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United States v. Elzahabi

March 5, 2009

UNITED STATES OF AMERICA, APPELLEE,
v.
MOHAMAD ELZAHABI, APPELLANT.



Appeal from the United States District Court for the District of Minnesota.

The opinion of the court was delivered by: Benton, Circuit Judge

Submitted: November 11, 2008

Before WOLLMAN, BEAM, and BENTON, Circuit Judges.

A jury convicted Mohamad Kamal Elzahabi on three counts of knowingly possessing and using a fraudulently obtained immigration document in violation of 18 U.S.C. § 1546(a). The district court*fn1 sentenced him to time served and two years of supervised release. Elzahabi appeals, claiming that the court should have suppressed his incriminating statements, and that the evidence was insufficient. Jurisdiction being proper under 28 U.S.C. § 1291, this court affirms.

I.

A.

Elzahabi, a citizen of Lebanon, entered the United States in May 1984 on an F-1 student visa. He coordinated with a club manager to pay a performer $5,000 to marry him. After their marriage in 1984, they held a joint bank account, but never lived together or exchanged rings, and had sexual contact once, for which Elzahabi paid.

Elzahabi filed for permanent residency on April 3, 1986, based upon the marriage. At the time, the couple indicated they lived together and she had taken Elzahabi's last name. She later testified that this information was false. Elzahabi received a green card in June 1986 which he used three times during 2001 and 2002, resulting in the three counts charged.

B.

In April 2004, the FBI, believing that Elzahabi was dangerous, began investigating his links with suspected terrorists. A police officer, Sergeant Andrew Smith, befriended Elzahabi. Elzahabi told Smith he was interested in obtaining U.S. citizenship. Smith offered to arrange a meeting with FBI agents to assist with his citizenship. Elzahabi agreed.

Elzahabi met with Smith and FBI agents Harry Samit and Chris O'Leary on the evening of April 16 to discuss citizenship. After preliminary discussion, the agents invited him to continue the interview at their field office, which Elzahabi accepted. Elzahabi and the agents arrived at the FBI office at about 1:00 a.m. on April 17. The agents informed Elzahabi that the interview was voluntary, that he did not have to continue speaking with them, and that he could change his mind at any time about talking to them.

The agents interviewed Elzahabi in the break room of the FBI office from 1:00 a.m. until 6:00 or 7:00 a.m. on April 17. The agents asked about his marriage. Elzahabi replied, "This is against me one-hundred percent. Let's put that aside." The agents immediately stopped questioning about the marriage, but continued the interview. At the end of the interview, the agents thanked Elzahabi for his cooperation, reminding him the interview was voluntary. The agents offered him the option of terminating the interview and going home, or staying at a hotel at the FBI's expense, with more interviews the next evening. Elzahabi accepted the second option. Two agents accompanied him at all times during his hotel stay.

The second interview occurred on April 17 between 7:00 p.m. and midnight. Before questioning, the agents informed Elzahabi that the interview was voluntary, that he could stop talking at any time, and that he had the right to an attorney if he desired. Elzahabi replied that he did not need an attorney, expressing eagerness to continue the interview.

The interviews continued until May 4. For all interviews after April 17, agents advised Elzahabi of his Miranda rights. On April 19 and May 3, he made incriminating statements about his marriage. On May 4, Elzahabi decided to terminate the interviews. The agents stopped the questioning, and released him. ...


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