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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division

UNITED STATES OF AMERICA v. MOHAMMAD SAAILI SHIBIN, Defendant.

) ) ) ) ) ) )

CRIMINAL NO. 2:11cr33

GOVERNMENTS RESPONSE TO DEFENDANTS MOTION TO SUPPRESS WITH MEMORANDUM OF LAW The United States of America, by it attorneys, Neil H. MacBride, United States Attorney for the Eastern District of Virginia, and Benjamin L. Hatch, Joseph E. DePadilla, and Brian J. Samuels, Assistant United States Attorneys, respectfully submits this response to Defendants Motion to Suppress with Memorandum of Law. For the reasons stated in detail herein, the government respectfully submits that the defendants motion should be denied. SUMMARY OF ARGUMENT As Shibin concedes, the FBIs interview of him on April 7 was appropriate and admissible if he initiated the further discussion and knowingly waived his rights. The evidence will show that Shibin was the one who engaged the further discussion on April 7. Shibin is a multilingual 50 year old man and had already been interviewed three times by the FBI prior to April 7. On each occasion, the FBI reviewed his Miranda rights with him and Shibin voluntarily waived those rights. When, on April 7, Shibin indicated he wanted to speak with someone knowledgeable about the law, the FBI promptly ceased questioning. The FBI only re-engaged with Shibin after Shibin repeatedly indicated that he wanted to speak with the agents about his

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case. In fact, on several occasions the FBI advised Shibin that they could not speak with him because he had requested a lawyer. It was only after Shibin affirmatively stated that he wished to speak without an attorney present, and once again reviewed and executed the FBIs advice of rights form, that Shibin gave the additional incriminating statements on April 7. At that point, Shibin was very knowledgeable about his Miranda rights, having gone over them several times before with the FBI and it was at his behest that the FBI engaged in further discussion with him on April 7. The FBI studiously followed the law of interrogation, and Shibin, a man who in December of 2010 had successfully negotiated and extracted a ransom of several million dollars for the release of a German vessel, the M/V Marida Marguerite, was fully capable of understanding his rights and making an informed and voluntary decision regarding whether to speak to the agents without an attorney present. BACKGROUND I. April 4 Interview On or about April 4, 2011, Shibin was taken into foreign custody by elements of Somali defense forces in Bosasso, Puntland. On April 4, two FBI agents Supervisory Special Agent Robert C. DAmico and Special Agent Brian J. Maliszewski interviewed Shibin. As part of this interview, the agents provided Shibin with the FBIs advice of rights form, which reflects the standard Miranda warnings. They initially provided Shibin with an English advice of rights form, which Shibin read out loud in English. Shibin was also offered an advice of rights form translated into Somali, but Shibin indicated he did not need that version as he understood the English version. Shibin was asked if he understood the rights and if he wished to continue speaking with the agents. Shibin stated that he understood the document, signed it as requested, -2-

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and agreed to speak with the agents. A copy of this executed form is attached hereto as Attachment A. During this interview, among other things,1 Shibin stated that he had been treated well while being detained and he expressed no complaints or issues relating to his detention. Shibin was given a physical examination, which confirmed that he had no medical conditions that would preclude him from being interviewed, and he was offered food. Shibin stated that he was born in December of 1960 in Mogadishu, Somalia. He had arrived in Bosasso on April 4th. On March 27, Shibin had been in Zambia and had traveled via airlines and ground transportation from Lusaka, Zambia to Addis Ababa, Ethiopia and then Djibouti, which was his last stop prior to arriving in Somalia. Prior to this trip, Shibin stated that he had left Galcaio, Puntland2 on or about March 1, 2011 and traveled to Lusaka, Zambia. Regarding prior employment, Shibin stated that he used to work for African Oil Corporation (AOC). He claimed he was laid off about 18 months ago. Shibin served as a dispatcher and translator for AOC. He would receive arrivals from the airport, transport them around to where they needed to go and make all the logistical arrangements for them. Shibin stated that he was good at this job because he could translate for them and he speaks good English, some Italian, and good Arabic. II. April 5 Interview On April 5, Shibin was still in the custody of foreign forces and he was again interviewed

