United States v. Abu Ali

Affirmed in part, reversed in part, and remanded by published opinion. Judge WILKINSON, Judge MOTZ, and Judge *221TRAXLER wrote a joint opinion in this case. Judge WILKINSON and Judge TRAXLER join the opinion in its entirety. Judge MOTZ joins the opinion with the exception of footnote 5 and Section VII, as to which she has written a dissenting statement and opinion.

OPINION

Ahmed Omar Abu Ali was convicted by a jury of nine criminal counts arising from his affiliation with an al-Qaeda terrorist cell located in Medina, Saudi Arabia, and its plans to carry out a number of terrorist acts in this country. He was sentenced by the district court to 360 months imprisonment and 360 months of supervised release following imprisonment. Abu Ali appeals his convictions and the government cross-appeals his sentence. For the following reasons, we affirm the conviction, but we vacate and remand for purposes of resen-tencing.

Unlike some others suspected of terrorist acts and designs upon the United States, Abu Ah was formally charged and tried according to the customary processes of the criminal justice system. Persons of good will may disagree over the precise extent to which the formal criminal justice process must be utilized when those suspected of participation in terrorist cells and networks are involved. There should be no disagreement, however, that the criminal justice system does retain an important place in the ongoing effort to deter and punish terrorist acts without the sacrifice of American constitutional norms and bedrock values. As will be apparent herein, the criminal justice system is not without those attributes of adaptation that will permit it to function in the post-9/11 world. These adaptations, however, need not and must not come at the expense of the requirement that an accused receive a fundamentally fair trial. In this case, we are satisfied that Abu Ali received a fair trial, though not a perfect one, and that the criminal justice system performed those functions which the Constitution envisioned for it. The three of us unanimously express our conviction that this is so in this opinion, which we have jointly authored.

Some differences do exist, however, among the panel members. Judge Wilkinson and Judge Traxler join in the opinion in its entirety. Judge Motz dissents (in footnote 6) from the majority’s holding that the interrogation of Abu Ali on June 15, 2003, did not constitute a joint venture between law enforcement officers of Saudi Arabia and those of the United States. Judge Motz likewise dissents from Section VII of the panel’s opinion, which directs that the case be remanded to the district court for the purposes of resentencing.

I.

A.

Abu Ali is an American citizen. He was born in Texas and raised in Falls Church, Virginia by his mother and father, the latter of whom was employed at the Royal Embassy of Saudi Arabia in Washington, D.C. After graduating from the Saudi Islamic Academy in Virginia, Abu Ali studied for one semester at the University of Maryland and then enrolled in the Institute in Virginia to study Islamic Sciences.

In September 2002, at the age of 21, Abu Ali left his home in Falls Church, Virginia and traveled to Saudi Arabia to study at the Islamic University in Medina. Within a few months of his arrival in Medina, Abu Ali contacted Moeith al-Qahtani (“al-Qahtani”). Abu Ali and al-Qahtani had become friends two years earlier when Abu Ali attended an Islamic summer study *222session in Saudi Arabia and, upon his return to Saudi Arabia, Abu Ali renewed the friendship. The two “often talked about jihad” and, in November 2002, al-Qahtani introduced Abu Ali to Sultan Jubran Sultan al-Qahtani (“Sultan Jubran”), who was also known by the name of “Ali.”1 Sultan Jubran had been a mujahid soldier during the United States bombing of Tora Bora in Afghanistan (a major battle between al-Qaeda/Taliban forces and United States forces during the Afghanistan invasion) and, when introduced to Abu Ali, was second-in-command of an al-Qaeda cell in Medina. Abu Ali “accepted and liked the idea” of meeting the “mujahid brother.” After their introduction, he and Sultan Ju-bran also talked “about the virtues of jihad” and exchanged cell phone numbers to keep in touch.

