UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 06-102 (JDB)

ANDERSON STRAKER, CHRISTOPHER SEALEY

Defendants.

MEMORANDUM OPINION

This case arises from the abduction and death of a U.S. citizen, Balram Maharaj, in the

Republic of Trinidad and Tobago ("Trinidad") in April 2005. Twelve defendants have been

extradited over the course of two years, to face charges of conspiracy to commit hostage taking

resulting in death in violation of

, and aiding and abetting.1 The trial of eight

defendants is scheduled to commence in May 2009. The suppression motions filed by two

defendants extradited relatively early in the case have proceeded through an evidentiary hearing,

and are ready for decision, along with a related motion for return to Trinidad. Anderson Straker

moves to suppress a statement he made to the Federal Bureau of Investigation ("FBI") during his

extradition, and Christopher Sealey moves to suppress his statement to police authorities in

Trinidad as well as a separate statement to the FBI. Both defendants move for their return to

1 Twelve defendants have now been indicted in this case. In addition to the eight facing trial in May 2009, three have pled guilty and one was acquitted at a trial held in June 2007 (prior to the extradition of the eight defendants presently facing trial). For a description of how the hostage taking and death of Maharaj allegedly unfolded, see United States v. Suchit,

(D.D.C. 2007). Trinidad. An evidentiary hearing was held on December 2 and 3, 2008.2 For the reasons that

follow, the Court will deny defendants' motions.

DISCUSSION

The resolution of the pending motions requires the Court to make factual findings

concerning the background and circumstances in which the statements of Straker and Sealey

were taken, in order to determine whether they were provided with notice of any Miranda

warnings under the Fifth Amendment or (where applicable) the right to counsel under the Sixth

Amendment, how they responded to the notices, and whether their statements were voluntarily

given. To make these findings, the Court heard testimony from FBI Special Agent William T.

Clauss, the lead FBI investigator who interviewed Straker on two occasions and acted as the

FBI's primary liaison with the Trinidad police. The Court also heard testimony from two other

FBI agents involved in the interviews, Edgar Cruz and Marvin Freeman (at the time, the FBI

assistant legal attache at the U.S. Embassy in Trinidad). Three officers from the Trinidad police

force presented testimony as well -- Wendell Lucas, Jermaline Mitchell Gosyne, and Marvin

Pinder. The testimony of the FBI and Trinidad officers went largely unrebutted, and the Court

found them to be credible and forthright witnesses, albeit with some uncertainty as to the

specifics of a few events due to the passage of time.3

2 Citations to the hearing transcript ("Tr.") refer to the volume for the December 2 and 3, 2008 proceedings unless otherwise noted. Due to the numerosity of the briefs filed, the Court will cite to the parties' memoranda with an abbreviated description of the filing and the ECF document number. Exhibits will also be referred to with an abbreviated description and exhibit number. 3 Straker raised an issue as to Clauss's credibility based on a personal relationship Clauss had with the victim's niece that began and ended in May 2005, near the beginning of the investigation. Straker Ex. 13 (United States v. David Suchit, Tr. of Proceedings of June 11, (continued...)

2 Straker presented testimony from his investigator, Dale Vaughn, and Dr. Jonathan Arden,

an expert in the field of forensic pathology. Vaughn and Arden were credible and forthright

witnesses but the probative value of their testimony was limited, as they acknowledged, by the

fact that they did not personally observe any of the incidents at issue and lacked information

bearing on the credibility of the persons they consulted for information. Straker also intended to

present testimony from Theodore Guerra, his former attorney in Trinidad, on the subject of his

physical condition after his arrest in Trinidad. Guerra, however, did not appear in Court, and

Straker submitted Guerra's affidavit instead which the Court will weigh alongside the testimony

and other exhibits received.4 See Straker Ex. 11 (hereinafter, "Guerra Affidavit"). Straker

originally planned to testify as well, then exercised his right not to do so, and then made a brief

testimonial statement to the Court at the end of the motions hearing, which the Court will also

consider.

Sealey did not present any witnesses, instead relying on the testimony of the FBI agents

3 (...continued) 2007, at 79-84). Clauss detailed the circumstances of that relationship in an earlier phase of this case, and testified that the relationship did not affect his testimony.

Based on that testimony and the brief and relatively superficial nature of the relationship, the Court concludes that Clauss's testimony was and remains unaffected by that relationship. 4 It is well-settled that hearsay evidence may be considered in resolving a motion to suppress evidence. United States v. Raddatz,

(1980) ("At a suppression hearing, the court may rely on hearsay and other evidence, even though the evidence would not be admissible at trial.") (citing United States v. Matlock,

(1974), and Fed. R. Evid. 104(a)); United States v. Foster,

(D.C. Cir. 1993) (recognizing that "hearsay is generally admissible" at suppression hearings). Hearsay statements, like any other evidence, should be considered in light of their trustworthiness and reliability (see Matlock,

), and the Court has considered those factors here in relying upon the hearsay statements proffered in this matter. The Court notes that the government objects to consideration of the Guerra affidavit because it is unsworn. However, considering Guerra's unexpected absence from the hearing, and the substantial interest in ensuring a complete evidentiary record, the Court will consider the affidavit in resolving the motions.

