Mimesis Law
20 September 2019

Ahmad Rahami: In Desperate Need Of A Defense Attorney (Update)

September 22, 2016 (Fault Lines) — Ahmad Rahami is the latest person to be federally charged with terrorism following the explosions that occurred six days ago in Manhattan’s Chelsea neighborhood. More than 30 people were hurt, and Rahami was injured in a shootout with the cops before he was taken into custody three days ago.

It seems that Rahami remains in a NJ hospital, that he has been interrogated by federal agents without the benefit of counsel, and that the Federal Defenders of New York have made a request to U.S. Magistrate Judge Gabriel Gorenstein that Rahami be brought before a judge for a first appearance where he will be advised of his rights. As reported at Business Insider:

He is now receiving treatment for his wounds at a hospital in Newark, New Jersey, where he could formally face his charges if he cannot travel to the U.S. District Court in Manhattan, his lawyer said.

“He has been held and questioned by federal law enforcement agents since his arrest,” David Patton, head of the New York City federal public defenders office, said in a court filing. “The Sixth Amendment (of the U.S. Constitution) requires that he be given access to counsel on the federal charges, and that he be presented without delay.”

The Federal Public Defenders sent a letter to the Judge citing Rule 5(a)(1)(A) of the Federal Rules of Criminal Procedure, which requires that criminal defendants be brought before a judge without unnecessary delay after their arrest.

And yes, the rules apply even to those like Rahami who have been accused of the most heinous crimes on the books. According to the criminal complaint filed the day after Rahami’s arrest, he is facing counts of use of weapons of mass destruction and bombing a place of public use, amongst others. Some of the allegations include the use of pressure cookers as bombs, similar to the ones used by the Tsarnaev brothers in the Boston Marathon bombing.

Speaking to the International Bar Association conference, U.S. Attorney General Loretta Lynch said that Rahami will be brought to court in the Southern District of New York “in the near future.” Given the facts of this case, does “in the near future” comport with “without unnecessary delay”? Time will tell. Like the younger Tsarnaev brother, Rahami may end up being arraigned at his hospital bed (Tsarnaev was arraigned while he had gunshot wounds in his neck and face, and while under significant medication, and he managed to squeeze out just one word during the entire hearing).

There’s also the similar but still different case of the Times Square bomber, Faisal Shahzad, who was held in custody and subject to interrogation for 15 days before he was first brought before a judge. With Shahzad, on the 9th day of his interrogation sans attorney, the government wrote an ex parte letter to the court in order to cover its ass inform it that Shahzad was in its custody and that he had repeatedly waived his Miranda rights and his right to a speedy presentment. It’s unknown whether in Rahami’s case the government has sent a secret “status” letter to a judge, but the introductory paragraph in the Shahzad letter provides an insight into the government’s attitude, as it had the standard self-righteous tone wrapped in the usual government-speak:

Although there is no legal requirement to report to the Court on the status of the defendant’s detention at this juncture, the Government recognizes that under the unusual circumstances of this case, and in deference to the court’s ultimate supervisory authority, a report on the status of this case serves the interests of justice.

Of course, keeping Rahami without access to some pesky defense attorneys — who will likely tell Rahami to STFU — and outside the realm of a federal magistrate who will advise Rahami of his rights, gives the government a significant advantage. It’s not enough that the government has the incalculable advantage that consists of a triumvirate of unlimited resources, access to information, and a federal statute that creates a presumption of pre-trial detention for some crimes. It’s not enough that their opponent is down, they’ve got to proverbially step on his head to make sure.

With Rahami, the government’s got their super-perp who they believe has committed a super-heinous crime. If the government can have Rahami waive his rights by signing a form, a.k.a. an FBI “FD-395,” it’s in a very, very good position to use his words against him down the road. A lot of incriminating stuff can be said during three days of interrogation. His defense lawyers will eventually have a seriously uphill battle to clean up the mess and have his statements suppressed.

Despite the morons who claim otherwise, Rahami is not an enemy combatant. There was the case of the Al-Qaeda operative Abu Ana al-Libi, who in 2013 was captured in Libya and then treated/questioned as an enemy combatant (not advised of his rights or provided a lawyer) while aboard the U.S.S. San Antonio in the Mediterranean Sea before being shipped off to a U.S. District Court for criminal prosecution.

Like the folks who call for terrorists (convicted or otherwise) to be warehoused outside the confines of the U.S. Bureau of Prisons, those who want Rahami to be treated as an enemy combatant fail to realize just how damn good the federal government is at convicting deplorables of all stripes, and at keeping them in Spartan accommodations stateside.

Rahami was taken into custody in American soil and has been charged in two U.S. District Courts (New Jersey and the SDNY) and in one state court in New Jersey. He has a Sixth Amendment right to have access to a defense attorney, and federal law mandates that he be presented before a judge without unnecessary delay. He is entitled to due process and a trial by a jury, in a U.S. District Court where the odds are already heavily stacked against him.

