United States v. Osama Awadallah

This appeal, which arises from the government's investigation of the September 11, 2001 terrorist attacks, presents questions about the scope of the federal material witness statute and the government's powers of arrest and detention thereunder. See 18 U.S.C. § 3144. The district court (Scheindlin, J.) ruled that the statute cannot be applied constitutionally to a grand jury witness such as the defendant-appellee, Osama Awadallah, and dismissed the perjury indictment against him as fruit of an illegal detention. The court also suppressed his grand jury testimony as fruit of an illegal detention on the alternative ground that the affidavit in support of the arrest warrant included material misrepresentations.

We conclude that these rulings must be reversed and the indictment reinstated. We also reverse the district court's independent ruling that the FBI's unreasonable searches and seizures on September 20 and 21, 2001, before Awadallah was arrested as a material witness, require suppression at trial of certain statements and physical evidence.

In the days immediately following September 11, 2001, the United States Attorney for the Southern District of New York initiated a grand jury investigation into the terrorist attacks. Investigators quickly identified Nawaf Al-Hazmi and Khalid Al-Mihdhar as two of the hijackers on American Airlines Flight 77, which crashed into the Pentagon. The Justice Department released the identities of all nineteen hijackers on Friday, September 14, 2001, and news media around the country publicized their names and photographs the following day.

A search of the car Al-Hazmi abandoned at Dulles Airport in Virginia produced a piece of paper with the notation, "Osama 589-5316." Federal agents tracked this number to a San Diego address at which the defendant, Osama Awadallah, had lived approximately eighteen months earlier. Al-Hazmi and Al-Mihdhar also had lived in the San Diego vicinity around that time.

The district court made extensive factual findings concerning the ensuing events of September 20 and 21, 2001. See United States v. Awadallah, 202 F.Supp.2d 82, 85-96 (S.D.N.Y.2002) ("Awadallah IV"). With two minor exceptions, the court credited Awadallah's testimony over that of the FBI agents. See id. at 88 n. 9. The government states that it "strongly disagrees with the account of events accepted by the District Judge, and believes the agents testified truthfully and acted entirely properly in their dealings with Awadallah." (Appellant's Br. at 8.) However, the government "has elected not to appeal Judge Scheindlin's credibility findings and does not contest them here." (Id.) For purposes of this appeal, then, the government accepts and relies on the facts found by the district court, as does Awadallah. (Appellee's Br. at 1-2.) Our recitation of the facts conforms to the district court's findings.

On the morning of September 20, 2001, federal agents went to Awadallah's current residence in San Diego. When the agents arrived at the apartment, Awadallah was attending a course in English as a second language at nearby Grossmont College, where he was enrolled. The agents interviewed Awadallah's roommate in their apartment for several hours.

When Awadallah came home at around 2:00 p.m. that afternoon, several agents approached him as he entered the parking lot and got out of his car (a gray Honda).2 They questioned him in the parking lot for a few minutes and then told him that he had to accompany them to the FBI office for questioning. Awadallah insisted on returning to his apartment first to observe the afternoon Muslim prayer, which he did as the agents watched. When Awadallah went into the bathroom, the agents insisted that the bathroom door be left open.

Before leaving for the FBI office, an agent asked Awadallah to sign a consent form allowing them to search his apartment and car. Otherwise, the agent told him, they would get a warrant and "tear up" his home. Believing he had no choice, Awadallah signed the form without reading it. See Awadallah IV, 202 F.Supp.2d at 89 & n. 13. The agents then put him in their car and drove him to the FBI office. Awadallah told them that he had to return in time for a 6:00 p.m. computer class; they told him that would be no problem.

At the FBI office, agents offered Awadallah a drink, but he declined because he was fasting. They asked him to sign another consent form for the search of his second car, an inoperative white Honda in the parking lot of his apartment building. This time, Awadallah read the form and learned that he had a right to refuse consent; and though he signed the consent form for his second car, he explicitly revoked his consent for the search of the first car. An agent tried to reach the agents at the apartment building by cell phone, but did not reach them until fifteen minutes later, after the search of the first car had been completed. The agents at the scene then searched the apartment and the second car. The search of Awadallah's home produced several computer-generated photographs of Osama bin Laden; the searches of his cars produced two videotapes on Bosnia and one on Islam and a retractable razor which could be described as a box-cutter or a carpet knife.

