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A San Diego college student charged with lying to a grand jury about his knowledge of a participant in the Sept. 11 terrorist attacks will not be allowed to recant his testimony. New York Southern District Judge Shira A. Scheindlin said that Osama Awadallah, who allegedly lied about knowing one of the hijackers who crashed an American Airlines jet into the Pentagon, did not meet the standard for recantation under the federal perjury statute. The decision dealt a blow to Awadallah as well as his defense lawyer, Jesse Berman, who had expressed confidence that his client had made a mistake before the grand jury in October, and had effectively corrected that mistake in subsequent testimony before the same grand jury. Judge Scheindlin, in United States v. Awadallah, 01 Cr 1026, also raised several questions about the government’s treatment of Awadallah while he was held as a material witness in the terror investigation, and before he was charged with lying. She ordered a hearing on whether the government may have violated the material witness statute, and she also ordered suppression hearings regarding statements taken and evidence seized in the case. Awadallah, already in custody as a material witness when he was called before the grand jury in October, was charged with lying about knowing a man named “Khalid” — Khalid Al-Mihdar. Awadallah had written in his English examination booklet at Grossmont College: “One of the quietest people I have met is Nawaf. Another one is Khalid.” Nawaf was Nawaf Al-Hazmi, who was also one of the alleged hijackers of American Airlines Flight 77. Part of Berman’s argument was that Awadallah had no reason to lie about knowing Al-Mihdar while openly admitting he knew Al-Hazmi. Between the first grand jury session on Oct. 10 and the second one on Oct. 15, Berman said his client realized that he had misspoken; when Awadallah returned to the grand jury, he admitted being acquainted with Al-Mihdar. Berman asked Judge Scheindlin to rule on a question of law: whether Awadallah recanted his testimony under 18 U.S.C. � 1623(d). Section 1623(d) provides that where a statement is made in a grand jury proceeding, and the person who made the statement admits the statement to be false, the admission bars a perjury prosecution if, at the time the admission is made “the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.” There were two problems with Awadallah’s alleged recantation, Scheindlin said. First, “Awadallah contends that he was ‘confused’ or he ‘forgot,’ or that the photocopy of the examination booklet was not clear, but he had not admitted his testimony was false.” “While the questions of whether he was ‘confused’ or ‘forgot’ may be relevant to the issue of whether he lied to the grand jury, that is a question of fact for the jury to decide,” she said. Second, Scheindlin said, “even if Awadallah’s Oct. 15 testimony were read as a retraction and repudiation of his allegedly false testimony, his recantation defense would fail because he does not meet the ‘manifestation’ requirement of Section 1623(d).” The judge said that “Awadallah had various reasons to know, prior to his Oct. 15 testimony, that his allegedly false testimony would be exposed,” in part because prosecutors told Berman they believed Awadallah had lied on Oct.10. With respect to the first count of perjury, which charged that Awadallah lied when he did not know the name of the man who was with Nawaf Al-Hazmi, the judge said “the examination booklet itself made manifest that he had known the name, at least at the time he wrote the booklet.” “Third, with respect to the allegation in Count Two — that Awadallah lied when he said he had not written the Nawaf’s or Khalid’s names in his exam booklet — Awadallah’s own testimony that he had written everything in the exam booklet made it manifest, at least to an objective declarant, that the falsity of one statement or the other would be exposed,” she said. Scheindlin went on to note that “the recantation defense appears to be an illusion — often asserted but never found.” “The parties have brought no case to the [c]ourt’s attention, nor has the [c]ourt found any case, in which the defendant has successfully asserted that, at the time of his recantation, it was not manifest that his prior false statement might be exposed,” she said. Awadallah, who is free on $500,000 bond, claimed “coercions, threats and deceptions” by FBI agents, and asked the judge to suppress evidence seized from his home and his car and to suppress statements he made to the agents. According to Assistant U.S. Attorney Robin Baker, videotapes about Muslim martyrs in Bosnia were seized from Awadallah’s car and a computer-generated photo of Osama bin Laden was found in his apartment. Scheindlin, over the government’s objection, ordered evidentiary hearings on the issues for Feb. 15. Judge Scheindlin said it remained an open question whether “his will was overborne by the interrogating agents.” “Awadallah does not allege that he suffered any physical abuse or was physically restrained prior to speaking with agents on Sept. 20, 2001,” she said. “But the allegations still suggest that he may have been the victim of coercion and intimidation.” Awadallah also asked the judge to exercise her supervisory power over the grand jury and suppress his grand jury testimony. Scheindlin said that “in their totality, Awadallah’s allegations might require the court to exercise its supervisory power.” “Awadallah may be able to prove that he was unlawfully arrested, unlawfully searched, abused by law enforcement officials while in prison, denied access to his lawyer and family, and denied an acceptable diet,” she said. “In addition, his grand jury testimony may have had an illegitimate purpose and may have been conducted under unusually harsh conditions — testifying while shackled to a chair.” All of this happened, Judge Scheindlin said “while Awadallah was held as a material witness — NOT as a defendant accused of criminal conduct.” “Even putting to one side the other allegations previously mentioned, Awadallah’s [20]-day detention deserves further scrutiny because the government may have failed to comply with the statute that grants it the authority to detain a material witness,” she said. Scheindlin said the material witness statute allows the government to hold someone if their testimony cannot be adequately secured by deposition. She said there was, at this point, “no indication that the government attempted to take Awadallah’s deposition.” Scheindlin ordered a hearing on the issue.

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