Saturday, November 03, 2007

Another Textbook Example Of Why The FBI Must Be Abolished -- The Brandon Mayfield Case

National Association of Criminal Defense Lawyers (NACDL)
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The following is an excerpt from an article regarding attorney Brandon Mayfield, which describes how the FBI attempted to frame him for a bombing which he did not commit, while leaking this information to the US Media in efforts to convince the public that Mayfield was guilty -- when the FBI clearly knew that he was not. The FBI has a long history of using the media to promulgate its own disinformation as it did in the case of Mayfield; yet one more reason why this cowardly and corrupt agency should be abolished for good.

"Following the September 11, 2001 attacks, Mayfield was concerned for the safety of his children and wife, and according to his father, he suspected that he was under surveillance by the federal authorities. In the weeks before his arrest, Mayfield's family was under the impression that their house had been broken into at least twice, although nothing was stolen. According to court documents, the FBI used Letters of National Security in order to wiretap his phones, bug his house, and search his house several times.[1]

A bag containing detonating devices, found by Spanish authorities following the Madrid commuter train bombings, had fingerprints that were initially identified by the FBI as belonging to Mayfield ("100% verified"). According to the court documents in Ann Akien's decision, this information was largely "fabricated and concocted by the FBI and DOJ".

When the FBI finally sent Brandon's fingerprints to the Spanish authorities, they contested the matching of the finger prints from Brandon Mayfield to the ones associated with the Madrid bombing. Further, the Spanish authorities informed the FBI that they had other suspects who were Moroccan immigrants in the case that were not linked to anyone in the USA. The FBI completely disregarded all of the information from the Spanish authorities, and proceeded to spy on Brandon and his family further.

As was discovered during the court case, even the FBI's own records show that this finger print, despite the sworn testimony of FBI and DOJ agents, was in all reality not an exact match but only one of 20 "similar" prints to the ones that were retrieved from Madrid. Based on that list of people with 'similar prints' the FBI launched an extensive investigation in to all 20 individuals using Letters of National Security. The investigation included medical records, financial records, employment records, etc. on all 20 people and their families. It was during this time that Brandon Mayfield's name rose to the top of the list most likely simply because he is Muslim. His wife, whom he met in Germany, is an Egyptian national and he converted not long after their marriage.

The FBI arrested Mayfield at his offices in West Slope, an unincorporated suburb of Portland, Oregon, in a manner similar to the then-recent Mike Hawash case, under a material witness warrant rather than under charge, and held him with no access to family and limited access, if any, to legal counsel. The FBI initially refused to inform either Brandon or his family as to why he was being arrested or where he was being held - a direct violation of the Bill of Rights in the US Constitution.

Later, the FBI leaked the nature of the charges to the local media and the family discovered what the charges were by watching the local news. He was at first held at a Multnomah County jail under a false name; he was later transferred to an unidentified location. His family protested that Mayfield had no connection with the bombings, nor had he been to Spain in over 11 years.

The court documents clearly state that Spanish authorities informed the FBI on May 19, 2004 that they arrested an Algerian national named Ouhane Daoud who was an exact match for the fingerprints. Despite this, the FBI refused to release Brandon Mayfield until the story was broken by the international press the next day." Read more about the FBI's frameup of Brandon Mayfield here:

September/October 2004, Page 6

A Multitude of Errors: The Brandon Mayfield Case
By Steven T. Wax; Christopher J. Schatz

March 11, 2004: Terrorists detonate bombs on a number of trains in Madrid, Spain, killing approximately 191 people, and injuring thousands more, including a number of United States citizens.1

May 6, 2004: Brandon Bieri Mayfield, a 37-year-old civil and immigration lawyer, practicing in Portland, Oregon, is arrested as a material witness with respect to a federal grand jury’s investigation into that bombing. An affidavit signed by FBI Special Agent Richard K. Werder, submitted in support of the government’s application for the material witness arrest warrant, averres that Mayfield’s fingerprint has been found on a bag in Spain containing detonation devices similar to those used in the bombings, and that he has to be detained so that he cannot flee before the grand jury has a chance to obtain his testimony.2

May 24, 2004: The government announces that the FBI has erred in its identification of Mayfield and moves to dismiss the material witness proceeding.

June 16, 2004: Senator Russell D. Feingold (D-WI)and Representative John Conyers, Jr.(D-MI), wrote to Inspector General Glenn Fine requesting that an investigation be initiated into the “multitude of errors” that led to Mayfield’s arrest and detention.

Over the course of some 19 days, Brandon Mayfield experienced the nightmare of an innocent man connected to a capital offense by seemingly conclusive evidence. At the end of those 19 days, he was exonerated. But his life has not gone on as it did before. This has been a life-changing experience for all who were involved. Anyone who reads and reflects upon his story must likewise realize that, in these troubled and troubling times, the conditions formerly underlying one’s confidence in the stability of civil society, and trust in governmental authority, have been undermined. Without any forewarning, terrorist acts can destroy the lives of innocent people. In the climate of fear that terrorism engenders, the response of government to perceived terrorist threats can just as swiftly and surely wreak havoc on individuals who mistakenly become targets of its suspicion and victims of its counter-terrorism tactics.

All of the trains involved in the March 11 bombings left from or had traveled through the Acala de Henares train station, in Madrid. Shortly after the bombings, in a van parked in the vicinity of the station, Spanish National Police discovered a blue plastic bag containing detonation materials similar to the devices used in the bombings. On this bag, a number of latent fingerprints were observed. On March 17, the digital image of at least one of these latent fingerprints, Latent Fingerprint No. 17, was electronically transmitted to the FBI crime lab in Quantico, Virginia.