UPDATE: The electronic filing system for the U.S. District Court for the SDNY currently reflects the following:

On September 21, 2016, the government wrote a response to the letter filed by Federal Defender David Patton the previous day. In its response, the government argued that Rahami should not be appointed the federal public defender at this time:

[Rahimi] has not been arrested on any federal charge. He is not in federal custody. He is in the custody of the State of New Jersey, on state charges, and is subject to a bail package issued by the New Jersey state court. But “Rule 5 [of the Federal Rules of Cimrinal Procedure] is triggered only by federal criminal arrest.” While a writ of habeas corpus as prosequendum has been lodged with the United States Marshals Service, it has not been executed, and there has been no such federal arrest.

Relatedly, the Federal Defenders’ application for appointment as counsel is plainly premature.  The Act provides for appointments of counsel at initial appearance. (Citations omitted.)

The government further claimed that Rahami’s Sixth Amendment right to counsel is not triggered by the filing of a complaint (which has occurred in this case), and that said right attaches upon the filing of an indictment. It also argued that no determination of Rahami’s indigence has been conducted, and thus he is not entitled to a federal public defender.

On the same day, Mr. Patton filed his reply:

His bail in New Jersey was set without any appointment of counsel or court appearance.  He still has not been provided counsel . . . Yesterday, the U.S. Attorney’s Office for the SDNY filed a formal complaint against Mr. Rahami in this Court charging him with federal crimes.  It is undisputed that federal law enforcement are involved in detaining and questioning him.

The Southern District of New York Plan for Furnishing Representation Pursuant to the Criminal Justice Act requires that:

“Counsel should be provided to eligible persons pursuant to this Plan as soon as feasible after they are taken into custody, when they appear before a comitting magistrate judge or district judge, when they are formally charged or when they otherwise become entitled to counsel under the Criminal Justice Act, whichever occurs earliest.

The Criminal Justice Act provides that formal appointment of counsel “may be made retroactive to include any representation furnished pursuant to the [local] Plan prior to appointment.” (Citations omitted.)

Mr. Patton also informed the Court that he had spoken with Rahami’s former public defender in New Jersey, whose prior appointment to Rahami had required a determination that Rahami was an “indigent defendant,” and that Mr. Patton (if necessary) can provide further assurance of Rahami’s indigence if he gets to meet with him to prepare an updated financial affidavit. It’s as if Mr. Patton is (respectfully) yelling pleading “Please let me see my client!” As he should be, of course.

The federal defender further clarified that Federal Rule 5(c) does not make a distinction between federal and state arrest, and that the cases cited by the government “are inapposite to this case.”  Also on September 21, U.S. Magistrate Judge Gabriel W. Gorenstein issued an order on the dispute, and for the time being Rahami will remain without an attorney:

Here, the Government explicitly denies that it has arrested the defendant.  There is no evidence to the contrary.  While the Court may well have the power to “schedule” an initial appearance following an arrest, doing so would not be appropriate in this case because there has been no “arrest” as required by Fed. R. Crim. P. 5.  Accordingly, Rule 5 has not been triggered.

The Federal Rules of Criminal Procedure presumptively govern proceedings only in “United States” courts. See Rule Fed. R. Crim. P. 1.  A rule applies to a state court only where a rule “so states.”

Whether there are federal authorities questioning the defendant does not address the issue of custody. At this point, the Court has no evidence whatsoever from anyone with personal knowledge that the defendant is being detained by a federal officer. Accordingly, this Court lacks authority to appoint counsel for the defendant at this time.

Some facts remain unknown, but it appears that there is no need for a federal officer to “detain” Rahami. He is in a hospital bed recovering from several gunshot wounds, and he can’t go anywhere unless and until he satisfies whatever conditions his state bail package require. So for now, the federal government gets to keep questioning away at Rahami without the benefit of counsel.

It speaks volumes when the government stridently opposes Rahami’s attorneys’ request for a basic constitutional right, the right to have a defense attorney. In this round, might has triumphed over right.

The latest entry on Rahami’s docket indicates that Judge Gorenstein is seeking to “disqualify himself in this proceeding “because David Patton is the attorney on this case and Mr. Patton is a member of the panel that is considering Judge Gorenstein’s reappointment as a Magistrate Judge.” Reading between the lines, it appears that the Magistrate Judge meant to say that David Patton will eventually be “the attorney on this case.” Just not today, as the Order says.   

3 Comments on this post.

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  • Jay
    22 September 2016 at 10:15 am - Reply

    Hey we remembered we’re defense attorneys!

    • Mario Machado
      22 September 2016 at 10:57 am - Reply

      Who’s “we”? Do you mean the royal we?

  • maz
    22 September 2016 at 5:33 pm - Reply

    Isn’t it SOP to let the defendant burn cycles with a state PD for the first 87 or 88 days, then kick the mess over to the federal courthouse and a relaxed and well-rested AUSA?