In the ensuing months,. Abu Ali and Sultan Jubran continued their discussions. During one such meeting, Sultan Jubran questioned Abu Ali “about gathering and crowded places” in the United States. Abu Ali, who “understood the implication of his question,” informed Sultan Jubran that these “would be amusement parks ... and stadiums.” At one point, when Abu Ali was unsuccessful in contacting Sultan Jubran by cell phone, he obtained the latter’s email address from al-Qahtani and sent Sultan Jubran a message asking that he be contacted. Shortly thereafter, Sultan Jubran did contact Abu Ali and the two men met again in Jiddah, Saudi Arabia, which is just to the south of Medina. At this meeting, Sultan Jubran urged Abu Ali to engage in jihad against America. According to Abu Ali, Sultan Jubran “told me that they had something to do” and “asked [me] to be ready to join them in working against America.” Abu Ali “immediately accepted, because of my hatred of the [United States] for what I felt was its support of Israel against the Palestinian people, and because I was originally from Jerusalem.”

Later, Sultan Jubran advised Abu Ali that Abu Ali would soon be meeting “the person in charge of the organization.” According to Abu Ali, Sultan Jubran “explained to me that I was one of them now, and that I could speak in the name of al-Qaeda.” A few days later, Sultan Jubran arranged a meeting between himself, Abu Ali, and Ali Abd alRahman al-Faq’asi al-Ghamdi (“al-Faq’asi”), the leader or “brother in charge” of the al-Qaeda terrorist cell in Medina, who was also known by the name of “Adil.”

Abu Ali and al-Faq’asi met a number of times thereafter to discuss the Medina cell’s plans for jihad. More specifically, al-Faq’asi advised Abu Ali that an assignment was planned inside the United States and the two men discussed and considered a number of alternatives for terrorist attacks within the United States. According to Abu Ali, al-Faq’asi “presented me with two ideas, based on the fact that I was a [United States] citizen and that I had not engaged in jihad before.” “The first idea was to carry out a major operation that he would arrange.” The second was “that I would go to the [United States], settle down, find work, lead a normal life, blend into American society and marry a Christian,” which would allow him to “plan successive operations inside the [United States] for which ... al-Faq’asi would send individuals to carry out.” In other words, Abu Ali, who was a United States citizen able to return at will and move freely about in the country, would marry a Christian woman, live an overtly normal *223life to deflect attention, establish a sleeper cell within this country, and prepare for operation instructions and additional operatives to assist.

After this introduction to al-Faq’asi, Abu Ali “became directly connected” to the leader of the cell and “stopped seeing or hearing from Sultan” Jubran. However, he “continued to meet ... al-Faq’asi in various places” and “diseuss[ed] how to carry out the assignment in the [United States].” According to Abu Ali, he met with al-Faq’asi on six separate occasions to plan such terrorist operations within the United States. In the course of these meetings, Abu Ali suggested assassinations or kidnappings of members of the United States Senate, the United States Army, and the Bush Administration, a plan to rescue the prisoners at Guantanamo Bay, and plans to blow up American warplanes on United States bases and at United States ports, similar to the USS Cole operation. Al-Faq’asi suggested an operation similar to the 9/11 bombings, but which would originate in planes departing from Britain or Australia for Canada in order to circumvent the requirements of a United States visa to enter the country, and plans to assassinate President Bush. With regard to the presidential assassination, Abu Ali suggested two possibilities: an assassination plot involving at least three snipers to fire upon the President while in public or a martyr operation conducted while the President was out greeting the public.

In the course of these plans and discussions, Al-Faq’asi requested that Abu Ali move out of the dormitory where he lived and advised Abu Ali that a “suitable residence” would be found where he “could be trained on manufacturing explosives, information gathering, and forgery.” Abu Ali went with al-Faq’asi to live in a villa in the al-Iskan neighborhood in Medina for training. Using the name “Ashraf,” Abu Ali was trained by a man called “Ahmad” on how to assemble and disassemble the Kalashnikov machine gun, five of which were located in the villa along with ammunition. Abu Ali informed Ahmad that he was tasked with killing the United States President. Abu Ali also spoke on at least one occasion to Sheikh Nasser, a/k/a Ali al-Khudair, who “gave his blessing for the assassination of the President of the United States.”