After receiving the digital image of Latent Fingerprint No. 17, the FBI’s Latent Print Unit conducted an examination of the latent print by running it through its AFIS database.3 The AFIS database search produced 20 possible matches.4 FBI Senior Fingerprint Examiner Terry Green manually compared the potential matches with the digital image of Latent Fingerprint No. 17 and found a “100 percent” match with the fourth ranked print on the list. The source of the matching print was identified as being an American citizen and former Army lieutenant, Brandon Mayfield.

Green’s match was purportedly confirmed by two other FBI fingerprint examiners.5 It is not presently known how many of the twenty potential AFIS candidates were examined and whether there were any dissenters within the FBI’s Latent Print Unit. Nor is it known whether the identification process was influenced by information pertaining to Mayfield’s religious adherence to Islam or activities as a lawyer prior to the match being officially declared.

On or about March 20, the FBI reported its findings to the United States Attorney’s Office in Portland, which then commenced an investigation. On April 2, the FBI sent a letter to the Spanish authorities informing them of the identification of Mayfield. However, in a memo dated April 13, the Forensic Science Division of the Spanish National Police responded to the FBI that the purported match was “conclusively negative.”6

On April 14, “rumors that Spanish authorities were questioning whether the print matched Mayfield” became known to the prosecutors in Portland.7 On April 16, the prosecutors became aware that the Spanish authorities “couldn’t confirm the FBI’s match.”8 On April 21, a representative from the FBI Latent Print Unit flew to Madrid and met with ten members of the Forensic Science Division of the Spanish National Police (SNP).9 At this meeting, the FBI representative presented the Spanish police officials “with a three-page document detailing their position that the prints from the bag belonged to Mr. Mayfield . . . .” 10

Warrantless Surveillance
At some point in March or April, the FBI began surveillance of Mayfield. Based on a number of extraordinary events at his home and certain redactions in the district court search warrant affidavits, it strongly appears that he was subjected to “sneak and peek” and electronic surveillance under the Foreign Intelligence Surveillance Act (FISA). The government has declined to confirm or deny the use of FISA warrantless surveillance procedures.

In support of its application for a material witness arrest warrant, the government, on May 6, represented that, although the SNP members initially had some reservations about the FBI’s identification of Mayfield as the source of Latent Fingerprint No. 17, “[a]t the conclusion of the [April 21] meeting it was believed that the SNP felt satisfied with the FBI laboratory’s identification of LFP#17 . . ..”11 Spanish forensic authorities have offered a very different account of what occurred at that meeting. According to Pedro Luis Melida-Lledo, head of the fingerprint identification unit for the Spanish National Police, at the conclusion of the meeting, the Spanish authorities “refused to validate” the FBI’s conclusions and maintained there was no match.12

In its submissions to the district court, on May 6, in addition to a material witness arrest warrant, the government sought issuance of broadly drafted search warrants for Mayfield’s law office, home, and personal vehicles. The government’s arrest and search warrant affidavits described not only the FBI’s match of Latent Fingerprint No. 17 to Mayfield, but his representation in October 2002 of Jeffrey Battle, in a child-custody matter, noting that Battle had recently been arrested and convicted on federal terrorism charges. The affidavits also referred to Mayfield’s attendance at the Bilal mosque, and his having advertised his legal services on a Muslim Web page directory service. Relying principally on the FBI’s identification of the digital image of Latent Fingerprint No. 17 as being Mayfield’s fingerprint, United States District Judge Robert E. Jones issued the requested material witness arrest warrant and search warrants. Mayfield was taken into custody at his law office. When he expressed concern for the impact his arrest might have on his practice were it to become public knowledge, an FBI agent advised him that “the media were close behind.” He declined to speak to the FBI Agents, asserting his Fifth Amendment privilege. After he was removed from the premises, his law office was searched, and a number of his legal files were seized. FBI agents also searched his home and vehicles.

Later that afternoon, Mayfield was brought into court before District Judge Jones. At this closed proceeding the government was represented by three prosecutors, Assistant United States Attorneys Charles Gorder, Pamela Holsinger and David Atkinson, who were accompanied by four FBI agents. Mayfield was represented by his close friend, Tom Nelson, a civil law practitioner who had agreed to appear with him. Mayfield was provided with copies of the Application for Material Witness Warrant, the affidavit in support of the application (the “Werder Affidavit”), the arrest warrant, and a subpoena directing him to appear before the grand jury on June 1. Judge Jones also provided him with a copy of the decision in United States v. Awadallah,13 and discussed the prospect of his either appearing before the grand jury or submitting to a deposition to preserve his testimony.14

Mayfield protested his innocence, stating repeatedly that the latent fingerprint was not his, and requesting that he be released so that he could maintain his legal practice. Judge Jones, noting that he had previously tried a case where a single fingerprint sent the defendant to prison for life, found the gravity of the situation required Mayfield’s detention. To expedite the proceedings, Judge Jones directed that the grand jury assemble on the following Tuesday, May 11, so that Mayfield could appear and testify should he choose to do so.

Following the court proceeding, Tom Nelson contacted the Federal Public Defender’s Office and requested assistance. The contact information was given to the duty attorney for the day, Assistant Federal Public Defender and co-author of this article Chris Schatz. Early in the evening, after learning that Mayfield was being held in custody under the name Randy Taylor (a name he was assigned by the Marshal’s Service to protect him, but which was published in the newspaper the following day), Schatz met with Mayfield at the Multnomah County Detention Center.