3 and Trinidad police officers to support his suppression motion. With this preface, the Court turns

to the task of making the factual determinations necessary to resolve the motions.

I. Straker's Motion to Suppress

Straker was questioned by the FBI on two occasions -- first, on January 9, 2006, shortly

after his arrest in Trinidad, and then on July 29, 2007, when he was extradited to the United

States. The government has represented that it will seek to admit only the statement from July

29, 2007. Straker contends that suppression of that statement is required under the Fifth and

Sixth Amendments based on events that occurred during the first session. Hence, the Court's

factual findings cover both interviews.

A. Factual Findings

Straker was arrested by Trinidad police on January 6, 2006, in connection with the April

2005 kidnapping of Balram Maharaj, and taken to the La Horquetta Police Station. See Tr. at 9;

Gov't Ex. 5 (station diary extract, entry no. 16).5 The Trinidad police informed him that he was a

suspect in their investigation and advised him of his rights under Trinidad law, which include,

among other things, the right to remain silent, the right to communicate with a legal

representative, relative, or friend, and a caution that the statement may be used against the

accused. Tr. at 9-13; see also Gov't Ex. 1 (Trinidad & Tobago Police Service, "Reminder to Law

Enforcement Officers Re: Cautions"); Gov't Ex. 2 (Judges' Rules and Administrative Directions

5 A "station diary extract" refers to reproductions of the station diary kept at each police station in Trinidad. The station diary is a continuous record of what happens at a police station, in chronological order, recorded by hand in a book that is about three feet wide and two feet long. Tr. at 258-59. When a station diary is needed for court in Trinidad, it is either reproduced by photocopy (with irrelevant entries redacted) or by a handwritten transcription that quotes the entries relevant to the case. Id. at 14-15, 258-59. The original station diary typically is not taken out of the police station, and hence the photocopy or handwritten "extracts" from the relevant police stations were presented in evidence, instead of the originals. Id.

4 to Police, Home Office Circular No. 89/1978) (hereinafter, "Judges' Rules"). Straker was

interviewed by Constable Abraham on January 6 and then by Sergeant Lucas on January 7, each

time denying knowledge of the kidnapping or killing. Gov't Ex. 3 (interview notes dated Jan. 6,

2006), Gov't Ex. 4 (interview notes dated Jan. 7, 2006). He was advised of his rights under

Trinidad law on each occasion. Tr. at 10-13. Straker was asked to sign the officers' interview

notes, but declined. Id. at 55-56. Straker met with his attorney, Theodore Guerra, the next day,

January 8, at the La Horquetta station for about a half hour, and he instructed Straker not to sign

any documents or speak to anyone. Guerra Affidavit ¶ 3; Tr. at 16.

Sergeant Lucas informed Clauss on January 9 that the Trinidad police had taken custody

of Straker, and Clauss then requested an opportunity to interview Straker. Tr. at 49-50. Lucas

agreed, seeing nothing objectionable because the FBI was conducting a parallel investigation and

Trinidad law allows police to question suspects without their attorneys present. Id. at 50-55.

Additionally, the investigation had entered a high, fast-paced operational status, with Maharaj's

dismembered remains having been discovered the day before. Id. at 89.

At approximately 7:55 p.m. on January 9, the Trinidad police brought Straker up from the

holding cell in La Horquetta station, where he had been held since his arrest. Id. at 86; Gov't Ex.

5 (station diary extract, entry no. 93). On the day of the interview, Straker was provided two

meals -- a lunch of black-eyed peas pelau (stew) with salad, and a dinner of bread, peanut butter,

and orange juice, both of which he accepted. Gov't Ex. 5 (station diary extract, entry no. 55). He

was taken to a room on the second floor by Lucas and seated on one side of a rectangular table

measuring about five feet long and three feet wide, with Lucas and three FBI officers -- Clauss,

Cruz, and Freeman -- on the other side. Tr. at 85-86. No weapons were exposed -- in fact,

5 Clauss and Cruz lacked the authority to carry weapons in Trinidad and, hence were unarmed.6 Id.

at 56, 128. The testimony was conflicting on whether Straker was handcuffed during the

interview, but weighing both Clauss's and Lucas's testimony -- Lucas recalling that Straker was

cuffed, Clauss certain that he was not7 -- it is likely that Straker was in handcuffs when Lucas

brought him up from the holding cell, but was then uncuffed at some point during the interview.

See id. at 56, 129, 201-02.