In addition to training, the al-Faq’asi Medina cell provided Abu Ali with finances and equipment. He was given money to buy a laptop computer, a cell phone, and books, as well as written materials on security and methods of concealment. He was also given a USB memory chip that included a clip taken during the bombing of Afghanistan which contained the voices of American pilots, and tasked with translating the recording into Arabic.

On May 6, 2003, Saudi authorities discovered a large stash of weapons and explosives in Riyadh, Saudi Arabia, which was suspected to be intended for use in terrorist activities within that country. The following day, the Saudi government published a list of the 19 most wanted individuals in connection with terrorist activity. The list included al-Faq’asi and Sultan Jubran. According to Abu Ali, after the list was published, al-Faq’asi told him that the villa location would be changed and Abu Ali was taken to a farm where he stayed for several days.

Six days later, on May 12, 2003, al-Qaeda carried out a number of suicide bombings in Riyadh, killing approximately 34 people including 9 Americans. That night, Abu Ali and the other cell members performed guard duty at the cell’s safe-houses. After the bombings, Abu Ali and a number of the others moved to a second villa in an al-Iskan neighborhood where *224they stayed for three days, although Abu Ali did not spend the night in the villa with the others. According to Abu Ali, the villa contained “a dimly-lit room that contained wires and cell phones, ... machine guns, ammunition, a pistol and a hand grenade.” Later, the group moved back to the farm, where Abu Ali continued his training in explosives and forgery. He received lessons from Majid (Mohammad Salem al-Ghamdi) on forging and removing seals, altering photos, and removing visas, and received lessons from al-Faq’asi on explosives, making explosives, and compounds. Another man, Umar al-Hakmi, provided lessons on fuses and wiring.

On May 26 and 27, 2003, authorities with the Saudi Mabahith received orders to raid several suspected terrorist safe houses in Medina, including the safe house in the Al-Azhari villa where Abu Ali had received training.2 Among the evidence retrieved during the search of one safe house was an English translation of an American pilot’s radio transmission and a paper with Abu Ali’s additional alias names of “Hani” and “Hanimohawk” written on it. The authorities also recovered a number of automatic rifles and guns, ammunition, fertilizer, hand grenades, cell phones which were being converted to explosives, as well as computers, cameras, walkie-talkies, and laminating equipment for identification cards. A number of members of the al-Faq’asi terrorist cell were arrested during the raids, including al-Ghamdi, who had trained Abu Ali, and Sheikh Nasser, who had given Abu Ali the blessing for the presidential assassination. Al-Faq’asi and Sultan Jubran, disguised in women’s clothing, escaped.3

During subsequent questioning by the Saudi authorities, al-Ghamdi informed the Mabahith that one of their members was a student at the University of Medina of either American or European background who went by the alias “Reda” or “Ashraf.” Further investigative efforts resulted in the photo identification of Abu Ali as the American or European member of the cell.

On June 8, 2003, Abu Ali was arrested by the Mabahith at the Islamic University in Medina and his dormitory room was searched. Among the items found there were a GPS device, jihad literature, a walkie talkie, a United States passport, a Jordanian passport and identification card, a Nokia cellular telephone, a telephone notebook containing al-Qahtani’s name, and literature on jihad. Abu Ali was then flown from Medina to Riyadh, where he was interrogated by the Mabahith. Although he initially denied involvement with the al-Faq’asi cell, he confessed when the Mabahith officers addressed him with his alias names of “Reda” and “Ashraf.” Specifically, Abu Ali confessed to his affiliation with al-Qaeda and, in particular, the Medina cell headed by al-Faq’asi. According to Abu Ali, he joined the al-Qaeda cell “to prepare and train for an operation inside the [United States],” including an “intention to prepare and train to kill the [United States] President.” In addition to written confessions, the Mabahith obtained a videotaped confession in which Abu Ali admitted his affiliation with the Medina cell and its plans to conduct terrorist operations within the United States, including the plan to assassinate President Bush and to destroy airliners destined to this country.