Awadallah was alone in a locked interview room for a while, until agents arrived to question him. They did not advise him of his rights or tell him that he could leave. They asked him about the September 11 hijackers and about his life and acquaintances. He told the agents that he knew Al-Hazmi, and that he had frequently seen another man with him, whose name he did not know.

The district court found that Awadallah was "cooperative" throughout this questioning. See Awadallah IV, 202 F.Supp.2d at 92. We construe this finding to mean that he responded to questions, not that he necessarily responded truthfully or completely.

When 6:00 p.m. approached, the agents told Awadallah that they had called his school and that it was alright for him to miss class. They told him he would "have to stay" with them until they were finished. The entire interview lasted approximately six hours, ending at nearly 11:00 p.m. Before allowing Awadallah to leave, the agents scheduled a polygraph examination for the next morning. The record does not show whether an agent was posted at Awadallah's apartment building overnight, but the district court stated that "[h]e was not guarded or surveilled overnight." Awadallah IV, 202 F.Supp.2d at 99.

At 6:30 a.m. the following day, September 21, 2001, Awadallah called the FBI and refused to come in for the polygraph test until he had a lawyer. The agent told him they would get an arrest warrant. Believing he had no choice, Awadallah went with two agents who picked him up at his apartment at 7:00 a.m.

At the FBI office, agents advised Awadallah of his rights and he signed an advice-of-rights acknowledgment form. The polygraph exam lasted one-and-a-half to two hours. Afterward, the agents told Awadallah that the polygraph registered lies in response to two questions: whether he had advance knowledge of the September 11 attacks and whether he had participated in them in any way. It is unclear whether these were in fact the results.3 The conversation became heated as the agents accused Awadallah of being a terrorist. They refused Awadallah's requests to call a lawyer and his brother, and did not release him in time for Friday prayer.

Throughout the questioning that day, the FBI agents in San Diego had been in contact with an Assistant United States Attorney ("AUSA") in New York. At approximately 2:00 p.m. Eastern time, the AUSA instructed the agents to arrest Awadallah as a material witness. The agents handcuffed Awadallah and took him to the San Diego correctional center for booking.

Meanwhile, prosecutors and agents in New York prepared an application for a material witness warrant. In the supporting affidavit, FBI Special Agent Ryan Plunkett recounted how the FBI found the phone number in Al-Hazmi's car, Awadallah's admission that he knew Al-Hazmi, and the results of the agents' searches, including the "box-cutter" and the photographs of bin Laden. Agent Plunkett stated that it might become difficult to secure Awadallah's grand jury testimony because he had extensive family ties in Jordan and might be a flight risk. The affidavit did not say when Awadallah said he had last seen Al-Hazmi (over a year earlier); that Awadallah had moved eighteen months earlier from the address associated with the phone number; that Awadallah had used the "box-cutter" recently to install a new carpet in his apartment; that Awadallah had been (ostensibly) cooperative with the FBI agents in San Diego; or that Awadallah had three brothers who lived in San Diego, one of whom was an American citizen. Also, the affidavit stated that the "box-cutter" had been found in Awadallah's apartment when, in fact, it had been found in his inoperative second car. See Awadallah IV, 202 F.Supp.2d at 96.

Shortly before 6:00 p.m. Eastern time, Agent Plunkett and an AUSA presented the material witness warrant application to Chief Judge Mukasey of the United States District Court for the Southern District of New York. Based solely on the contents of Agent Plunkett's affidavit, Chief Judge Mukasey issued a warrant to arrest Awadallah as a material witness pursuant to 18 U.S.C. § 3144. The court was unaware that Awadallah had already been arrested as a material witness three hours earlier. See Awadallah IV, 202 F.Supp.2d at 95.

On September 25, 2001, Awadallah appeared before a Magistrate Judge Ruben B. Brooks in the Southern District of California, who declined to release him on bail and ordered that he be removed to New York. On October 2, 2001, the day after he arrived in New York, Awadallah appeared before Chief Judge Mukasey for a second bail hearing. Chief Judge Mukasey also declined to release Awadallah on bail, finding his continued detention to be "reasonable under the circumstances."