The interview lasted about three and a half hours. Id. at 56; Gov't Ex. 5 (station diary

extract, entry no. 98, indicating that interview ended at 11:30 p.m.). Clauss began the interview

by identifying himself, Cruz, and Freeman as members of the FBI investigating the case. Tr. at

86. Clauss read the international advice of rights notice to Straker. Id. at 87, 105-06. That

notice informs a suspect of his Miranda rights -- most notably, the right to remain silent and the

right to have counsel present during the interrogation -- but states that appointment of counsel

cannot be effectuated by the United States in a foreign country for a person not in U.S. custody.

See Gov't Ex. 20.8 Straker asked to have the form so that he could read it himself. Tr. at 87,

6 Lucas presumed that Clauss and Cruz were armed, but later clarified that he did not see them carrying any weapons. Tr. at 75-76. The record suggests that Lucas was armed, but he did not have his weapon exposed. Id. at 56, 75-76. Freeman is authorized to carry a weapon in Trinidad, but the record is unclear as to whether he had one that evening. Id. at 128. 7 Considering that Lucas assisted in transferring Straker from the holding cell to the interview room, it is quite plausible that Straker would have been handcuffed. Tr. at 56, 86; Gov't Ex. 5 (station diary extract, entry no. 93). But Clauss was certain that Straker was not cuffed during his questioning, and it is likely he would have noticed the presence of handcuffs, having handed Straker an advice of rights form to review and sign, and observing Straker review the document "line by line." Id. at 76, 87, 129. Freeman recalled that Straker was not handcuffed, but indicated some uncertainty about it. Id. at 202. 8 Government Exhibit 20 is the standard international advice of rights form. It reflects the form provided to Straker, though this particular exhibit bears the signature of a co-defendant because a blank unsigned copy was not readily available at the motions hearing.

6 105-06. He then closely reviewed it and asked questions about certain parts, which resulted in a

conversation "back and forth" about the form for about a half hour. Id. During this time, the FBI

team felt that Straker was trying to "feel [them] out" for what the FBI knew about the case and

trying to ascertain what the FBI knew about his role in particular. Id. at 89-90. About halfway

through the interview, Straker told the agents that he had an attorney. Id. Although Straker's

exact words are unknown, the record indicates that he said that "he didn't want to sign anything

and that he didn't want to talk details about the case until he had a chance to speak to his lawyer."

Id. at 89, 106 (quoting Clauss's testimony); see id. at 144 (Cruz's testimony that [Straker] "just

said that . . . he wanted -- or he would prefer to talk to his attorney before any questions"); id. at

190 (Freeman's testimony that Straker indicated he might want to speak with the FBI at some

point).

The session continued for another hour or so, with intermittent questions from the FBI

about Straker's biographical and family information (which he readily provided) and responses

from Straker that the FBI construed as an attempt by him to keep the conversation going in order

to obtain information about what the FBI knew about the case. Tr. at 107-08; Gov't Ex. 15 (FBI

summary of interview) (describing the biographical information obtained). Indeed, Lucas also

noted that Straker was "leading most of the conversation." Tr. at 60. Straker expressed concern

for his family -- in particular, his children -- noting that "big people" were involved in the case

and threats had been made against his family members, but declining to elaborate on the contents

of the threats. Id. at 90; Gov't Ex. 15 (FBI summary of interview). At one point, Straker said

that Clauss reminded him of his biological father in the United States, and joked that since

Clauss was with the FBI, he could locate him for Straker. Tr. at 18 (Lucas), 86, 107 (Clauss),

7 144 (Cruz), 189-90 (Freeman).9 Straker expressed some degree of interest in generally what the

FBI could do for him, leading Lucas and Freeman to conclude that he might be interested in

making a deal or otherwise cooperating. Id. at 60, 190. At some point near the end of the

session, Straker indicated that "after having access to his attorney, he would be willing to speak

to the agents." Gov't Ex. 15, at 2 (FBI summary of interview); Tr. at 144, 156-57.

In response, Clauss stated that, after Straker had talked to his attorney, he could contact

them and they would be willing to follow up at that point. Tr. at 90-91. Freeman was the

preferred point of contact because he was based at the U.S. Embassy in Trinidad, in contrast to

Clauss and Cruz who were based in Miami. Id. at 90-91, 145, 190. He thus gave Straker his

business card, which provided his contact information at the Embassy. Id. The agents then

terminated the interview, realizing that no statement from Straker would be forthcoming that

evening. Id. at 91. At the conclusion of the interview, Clauss took a photograph of Straker -- a

headshot -- in the interview room. Id. at 20, 92, 145; Gov't Ex. 6 (Straker photograph of Jan. 9,

2006). Straker was then returned to his holding cell. Tr. at 92.

