g Tr. 2/27/2019 (Doc. 95) at
40:20-43:11, 66:24-67:8. SA Trentlage agreed that Mr. Osman
was primarily concerned with his family and his possible
criminal exposure and possible immigration problems.
Id. at 43:12-14, 43:19-44:18, 67:14-68:7. SA
Trentlage confirmed that SA Cruikshank indicated to Mr. Osman
that in order for there to be any possibility for his family
to stay in the United States, Mr. Osman needed to have a
conversation with the agents. Id. at 63:20-66:2,
78:17-79:5. SA Trentlage testified that Mr. Osman
distinguished the agents from Somali security forces and
acknowledged that the immigration charges would continue even
if he helps the agents in the long-term. Id. at
Trentlage testified that he wanted Mr. Osman to give him
information, and hoped that the information would include
what Mr. Osman meant about his previous lie to Immigration,
as well as information regarding al-Shabaab and its
operatives and activities. Id. at 28:4-17,
28:25-29:5. SA Trentlage further testified that he and SA
Cruikshank knew that Mr. Osman had some connection with
al-Shabaab and viewed him as someone who could provide
information regarding the same. Hr'g Tr. 2/27/2019 (Doc.
95) at 28:18-24. SA Trentlage also testified that he and SA
Cruikshank talked to Mr. Osman about the fact that they were
all part of the same community, and the agents were just
trying to keep the community safe. Id. at
68:20-69:20. SA Trentlage testified that Mr. Osman decided
that he wanted to speak with the agents. Id. at
29:10-18. SA Trentlage testified that they began the
interview by asking Mr. Osman his name. Id. at
30:7-9. Mr. Osman stated that his birth name was Mohamed
Abdirahman Osman. Id. at 30:10-17. SA Trentlage
testified that throughout Mr. Osman's immigration
documents, however, he used the name Mustaf Adan Arale.
Hr'g Tr. 2/27/2019 (Doc. 95) at 30:18- 20. SA Trentlage
further testified that Mr. Osman stated that Adan Arale was a
friend he knew while living in Mogadishu, who took him to the
hospital when Mr. Osman was injured, but provided his own
name on the hospital paperwork. Id. at 30:21-31:2.
SA Trentlage also testified that after his release from the
hospital, Mr. Osman stated that he used that hospital
paperwork to apply for passports and other immigration
proceedings. Id. at 31:3-5. SA Trentlage testified
that Mr. Osman explained that he was living in Kenya and
applying for passports in that country, but did not have any
family members or other identity documents, so the only thing
he had with a name on it was the hospital paperwork.
Id. at 31:7-14. SA Trentlage confirmed that he used
the name “Mustaf Arale” on his refugee
application and subsequent legal permanent residence
application, and noted that although Mr. Osman initially said
he was from Somalia, it was later learned that he is from
Ethiopia. Id. at 31:15-24. SA Trentlage further
testified that Mr. Osman stated his father's name was
Abdirahman Osman; however, on his immigration document he
gave a different name. Hr'g Tr. 2/27/2019 (Doc. 95) at
31:25-32:6. SA Trentlage also testified regarding a
“study guide” that was found during the May 2017
search warrant execution, and indicated that Mr. Osman had
prepared the document for his wife to study in preparation
for immigration proceedings. Id. at 32:7-20.
Trentlage testified that he and SA Cruikshank asked Mr. Osman
about his connections with al-Shabaab. Id. at
32:21-33:8. SA Trentlage noted that Mr. Osman admitted that
he had been approached for recruitment by al-Shabaab, but Mr.
Osman said that he was uncomfortable speaking about it.
Id. at 32:21-33:8, 76:17-77:6. The agents told Mr.
Osman that he did not have to speak about anything he was
uncomfortable with and changed the topic. Id. SA
Trentlage further testified that he and SA Cruikshank spoke
with Mr. Osman about providing false names and refugees, and
Mr. Osman indicated that he believed that it was a very
common practice for Somali refugees in the United States to
come under fake names. Hr'g Tr. 2/27/2019 (Doc. 95) at
33:9-17. SA Trentlage also testified that Mr. Osman told the
agents how he sustained his injuries and gave information
regarding a group of ten (10) to twenty (20) al-Shabaab
members that were sent overseas to obtain legal status.
Id. at 34:1-7. SA Trentlage testified that the
agents understood the group of al-Shabaab operatives were
sent overseas in order to further the objectives of
al-Shabaab through planning attacks or bringing other members
overseas to foreign countries. Id. at 34:8-15. SA
Trentlage also testified that Mr. Osman stated that America
had been good to him. Id. at 36:1-3.
Trentlage further testified that the agents' conversation
with Mr. Osman lasted approximately two (2) hours.
Id. at 34:16-18. SA Trentlage also testified that at
no time during the interview did Mr. Osman ask the agents to
leave, and when Mr. Osman said he did not want to speak about
his connection to al-Shabaab, the agents changed the topic.
Id. at 34:19-35:2. SA Trentlage testified that
neither he or Agent Cruikshank made any promises of leniency
or dismissal of the charges to Mr. Osman. Hr'g Tr.
2/27/2019 (Doc. 95) at 35:3-7. SA Trentlage further testified
that neither agent told Mr. Osman that he would be able to
stay in the country. Id. at 35:8-10. SA Trentlage
also testified that they did mention that it was a
possibility that Mr. Osman's family might be able to stay
in the country if he provided information, but that this was
never promised. Id. at 35:11-14, 63:20-65:8. SA
Trentlage testified that the agents never coerced Mr. Osman
to speak and that he seemed willing to provide additional
information. Id. at 35:15-16, 23-25. SA Trentlage
further testified that the agents expected to attempt to
verify some of the information after the interview in order
to verify its truthfulness, and then continue speaking with
Mr. Osman. Id. at 35:17-22, 74:24-75:6. SA Trentlage
also testified that the FBI had made further efforts to speak
with Mr. Osman, but those efforts were unsuccessful.
Id. at 72:21-73:4.