During the period of his detention, Awadallah spent time in four prisons as he was transferred to the New York correctional center by way of Oklahoma City. He alleges that he received harsh and improper treatment during this period. Because these allegations of abuse and mistreatment were immaterial to the issues before the district court, Judge Scheindlin expressly declined to make "findings of fact on disputed issues regarding the conditions of confinement." See United States v. Awadallah, 202 F.Supp.2d 55, 59 n. 4 (S.D.N.Y.2002) ("Awadallah III"). Nonetheless, Judge Scheindlin noted that Awadallah spent most of his time in solitary confinement; at times lacked access to his family, his lawyer, or a phone; and was repeatedly strip-searched. See id. at 60-61 & n. 5. The government did not dispute that, by October 4, 2001, "Awadallah had bruises on his upper arms," and an agent's report indicated several other injuries on his shoulder, ankles, hand, and face. See id. at 61. Awadallah sometimes refrained from eating because the meals provided did not comply with his religious dietary restrictions.

On October 10, 2001, twenty days after his arrest as a material witness, Awadallah testified before the grand jury in the Southern District of New York. The prosecutor questioned him for most of the day. In the course of his testimony, Awadallah denied knowing anyone named Khalid Al-Mihdhar or Khalid. The government then showed him an examination booklet he had written in September, which the government obtained from his English teacher in San Diego. The booklet contained the following handwritten sentence: "One of the qui[e]test people I have met is Nawaf. Another one his name Khalid. They have stayed in S.D. [San Diego] for 6 months." Awadallah acknowledged that it was his examination booklet, and that most of the writing in it was his own, but he denied that the name Khalid and a few other words on the page were written in his handwriting. On October 15, 2001, when Awadallah again appeared before the grand jury, he stated that his recollection of Khalid's name had been refreshed by his October 10 testimony and that the disputed writing in the exam booklet was in fact his own. However, he did not admit to making false statements in his first grand jury appearance.

The United States Attorney for the Southern District of New York filed charges against Awadallah on two counts of making false statements to the grand jury in violation of 18 U.S.C. § 1623: falsely denying that he knew Khalid Al-Mihdhar (Count One); and falsely denying that the handwriting in the exam booklet was his own (Count Two).

On November 27, 2001, the district court (Scheindlin, J.) granted Awadallah's bail application. See United States v. Awadallah, 173 F.Supp.2d 186, 192-93 (S.D.N.Y. 2001) ("Awadallah I"). He satisfied the bail conditions and was released approximately two weeks later.

In December 2001, Awadallah moved to dismiss the indictment on four grounds: (1) recantation; (2) mistreatment in violation of his due process rights; (3) interference with his right to counsel; and (4) violation of the Vienna Convention on Consular Relations. He also moved to suppress the statements and search evidence obtained by the FBI on September 20 and 21, on the grounds that he had been seized illegally and that his consent to the searches was involuntary.

On January 31, 2002, the district court rejected the grounds cited by Awadallah for dismissal. See United States v. Awadallah, 202 F.Supp.2d 17 (S.D.N.Y.2002) ("Awadallah II"). In the same order, however, the court sua sponte raised two other possible grounds for dismissal: (1) the possibility that Awadallah was the victim of a "perjury trap," id. at 43-44, and (2) the court's supervisory power to suppress his grand jury testimony if suppression is warranted by the circumstances of his arrest and treatment, id. at 52-53. The court ordered that these issues, in addition to Awadallah's Fourth Amendment claims, be taken up at an evidentiary hearing.

On April 30, 2002, after an evidentiary hearing and further briefing, the district court issued two orders dismissing the indictment against Awadallah. In Awadallah III, the court ruled that the federal material witness statute, 18 U.S.C. § 3144, did not apply to grand jury witnesses. 202 F.Supp.2d at 61-79. This ruling evidently was made without briefing or argument.4 The court held that Awadallah's arrest and detention were therefore unlawful. Applying reasoning developed in the Awadallah II decision, Judge Scheindlin ruled that Awadallah's perjured grand jury testimony had to be suppressed as fruit of this illegal arrest and detention. Id. at 79-82.