The overall atmosphere of the three-hour interview was calm, with no indications of

agitation or raised voices; the agents and Lucas remaining seated throughout. Tr. at 86, 143, 165-

66. Lucas, Clauss, Cruz, and Freeman each testified that no one threatened Straker or physically

9 In his oral statement to the Court, Straker submitted that the Court should not credit the testimony of the FBI agents or Lucas because Straker has never known his birth father and does not know what he looks like, making their testimony implausible. Tr. at 306. Four witnesses credibly testified that the incident occurred, and their accounts of Straker's statement on January 9, 2006 about Clauss's resemblance to his birth father are remarkably consistent. Id. at 18, 86, 107, 144, 189-90. Moreover, it is quite plausible that Straker made the referenced comment, without knowing what his birth father looked like, in an attempt to establish some rapport with the FBI and thereby elicit some amount of information that might help him determine his status in the investigation.

8 assaulted him. Id. at 19, 91, 142-43, 165-66.10 There were no breaks to go to the restroom or eat,

but there was no indication that such a break was needed or requested. Id. at 61.

Straker was taken to the Arouca station the next day, January 10, 2006, where he was

formally charged. See Gov't Ex. 6-A (notice to prisoner, dated Jan. 10, 2006); Gov't Ex. 5

(station diary extract, entry no. 63). His first appearance in Trinidad court was set for the

following day, January 11. Tr. at 22.11 Upon his transfer from the police station to the court,

Straker was taken to the court reception officer, Corporal Simmons, for routine processing,

which included questions pertaining to his health and fitness to appear before the court. Id. at 26-

27. Straker informed Simmons that he had a bump on his head; upon hearing of this, Lucas

instructed another officer to take Straker to the St. George Street, Port of Spain Health Center.

10 Straker presented testimony from his investigator, Dale Vaughan, on the subject of whether Clauss made threatening comments soon thereafter to an unindicted co-conspirator, Doreen Alexander, while Straker sat in an adjacent cell. See Tr. at 63, 282-84. The alleged incident, which falls far afield of Straker's primary claims in support of his suppression motion, is not properly before the Court because Straker failed to give the government notice that he would put Alexander in issue at the evidentiary hearing, depriving the government of a full opportunity to put on rebuttal evidence. Tr. at 280-81. His limited testimony on the subject, in any event, lacks probative value. The Court has no statement from Ms. Alexander -- not even an unsworn affidavit -- despite an invitation to counsel to submit one several months ago. See United States v. Straker,

, 181 n.7 (D.D.C. 2008). Clauss has testified that the incident did not occur, and his testimony is corroborated by the testimony of Cruz who was present when Clauss spoke to Ms. Alexander. Tr. at 129-31, 157-58. The government also has raised serious questions about Alexander's credibility, which highlights the prejudice caused by Straker's failure to provide notice of this argument. See id.. at 284-86 (noting that Alexander is facing the death penalty in Trinidad for the same offense and lived with Straker); see also Gov't Ex. 4 (interview notes dated Jan. 7, 2006) (indicating Straker lived with Alexander for two years). 11 Guerra reports the court hearing date as January 9, 2006. However, Lucas testified that the court date was January 11, 2006, and a local newspaper also reported the court date as January 11. See Tr. at 22, 43-44; Straker Ex. 8 (The Guardian article, dated Jan. 12, 2006). The January 9 date is not plausible because it is undisputed that the date of the FBI interview at the LaHorquetta station was the evening of January 9, and occurred before Straker's court appearance.

9 Id.; Gov't Ex. 7 (Simmons' mem. dated Jan. 13, 2006).

Straker was taken to the St. George Street Center, whose contemporaneous records of the

visit describe his injury as "small lump on crown of head consistent with [illegible] of hitting

head on louvre," and note the probable degree of force as "small impact blunt trauma." Gov't Ex.

8 (medical report dated Jan. 11, 2006); Tr. at 29, 82. During the course of the examination, the

Center noted that Straker had tested positive for Hepatitis B five years previously, provided

medicine for a cough, and then declared him fit to attend court. Gov't Ex. 9 (St. George Street

Center mem. dated Nov. 20, 2008). By the time Straker was returned to court, he was wearing a

dust mask, apparently because an official -- either at the Center or at the court -- was concerned

that Straker might have tuberculosis. Tr. at 64-65; Straker Ex. 7 (The Express article dated Jan.

12, 2006).

When Straker's case was finally called in court later that day, his attorney, Theodore

Guerra, informed the court that Straker had a substantial lump on his head and, further, that

Straker had represented to him that his injury was caused by an American police officer --

referring to Clauss -- who had assaulted him in the presence of local police. Guerra Affidavit ¶

5; Tr. at 144; Straker Ex. 8 (The Guardian article dated Jan. 12, 2006). Straker's allegations

against the FBI were reported in the local newspapers, along with speculation about his overall

health condition. Straker Ex. 7, 8 (newspaper articles). Lucas did not make further inquiries into

the St. George Street Center medical report, notwithstanding Straker's allegations of police abuse,

because he considered the medical report prima facie valid. Tr. at 46. It also appears that he

found no need to investigate the allegations because, as a witness present during Straker's

interview with the FBI, he simply did not believe the allegations. Id. at 19.