Upon returning to his office, Schatz called Federal Defender and co-author of this article Steve Wax at home and briefed him on Mayfield’s situation. The next morning, May 7, the Federal Public Defender was appointed to represent him.

The problems presented by Mayfield’s case were many and complex. Contemporaneously with his arrest, and over the ensuing days, a media barrage was unleashed in newspapers, news magazines, radio and television media that contained damaging statements from anonymous official sources.16 For example, referring to a leak from an official source, on May 8, The Oregonian reported that Mayfield “isn’t likely to be taken before a federal grand jury soon because investigators anticipate he would not talk voluntarily, and he won’t be given immunity to talk, officials said. Instead, the arrest gives the FBI time to finish its investigation.”17

Government leaks in any case are likely to be harmful to the subject of the investigation. This is especially true if the suspect is a professional person whose reputation is a key to his livelihood. There is a layer of harm to his clients as well. The wildfire of speculation sweeping the media was addressed in this case by entry of a negotiated protective (“gag”) order that prohibited further dissemination of information or statements concerning the case to the press. However, the gag order also authorized defense disclosures “as necessitated by legitimate defense investigation activity” and “Oregon State Bar client protection and law office managements requirements procedures.” These provisions enabled Mayfield to defend himself and to address his law practice responsibilities. The gag order was issued May 11. Judge Jones personally served the order that same day on Deputy United States Attorney General James Comey, who fortuitously happened to be in Portland on official business.

Another problem counsel must consider in a material witness case is the impact of custody on his client. During his first week of confinement, Mayfield was housed in an administrative segregation (“lock-down”) unit in the Multnomah County Detention Center, where he was confined to a cell and unable to communicate freely with his family. During such limited times as he was out of his cell, it soon became apparent that his unique status was widely known to jail personnel and inmates. Concerned for his personal safety, the traumatic impact of his arrest on his wife and three minor children, and for the protection of the affairs of his law practice clients, it was very important to Mayfield that his release be secured as quickly as possible.18 However, it was also clear, given the statutes defining the focus of the government’s investigation (18 USC §§ 956, 2332f, and 2339A ), that the outcome of the material witness proceeding could very well be indictment for capital offenses. Thus, resolution of Mayfield’s custody status was inextricably intertwined with the decision whether he should testify or continue to assert his Fifth Amendment privilege.

When a material witness client is a lawyer, a distinct set of problems arise. These problems are exacerbated when the government seizes the client’s files. As a component of the process for executing the search warrant on Mayfield’s law office, the government had established a “taint” procedure utilizing an Assistant United States Attorney who was not a member of the prosecution’s terror-case unit to review the seized files for privileged material. Contending that this procedure did not provide sufficient protection, Mayfield moved for immediate return of his files and their review by a special master. Judge Jones agreed and undertook the special master role himself. After reviewing the files in camera, and finding nothing suspicious or inculpatory, Judge Jones ordered the files released.19 Arrangements were then made for law office management assistance to be provided to Mayfield by the Oregon State Bar Professional Liability Fund (PLF). Mayfield was given the use of a room in Judge Jones’ chambers to review his files and meet with PLF counsel throughout the period of his incarceration.

Mayfield’s case exemplifies a three-pronged approach to representation of material witnesses. Establishing and maintaining lines of communication with the local prosecutors and the court is important. Communication generates information, not only through what is said, but how it is said. Communication also allows for the development of context (spin if you will). If, for example, a client has protested his innocence in a meaningful way, as the record shows Mayfield did, counsel can repeatedly stress, in individual and collective meetings with the prosecutors, the client’s innocence and, for example, his lack of any connection to Madrid, radical political activities, or fringe groups. Again, as reflected in the record, there were numerous meetings and letters between and among counsel and the Court during the two weeks of Mayfield’s incarceration. Although final decisions were being made in Washington, the local prosecutors were nevertheless willing to discuss various alternative ways of addressing the problems posed by Mayfield’s situation.

Because counsel must obtain reliable, relevant information about the client and the government’s case, and because discovery rights are, arguably, limited in a material witness case, a second prong involves assembling a strong defense investigation team. The team needs to independently investigate the client’s background, work on release plans, and investigate the case. When the charges arise overseas, as here, this is a daunting but necessary task. Some of the public fruits of the defense investigation for Mayfield, as conducted by Federal Defender Investigators Janan Stoll, James Strupp, and William Teesdale, are seen in the memorandum in support of release, attacks on the warrant affidavit information, and work with fingerprint experts.20

Here, third problem involved counsel taking the initiative through preparation and filing of motions with the district court attacking the material witness warrant procedure and the searches of Mayfield’s law office, vehicles, and home. Motions were also filed seeking release of information to enable us to intelligently advise him as to the exercise of his Fifth Amendment privilege, for notice as regards warrantless electronic and physical intrusions under the Foreign Intelligence Surveillance Act (FISA), and for his release from custody.21

Pursuit of these activities required that the grand jury appearance date be reset to May 21. Mayfield’s continued incarceration was an ever present pressure on all of the members of the defense team.

The material witness arrest warrant procedure, as found in18 U.S.C. § 3144, does not provide a great deal of guidance as to how a detained witness is to be treated and what rights to discovery such a witness may have. As Judge Jones observed: “[T]here are no rigid guidelines of what we can and cannot do in a material witness proceeding.”

Section 3144, as enacted by Congress as a part of the Bail Reform Act of 1984,22 states, in full:

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. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

Section 3144 permits the detention of a material witness “[i]f 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.” There is no express time limit on how long the detention may last.23 The statute has both a ‘materiality’ component and an ‘impracticable’ (or impracticability) component. The materiality component requires a finding that a person’s testimony would be relevant to a particular criminal proceeding.24 The ‘impracticable’ component addresses the necessity for use of greater compulsive power than that represented by a subpoena in order to compel the witness’s attendance.

