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It did not take long for a split to develop over the constitutionality of a critical tool for investigators probing the Sept. 11 terror attacks — the detention of potential grand jury witnesses under the federal material witness statute. Chief Judge Michael B. Mukasey of the Southern District of New York Thursday found that the words of the statute, its legislative history, and the lone appellate court to have “squarely” addressed the issue of detaining witnesses for a grand jury investigation, clearly show the use of the tactic faces “no constitutional impediment.” Mukasey’s decision, in the case of a person initially held on immigration charges but later detained as a material witness, stands opposed to the opinion of fellow Southern District Judge Shira Scheindlin, who in April found that 18 U.S.C. � 3144 was facially ambiguous and in violation of the Fourth Amendment prohibition against unreasonable seizures. In a controversial ruling criticized by U.S. Attorney James B. Comey, Scheindlin decided the statute was aimed at securing the testimony of a trial witness and not witnesses needed for a grand jury proceeding. She dismissed perjury charges against San Diego college student Osama Awadallah, who was accused of lying to a grand jury about his association with one of the hijackers who seized the airplane that crashed into the Pentagon on Sept. 11. Comey, who called Scheindlin’s opinion “wrong on the facts and wrong on the law,” received a boost Thursday when Mukasey rejected the Awadallah holding in In Re The Application of the United States For A Material Witness Warrant Pursuant to 18 U.S.C. Section 3144, For John Doe, 01 M. 1750. John Doe was being held in another state and about to be deported when the Immigration and Naturalization Service transferred him to the Department of Justice under a material witness warrant for his eventual appearance before a grand jury. Doe sought to quash the warrant, with his chief argument being Scheindlin’s holding in Awadallah and her reading of � 3144. That section states, “If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title.” Scheindlin found that the words “in a criminal proceeding” make detention for grand jury proceedings improper because a criminal proceeding is not under way until a charge is filed. And the words “‘by a party’ plainly invoke an adversarial process,” the judge said, adding “there are no parties to a grand jury proceeding.” SUPPORT FOR DETENTION Mukasey disagreed, saying Scheindlin had wrongly dismissed as “dictum” the decision of the only appellate court to directly address the issue, the 9th U.S. Circuit Court of Appeals in Bacon v. United States, 449 F.2d 933 (1971). The Bacon court, Mukasey said, found that the predecessor statute to � 3144 supported the use of a material witness warrant to detain grand jury witnesses. Mukasey said that Judge Scheindlin had conducted an “incomplete” or “three-and-a-half star tour” of the legislative history, and argued that “there is direct evidence that a relevant congressional committee, and anyone who read its report, was aware of Bacon‘s holding and also that the new statute [enacted in 2000] would apply to grand jury proceedings.” The Report of Senate Committee on the Judiciary on � 3144 states, “If a person’s testimony is material in any criminal proceeding, and if it is shown that it may become impracticable to secure his presence by subpoena, the government is authorized to take such a person into custody.” Mukasey noted that a footnote to the report specifically refers to the Bacon decision when it states, “A grand jury proceeding is a ‘criminal proceeding’ within the meaning of this section.” “Here, one need not rely solely on the presumption that when Congress re-enacted this statute, it was aware of, and therefore intended to adopt, the holding in Bacon,” Mukasey said. “There is direct evidence of that awareness, and thus of that intent, in the committee report above cited.” He went on to note that the Awadallah court “appeared” to believe it was inherently unreasonable to hold a witness for a grand jury proceeding. 2ND CIRCUIT ON CONFESSION’S ADMISSIBILITY But the 2nd Circuit, he said, “has upheld the admissibility of a confession obtained during detention of a state grand jury witness pursuant to New York’s material witness statute, rejecting a claim” that the witnesses’ detention was illegal because there was no pending criminal action or proceeding as required under New York law. And courts have routinely applied the statute assuming that it could be used against grand jury witnesses, he said, citing as one example the detention of Terry Nichols as a material witness for the grand jury that indicted Timothy McVeigh in the Oklahoma City bombing case. Moreover, Judge Mukasey said, “it is now a matter of public record that several material witness warrants have been issued by this and other courts in connection with investigations in the Sept. 11 attack on this country. Awadallah involved one of them; this case involves another.” Assistant U.S. Attorneys Christopher Morvillo, Christine Chung, Celeste L. Koeleveld and Robin L. Baker represented the government. Neil S. Cartusciello of Drinker, Biddle & Reath represented John Doe.

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