The visit to the St. George Street Center had unintended consequences for Straker. He

10 was subjected to additional medical tests to determine whether he had tuberculosis, and a

positive test was returned on January 30, 2006. Tr. at 36; Gov't Ex. 11 (Port of Spain magistrate

court letter dated Jan. 27, 2006); Gov't Ex.12 (medical record dated Jan. 30, 2006). Rumors

circulated about whether he had tuberculosis or hepatitis, and he was not allowed to appear in

court again until his tuberculosis condition was resolved. Tr. at 33-37; Gov't Ex. 13, at 27-28

(Port of Spain magistrate court minutes of Feb. 3, 2006 and Feb. 13, 2006). Straker was also held

separately from the general population in the Royal Jail for an undetermined time, roughly

through March 2006, due to his medical condition. Gov't Ex. 13, at 29 (Port of Spain magistrate

court minutes). By March 7, 2006, he was apparently medically cleared for attending court

proceedings, and returned to the general prison population. See Gov't Ex. 10, at 4 (extract of

magistrate case book); Tr. at 32-34; see also Straker's Mem. at 7 (ECF #188).

The FBI did not attempt to contact Straker again during his 18 months in custody in

Trinidad until the date of his extradition to the United States. Straker, however, attempted to

contact Freeman by telephone about two to three weeks after the January 9, 2006 interview. Tr.

at 109, 190, 205, 223. The exact contents of the message is unavailable, but Freeman recalls that

it was to the effect of "this is Anderson Straker; can you contact me?" Id. at 206. Freeman

advised the U.S. prosecutor of the call. Id. at 206. Freeman also spoke to Clauss in late January

2006, at which time Freeman discussed the call with him. Id. Clauss testified that Freeman then

described the message as "Straker had reached out to him and said he did want to talk with him,"

but that Freeman did not attempt to return Straker's call because the director of public

prosecutions in Trinidad advised him not to do so in light of Straker legal representation in the

local courts. Id. at 109.

On July 27, 2007, the Trinidad government issued a warrant surrendering Straker for

11 extradition to the United States to face the hostage taking charges in this case. See Gov't Ex. 22.

Straker had, by that time, been formally indicted in a superseding indictment filed on September

20, 2006, in this Court. Straker signed a document waiving his challenge to the extradition.

Straker Mem. at 2 (ECF #210).12 He was transferred to the custody of the FBI on July 29, 2007,

with Clauss and Cruz handling Straker's transfer to the United States. Tr. at 94-99, 147-51; Gov't

Ex. 17 (FBI summary of interview of July 29, 2007).

Clauss formally arrested Straker at the Piarco International Airport in Port of Spain,

Trinidad the morning of July 29. Gov't Ex. 17 (FBI summary of interview of July 29, 2007). He

orally advised Straker of his Miranda rights and presented Straker with the FBI advice of rights

form (Form FD-395) setting forth those rights. Tr. at 95, 147; Gov't Ex. 16.13 The form ends

with the following statement for the suspect to sign: "I have read this statement of my rights and I

understand what my rights are. At this time, I am willing to answer questions without a lawyer

present." Gov't Ex. 16. Straker signed the document, and Clauss and Cruz then signed as

witnesses. Id.; Tr. at 95, 147. Both Clauss and Cruz testified that Straker appeared willing to

sign and that, in contrast to their last meeting, Straker did not raise any questions about his rights.

Id. at 95, 147. However, when the FBI sought to photograph Straker at the Port of Spain airport

12 The document waiving Straker's challenge to extradition was not submitted into evidence, but as noted above, Straker conceded this fact in the briefing. Straker Mem. at 2 (ECF #210) ("Defendant acknowledges signing a document that purports to be a waiver of a challenge to extradition."). 13 This form states: "Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time." Gov't Ex. 16.

12 and other times along the trip -- a routine part of every extradition, according to Clauss -- Straker

refused to have his photograph taken. Id. at 117-18. He crouched down and covered his face;

Clauss recalled that Straker said "he did not want his kids him like that." Id. at 117. Presumably,

he was in handcuffs and/or leg irons, like the other co-defendants who were extradited on that

date. See Straker Ex. 2, 3, 5 (photographs of defendants Pierre, Nixon, and Sealey).

There was then some delay in commencing the interview, apparently because of the

logistics of getting through the first leg of the flight from Trinidad to San Juan, Puerto Rico. Tr.

at 96 (noting that three other defendants were being transported to the United States at the same

time). The interview commenced once they arrived in San Juan, where most of the interview

took place. Id. at 96 (Clauss's testimony indicating that the agents "conclud[ed] the interview

with Mr. Straker in the Customs office in San Juan"); id. at 148, 150 (Cruz's testimony noting

that "the main interview" took place in San Juan); see also Gov't Ex. 17 (FBI summary of

interview identifying the location of the interview as "San Juan, Puerto Rico/Washington, D.C.").