The text of § 3144 is silent as to the burden of proof to be imposed on the government when invoking the power of the court to issue a warrant for the purpose of causing the arrest and detention of a material witness. However, in the course of construing former 18 U.S.C. § 3149, the predecessor statute to § 3144, the Ninth Circuit held in Bacon v. United States,25 that “[b]efore a material witness arrest warrant may issue, the judicial officer must have probable cause to believe (1) ‘that the testimony of a person is material’ and (2) ‘that it may become impracticable to secure his presence by subpoena.’” Insofar as the arrest and detention of a witness represents a “significant” infringement on liberty (Awadallah26), the protections afforded by the Fourth Amendment necessarily come into play because under the Fourth Amendment “the essential element is the physical restraint placed upon the person, not the purpose behind the restraint.”27

The courts have not imposed much of a burden on the government with respect to establishing the materiality of a prospective grand jury witness’s testimony. In Bacon, the court commented that, “[i]n the case of a grand jury proceeding, we think that a mere statement by a responsible official, such as the United States Attorney, is sufficient to satisfy criterion (1).”28 In Mayfield’s situation, the exalted stature of fingerprint identification evidence in the American criminal justice system was sufficient to satisfy the materiality component. He did not fare any better with the impracticable component. Satisfaction of this component usually requires some indication of possible flight29 or refusal to comply with a subpoena.30 As noted above, the gravity of the situation to which he appeared to be connected was adequate in Judge Jones’ mind to justify detention. Once again, as Judge Jones’ remarks reflect, the determinative evidence was the latent fingerprint match: “If it’s his fingerprint, unexplained in — with detonators in Spain, [it] is a powerful reason for him to flee if he’s facing capital punishment.”

Many material witness proceedings present a real risk that the client is really sought as a defendant, not a witness. That risk was evident here given the government’s citation to international capital terrorism statutes in its filings. Such a risk imposes tremendous pressures on the material witness and counsel particularly when the witness says he is innocent and knows nothing. Do you assert the Fifth Amendment privilege and force the government’s hand to indict or grant statutory immunity? It may often be better to keep the material witness ball in the air as long as possible. Once Mayfield, or any client, appears before the grand jury and invokes his Fifth Amendment privilege, the government is compelled to either grant him full § 6002 immunity, release him, or indict him. Although appearing before the grand jury and seeking full § 6002 use and derivative use immunity is an option, that course of action presents three significant difficulties. First, given the possible capital consequences, exposure to the grand jury without the assistance of counsel is particularly disadvantageous. Even if the client is a practicing lawyer, the difficulty of preparing him to handle such a proceeding will be compounded by the fact that the stress of his situation and the trauma and deprivations associated with confinement will be wearing him down. Second, one needs to consider multi-jurisdictional issues. Here, it did not appear that Spain would honor the § 6002 use-limitations on any statements he might make in a grand jury context.31 Third, if the government extends a grant of § 6002 immunity, and the client continues to exercise his Fifth Amendment privilege, he is, of course, subject to a contempt citation and imprisonment for up to 18 months.32

With these considerations in mind, discussion was undertaken to try to satisfy the government’s interest in questioning through an informal proffer-type debriefing session, with counsel present, under a use-immunity grant. To be sure, such a course of action offers less protection than full § 6002 immunity,33 and runs counter to Justice Jackson’s admonition that “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.”34 But in light of the benefit of having counsel present during questioning, and the prospects for negotiating some assurances concerning release, discussion of a proffer proposal makes sense. Such discussion occurred here, coupled with litigation before the district court, for the information whereby Mayfield could make an informed decision as to any Fifth Amendment waiver.

Notwithstanding presently existing limitations in the law with respect to recognition of a Sixth Amendment right to counsel in the absence of a formal charge, we contended in our motions and oral communications that intelligent exercise of Mayfield’s Fifth Amendment privilege required advice of counsel, and that such advice could only be effective if it was informed by adequate knowledge of the ‘facts’ that had prompted the government’s investigation.35 Although no formal opinion resulted from this argument, it appears to have influenced Judge Jones’ pragmatic handling of the issues presented by the case.

On May 17, we were before the court for a hearing on the motions that had been filed and for a status conference. Judge Jones accurately characterized the dilemma confronting Mayfield and the government:

As I look at it, both sides are in a Catch-22 position. Legally, the defense doesn’t want to commit to giving a proffer or deposition or grand jury testimony until they know what the Government’s got against them. The Government doesn’t want to tell the defense — not the defense — the material witness what they have, in addition to what they know, so that answers can’t be tailored to any questions that they normally have to ask a witness.

With this dilemma in mind, and over vigorous objection, Judge Jones ordered the government to produce a copy of Latent Fingerprint No. 17 so that it could be examined by a defense forensic fingerprint examiner. Judge Jones also ordered release of redacted copies of the search warrant affidavits.36

On May 18, the government renewed its objection to release of the latent fingerprint image, but it also suggested, as a compromise position, that the latent fingerprint image be released for examination by a fingerprint identification expert who would be designated a court witness. If this compromise proposal was accepted, the government was willing to give up any right it might have to call the fingerprint expert as a witness in later proceedings. The proposal was accepted, and Kenneth R. Moses, Director of Forensic Identification Services, San Francisco, California, was appointed as a court expert to conduct a comparative analysis of the latent fingerprint and the same known fingerprints of Mayfield that had been used by the FBI. Late that afternoon, a CD-ROM containing a copy of the digital image of Latent Fingerprint No. 17 was transported to San Francisco and delivered to Moses by Investigator Teesdale. Also, at Judge Jones’ direction, FBI Fingerprint Examiner Green e-mailed a set of the Mayfield’s known prints to Moses.