*225Following Abu Ali’s arrest by the Saudi authorities, the FBI was notified of his suspected involvement in the al-Qaeda cell in Saudi Arabia and advised that the cell was planning on conducting terrorism operations in the United States. Although the FBI requested access to Abu Ali, the Mabahith denied the request. On June 15, 2003, the Mabahith allowed the FBI to supply proposed questions, but later rejected the list and the breadth of the inquiry sought. Ultimately, the Mabahith only agreed to ask Abu Ali six of those questions and to allow the FBI officers to observe his responses through a one-way mirror. Abu Ali was asked whether he was tasked to assassinate the President (as had been reported by the Mabahith to the FBI), when he arrived in Saudi Arabia, whether he knew of any planned terrorist attacks against American, Saudi, or Western interests, whether he was recruited by any terrorist organization, whether he had used false passports, and the nature of his father’s position in the Embassy. Other than consular contact, the United States was denied all access to Abu Ali until September of 2003.

In the meantime, on June 16, 2003, the FBI obtained and executed a search warrant at Abu Ali’s home in Virginia. Among the items found there, the agents discovered a printout of the buddy list of email addresses from MSN Hotmail account Ahmedabuali@hotmail.com, which contained an address of abumuslim99@ hotmail.com for al-Qahtani, an address book containing the name of al-Qahtani, a two-page article praising the 9/11 attacks in this country, a handguns magazine addressed to Abu Ali which contained a feature article on methods for the concealed carrying of handguns, and an email message from an unknown individual to Abu Ali discussing opportunities for Muslim fighters in the conflict between Muslim rebels and Russians in Chechnya.

B.

On February 3, 2005, a federal grand jury returned an indictment against Abu Ali. The Saudi officials surrendered Abu Ali to United States authorities and he was flown back to the United States on February 21, 2005. He had his initial appearance before the United States magistrate judge the following day. In the superseding indictment, Abu Ali was charged with the following offenses: Conspiracy to Provide Material Support and Resources to a Designated Foreign Terrorist Organization (al-Qaeda), in violation of 18 U.S.C.A. § 2339B (Count 1); Providing Material Support and Resources to a Designated Foreign Terrorist Organization (al-Qaeda), in violation of 18 U.S.C.A. § 2339B (Count 2); Conspiracy to Provide Material Support to Terrorists, in violation of 18 U.S.C.A. § 2339A (Count 3); Providing Material Support to Terrorists, in violation of 18 U.S.C.A. § 2339A (Count 4); Contribution of Services to al-Qaeda, in violation of 50 U.S.C.A. § 1705(b), 31 C.F.R. § 595.204 (Count 5); Receipt of Funds and Services from al-Qaeda, 50 U.S.C.A. § 1705(b), 31 C.F.R. § 595.204 (Count 6); Conspiracy to Assassinate the President of the United States, 18 U.S.C. § 1751 (Count 7); Conspiracy to Commit Aircraft Piracy, 49 U.S.C.A. § 46502(a)(2) (Count 8); and Conspiracy to Destroy Aircraft, 18 U.S.C.A. § 32(b)(4) (Count 9).

In March 2005, the government filed a motion pursuant to Rule 15 of the Federal Rules of Criminal Procedure requesting an order allowing it to conduct depositions of the Saudi Arabian witnesses in Saudi Arabia. Over Abu Ali’s objection, these depositions were taken in July 2005.

On October 25, 2005, the district court rejected Abu Ali’s subsequent attempts to prohibit admission of the deposition testi*226mony at trial, as well as his effort to suppress the introduction of his various statements and confession made to the Saudi Mabahith, see United States v. Abu Ali, 395 F.Supp.2d 338 (E.D.Va.2005), and trial commenced before the jury on October 31, 2005.

On November 22, 2005, Abu Ali was convicted of all charges. He was subsequently sentenced to 360 months imprisonment to be followed by a term of 360 months of supervised release. Abu Ali appeals his convictions and his sentence on a number of grounds and the government cross-appeals the sentence.

II.

It is undisputed that during Abu Ali’s time in Saudi custody, he was repeatedly interrogated, but never given either a probable cause determination or Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is also undisputed that the district court admitted into evidence at trial inculpatory statements and confessions elicited during this custodial interrogation. Abu Ali contends that the court erred in permitting the jury to consider these statements and confessions, because (1) he was never brought before a judicial officer for a probable cause determination, (2) he was never given Miranda warnings, and (3) his statements were allegedly involuntary. We address each purported basis for exclusion in turn.