In Awadallah IV, the district court held in the alternative that the indictment also had to be dismissed because the government's affidavit in support of the material witness warrant contained material omissions and misrepresentations. Id. at 96-100. Once again, the court held that the grand jury testimony was fruit of the illegal arrest and detention. Id. As a separate matter, the district court also ruled that Awadallah had been seized in violation of the Fourth Amendment and that he had given no voluntary consent to the searches. Id. at 101-07. Accordingly, the court suppressed statements and physical evidence obtained by the FBI on September 20 and 21, 2001 before Awadallah's arrest as a material witness. Id. at 100-07.

The government filed a timely notice of appeal from the Awadallah III and Awadallah IV decisions on May 2, 2002. In this same notice, the government appealed the Awadallah II decision, which had been issued over three months earlier. Awadallah remains free on bail at this time.

We consider the issues presented on appeal in the order in which the district court developed them: (1) whether the federal material witness statute, 18 U.S.C. § 3144, may be applied to grand jury witnesses like Awadallah; (2) whether material misrepresentations in the government's affidavit in support of the material witness warrant require the suppression of Awadallah's grand jury testimony and the dismissal of the indictment against him; and (3) whether evidence obtained by the government on September 20 and 21 before Awadallah was formally detained as a material witness must be suppressed as the fruit of illegal searches and seizures.

The first issue presented is whether the federal material witness statute, 18 U.S.C. § 3144, allows the arrest and detention of grand jury witnesses. In Awadallah III, the district court determined that it did not. Shortly thereafter, however, on July 11, 2002, Chief Judge Mukasey issued an opinion in an unrelated case that declined to follow the reasoning and holding of Awadallah III. Specifically, Judge Mukasey held that 18 U.S.C. § 3144 applies to grand jury witnesses. See In re Material Witness Warrant, 213 F.Supp.2d 287, 288 (S.D.N.Y.2002). Thus there is now a split of authority within the Circuit on this question.

As discussed at oral argument, we might evade this issue by holding that Awadallah's allegedly false testimony should not have been suppressed as fruit of the poisonous tree even if his detention under § 3144 was improper, and that the indictment therefore should not have been dismissed. We reach the issue, however, because the present split within our Circuit on the scope of § 3144 affects the liberty interests of persons identified as material witnesses, the security and law enforcement interests of the government, and the ability of courts to make prompt and fair rulings on present and future detentions. It is true that "at times courts are well advised to avoid an issue presented in litigation by relying on an alternative ground." United States v. Tomasi, 313 F.3d 653, 659 n. 4 (2d Cir.2002). "But there is no principle of law or jurisprudence to the effect that such avoidance is required. In some circumstances it is the better course to decide, rather than avoid, a question presented." Id. Both parties to this appeal, as well as the amici, persuasively urge us to decide whether § 3144 may properly be applied to grand jury witnesses. The issue is squarely presented, has been fully briefed, and will tend to evade review in future cases where the detention is brief or matters take a different procedural course.

Section 3144, titled "[r]elease or detention of a material witness," provides in its entirety:

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.

18 U.S.C. § 3144. The statute is cast in terms of a material witness in "a criminal proceeding." The decisive question here is whether that term encompasses proceedings before a grand jury.

Based on its study of the statutory wording, context, legislative history, and case law, the district court held that "Section 3144 only allows the detention of material witnesses in the pretrial (as opposed to the grand jury) context." Awadallah III, 202 F.Supp.2d at 76. We have found no other decision that has arrived at this conclusion.

The only prior case that squarely considered the issue held that 18 U.S.C. § 3149, the precursor to today's material witness statute, allowed detention of grand jury witnesses. See Bacon v. United States, 449 F.2d 933, 936-41 (9th Cir.1971). The Ninth Circuit conceded that "[t]he term `criminal proceeding,' absent a clear context, [was] ambiguous," id. at 939, but held that the relevant statutes and Federal Rules of Criminal Procedure, "[t]aken as a whole," were "clearly broad enough in scope to encompass grand jury investigations," id. at 941.