The morning of May 19, Moses testified telephonically that he had concluded that the source of Latent Print No. 17 was “the left index finger of Mr. Mayfield.”37 He also testified that the comparison process was “quite difficult,” and that there was “some distortion and some blotting out by the cyanoacrylate residue . . ..” Moses acknowledged that, to reach an ultimate determination of authenticity concerning the identification of the latent print, it would be important to examine the original latent print.

Immediately following Moses’ testimony, AUSA Gorder announced that some information had been received “from Spain this morning that casts some doubt on the identification.” Representing that the information was “classified or potentially classified,” Gorder stated that the information could only be revealed ex parte. While the three prosecutors met in camera with Judge Jones, we conferred with Mayfield in a small conference room adjacent to the courtroom.

After what seemed a very long time, but was probably no more than 20 minutes, the prosecutors returned to the courtroom. Judge Jones took the bench and advised that the “material witness counsel would want to know about the information and evaluate it before making a decision what to do with the grand jury.” The proceedings were then continued so as to allow the prosecutors to seek authorization from Washington, D.C., to release the new information.

In yet another of our many conferences, the morning of May 20, the prosecutors revealed that the Spanish National Police had identified an Algerian national as the source of Latent Fingerprint No. 17. While Wax and AUSA Gorder went to confer with Judge Jones about what action was to be taken, Schatz went to break the news to Mayfield, who was being held in the Marshal’s courthouse holding cell area.

In court, after acknowledging that the Spanish National Police had matched another person to Latent Fingerprint No. 17, the government moved for Mayfield’s release from custody. Judge Jones granted the motion, and released him subject to supervision by the Pretrial Services Office. A government request for electronic monitoring was rejected. Within the space of approximately an hour, Mayfield went from confinement in a courthouse holding cell to standing on the courthouse steps, with his wife and children at his side, addressing representatives of the press from around the nation and the world.38

The next day, 21, news reports disclosed that Spanish authorities had confirmed that “fingerprints found on a plastic bag filled with detonators and matched by American authorities to Mayfield..., belonged instead to an Algerian, Ouhnane Daoud.”39 According to the Spanish authorities, “[p]rints found on the bag, which were sent to American authorities when the Spanish found no match in their database, were from the thumb and middle finger of Mr. Daoud’s right hand....”

Motion to Dismiss
On May 24, the government filed a written motion to dismiss the material witness proceeding. According to the government, over the weekend of May 22-23, two FBI examiners traveled to Madrid, Spain, “in order to obtain images of the highest possible resolution to help resolve the concerns about Mayfield’s fingerprint identification.”40 The FBI examiners were granted “full access to the fingerprints of the other individual and the item on which the latent had been left.” The information obtained through this examination was brought back to the United States, where it was examined by four FBI latent fingerprint examiners. Following this examination, the FBI “determined . . . the latent print previously identified as a finger print of MAYFIELD to be of no value for identification purposes.”

Based on “the misidentification by the FBI of a fingerprint,” Judge Jones granted the government’s motion to dismiss. Judge Jones also lifted the gag order, allowing Mayfield to hold a full press conference.

The dismissal of the material witness proceeding has not brought an end to the matter. The trauma suffered by Mayfield and his family continues. The difficulties he now confronts in attempting to put his life and sense of personal security back together are many. The government has distributed information about him to numerous federal intelligence agencies.41 Hence, the breach of his privacy rights cannot be repaired with any degree of certainty simply by a court order directing the government to return and/or destroy all copies of the documents and other written materials that were taken from him. In addition, the gross invasion of privacy that use of FISA surveillance techniques would have produced has not yet been acknowledged or, if it occurred, remedied. Finally, although Judge Jones initially ordered the government to return all of his property and papers, and to destroy all copies made of such materials, the government is seeking an exception to the scope of this order based on a claimed litigation need to retain copies of certain items for use should Mayfield file a civil lawsuit.

The termination of the material witness proceeding does not foreclose Mayfield from seeking redress from the district court with respect to many of the issues that as yet remain unresolved. He is clearly entitled to pursue his previously filed motion pursuant to Fed.R.Crim.P. 41(g) for return and/or destruction of property seized pursuant to the search warrants. As noted in United States v. Martinson,42 once a court has asserted jurisdiction “over a motion to return property, it maintains its jurisdiction as long as necessary to provide an adequate remedy to the movant.” A similar rationale justifies a motion before the district court for notice of, and suppression of the fruits of, any physical and/or electronic surveillance conducted by the government under the provisions of FISA.43 The court also retains jurisdiction, as a function of its supervisory powers, to investigate possible abuses of the grand jury process occasioned by misrepresentations in the material witness arrest warrant application and the widespread leaking of information pertaining to Mayfield by anonymous government sources.

Resolution of some of the more significant issues posed by Mayfield will undoubtedly take time, but the thorough investigation and open discussion needed for any such resolution is likely to produce some productive changes in how fingerprint identifications are conducted, and how material witness arrest warrants are used. The FBI’s contention that Latent Fingerprint No. 17 has “no value” has been challenged by Moses, and by noted fingerprint identification expert Allan John Bayle. Upon being advised of the FBI’s “no value” contention, Moses stated he could not understand what the FBI was saying.44 Bayle found that the clarity of the latent print was “very good” and that there was easily enough detail to do a Level 3 analysis.45 Bayle also concluded that the Level 1 pattern detail in the latent is distinguishable from the Level 1 pattern detail in Mayfield’s fingerprints.46 With respect to the misidentifications made by the FBI fingerprint examiners, and by Moses, Bayle drily observes: “There were many discrepancies. A competent expert should have seen all the discrepancies.” The FBI’s contention that the misidentification of Mayfield occurred as a result of problems with the quality of the digital image has been questioned and criticized by all of the forensic fingerprint experts with whom we have spoken.