A.

Abu Ali first contends that following his arrest in Saudi Arabia on June 8, 2003, he had a Fourth Amendment and statutory right to prompt presentment before a neutral judicial officer, such as a United States federal magistrate, to determine that probable cause supported his detention. See Gerstein v. Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); 18 U.S.C. § 3501(c) (2000); Fed.R.Crim.P. 5(a)(1)(B); see also County of Riverside v. McLaughlin, 500 U.S. 44, 52-53, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). He contends that because he was not afforded this right, all evidence obtained during his time in Saudi custody was inadmissible as “fruit” of the prompt presentment violation.

Of course, any prompt presentment guarantee applies only to actions undertaken by domestic authorities. Abu Ali thus rests his prompt presentment claim on the assertion that his arrest and detention by Saudi authorities, beginning on June 8, 2003, resulted from an “illicit working arrangement” between Saudi and United States law enforcement and so his right to prompt presentment attached at the time of that collaboration. See United States v. Alvarez-Sanchez, 511 U.S. 350, 359-60, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994) (noting that “improper collaboration” between federal and state officers undertaken to delay federal presentment leads to suppression in federal court of any resultant confession); Anderson v. United States, 318 U.S. 350, 356, 63 S.Ct. 599, 87 L.Ed. 829 (1943) (excluding fruits of these impermissible “working arrangement^]”).4 The district court thoroughly considered *227and rejected Abu Ali’s factual assertion that there was such a “working arrangement” between Saudi and United States law enforcement.

After hearing two weeks of testimony, the district court found that “[t]he evidence clearly demonstrates that the Saudi government arrested the defendant on June 8, 2003, in Saudi Arabia based on its own information and interest in interrogating the defendant as a suspected member of the al-Faq’asi terrorist cell located in Medina, Saudi Arabia.” Abu Ali, 395 F.Supp.2d at 381-82. The court further found that Saudi officials did not engage in improper collaboration with the United States in effecting Abu Ali’s arrest.

Abu Ah does not appear to dispute the district court’s factual finding that the United States did not participate in his arrest in Medina. Nor does he point to any evidence that calls into question the district court’s finding that, in the wake of the May 12, 2003 bombings in Riyadh, the Saudi government had an independent interest in, and in fact acted independently in, detaining him. Moreover, although he disputes the district court’s finding that he was held “pursuant to a Saudi government order,” Abu Ali, 395 F.Supp.2d at 382, he offered no credible evidence that the Saudis held, or continued to hold, him so that United States officials could evade their constitutional duties. Accordingly, we can hardly conclude that the district court clearly erred in finding that there was no “improper collaboration” between United States and Saudi law enforcement. Because United States law enforcement did not collaborate in Abu Ali’s arrest or detention, we must reject Abu Ali’s prompt presentment claim.

B.

1.

We next consider Abu Ali’s Miranda challenge. Generally, statements made by a defendant held in United States custody and questioned by law enforcement-officers without receiving Miranda warnings are inadmissible at trial in this country. See New York v. Quarles, 467 U.S. 649, 654, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). But because the United States cannot dictate the protections provided to criminal suspects by foreign nations and one of the principal purposes of the exclusionary rule — deterrence of unlawful police activity — is absent when foreign agents direct an interrogation, a different rule applies to statements elicited by foreign officials. See United States v. Martindale, 790 F.2d 1129, 1132 (4th Cir.1986) (“[T]he exclusionary rule has little or no effect upon the conduct of foreign police.”). Thus, voluntary statements obtained from a defendant by foreign law enforcement officers, even without Miranda warnings, generally are admissible. See United States v. Yousef, 327 F.3d 56, 145 (2d Cir.2003); Kilday v. United States, 481 F.2d 655, 656 (5th Cir.1973).