The government does not summarize all statements Shibin made during these interviews but does note statements or facts that are pertinent to his Motion to Suppress.
2

Puntland is a region in north-central Somalia. -3-

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by the FBI agents. Prior to this interview, Shibin was provided with a full nights rest, water, and the opportunity to conduct self-hygiene. The agents reviewed the same advice of rights form executed by Shibin during the April 4 interview. Shibin stated that he understood the document, signed it again, and agreed to continue to speak with the agents. Shibin again indicated that he had been treated well during his period of detention. He expressed no complaints or issues related to his detention. During this interview, Shibin gave consent to search for his luggage and other personal effects at the location where he had been staying. Shibin also discussed two cell phones that he had previously possessed and the phone numbers associated with those cell phones. III. April 6 Interview On April 6, Shibin was still in the custody of foreign forces and he was again interviewed by the FBI agents.3 As with the April 4 and 5 interviews, the agents reviewed Shibins rights with him and he executed the waiver of his rights and agreed to speak. As in the prior interviews, Shibin indicated that he had been treated well and had no complaints. Prior to the interview, he was provided with a meal, water, and an opportunity to conduct self-hygiene. During this interview, Shibin stated that at some point he had begun translating for the pirates. Shibin stated that he was initially approached by a nameless friend who proposed that Shibin participate in crimes of piracy. Shibin indicated that he researched this possibility by speaking to several of his friends and associates. Shibin stated that his friends explained that you could make money by negotiating and not be considered a criminal. Shibin stated that he

There were substantial breaks between the interviews on April 4, 5, and 6, and in between each interview Shibin had a nights sleep. -4-

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believed he would not be considered a criminal if he did not actually hijack the vessel. Shibin stated that he operated as a pirate negotiator one time, during the hijacking of the German vessel named the M/V Marida Marguerite. Shibin stated that he earned $30,000 for his participation in that hijacking. Shibin stated that another person, named Leon, took his place on the Marida Marguerite at some point and that was one of the reasons that negotiation took longer. Shibin was shown a photograph of himself on the Marida Marguerite and he stated that the photograph was him on the Marida Marguerite. Shibin stated that he went to the Marida Marguerite because the pirates called him directly. The pirates had requested that he serve as a translator for the pirate crew. Shibin described the scene on the Marida Marguerite as horrible. He stated that all of the hostages were kept in a small area in the wheelhouse. Shibin stated that he left the Marida Marguerite in December of 2010. With regard to the hijacking of the S/V Quest, Shibin was shown a picture of a cell phone he previously possessed.4 Shibin affirmed that the phone looked like his phone. Shibin claimed that he lost the phone in a taxi while in Zambia, sometime within the past several weeks. Shibin was next shown a collection of screen shots3 from his cell phone. These screen shots included internet searches conducted via the cell phone on February 19 and 20, 2011 the Quest was hijacked on February 18. The screen shots showed several internet searches conducted through the phone in that time period, including the following: Hijacked S/V Quest

This cell phone previously possessed by Shibin had the phone number that the pirates who had seized the S/V Quest gave to the military, along with Shibins name, as the contact number for their negotiator. A screen shot is a photograph of the display screen of the cell phone. The cell phone can display various things in its display screen, including prior incoming and outgoing phone calls and internet searches conducted via the phone. -53