Recently, in United States v. Mitchell,47 the Third Circuit Court of Appeals concluded that latent fingerprint identification evidence, as produced by the FBI’s procedures, met the requirements for admissibility established by Daubert v. Merrell Dow Pharmaceuticals, Inc.48 However, the FBI latent print unit’s performance in Mayfield’s case suggests that, notwithstanding Mitchell’s recognition of a valid scientific basis for fingerprint identification, the potential for error in the making of an identification requires that identification testimony be rigorously tested and excluded if compliance with requirements for ensuring accuracy in its application cannot be demonstrated.49

Improvement in the handling of the material witness warrant statute should also be pursued. The common law principle that the public has a right to every man’s evidence has been characterized as a “fundamental maxim.”50 The duty to testify has long been recognized as a basic obligation imposed on every citizen,51and the power of the federal court to compel persons to appear and testify before a grand jury is firmly established.52 However, the Supreme Court has also declared that the “proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings.”53 The purpose of such secrecy is not only to protect the integrity of the information-gathering process conducted by the grand jury, but to protect “prospective witnesses,” and to ensure “that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.”54 Where such secrecy is breached by the government’s own conduct, and the identity of a material witness is widely disseminated, the process has been abused, and appropriate relief is warranted.

Material witness proceedings under § 3144 should not be conducted in absolute secrecy.55 However, the same concerns for integrity of the process and witness safety as support grand jury secrecy also support imposition of an obligation on the government not to release information concerning its use of the material witness arrest warrant procedure in a particular case to the mass media, and not to abuse the procedure by invoking it solely to detain an individual. When it appears that either form of abuse is being perpetrated, the district court should conduct an investigation into the government’s conduct and employ appropriate remedies to address the immediate situation and deter future misconduct.56

Concurring in Sherman v. United States,57 Justice Frankfurter observed that the rule of law depends not on force of arms or a government’s capacity to exercise its police powers, but upon public confidence in the “fair and honorable administration of justice.” It seems reasonable to surmise that the events in the Mayfield material witness arrest warrant proceeding have undermined public confidence in the rule of law. As such, these events should serve as a reminder that, although the dividing line between precipitous action and a too cautious approach on the part of the government in combating terrorism may be difficult to draw, in the American system of justice, the values associated with freedom and the preservation of the right to privacy rank higher than the value accorded to security. Had this priority of values been more firmly fixed in the government’s mind, perhaps the reservations expressed by the Spanish forensic authorities would have been heeded, leading to a more measured, careful investigation and correction of the FBI’s identification error before the government invoked either FISA or the material witness arrest warrant statute.

Gross Error
As for Mayfield, in a hearing before the Senate Judiciary Committee on June 8, 2004, Attorney General Ashcroft stated: “That is an unfortunate situation which I regret. Anytime any American is detained and we later find out that the detention was not necessary for the maintenance of public safety, and that someone’s liberties were offended, I think that’s something to regret.” Under FISA, when the residence of a United States person has been searched, and the Attorney General determines there is “no national security interest in continuing to maintain the secrecy of the search, the Attorney General shall provide notice to the United States person whose residence was searched of the fact of the search . . . and shall identify any property of such person seized, altered, or reproduced during such search.”58 The Attorney General’s obligation is clear. There can be no national security interest in covering up the multitude of mistakes that resulted in Mayfield’s 14 days of incarceration, and in his continuing trauma and distress. Mayfield is waiting to hear from Attorney General Ashcroft as to what FISA search activity occurred with respect to his home and his law office, and he is waiting for an explanation as to what caused the FBI’s gross identification error. We believe it is in his interest and in the interest of the people of the nation that his questions be answered.

