On May 20, 2014, the Second Circuit issued a decision in USA v. Medunjanin, No. 12-4724, affirming a decision by the EDNY that a defendant may not prospectively invoke the right to counsel during an interrogation and that the right to counsel, even when invoked, can be waived.
Medunjanin was convicted “of terrorism-related crimes involving a conspiratorial plan, at the behest of al-Qaeda, to carry out coordinated suicide bombings in the New York City subway system.” Both in the EDNY and on appeal, Medunjanin argued that incriminating statements he made during interviews with law enforcement agents should have been suppressed because he was denied counsel. The Second Circuit affirmed the decision of the EDNY admitting Medunjanin’s statements.
One question addressed by the EDNY and the Second Circuit was the effect of a request by Medunjanin’s counsel that he be present during any questioning of Medunjanin. Twice in September 2009, Medunjanin was questioned by FBI and NYPD officers; the second interview took place at the US Attorney’s office in Brooklyn and lasted ten hours. He was not in custody during either interview and did not request counsel. However, soon after his second interview, one of his acquaintances was arrested on terrorism-related charges. Medunjanin then met with counsel and, on September 28, 2009, his counsel notified the FBI agent and AUSA who had questioned Medunjanin that he “was representing Medunjanin and asked that Medunjanin not be interviewed unless he was present.”
Over three months later, on January 7, 2010, the FBI and NYPD executed a search warrant at Medunjanin’s home and questioned him further. Medunjanin called his lawyer, who called the FBI agent to whom he had spoken in September and left a message for the AUSA, asking to speak to him regarding Medunjanin. “In the meantime, Medunjanin remained upset by” the interview and
[b]etween 3:30 and 4:00 p.m., Medunjanin left home and drove from his building onto the Whitestone Expressway, driving at some 90 m.p.h. He wove in and out of traffic, crossing several lanes, planning to cause an explosive collision. In order to make clear that this would not be viewed as an ordinary rush hour accident, Medunjanin called 911, identified himself, and proclaimed “we love death more than you love life” and, as translated from Arabic, “there is no God but Allah and Muhammad is His messenger,” repeating the latter several times. Medunjanin then turned and sped directly into another car.
Medunjanin survived the crash without significant injury and was questioned by the FBI and NYPD. Medunjanin signed Miranda waiver forms and spoke freely with his questioners, making a number of incriminating statements. It was not until the next day that the AUSA spoke to Medunjanin’s lawyer, and then only to say that “Medunjanin would be arraigned that afternoon” and “that Medunjanin no longer wanted” his counsel “to represent him.” The AUSA “refused to disclose Medunjanin’s whereabouts.” It was not until that afternoon, just before he was indicted, that Medunjanin asked to speak to his counsel. The FBI and NYPD stopped questioning him at that point and allowed him to meet with counsel.
On the question of whether the September 28, 2009, January 7, 2010, and January 8, 2010, telephone calls from his counsel constituted an invocation of Medunjanin’s right to counsel, the Second Circuit explained:
We reject Medunjanin’s contention that the requests by [his counsel] that Medunjanin not be questioned without [his counsel being] present, in calls . . . in September 2009, effective invocations of Medunjanin’s right to counsel. That right was personal to Medunjanin. Only he could waive it; only he could properly invoke it. The only prearrest mention of counsel by Medunjanin himself came on January 7, 2010, when the second search warrant was served and Medunjanin asked whether [his counsel] had been notified. That question, if intended as a request to have counsel present, was at best unclear and ambiguous.
Thus, even assuming that Miranda rights may properly be asserted by a suspect prior to his being in custody and prior to his being questioned, there was no clear and unambiguous invocation of the right to counsel by Medunjanin before his arrest. Accordingly, the agents’ initiation of questioning of Medunjanin after his arrest, and after his receipt of Miranda warnings, did not violate Medunjanin’s Fifth Amendment privilege against self-incrimination or his right to counsel in aid of that privilege.