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by somali pirates, Jean and Scott Adams telephone number, address of hijacked S/V Quest owner, jean and scott adams profile, and Hijacked S/V Quest value. After reviewing these screen shots, Shibin stated that the pictures were from his phone. Shibin stated that he had searched the topics noted above using the phone. Shibin also noted that the had an auto-alert feature that sent messages about highjackings in and around Somalia directly to his phone. Shibin stated that you have to know the number of people and the value of the boat. Shibin claimed that he had researched the Quest solely out of curiosity. Shibin stated that he did not agree to help them with the Quest. He further stated that he knew about the hijacking of the Quest, but he was never interested in negotiating for its return or release. IV. April 7 Interviews Between the April 6 interview summarized above and the April 7 interviews summarized below, Shibin was taken into the custody of the FBI pursuant to an arrest warrant issued in the Eastern District of Virginia. Shibin was transported out of Somalia and ultimately placed on a Gulfstream V (G-V) airplane owned by the Department of Justice and transported back to the United States. When Shibin and the arresting agents were awaiting the arrival of the G-V to transport Shibin back to the United States, Shibin expressed to Special Agent Maliszewski that he wanted to speak further to explain things. When Supervisory Special Agent DAmico arrived to conduct the interview, the agents reviewed with Shibin the offenses with which he was charged. At that point, Shibin apparently had a change of mind and stated that he did not want to talk anymore and he thought he needed professional help with this. When asked to clarify what he meant, -6-

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Shibin stated that he needed someone who knows the law. Erring on the side of caution, the agents treated this statement as an invocation of the right to counsel and therefore ceased further discussion with Shibin.4 When the G-V arrived with additional agents, Special Agent Maliszewski notified the agents who had arrived on the G-V that Shibin had invoked his right to counsel. As a result, the agents initially did not seek to interview Shibin further on the return flight. The agents aboard the G-V were Special Agents Kevin P. Coughlin and Edward Deck. Detective Frederick A. Galloway of the New York City Police Department was also present. Supervisory Special Agent DAmico joined this group for the flight back to the United States. The G-V is a small jet, and the seating arrangement is such that two rows of seats face each other, rather than each row facing the back of the row in front, as is usual in larger passenger aircraft. For the return flight Shibin sat in one seat looking forward with an agent immediately to his right (also facing forward). Two agents sat in seats in front of Shibin facing toward him (toward the rear of the aircraft). As a result, Shibin and the agents were generally within speaking range for the duration of the return flight. After some time passed on the return flight,5 Shibin started indicating that he wanted to speak to the agents and detective. Specifically, Shibin started asking questions about the case.

Shibins Motion to Suppress understandably references a section of a report by Special Agent Coughlin which states that, with regard to the April 7 interviews, SHIBIIN initially indicated that he did not want to speak and that he wanted to speak to an attorney. Motion to Suppress at 4-5. This reference in Special Agent Coughlins report actually reflects the substance of what Special Agent Maliszewski told Coughlin when Coughlin arrived on the G-V. That is, Maliszewski summarized for Coughlin what Shibin had earlier stated to Maliszewski and DAmico. Maliszewski did this because the agents were treating Shibins earlier statement as an invocation of the right to counsel, and therefore Maliszewski was advising Coughlin in essence to avoid further interrogation.
5

The G-Vs return flight from Africa to the United States took a number of hours. -7-

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Special Agent Coughlin told Shibin that he (Coughlin) would like to speak with him but that he was not allowed to engage in conversation with Shibin because Shibin had requested an attorney.4 After some more time went by, Shibin again started talking to the agents and asking questions about his case. Special Agent Coughlin again admonished Shibin that they could not talk to him because Shibin had requested an attorney. Special Agent Coughlin recalls this same back-and-forth pattern i.e., Shibin attempting to engage in further conversation about his case and the agents admonishing that they could not speak to him further occurring approximately three to six times. Eventually, as Shibin persisted in his efforts to talk, Special Agent Coughlin told Shibin that it was up to him (Shibin) if he wanted to talk to the agents. Special Agent Coughlin told Shibin that Shibin had to be the one to engage them in the conversation because Shibin was the one who asked for an attorney. Special Agent Coughlin advised Shibin that the agents could not initiate discussions with him, but if Shibin changed his mind about wanting an attorney, he could initiate further conversation with them. Shibin then said he wanted to talk. Special Agent Coughlin asked him if that meant he was fine with answering questions without an attorney present. Shibin said yes. At this point, Special Agent Coughlin presented Shibin with the FBI advice of rights form. Shibin reviewed it, stated that he understood his rights, and signed the form. A copy of the form, and the form that was used at the later interview that same day, is
4

