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Southern District U.S. Attorney James B. Comey on Thursday defended the arrest of material witnesses for grand jury proceedings, and said a judge was wrong to dismiss perjury charges against a witness who denied knowing the name of one of the Sept. 11 hijackers. Arguing his first appeal before the 2nd U.S. Circuit Court of Appeals since becoming U.S. Attorney, Comey also gave a spirited defense of an FBI agent who was criticized by Judge Shira Scheindlin of the Southern District of New York when she ruled in favor of San Diego college student Osama Awadallah last April. Comey told the three-judge panel Judge Scheindlin erred in finding that the material witness statute — which allows a witness critical to a criminal proceeding to be detained until the witness’s testimony can be secured by deposition — does not apply to grand jury proceedings. But the court surprised both Comey and his opponents, lawyers Robert Boyle, Lawrence Stern and Diana Parker, by indicating it might not need to rule on the scope of the statute. Investigators were led to Awadallah by finding his old phone number in one of the hijackers’ cars at Dulles Airport after the Sept. 11 attacks. He was arrested as a material witness on Sept. 21 after FBI agents had quizzed him for two days about two of the Pentagon hijackers, Khalid Al-Mihdar and Nawaf Al-Hazmi. Before a grand jury probing the attacks on Oct. 10, Awadallah denied knowing the name of one of the hijackers. The defense vehemently disputed that he made such a denial. And even though Awadallah tried to recant those statements, prosecutors presented an exam booklet in which Awadallah had written the names “Khalid” and “Nawaf.” Judge Scheindlin ruled that Awadallah’s arrest was illegal under the statute, 18 U.S.C. � 3144, and dismissed the two perjury charges against him as the “fruit of the poisonous tree,” the tainted proceeds of his illegal arrest and coercive questioning by the FBI. The judge suppressed Awadallah’s statements to the FBI on Sept. 20 and 21, including statements he gave after allegedly failing a polygraph examination. The judge also found the arrest was illegal because of material misrepresentations and omissions made in the affidavit supporting the arrest warrant obtained by Special Agent Ryan Plunkett. Ironically, that warrant application was granted by Southern District of New York Chief Judge Michael B. Mukasey in a separate case. Mukasey would later take the opposite view of Scheindlin and decide, in the case of In re Material Witness Warrant, that the detention of witnesses for grand jury proceedings was clearly supported by legislative history. Thursday, 2nd Circuit Judges Chester J. Straub and Dennis Jacobs and Gregory W. Carman, chief judge of the U.S. Court of International Trade, who was sitting by designation, repeatedly focused on the issue of avoiding ruling on whether material witnesses can be held for a grand jury investigation. The court asked lawyers to brief the issue. Boyle defended Scheindlin’s ruling, arguing that � 3144 allows for the detention of trial witnesses only. AGENTS’ BEHAVIOR ATTACKED Stern attacked the behavior of the FBI agents and the decision to charge Awadallah, saying his client was led into a perjury trap after being intimidated, kept in terrible conditions, and “with bruises on his body,” led shackled into the grand jury room. But Judge Straub asked, “Doesn’t it defy belief to suggest that, hard on the heels of the events of Sept. 11, in the frenzy of investigative activity, when a telephone number is found in a hijacker’s automobile, that the government was intent on finding that individual with perjury in the front of its mind?” While Straub said it might not be necessary to decide the reach of the material witness statute, Stern said there was “a direct causal connection” between the way Awadallah was arrested, his treatment once in custody, the statements he gave to the FBI and his allegedly perjurious statements before the grand jury. Diana Parker, who filed an amicus on behalf of the New York Council of Defense Lawyers, said it was critical for the court to decide the applicability of the material witness statute to grand jury proceedings, particularly given the split between Judges Mukasey and Scheindlin and the fact that “everyone in this room but Mr. Comey knows that material witnesses are being arrested on a daily basis.” “Both law enforcement and litigants in this circuit need to know who is right,” she said. “This court should give direction to district courts in this circuit on whether or not someone will be incarcerated for days or weeks or months — or not at all.” JUSTIFYING THE ARREST Comey went out of his way to defend Agent Plunkett, calling him one of the “finest” FBI counter-terrorism agents, and saying that Judge Scheindlin “never gave him the chance to defend himself.” Comey said that even if the evidence seized from Awadallah’s apartment, and the statements he gave to FBI agents, were suppressed, the discovery of his phone number in a hijacker’s car was enough to show that Awadallah had information material to the investigation. He also said Awadallah’s status as a foreign national made him a risk to flee the country and avoid testifying before the grand jury — the second factor that justified his arrest under the statute. And while he said he hoped the 2nd Circuit would decide the scope of the statute, Comey agreed that the court could simply find that the circumstances surrounding Awadallah’s arrest in September could not possibly “poison” grand jury testimony he gave freely after consulting with counsel. “So despite the atmospherics, this could be considered just a garden-variety criminal case?” Judge Straub asked. “That’s what I keep telling my troops when they get nervous,” Comey told the judge. Comey used his rebuttal to again defend the federal agents who were fighting for leads in the wake of Sept. 11, saying it was “preposterous to think that these agents were looking for anything other than a second wave of attackers,” when they were questioning Awadallah.

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