Clauss led the questioning; Cruz was present and took notes, and one other FBI officer (Michael

LaPlante) was present during part of the interview. Tr. at 96, 148. Straker did not ask to stop the

interview and overall seemed "cooperative." Id. at 96-97. According to the FBI summary of the

interview, prepared by Cruz, Straker acknowledged having a role in planning the kidnapping of

Balram Maharaj and described the roles of several co-defendants. Gov't Ex. 17. This is the

document that Straker has moved to suppress.

At the end of the interview, the FBI prepared Straker, along with three co-defendants, for

movement back to the aircraft. Tr. at 96, 148. As Clauss, Cruz, and Straker were leaving the

Customs Office, Clauss mentioned to Straker that he had read in the newspapers that Straker had

claimed he was assaulted by U.S. officials during their earlier interview and asked him something

13 to the effect of "what was up with that?" or "what was the deal?" Id. at 96-97, 148. Clauss and

Cruz each recalled that Straker seemed amused -- as Clauss recalls its, Straker chuckled, and as

Cruz recalls it, he smiled -- and then attributed the claim to his Trinidad attorney, Guerra. Id.

When Straker landed in Washington, he went through routine booking and was held at D.C. Jail

where he remains in custody pending trial. Id. at 118.

B. Legal Analysis -- Fifth Amendment

1. The Edwards v. Arizona Rule

It is by now well-established that the Fifth Amendment privilege against self-

incrimination protects nonresident aliens facing a criminal trial in the United States even where

the questioning by United States authorities takes place abroad. See In re Terrorist Bombings of

U.S. Embassies in East Africa,

(2d Cir. 2008); United States v. Yousef,

(2d Cir. 2003) (noting that where United States law enforcement agents

participate in questioning abroad, Miranda warnings may be required); Suchit,

n.21. This proposition is based on the status of the privilege against self-incrimination as a

"fundamental trial right," as to which a violation occurs not at the moment of custodial

interrogation, but at the time a defendant's statement is used against him at an American criminal

proceeding. See In re Terrorist Bombings of U.S. Embassies in East Africa,

(quoting United States v. Verdugo-Urquidez,

(1990)). The government thus

concedes the applicability of the Fifth Amendment to the FBI actions at issue. Gov't Mem. at 10

(ECF #258) ("This 'trial right' distinction . . . mandates that the protections of the Fifth

Amendment . . . be extended to nonresident aliens tried in the United States.").

In Miranda v. Arizona,

(1966), the Supreme Court held that the Fifth

Amendment prohibition against compelled self-incrimination requires that custodial interrogation

14 be preceded by advice to the defendant that he has the right to remain silent and the right to the

presence of an attorney, and that if the defendant invokes those rights, the interrogation must

cease.

. Subsequently, the Supreme Court in Edwards v. Arizona,

(1981),

further delineated the limitations on police conduct when the Fifth Amendment right to counsel

is invoked. When "an accused has invoked his right to have counsel present during custodial

interrogation, a valid waiver of that right cannot be established by showing only that he

responded to further police-initiated custodial interrogation even if he has been advised of his

rights."

. Second, an accused who invokes his right to counsel, "having expressed

his desire to deal with the police only through counsel, is not subject to further interrogation by

the authorities until counsel has been made available to him, unless the accused himself initiates

further communication, exchanges, or conversations with the police."

.

Since then, the Supreme Court has repeatedly emphasized that Edwards creates a

"prophylactic" and "bright-line" rule barring police interrogation of a subject who has invoked

his right to counsel unless the subject initiates further communications with the police. Arizona

v. Roberson,

(1988); Minnick v. Mississippi,

(1990).

The rationale behind the Edwards rule is that "if a suspect believes that he is not capable of

undergoing such questioning without advice of counsel, then it is presumed that any subsequent

waiver that has come at the authorities' behest, and not at the suspect's own instigation, is itself

the product of the 'inherently compelling pressures' [of custodial interrogation] and not the purely

voluntary choice of the suspect." Roberson,

. Put another way, the Edwards rule

serves "'to prevent police from badgering a defendant into waiving his previously asserted

Miranda rights.'" Minnick,

(quoting Michigan v. Harvey,

(1990)).

15 Subsequent decisions of the Supreme Court, however, also made clear that the Edwards

rule has boundaries consistent with its rationale. First, the police are required to cease

interrogation under the Edwards rule only where the subject has "unambiguously" invoked his

right to counsel. Davis v. United States,

(1994). Under this standard, the

subject "must articulate his desire to have counsel present sufficiently clearly that a reasonable

police officer in the circumstances would understand the statement to be a request for an

attorney."