1. The facts set forth herein were drawn from the pleadings and transcripts filed in In Re: Grand Jury Proceeding 03-01, Oregon District Court Case No. 04-9071, and newspaper articles by Sarah Kershaw, et al. Spain And U.S. at Odds on Mistaken Terror Arrest, N.Y. Times, June 5, 2004, A1 (hereinafter “Kershaw Article”); and Leo Zaitz, FBI case against Oregon lawyer built on blurry fingerprint, logic, The Oregonian, May 30, 2004, A1 (hereinafter “Zaitz Article”). All statements attributed to Mayfield have been made by him publicly.
2. The Affidavit of FBI Special Agent Richard K. Werder is referred to herein as the “Werder Affidavit.”
3. AFIS stands for Automated Fingerprint Identification System. It is not known whether the FBI used its widely publicized 45,000,000 fingerprint database or whether it used a smaller database composed solely of fingerprints believed to belong to individuals associated with terrorism or with politically suspect groups.
4. Before it can be analyzed by the AFIS system, a latent print must first be “mapped out” by an examiner in terms of the physical structure of certain characteristics found in the fingerprint. This data is then run through the AFIS database, which contains data pertaining to approximately 45 million known fingerprints that have purportedly been analyzed utilizing similar criteria. Error in the operation of the AFIS system, potentially leading to a false identification, may occur if, at the time a latent print is initially analyzed and configured, a mistake is made. Error may also occur if the data pertaining to a known print was incorrectly analyzed and/or entered.
5. Altogether, three separate senior FBI latent print examiners (Green, Supervisory Fingerprint Specialist Michael Wieners, and Fingerprint Examiner John T. Massey) concluded that Latent Fingerprint No. 17 matched a known fingerprint belonging to Mayfield. According to the Werder Affidavit, at ¶ 7, p. 3, the match was based on “in excess of 15 points of identification” and was considered to be a “100% identification of Brandon Bieri Mayfield.”
6. Kershaw article at A13. Although a request for release of the April 13, 2004, memo has been made by Mayfield, to date the government has refused to release it.
7. Zaitz article, at A15.
8. Id.
9. Depending on the secondary source consulted, this representative was either Green or FBI Supervisory Fingerprint Specialist Michael Wieners.
10. Kershaw article, at A13.
11. Werder affidavit, at ¶ 8, p. 3.
12. Kershaw article, at A13.
13. 349 F.3d 42 (2nd Cir. 2003).
14. See Awadallah, 349 F.3d at 60 (“We conclude that the deposition mechanism is available for grand jury witnesses detained under § 3144.”).
15. 18 USC § 3006A(a)(1)(G) provides for appointment of counsel for a material witness who is being held in custody. As a matter of constitutional entitlement, a right to counsel should also be recognized as stemming from a detained material witness’ need to make a knowing, intelligent, and voluntary decision concerning exercise of the Fifth Amendment privilege. The “interest in being free from physical detention by one’s own government” is one of the “most elemental of liberty interests.” Hamdi v. Rumsfeld, 2004 WL 1431951, at *15 (U.S. June 28, 2004). In order to protect this elemental right, due process should mandate (as a corollary right) a right to counsel for individuals subject to arrest as material witnesses, as well as an opportunity to be informed of and challenge the government’s bases for seeking detention.
16. The generation of official leaks from sources in Washington, D.C., is apparently a common accouterment to terrorism-related cases. See United States v. Koubriti, 305 F.Supp.2d 723, 732-34 (E.D.Mich., 2003).
17. Les Zaitz, Fingerprint Links Oregon With Spain, The Oregonian, May 8, 2004, at A8.
18. Pressure to expedite the process also came from the district court. No sooner had the Federal Public Defender been appointed, than the district court advised that, were Mayfield’s deposition to begin by 1:30 p.m. that day, he could be released on electronic monitoring over the weekend with his deposition to recommence the following Monday.
19. Mayfield’s law office files were released to him within five days of their initial seizure. At this time, the government was permitted to keep copies of the physical files and law office computer hard drives.
20. Memorandum Of Law in Support of Motions, May 13, 2004; Affidavit of William J. Teesdale of May 28, 2004.
21. On May 11, 2004, with the invaluable assistance of research attorney Amy Baggio, the following motions were filed: Emergency Motion for Order Directing Government to Conduct Investigation into Media Leaks and Violation of Grand Jury Secrecy; Emergency Motion to Prevent Dissemination and Disclosure of Information Obtained from Law Office Files; Emergency Motion for Return of Law Office Files, Documents and Related Materials Seized Pursuant to Execution of Search Warrant; Emergency Motion for Order Directing Government Not to Conduct any Investigation Activity with Respect to Materials Seized From Law Office Pending Determination of Attorney-Client Confidentiality and Privilege Issues; Emergency Motion for Disclosure to Defense of Affidavits in Support of Search Warrants and for Return of Property Seized from Residence and Automobiles. On May 13, a comprehensive Memorandum of Law in Support of Motions was filed. On May 14, an Emergency Motion for Release of Material Witness and a Memorandum of Authority in Support of Emergency Motion for Release of Material Witness was filed. On May 17, an Addendum to Memorandum of Authority in Support of Emergency Motion for Release of Material Witness was filed. On May 18, an Emergency Motion for Notice of “Sneak and Peek” Warrants and an Emergency Motion for Disclosure of Electronic Surveillance was filed. On May 24, a Motion to Preserve Fingerprint Information, and on May 28, a Report Concerning the Fingerprint, were filed.
22. Pub. L. No. 98-473, 98 Stat. 1837, 1976-81 (1984).
23. But see Awadallah, 349 F.3d at 62 (“While § 3144 contains no express time limit, the statute and related rules require close institutional attention to the propriety and duration of detentions.”).
24. A grand jury proceeding is a “criminal proceeding” as that term is used in
§ 3144. In re Grand Jury Material Witness Detention, 271 F. Supp. 2d 1266, 1269 (D.Or., 2003). See also Perkins v. Clark, 148 F. Supp. 2d 1177, 1183 (D.N.M., 2001)(“[T]he arrest and detention of a potential witness is just as much an invasion of the person’s security as if she had been arrested on a criminal charge.”).
25. 449 F.2d 933, 943 (9th Cir. 1971).
26. 349 F.3d at 59 (“the arrest and detention [of a material witness] are significant infringements on liberty”).
27. Bacon, 449 F.2d at 942.