Special Agent Coughlin is an attorney. He previously served as a Judge Advocate General (JAG) officer in the United States Marine Corp, and continues to serve in the Marine Corp reserves. While on active duty, he served as a military prosecutor for about one year and a military defense counsel for about a year and a half. In that capacity, he dealt with issues pertinent to rights advisements in the military process. -8-

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attached as Attachment B. During the ensuing interview, Shibin stated, among other things, that an individual, whose name he gave, had contacted him and told him that the hijacking of the Quest had occurred. This person asked Shibin if he would be the negotiator and translator for the pirates. Shibin claimed that he told this person that he would think about it. Shibin stated this is when he began conducting the internet searches about the hostages on the Quest and the value of the boat. Shibin stated that he looked into it in case he wanted to get involved in it. Shibin claimed that two days after being contacted by the individual, he called the person back and told him that he would not be the negotiator for the Quest. With regard to the Marida Marguerite, Shibin stated again that he was paid $30,000 for assisting with the hijacking of the ship. Shibin stated that after the ship was hijacked the people who hijacked the ship could not talk to the owners of the ship due to the language barrier. As a result, they asked Shibin to conduct the negotiations and Shibin claimed that he thought he was helping by being a go between. Shibin claimed that after the Marida Marguerite hijacking, he had enough. Later in the day on April 7, the agents went back to Shibin to show him some pictures and clarify some matters. Prior to this discussion, Shibin was again given the Miranda warnings and again agreed to speak. In this interview, Shibin discussed a pirate investor that he knew. ARGUMENT As Shibin states, the issue is whether, after indicating that he wanted to speak to an attorney, he initiated further conversation with the FBI. If he did, then his ensuing statements, provided after a voluntary waiver of Miranda rights, are admissible. -9-

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At the outset, the government notes that it does not concede that Shibin unambiguously invoked his right to counsel under the standard set forth in Davis v. United States, 512 U.S. 452 (1994). In Davis v. United States, the Supreme Court held that ambiguous or equivocal assertions of the need for counsel do not invoke the right and require law enforcement to cease questioning. Id. at 459 (We decline petitioners invitation to extend Edwards and require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney.). In Davis, the Supreme Court found the statement Maybe I should talk to a lawyer to be ambiguous. Id. at 458-60. Applying Davis, the Fourth Circuit concluded that the statement I think I need a lawyer was equivocal. Burket v. Angelone, 208 F.3d 172, 197-98 (4th Cir. 2000). See also Diaz v. Senkowski, 76 F.3d 61, 63-65 (2d Cir. 1996) (statements I think I want a lawyer and Do you think I need a lawyer? were equivocal). Although the government does not concede the point, it is unnecessary for the court to resolve whether Shibins statement was sufficiently unambiguous under Davis because the agents erred on the side of caution and treated his statement as an invocation of the right to counsel. Because, for the reasons stated herein, the agents complied with the law even if Shibin invoked the right to counsel, it is not necessary for the Court to determine whether Shibins statement was unambiguous under Davis. Once the right to counsel is asserted, a subject in custody may not be interrogated outside counsels presence unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (emphasis added). See also McNeil v. Wisconsin, 501 U.S. 171, 177 (1991); Minnick v. Mississippi, 498 U.S. 146, 156 (1990) (Edwards does not foreclose finding a waiver of Fifth Amendment -10-

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protections after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities). The Edwards framework applies regardless of whether the counsel-right at issue arises under the Fifth or Sixth Amendments. See Montejo v. Louisiana, 129 S.Ct. 2079, 2091-92 (2009). If the defendant initiates the further discussion, then his statements are admissible so long as there is a knowing, intelligent, and voluntary waiver of counsel. Correll v. Thompson, 63 F.3d 1279, 1285 (4th Cir. 1995) (post-invocation statements are admissible if the defendant initiated the further discussions with the police and the defendant knowingly and intelligently waived his right to counsel.). Here, it was Shibin who initiated the further discussion with the agents. On the return flight, Shibin repeatedly attempted to engage the agents in discussions about his case and to ask questions about his case. After stating several times that they could not talk to him, the agents, after making sure that Shibin wanted to proceed without an attorney and advising Shibin of his Miranda rights, engaged in further communication with Shibin at his behest. This case is remarkably similar to the facts of Oregon v. Bradshaw, 462 U.S. 1039 (1983), where a plurality of the Supreme Court concluded that a defendants post-invocation statement Well, what is going to happen to me now? constituted initiation of further communication under Edwards. Id. at 1045-46 (plurality opinion).5 Similar to law enforcements response here, the officer in Bradshaw initially responded to the defendant that due to the defendants request of a lawyer, any further discussion had to be of the defendants
5

