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A Southern District of New York judge on Monday ordered that the government complete its own investigation into how an Egyptian student came to be wrongly charged for lying about possession of a pilot’s radio in a hotel overlooking the World Trade Center on Sept. 11. Judge Jed S. Rakoff said he will not initiate contempt proceedings or undertake his own inquiry into the case of Abdallah Higazy, who allegedly confessed to possessing the device and was charged by the government, only to be freed when another Sept. 11 guest of the Millennium Hilton Hotel came forward to claim the radio. Monday’s decision follows a March 18 hearing in which Rakoff questioned the government about representations it made in December to support a request to have Higazy detained as a material witness in the terror investigation. A defense lawyer argued that the request might have been based on misconduct by a polygraph examiner. Higazy was taken into custody on Dec. 17, when he returned to the hotel to get his possessions. A hotel security guard had told FBI agents that he had found the radio, or transceiver, in Higazy’s room safe along with his passport and a copy of the Quran. On Dec. 18, Judge Rakoff granted the government’s request and ordered Higazy detained for 10 days as a material witness in a grand jury investigation. Ten days later, the government told Rakoff that Higazy had submitted to a polygraph examination, and during it, allegedly confessed that he owned the transceiver. A prosecutor told the judge that Higazy gave three different versions of how he came to possess the transceiver, and the judge said this reported confession made the decision to order continued detention not even “a close call.” But the case took a bizarre turn in the days following Jan. 11, when the government charged Higazy with making false statements. On Jan. 14, the same day Higazy’s material witness warrant was vacated and he was detained pursuant to the criminal charges, a pilot who had been staying at the hotel on Sept. 11 returned to collect the transceiver. Doubling back, FBI agents questioned the hotel security guard, Ronald Ferry, and realized he had lied repeatedly about finding the transceiver in Higazy’s room. The government dismissed the case against Higazy and charged Ferry with lying. Ferry later pleaded guilty and apologized. He was later sentenced to serve six months of weekend confinement. Rakoff then asked prosecutors and defense lawyer Robert Dunn to address the issue of whether the government had made material misrepresentations to justify the continued detention of Higazy. Dunn argued that the judge had the power to either begin contempt proceedings or launch an inquiry into the matter based on his supervisory powers over the grand jury. On Monday, the judge said the decision to charge Ferry “effectively obviated the need for the court to pursue further the issue of the material misrepresentations made to the court in December,” because it was clear that the government only charged Higazy based on the bad information provided by Ferry. REMAINING ISSUE The sole issue remaining, Rakoff said, was “the government’s representation at the hearing on Dec. 28, 2001, that Higazy had ‘confessed’ to possessing the transceiver.” Dunn, at the March hearing, argued that the government had acted improperly in obtaining the “confession,” and had threatened his client. The government denied the allegations and said that, in any event, the charges had been dropped against Higazy, there was no confession to suppress, and there was no need for Judge Rakoff to probe its conduct. At the same time, the government said it was conducting its own internal review of the conduct of the polygraph examiner. That investigation is ongoing. On Monday, Rakoff agreed with the government that any alleged misconduct by the polygraph examiner was not within the court’s criminal contempt jurisdiction, codified in 18 U.S.C. � 401. He said that “the alleged behavior here consists, worst case, of an FBI agent’s taking unfair advantage of a situation created during a polygraph testing expressly requested by the witness to obtain from the witness a coerced or uncounseled confession that could be used to bring criminal charges against the witness.” However, assuming for the moment that the confession was obtained by government misconduct, the judge wondered, “Is there no judicial remedy for the court’s having been misled as the result of such misconduct? “The victim we are here concerned with is not the witness, but the court, which was materially misled,” he said. “A wrong that so directly impacts the judicial process should not be wholly beyond the court’s power to address.” But Rakoff also said his job was “to decide controversies, not to oversee the conduct of the parties,” and he simply directed the government to complete its investigation and report back by Oct. 31. Finally, Rakoff said he would grant a request by Dunn, joined in by The New York Times, to unseal the bulk of the record in the case, after the government has had the chance to offer redactions. Rakoff said the bulk of the material is already known to the public and Higazy never appeared before the grand jury, so the issue was “largely academic.” One document that will remain sealed, he said, was the government’s June 28 letter on the preliminary results into the conduct of the polygraph examiner.

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