Notwithstanding this distinction, United States law enforcement officials may not intentionally evade the requirements of Miranda by purposefully delegating interrogation duties to foreign law enforcement officers and then having the fruits of the interrogation admitted at trial in the United States. See, e.g., United States v. Maturo, 982 F.2d 57, 61 (2d Cir.1992); of. Anderson, 318 U.S. at 356, 63 S.Ct. 599 (“There was a working arrangement between the federal officers and [a local sheriff] ... [therefore, the fact that the federal officers themselves were not formally guilty of illegal conduct does not affect the admissibility of the evidence which they secured improperly through collaboration with state officers.”). For this reason, two exceptions have de*228veloped to the general rule that voluntary statements obtained by foreign officials during a custodial interrogation without benefit of Miranda warnings are admissible. Namely, such statements will not be admissible if obtained by foreign officials (1) engaged in a joint venture with, or (2) acting as agents of, United States law enforcement officers. See, e.g., United States v. Heller, 625 F.2d 594, 599 (5th Cir.1980); see also Maturo, 982 F.2d at 61.

Abu Ali contends that his answers to an interrogation on June 15, 2003 should not have been admitted into evidence because that interrogation constituted a “joint venture” between his Saudi interrogators and United States law enforcement officers, and his Saudi interrogators acted as the agents of United States law enforcement on that day, posing questions prepared by the FBI and asked at its behest. The district court considered and rejected both claims in denying Abu Ali’s pre-trial motion to suppress, holding admissible all of his statements to the Mabahith.

Abu Ali does not dispute the court’s factual finding that the United States was not involved in his interrogation prior to June 15th, or in his handwritten confession or the July 24th videotaped reading of that confession and that, therefore, United States officials had no duty to ensure that he received Miranda warnings on those occasions. Thus, he only challenges the failure to provide Miranda warnings with respect to the statements taken on June 15, 2003, and argues that the June 15th violation tainted his later statements.

2.

As mentioned earlier, prior to its June 15th interrogation of Abu Ali, the Saudi Mabahith allowed United States law enforcement officers to propose questions to be asked of the defendant. The FBI supplied a list of questions, and, on June 15th, the Mabahith asked Abu Ali six of the questions submitted. However, the Saudis rejected a majority of the questions proposed by the FBI, and asked a number of their own questions during the interrogation. Furthermore, although no FBI or other United States agents were present in the interrogation room on June 15th or had any direct contact with Abu Ali, FBI and Secret Service agents did observe Abu Ali and his interrogator through a one-way mirror during the questioning, and a Saudi official consulted with the observing United States agents at the end of the interview. After properly recounting these facts, the district court concluded that they did not constitute a “joint venture” between Saudi interrogators and United States law enforcement officers.

The “joint venture” doctrine provides that “statements elicited during overseas interrogation by foreign police in the absence of Miranda warnings must be suppressed whenever United States law enforcement agents actively participate in questioning conducted by foreign authorities.” Yousef, 327 F.3d at 145; see also Heller, 625 F.2d at 599 (“[I]f American officials participated in the foreign search or interrogation ... the exclusionary rule should be invoked.”); Pfeifer v. U.S. Bureau of Prisons, 615 F.2d 873, 877 (9th Cir.1980) (“Under the joint venture doctrine, evidence obtained through activities of foreign officials, in which federal agents substantially participated and which violated the accused’s Fifth Amendment or Miranda rights, must be suppressed in a subsequent trial in the United States.”).

Only a few cases illuminate what constitutes “active” or “substantial” participation. See Yousef, 327 F.3d at 144-46 (finding no active participation when there was no evidence that the United States had “encouraged, requested, or participated in [suspect’s] interrogation or written *229statement” and United States agents did not receive any statement from foreign authorities until after suspect was in United States custody); Heller, 625 F.2d at 599-600 & n. 7 (finding no joint venture when American law enforcement was only “peripherally]” involved in suspect’s arrest, Mimndized the suspect when questioning him, and did not exchange information with British authorities regarding separate wa-Mirandized interrogation of suspect by the British); Pfeifer, 615 F.2d at 877 (finding no substantial participation when an American Drug Enforcement Agency (D.E.A.) agent was present during interrogation, but there was no evidence that the agent instigated any questioning or took any part in it); United States v. Emery, 591 F.2d 1266, 1268 (9th Cir.1978) (finding substantial participation when American D.E.A. agents contacted Mexican officials about suspected drug activity, coordinated the relevant surveillance, supplied personnel in the sting operation, signaled appropriate time to arrest suspects, and were present at suspect’s interrogation); United States v. Trenary, 473 F.2d 680, 682 (9th Cir.1973) (finding no joint venture when American customs officer, who never identified himself as an American agent, translated questions asked by Mexican police officers).