Justice Powell, whose concurrence in the judgment was necessary for the result, rejected the idea that the courts should engage in an initial determination regarding whether the defendant initiated conversation, and instead voted to reverse because the defendants waiver of his right to counsel was voluntary under all the circumstances. Id. at 1050-51 (Powell, J., concurring in the judgment). -11-

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own free will. Id. at 1042. And just as here, law enforcement in Bradshaw subsequently provided Miranda warnings to the defendant and obtained further statements. After initiating further conversation, Shibin knowingly, intelligently, and voluntarily waived his rights to remain silent and to counsel.6 In general, a waiver of the Miranda rights must be made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Moran v. Burbine, 475 U.S. 412, 421 (1986). But [t]he Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege. Colorado v. Spring, 479 U.S. 564, 574 (1987). In Harris v. Riddle, 551 F.2d 936 (4th Cir. 1977), for example, Harris, of low intelligence, waived his Miranda rights and gave an inculpatory statement, wrongly believing

In this response, the government assumes that the basic Miranda advisement-waiver framework applies to an extraterritorial interrogation of an alien. See In re Terrorist Bombings, 552 F.3d 177, 205 n.20 (2d Cir. 2008) (assuming, without deciding, that the Miranda framework governs the admissibility of statements obtained by U.S. agents in the course of custodial interrogations conducted overseas because Miranda was satisfied in that case). However, precedent confirms that in the context of extraterritorial interrogations, particularly those of aliens, the Miranda prophylactic rules can be modified to conform to the local conditions, even if those local conditions do not allow for access to counsel. See Cranford v. Rodriguez, 512 F.2d 860, 862-64 (10th Cir. 1975) (approving FBIs Miranda admonition before interrogation in Mexico that omitted right to counsel but stated that suspect could consult American Consulate and noting that we recognize that it was not possible to get an attorney and yet this should not mean that while the defendant is in detention investigation must stop); United States v. Dopf, 434 F.2d 205, 206-207 (5th Cir. 1970) (upholding Miranda warning in Mexico in which FBI agent stated that he could not furnish suspects with lawyer in Mexico but offered to contact American Consul). As these decisions [Cranford and Dopf] demonstrate, where Miranda has been applied to overseas interrogations by U.S. agents, it has been so applied in a flexible fashion to accommodate the exigencies of local conditions. In re Terrorist Bombings, 552 F.3d 177, 205 (2d Cir. 2008). Here, for example, there was no defense counsel available on the G-V. Because the agents complied with heightened standards applicable to domestic interrogations, however, it is unnecessary for the court to consider whether lesser standards in fact applied given the extraterritorial circumstances of the interrogation. -12-

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among other things that oral confessions were not admissible in court. After his conviction Harris challenged the waiver, arguing that the police were obligated to go beyond the prescribed warnings to ensure that he understood not only his right to remain silent but also the consequences of his failure to exercise it. Id. at 938. But the Fourth Circuit rejected Harriss claim, holding that Miranda does not put upon the police the burden of explaining the rules of evidence and the substantive criminal law. Id. The Court explained: When the police have fully and fairly given a suspect the Miranda warnings their duty is discharged, and we hold that they are under no further and additional duty whether or not the suspect acts wisely or foolishly or misapprehends either the facts or the law. . . . Harris chose to speak with the knowledge that he could keep silent or have counsel present when he talked. That is the meaning of intelligent waiver; that and no more. Id. at 939. As the Fourth Circuit recently noted in United States v. Clenney, 631 F.3d 658, 668 (4th Cir. 2011): There is a value to keeping things simple and certain. The officers complied with Miranda, and that ends the matter. Clenney received valid Miranda warnings, understood them, and waived them. Just so here. Special Agent Coughlin asked Shibin specifically if Shibin wanted to engage in further discussion without an attorney present, and Shibin stated that he did. The agents then provided Shibin with the standard Miranda warnings warnings that Shibin had already reviewed with agents on three prior occasions7 and Shibin elected to waive those rights and speak. Shibin is a 50 year old male capable of making informed decisions. He is educated

