Adis Medunjanin claimed statements he made after trying to crash his car as an act of violent jihad on the Whitestone Expressway on Jan 7, 2010, should have been suppressed in his later trial on charges of plotting to attack the New York City subway system.
Adis Medunjanin claimed statements he made after trying to crash his car as an act of violent jihad on the Whitestone Expressway on Jan 7, 2010, should have been suppressed in his later trial on charges of plotting to attack the New York City subway system. (AP/U.S. Attorney’s Office (Medunjanin) and NBC New York (expressway photo))

A man convicted of plotting with al Qaida to commit coordinated suicide bombings in the New York City subway system has lost his argument that he was denied right to counsel and due process.

Adis Medunjanin claimed a trial judge should have suppressed statements he gave to the Joint Terrorism Task Force following his arrest in 2010 because he was questioned by agents who knew he had an attorney but denied him access and tricked him into waiving his Miranda rights.

But the U.S. Court of Appeals for the Second Circuit Tuesday said the questioning of Medunjanin after he tried to crash his car on the Whitestone Expressway as an act of violent jihad comported with the Fifth and Sixth Amendments of the U.S. Constitution.

Medunjanin is now serving a sentence of 95 years in prison after being convicted in 2012 by a jury in the Eastern District on nine terrorism counts.

That sentence stands following Tuesday’s decision by Judges Amalya Kearse (See Profile), Richard Wesley (See Profile) and Christopher Droney (See Profile) in United States v. Medunjanin, 12-4724. His counsel, Robert Gottlieb of Gottlieb & Gordon, is vowing an appeal to the U.S. Supreme Court.

Medunjinan had traveled to Pakistan in 2008 with Najibullah Zazi and Zarein Ahmedzay to fight with the Taliban against the U.S. Instead, prosecutors showed at trial, he returned with a plot to wreak mass murder on the subways.

His apartment in Queens was searched for bomb making plans and materials on Sept. 14, 2009, when he was interviewed for 2 1/2 hours by FBI Special Agent Farbod Azad and a New York City police detective who asked him about his trip to Pakistan and his relationship with Zazi and Ahmedzay.

Three days later, on Sept. 17, he was interviewed at the Eastern District U.S. Attorney’s Office for about 10 hours.

Zazi was arrested on Sept. 19, 2009 and, nine days later, Medunjanin hired Gottlieb, who informed Azad and Assistant Eastern District U.S. Attorney Jeffrey Knox that he was representing Medunjanin and asked that his client not be interviewed without Gottlieb present.

Medunjanin remained under surveillance until Jan. 7, 2010, when Azad and others searched the Medunjanin home again and seized his passports.

After the agents and detectives had gone, Medunjanin left in his car and, aware he was being followed and fearing his arrest for the conspiracy, he drove on to the Whitestone Expressway, called 911 from the car, identified himself and stated, “We love death more than you love life” and, several times, “There is no God but Allah, and Muhammed is His messenger.”

He then rammed another car at high speed hoping to cause an explosive collision. He tried to flee the scene but was captured by an FBI agent who had been following him. Asked about his condition, Medunjanin asked the agent if he was Jewish and began lecturing him about Judaism.

At a hospital in Queens, he was questioned by several agents and detectives, acknowledged he had an attorney and complained that he wanted to fire Gottlieb because he was expensive and his family had already paid the attorney $8,000.

Detective Robert Murphy told him that Murphy was a father and that, as a father, he would want to know the truth if one of his children were being investigated by the FBI, and he would love his child regardless.

Miranda warnings were administered and Medunjanin signed a waiver, going on to make several statements, including admitting he feared arrest and had intended the car crash as a final act of jihad that would kill other people.

He was questioned for varying stretches into the morning of Jan. 8, when he signed another Miranda rights waiver.

All the while, Gottlieb and the family were trying to determine his whereabouts. On Jan. 8, Gottlieb received a return call from Knox, who told him Medunjanin would be arraigned that day and he no longer wanted Gottlieb to represent him. Knox refused to disclose Medunjinan’s location.

After signing his third Miranda waiver form on Jan. 8, Medunjanin was indicted later that same day for receiving military training from al Qaida and conspiring to commit murder in a foreign country.

He was presented with a new form which listed the charges and also contained the statement “I have been advised that attorney Robert Gottlieb has requested to speak with me.”

He objected to the murder conspiracy charge but checked a line indicating he wanted to speak with Gottlieb. At this point, the agents ceased their questioning.

Medunjanin later claimed before Judge Raymond Dearie that the government tried to prevent him from seeing Gottlieb, agreed that he was expensive and said the agents made what he felt were threats to arrest members of his family if he did not sign the waivers.

But Dearie found that his first request for counsel only came after he learned he had been indicted for conspiracy to commit murder on Jan. 8. Dearie denied the motion to suppress the statements and Medunjanin was convicted 2012.

Right to Counsel

The circuit heard oral argument on the appeal on Feb. 20, 2014. Judge Kearse wrote the panel’s opinion released Tuesday.

“We reject Medunjanin’s contention that the request by Gottlieb that Medunjanin not be questioned without Gottlieb present, in calls to Agent Azad and AUSA Knox in September 2009, constituted effective invocations of Medunjanin’s right to counsel,” Kearse said. “That right was personal to Medundjanin. Only he could waive it; only he could properly invoke it.”

Kearse then turned to the voluntariness of Medunjanin’s Miranda waivers post-arrest.

On the questioning by Murphy and other detectives and agents, Kearse said “The record provides no basis for overturning the district court’s conclusion that Medunjanin’s will was not overborne.”

The court then rejected the claim that one Miranda waiver was involuntary because the agents agreed Gottlieb was too expensive.

Turning to Medunjanin’s argument that the Sixth Amendment right to counsel was violated, Kearse said the right to counsel does not attach until criminal proceedings begin, and that was when the initial indictment was handed down on Jan. 8, 2010.

“Medunjanin was promptly given a form that described the changes and provided a section in which he could indicate whether he wanted to see Gottlieb,” she said. “He indicated that he did; and questioning immediately ceased.”

The circuit rejected his contention that the government’s conduct concerning Gottlieb prior to his indictment “ripened into” a post-indictment violation of the right to counsel.

Finally, the court dismissed as “meritless” Medunjanin’s argument that the government’s refusal to disclose his whereabouts to Gottlieb, or tell Medunjanin Gottlieb was trying to find him, was a violation of substantive due process.

Gottlieb, who also argued the appeal, said he will press for the decision to be overturned.

“The government’s gross misconduct and intentionally hiding Mr. Medunjanin to prevent him from speaking with his lawyer and ignoring his lawyer’s demand not to interrogate him cries out for Supreme Court review,” Gottlieb said. “The constitutional right to an attorney applies to everyone, no matter who is he or what the charges might be. We will seek to have the Supreme Court review this case.”

Assistant U.S. Attorney David Bitkower argued for the government.