28. 449 F.2d at 943.
29. Cf. Arnsberg v. United States, 757 F.2d 971, 976-77 (9th Cir. 1985).
30. See, e.g., In re De Jesus Barrios, 706 F.2d 355, 357 (1st Cir. 1983).
31. Given the facts known at the time, had Mayfield received a grant of § 6002 immunity, he could not have declined to testify based on fear of prosecution by Spain. In the absence of evidence that the United States government is seeking to obtain evidence “to be delivered to other nations as prosecutors of a crime common to both countries,” there is no Fifth Amendment privilege to withhold testimony based on fear of foreign prosecution. United States v. Balsys, 524 U.S. 666, 669-700 (1998).
32. See 18 USC § 1826(a); In re De Jesus Berrios, 706 F.2d at 356 (contempt citation does not require that the witness’ refusal of the court’s order to testify take place before the grand jury).
33. See Kastigar v. United States, 406 U.S. 441, 461 (1972)(describing the benefits to a defendant of derivative-use immunity and the government’s potentially “heavy burden” of proving an independent source for all evidence it intends to use).
34. Watts v. Indiana, 338 U.S. 49, 59 (1949)(Jackson, J., concurring).
35. Although the United States Supreme Court has “long recognized that the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant,” (United States v. Gouveia, 467 U.S. 180, 187 (1984)), the Court has also recognized a right to counsel in circumstances where the assistance of counsel is imperative to protection of an individual’s Fifth Amendment privilege against self-incrimination. See Miranda v. Arizona, 384 U.S. 436, 469 (1966)(“[T]he right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today.”); Escobedo v. Illinois, 378 U.S. 478, 490-91 (1964). Furthermore, the Court has recognized a right to counsel at certain “critical” pretrial proceedings where the confrontation between an individual and the government “might well settle the accused’s fate and reduce the trial itself to a mere formality.” United States v. Wade, 388 U.S. 218, 224 (1967). The Fifth Amendment’s Due Process Clause has also been held to extend a right to counsel to individuals subject to government imposed restraints on their liberty. Thus, when individuals are detained pursuant to 18 U.S.C. § 3144, the Due Process Clause requires appointment of counsel. In re Class Action Application for Habeas Corpus on Behalf of All Material Witnesses in the Western District of Texas, 612 F. Supp. 940, 946-47 (W.D. Tex. 1985)(“Counsel is required so that the material witness may know precisely what is happening, so that he is aware of the prospect of incarceration, and so that he is treated fairly by the prosecution.”). As in the Sixth Amendment context, when the Due Process Clause requires appointment of counsel, counsel must be effective. Evitts v. Lucey, 469 U.S. 387, 395-96 (1985). In light of these principles, when it is clear that a material witness is also a potential target of a grand jury’s investigation, facilitation of effective representation requires that the government reveal sufficient information to enable counsel to give meaningful advice to the witness concerning exercise of the Fifth Amendment privilege.
36. The search warrant affidavits contained no additional substantive information other than what had already been revealed to Mayfield by the Werder Affidavit. Only a single paragraph was redacted. The location of this paragraph in the warrant affidavits suggests that it referred to physical and/or electronic search activity undertaken by the government pursuant to the Foreign Intelligence Surveillance Act.
37. A reporter’s transcript of the proceedings before the court on May 19, 2004, is now part of the official case record.
38. At this time, because the gag order was still in place, Mayfield was only able to make a very brief press statement.
39. Sarah Kershaw, Questions About Evidence in U.S. Arrest In Bombing, N.Y. Times, May 21, 2004, at A14.
40. Motion To Dismiss, at p. 3.
41. Notice Pursuant to Rule 6(e)(C)(iii) of the Federal Rules of Criminal Procedure of May 14, 2004.
42. 809 F.2d 1364, 1368 (9th Cir. 1987).
43. See 50 USC §§ 1806(e) and 1825(f).
44. Moses also noted that he was initially advised by the FBI that the only latent print digital image received was Latent Fingerprint No. 17, the unknown print that he had been asked to examine. However, after the FBI’s misidentification of Mayfield came to light, Moses was told by a different FBI representative that multiple latent fingerprint images had been received that were possibly “simultaneous lay-downs” made by two or more fingers of the same hand as Latent Fingerprint No. 17.
45. The structure of fingerprint ridges is analyzed at three levels of increasingly minute detail. Level 1 detail involves gross-patterns (loops, arches, and whorls) visible to the naked eye. Level 2 detail involves physical characteristics formed by ridges as they begin, end, join and divide. Level 3 detail concerns microscopic variations in the ridges themselves and the locations of sweat pores. See, generally, United States v. Mitchell, 365 F.3d 215, 221 (3rd Cir. 2004).
46. Bayle’s finding of fundamental error by the FBI analysts in assessing Level 1 detail is consistent with the view held by the Spanish Authorities: “Mr. Melida said an examination of the two prints showed that the arcs on the lower part of the print curved downward in Mayfield’s print but upward in the print from the bag.” Kershaw Article, at A13.
47. 365 F.3d 215, 244-47 (3rd Cir. 2004).
48. 509 U.S. 579 (1993).
49. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 154-56 (1999)(criticizing purported expert’s application of his methodology).
50. Jaffee v. Redmond, 518 U.S. 1, 10 (1996)(“[W]e start with the primary assumption that there is a general duty to give what testimony one is capable of giving . . ..”).
51. Blackmer v. United States, 284 U.S. 421, 438 (1932).
52. Kastigar v. United States, 406 U.S. 441 (1972).
53. United States v. Sells Engineering, Inc., 463 U.S. 418, 424 (1983).
54. Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 218-19 (1979).
55. See In re Application of the United States for a Material Witness Warrant. 214 F.Supp.2d 356, 363-64 (S.D.N.Y. 2002)(“While grand jury secrecy is mandated by law . . . the determination to jail a person pending his appearance before a grand jury is presumptively public, for no free society can long tolerate secret arrests.”).
56. See id., at 363-64 (directing the government to conduct an investigation into the circumstances surrounding how a material witness’ confession, that was reported to the court but subsequently determined to have been false, was obtained).
57. 356 U.S. 369, 380 (1958).
58. 18 USC § 1825(b).
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