Shibin makes no claim that he failed to understand those same Miranda rights when he was interviewed on April 4, 5, and 6, and neither does he claim that his waiver of those rights on any of those occasions was unknowing or involuntary. -13-

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and speaks English, Italian, Arabic, and Somali. He has previously worked in jobs in which he facilitated travel and transport by others, and recently before his interviews he had traveled himself from Zambia to Somalia. And, just a few months prior to these events, Shibin had successfully negotiated the ransom of a hijacked German vessel. Those ransom negotiations involved international phone calls and months of back-and-forth negotiations with representatives of the company. At the time of Shibins April 7 interview, he was not in a police station house or in jail; rather, he was riding on a small jet. Further evidence of the voluntary nature of Shibins April 7 statement comes from the content of the statement itself. The April 7 statement reflects Shibins effort to put his own spin on his involvement in the Marida Marguerite hijacking and his claims of non-involvement in the Quest hijacking. Seeing that he was now in the custody of the United States, Shibin was making a calculated decision to speak to the agents and to try and tell the best possible story to the agents. Although his statements on April 7 reflect Shibins spin efforts, they are, as Shibin recognizes in his motion, highly incriminating. See Motion to Suppress at 2. In addition to reiterating his involvement in piracy and the Marida Marguerite hijacking, Shibins April 7 statements contain important discrepancies from his earlier statements, demonstrating that he is lying in important respects, and also contain other statements regarding his knowledge of the pirates involved in the Quest that the government will be able to prove are false by other evidence. Shibin at times argues that he also invoked his right to remain silent, but the standards applicable to further interrogation after a defendant asserts his right to remain silent are lower than the standards applicable to a defendant who has asserted the right to counsel. See Michigan -14-

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v. Mosley, 423 U.S. 96, 104 (1975) (We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his right to cut off questioning was scrupulously honored.); id. at 104 n.10 (rejecting claim that Miranda requires no further questioning after invocation of right to remain silent). In essence, even if Shibin invoked his right to remain silent, the agents had to honor that request but would have been able to enquire whether Shibin wished to speak further. Shibins assertion of a desire to speak and his waiver of his rights enabled the agents to engage in further communication with him. CONCLUSION For the foregoing reasons, the United States respectfully submits that the defendants motion to suppress should be denied. Respectfully submitted, Neil H. MacBride United States Attorney

By:

/s/ Benjamin L. Hatch Joseph E. DePadilla Brian J. Samuels Assistant United States Attorneys Attorney for the United States United States Attorneys Office 101 West Main Street, Suite 8000 Norfolk, VA 23510 Office Number: 757-441-6331 Facsimile Number: 757-441-6689 E-Mail Address: Benjamin.Hatch@usdoj.gov joe.depadilla@usdoj.gov Brian.Samuels@usdoj.gov -15-

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Certificate of Service I hereby certify that on the 8th day of August, 2011, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification to the following: James Broccoletti Zoby & Broccoletti, P.C. 6663 Stoney Point S. Norfolk, VA 23502 Counsel for defendant MOHAMMAD SAAILI SHIBIN

/s/ Benjamin L. Hatch Assistant United States Attorney United States Attorneys Office 101 West Main Street, Suite 8000 Norfolk, VA 23510 Office Number: 757-441-6331 Facsimile Number: 757-441-6689 Email: Benjamin.Hatch@usdoj.gov

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