(holding that "[m]aybe I should talk to a lawyer" was not an

unambiguous invocation of the right to counsel). Second, if the right to counsel is invoked for

only a discrete, limited purpose, the Edwards prohibition does not apply to police questioning for

other purposes, thus ensuring "the individual's right to choose between speech and silence

remains unfettered throughout the interrogation process." Connecticut v. Barrett,

(1987). Third, even after a defendant invokes the right to counsel, the police may resume

interrogation where "the accused himself initiates further communication, exchanges, or

conversations with the police." Edwards,

. An "initiation" sufficient to

authorize renewed police questioning occurs when the defendant "evince[s] a willingness and a

desire for a generalized discussion about the investigation," and also knowingly and intelligently

waives his right to counsel based on a consideration of the totality of the circumstances. Oregon

v. Bradshaw,

(1983) (plurality); United States v. Ware,

(6th Cir. 2003). In this case, the Court must consider whether any of these three limitations

on the Edwards rule applies -- did Straker invoke his Fifth Amendment right to counsel at the

January 2006 interrogation, did he place any limitations on that invocation, and did he later

initiate a further communication with the FBI about the investigation under circumstances that

would allow the FBI to resume interrogation.

16 2. Invocation of the Right to Counsel

The first two questions ask whether Straker invoked his right to counsel and, if so,

whether he placed any limitations on that invocation. The government contends that it is

"questionable" whether Straker unambiguously invoked his right to counsel, noting that many of

Straker's statements amounted only to a statement that he had talked to an attorney and that

Straker was interested in keeping the conversation alive. See Gov't Mem. at 2-6, 10 (ECF

#329). Ultimately, however, the government acknowledges that the better view is that Straker

invoked his right to counsel, with the inquiry then focusing on whether he placed any limitations

on that invocation. The Court agrees. It is true that the mere mention of an attorney and

reference to advice from an attorney is not an unambiguous invocation of the right to counsel.

See Sechrest v. Ignacio,

(9th Cir. 2008) (holding that defendant's reference to

attorney advice "to keep his mouth shut" was not an invocation of right to counsel, nor were

comments such as "maybe [I] ought to see an attorney" or "I think I would like to talk to a

lawyer"); United States v. Peters,

(7th Cir. 2006) (observing that circuits

have held that a statement such as "I might want to talk to an attorney" or "[d]o you think I need a

lawyer?" or a request to call someone about possible representation is too ambiguous to

constitute invocation of right to counsel).

The quantum of evidence in this case, however, shows that there is more than a mere

reference to an attorney or attorney advice. Rather, Clauss testified that the FBI terminated the

interview "because it got to the point where it was clear that he was not in a position at that time

to answer any questions regarding the case," noting that Straker said "that he didn't want to sign

anything and that he didn't want to talk details about the case until he had a chance to speak to his

lawyer." Tr. at 89. This is consistent with Cruz's testimony that "[n]ear the end he [Straker] just

17 said that . . . he wanted -- or he would prefer to talk to his attorney before any questions." Id. at

144. Under the Davis standard, a suspect "need not speak with the discrimination of an Oxford

don," but rather need only "articulate his desire to have counsel present sufficiently clearly that a

reasonable police officer in the circumstances would understand the statement to be a request for

an attorney." Davis,

. A reasonable police officer would have understood

Straker's words to be a request for an attorney, and, indeed, the FBI interpreted his request as

such.

The inquiry then focuses on whether Straker placed any limitations on the invocation of

his right to counsel that would authorize the FBI to question him directly under other

circumstances. See Barrett,

. The government contends that Straker expressed a

desire to leave open the opportunity to speak with the FBI after he had communicated with his

Trinidad counsel. Straker contends that he made it clear he did not wish to speak to the FBI

without counsel present. See Straker Mem. at 7 (ECF #306); Straker Mem. at 4 (ECF #330).

The record is compelling that Straker made his request for counsel subject to an understanding

that he would have an opportunity to contact the FBI later if he so wished. First, the testimony of

Clauss, Cruz, and Freeman is consistent on this point. Each testified that Straker made a

statement indicating that, after he had spoken to his attorney, he might be interested in talking to

the FBI again. Tr. at 89-91, 144, 156-57, 190. This is corroborated by the contemporaneous

summary of the interview prepared by Clauss six days after the interview, which acknowledges

Straker's refusal to speak with the FBI "at this time," but further notes that "[h]e stated . . . that

after having access to his attorney, he would be willing to speak to the agents," and hence, he was

"provided with contact numbers for ALAT Freeman at the U.S. Embassy in Trinidad." Gov't Ex.

15, at 2. Straker's desire to leave open a window for further communications is consistent with

18 the testimony of the officers present on January 9 that Straker was keeping the conversation

going in order to "ascertain what exactly [the FBI] knew about his role." Tr. at 90 (quoting

Clauss's testimony); id. at 203 (Freeman testimony that "he was trying to determine exactly what

we knew about his activities without him having to sign -- waive his rights").

Therefore, Straker's invocation of the right to counsel is properly construed as a request to

deal with the FBI only through counsel until Straker decided otherwise. This "limitation,"

however, overlaps substantially with the exception to the Edwards rule allowing for interrogation

where the defendant "initiates" communications with the police. The Court therefore now turns

to an analysis of whether Straker later indicated a desire to pursue that opportunity for further

communication.