Other courts, including this one, have assumed that the material witness statute authorizes detention of grand jury witnesses. See In re Grand Jury Subpoena (United States v. Koecher), 755 F.2d 1022, 1024 & n. 2 (2d Cir.1985) (noting prior unpublished order which required that defendant "remain subject to the warrant of arrest as a material witness" during remand to determine proper scope of grand jury investigation), vacated as moot, 475 U.S. 133, 106 S.Ct. 1253, 89 L.Ed.2d 103 (1986); see also In re De Jesus Berrios, 706 F.2d 355, 356-58 (1st Cir.1983) (upholding on other grounds the arrest of a material witness in a grand jury investigation); United States v. Oliver, 683 F.2d 224, 230-31 (7th Cir.1982) (same); United States v. McVeigh, 940 F.Supp. 1541, 1562 (D.Colo.1996) (finding government affidavit sufficient to justify arrest of defendant Terry Nichols under § 3144 to testify as material witness before grand jury investigating the Oklahoma City bombing); In re Thornton, 560 F.Supp. 183, 184 (S.D.N.Y. 1983) (denying motion for relief from civil contempt order by witness who had been "arrested on a material witness warrant issued ... pursuant to 18 U.S.C. § 3149... to appear and testify before a federal grand jury"); cf. Arnsberg v. United States, 757 F.2d 971, 981-82 (9th Cir.1985) (finding federal agents immune from false imprisonment suit after they arrested a grand jury witness pursuant to a warrant issued under § 3149).

Two judges have also declined to follow the district court's ruling in this case. In In re Material Witness Warrant, 213 F.Supp.2d 287 (S.D.N.Y.2002), Chief Judge Mukasey "decline[d] to follow the reasoning and holding in Awadallah," id. at 288, holding instead:

Given the broad language of the statute, its legislative history ..., the substantial body of case law indicating that there is no constitutional impediment to detention of grand jury witnesses, and the unquestioned application of the statute to grand jury witnesses over a period of decades before Awadallah, to perceive a Congressional intention that grand jury witnesses be excluded from the reach of section 3144 is to perceive something that is not there.

Id. at 300; see also In re Grand Jury Material Witness Detention, 271 F.Supp.2d 1266, 1268 (D.Or.2003) (concluding that "a grand jury proceeding constitutes a `criminal proceeding,' as the term is used in § 3144"). Having the benefit of thorough opinions on both sides of the question, we conclude that the district court's ruling in this case must be reversed.

When "[t]he district court's dismissal of [an] indictment raises questions of constitutional interpretation, ... we review the district court's decision de novo." United States v. King, 276 F.3d 109, 111 (2d Cir.2002) (reversing dismissal of indictment because statute in question was "a permissible exercise of Congressional authority under the Commerce Clause"). This standard of review comports with our customary approach to questions of statutory interpretation and constitutionality. See United States v. Pettus, 303 F.3d 480, 483 (2d Cir.2002) (reviewing a "question of statutory interpretation and of the constitutionality of [a statute] de novo"); Muller v. Costello, 187 F.3d 298, 307 (2d Cir.1999).

In construing a statute, we begin with its language and plain meaning. See United States v. Koh, 199 F.3d 632, 636 (2d Cir.1999); United States v. Figueroa, 165 F.3d 111, 114 (2d Cir.1998); United States v. Proyect, 989 F.2d 84, 87 (2d Cir.1993) ("[W]hen the language of the statute is clear, its plain meaning ordinarily controls its construction."). "However, where statutory language is ambiguous a court may resort to the canons of statutory interpretation and to the statute's legislative history to resolve the ambiguity." Canada Life Assurance Co. v. Converium Ruckversicherung (Deutschland) AG, 335 F.3d 52, 57 (2d Cir.2003).

As noted above, § 3144 applies to witnesses whose testimony is material in "a criminal proceeding." 18 U.S.C. § 3144. "Criminal proceeding" is a broad and capacious term, and there is good reason to conclude that it includes a grand jury proceeding. First, it has long been recognized that "[t]he word `proceeding' is not a technical one, and is aptly used by courts to designate an inquiry before a grand jury." Hale v. Henkel, 201 U.S. 43, 66, 26 S.Ct. 370, 50 L.Ed. 652 (1906); cf. Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 84 L.Ed. 783 (1940) ("The proceeding before a grand jury constitutes `a judicial inquiry' of the most ancient lineage.") (citation omitted).