Although few in number, these cases do permit us to derive one general rule: mere presence at an interrogation does not constitute the “active” or “substantial” participation necessary for a “joint venture,” see Pfeifer, 615 F.2d at 877, but coordination and direction of an investigation or interrogation does, see Emery, 591 F.2d at 1268; see also Pfeifer, 615 F.2d at 877 & n. 3 (implying that had U.S. officials participated in the suspect’s questioning the court might face a different case). A majority of the court would affirm the district court’s holding that the June 15th interrogation was not a joint venture and so there was no Miranda violation.5 One judge believes that the *230June 15th interrogation was a joint venture in which United States law enforcement officials violated Abu Ali’s Miranda rights.6

*2313.

Even if the district court erred in refusing to suppress statements made during the June 15th interrogation, we all agree that this error was harmless.

Like any other evidentiary ruling, we subject the district court’s error in admitting the statement to harmless error review. See Fed.R.Crim.P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”). Evidence erroneously admitted will be deemed harmless if a reviewing court is able to “say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Brooks, 111 F.3d 365, 371 (4th Cir.1997). Here, we are able to say, with fair assurance, that the jury’s judgment was not substantially swayed by the admission of Abu Ali’s answers to the June 15th questioning.

This is so because, as the district court properly recognized, Abu Ali had confessed to each of the crimes of which he was convicted before the June 15th interrogation took place. As a result, Abu Ali’s answers to the questions submitted by the FBI on June 15th were cumulative. See United States v. Seidman, 156 F.3d 542, 558 (4th Cir.1998) (“ ‘Improper admission of evidence which is cumulative of matters shown by admissible evidence is harmless error.’ ”) (quoting Smith v. Firestone Tire & Rubber Co., 755 F.2d 129, 132 (8th Cir.1985)). We are thus confident that the admission of Abu Ali’s responses to the June 15th questions did not substantially sway the jury verdict. Therefore, any error in admitting these statements was harmless.

C.

Abu Ali next claims that all of his statements and confessions while in Saudi custody should have been suppressed as involuntary. The district court rejected this argument, finding that the government had “demonstrated by a ‘preponderance of the evidence’ that any incriminating statements” made by Abu Ali while in Saudi custody in June and July, 2003, were “voluntary” and so admissible at trial.7 Abu Ali, 395 F.Supp.2d at 342.

*232When Miranda warnings are unnecessary, as in the case of an interrogation by foreign officials, we assess the voluntariness of a defendant’s statements by asking whether the confession is “the product of an essentially free and unconstrained choice by its maker.” Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). If it is, “it may be used against him.” Id. at 602, 81 S.Ct. 1860. But, if the defendant’s “will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Id. see also Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The government acknowledges that “[t]he crucial inquiry is whether [Abu Ali’s] will has been ‘overborne,’ ” and maintains that it was not; Abu Ali, of course, contends that it was.

In evaluating whether a defendant’s will has been overborne, courts must assess the totality of the circumstances, taking into account characteristics of the accused, and details of the interrogation. See Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041. The factors we consider include: “the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep.” Id. (internal citations omitted). We review a trial court’s legal conclusion as to the voluntariness of an accused’s statements de novo, United States v. Dodier, 630 F.2d 232, 236 (4th Cir.1980), but its “findings of fact on the circumstances surrounding the confession” for clear error, United States v. Braxton, 112 F.3d 777, 781 (4th Cir.1997) (internal quotation marks omitted). We particularly defer to a district court’s credibility determinations, for “it is the role of the district court to observe witnesses and weigh their credibility during a pre-trial motion to suppress.” United States v. Murray, 65 F.3d 1161, 1169 (4th Cir.1