Second, the term "criminal proceeding" has been construed in other statutes to encompass grand jury proceedings. For example, the statute authorizing the government to appeal from "a decision or order of a district court suppressing or excluding evidence ... in a criminal proceeding," 18 U.S.C. § 3731 (emphasis added), has been construed to authorize appeal of such an order from a grand jury proceeding. See, e.g., In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985, 775 F.2d 499, 502 (2d Cir.1985) ("It has been held that a grand jury proceeding is `a criminal proceeding' within the portion of the Criminal Appeals Act, 18 U.S.C. § 3731, that entitles the Government to appeal from a decision or order of a district court suppressing or excluding evidence."); In re Grand Jury Empanelled Feb. 14, 1978, 597 F.2d 851, 857 (3d Cir.1979) (observing that, "[i]n deciding questions pertaining to appellate jurisdiction, this circuit and others have adopted the view that the grand jury is a criminal proceeding"). At least one court has reached the same conclusion under a statute that punishes interstate flight "to avoid giving testimony in any criminal proceedings," 18 U.S.C. § 1073 (emphasis added). See Hemans v. United States, 163 F.2d 228, 235-37 (6th Cir.1947) (construing former version of statute codified at 18 U.S.C. § 408e).

Notwithstanding this support for the general view that "criminal proceedings" encompass grand jury proceedings, however, we cannot say that the statutory wording alone compels that conclusion. Black's Law Dictionary defines a "criminal proceeding" as "[a] proceeding instituted to determine a person's guilt or innocence or to set a convicted person's punishment; a criminal hearing or trial." Black's Law Dictionary 1221 (7th ed.1999). It defines a "grand jury" as "[a] body of ... people... who, in ex parte proceedings, decide whether to issue indictments. If the grand jury decides that evidence is strong enough to hold a suspect for trial, it returns a bill of indictment ... charging the suspect with a specific crime." Id. at 706. Defined this way, a grand jury proceeding is not a "proceeding instituted to determine a person's guilt or innocence or to set a convicted person's punishment," but rather a proceeding to "decide whether to issue indictments." Cf. United States v. Mandujano, 425 U.S. 564, 573, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976) ("[T]he grand jury's mission is ... to determine whether to make a presentment or return an indictment."). A grand jury proceeding is certainly a stage of criminal justice; and it is certainly a proceeding. As a proceeding, it is certainly not civil, administrative, arbitral, commercial, social, or any type of proceeding other than (or as much as) criminal. Even so, the dictionary entries could suggest that grand jury proceedings lie outside the scope of § 3144.

As the district court observed, this Court applied such a view in United States v. Thompson, 319 F.2d 665 (2d Cir.1963). In Thompson, a divided panel held that the meaning of the term "criminal proceeding" was ambiguous as used in the Walsh Act, 28 U.S.C. § 1783 et seq., which confers power upon district courts to issue subpoenas to witnesses outside the United States. The panel ultimately concluded that the term did not encompass grand jury proceedings. 319 F.2d at 668-70. In dissent, Judge Kaufman observed that the majority's conclusion was "tortured" and argued that the plain meaning of "criminal proceeding" encompassed grand jury proceedings. Id. at 671-73. Congress agreed with Judge Kaufman the following year.5 But the split in a panel of this Court runs counter to the view that a "criminal proceeding" plainly encompasses a grand jury proceeding.

The statutory context does not allay all uncertainty. Under § 3144, a judge "may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title." 18 U.S.C. § 3144. Section 3142, which sets conditions for the "[r]elease or detention of a defendant pending trial," uses terms not normally associated with grand juries. It provides:

Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be — (1) released on personal recognizance or upon execution of an unsecured appearance bond ...; (2) released on a condition or combination of conditions...; (3) temporarily detained to permit revocation of conditional release, deportation, or exclusion ...; or (4) detained

....

18 U.S.C. § 3142(a) (emphasis added). By its own terms, § 3142 applies during the post-indictment ("a person charged with an offense") and pretrial ("pending trial") phase of criminal prosecution. The section also goes on to identify factors to be considered "in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(g). Two of the four listed considerations have little bearing on the situation of an individual detained as a material witness in a grand jury proceeding. See 18 U.S.C. § 3142(g)(1) ("[t]he nature and circumstances of the offense charged"); id. § 3142(g)(2) ("the weight of the evidence against the person"). For these reasons, we must look beyond the text of § 3144 to discern the meaning of "criminal proceeding."

The legislative history of § 3144 makes clear Congress's intent to include grand jury proceedings within the