3. Exception Where Defendant Initiates Further Communications

a. Initiation

Edwards holds that police may resume interrogation where, after invocation of the right to

counsel, the defendant himself "initiate[s] further communication, exchanges, or conversations

with the police." Edwards,

. The government contends that Straker "initiated"

such a communication when he left a telephone message for Freeman asking him to call him

back. See Gov't Mem. at 12-13 (ECF #329). Straker's counsel questions the premise that Straker

left such a message, and denies that interrogation could be resumed on that basis. See Straker

Mem. at 2 (ECF #306).

To determine whether Straker "initiated" communications with the FBI, the Court must

evaluate whether he "evinced a willingness and a desire for a generalized discussion about the

investigation," keeping in mind that not every statement by an accused will "initiate" a

conversation with police as contemplated by Edwards. See Bradshaw,

-46

19 (observing, for example, that inquiries or statements that are "routine incidents of the custodial

relationship" -- such as a request for water or use of a telephone -- do not "initiate" a conversation

about the investigation). The Supreme Court clarified in Bradshaw that a second inquiry is also

required before reinterrogation after "initiation" will be condoned -- whether the suspect made a

"knowing and intelligent" waiver of his right to counsel under the totality of the circumstances.

. Even if the suspect reinitiates conversation, the burden remains upon the prosecution

to show by a preponderance of the evidence that the subsequent events indicate a valid waiver of

the Fifth Amendment right to have counsel present.

; United States v. Huerta,

(7th Cir. 2001). Although this issue presents a close call, the Court concludes that

the government has met its burden here.

The Court credits the testimony of Marvin Freeman that Straker left him at least one

voice mail message about two weeks after the January 9 interview, asking Freeman to call him.

Tr. at 190, 205-07. The Court further considers the context in which the message was left --

Straker stated just weeks earlier that he might wish to talk to the FBI about the investigation after

he had consulted with his counsel, and indeed, Freeman had provided his business card to Straker

for that very purpose. Id. at 90-91, 144-45, 158-59, 190; Gov't Ex. 15 at 2 (FBI summary of

interview). This context is important, for where a defendant specifically requests to speak to a

federal investigator, in contrast to local police or court officials, the context may reasonably be

construed to indicate that the initiation of communication is directed toward the investigation.14

14 Indeed, Straker's intense desire to be heard was evident at the motions hearing, when after being cautioned by the Court about the risks of making a statement, Straker availed himself of his right to address the Court directly to get his version of the events into the record. Tr. at 303-06. The Court finds it quite plausible that, despite any cautions by Guerra that there are risks to speaking to the FBI without counsel present, Straker would choose to do so.

20 See United States v. Velasquez,

(3d Cir. 1989) (holding that defendant's

comment "What is going to happen?" reflected his willingness to engage in a generalized

discussion about the investigation "because [he] specifically requested to speak with the federal

investigator"). That is particularly so here, considering that Straker communicated to Freeman

that he would like to talk shortly after he indicated to the FBI that he wanted to leave the door

open for further discussions. For these reasons, the Court finds that Straker's message to

Freeman evinced his willingness and desire to discuss the investigation, and thus constituted an

"initiation" of communication with police as contemplated by Edwards and Bradshaw.

It makes no difference that the "initiation" of communications was directed at Freeman,

rather than Clauss, the agent who ultimately conducted the second interrogation that produced the

statement at issue. The record establishes that Clauss was aware that Straker had reached out to

Freeman, shortly after Freeman received the telephone message. Tr. at 109. The record also

indicates that both Freeman and Clauss even then regarded that initiation of communications as

opening the door to further discussions about the investigation, but only refrained from doing so

at the request of the Trinidad director of public prosecutions who felt that it would be

inappropriate while Straker was represented by Guerra.

Under these circumstances, Straker's

transfer to the United States provided a logical and permissible point at which Clauss could later

pursue a further discussion about the investigation with Straker.

b. Voluntary, Knowing, and Intelligent Waiver

The bare fact of an initiation of communication by the accused does not, by itself, make

the statement obtained from the second interview admissible. As the Supreme Court emphasized

in Oregon v. Bradshaw, the Court must then proceed to consider whether the defendant

knowingly and intelligently waived his Fifth Amendment right to counsel before providing the

21 statement.

. This inquiry, of course, also includes an examination of the

voluntariness of the waiver. See Velazquez,

(citing Miranda,

).

The inquiry requires an assessment of the totality of the circumstances, and "depends upon the

particular facts and circumstances surrounding [the] case, including the background, experience,

and conduct of the accused." Bradshaw,

. The totality of the circumstances here

-- both the events on July 29, 2007, and the events dating back to January 2006 -- readily indicate

that Straker made a valid waiver.

i. Circumstances of Waiver on July 29, 2007

On July 29, 2007, the day Straker was extradited, Clauss advised Straker of his Miranda

rights, using the standard FBI advice of rights form. See Gov't Ex. 16. Straker agreed to waive

his rights and signed the waiver document, with both Clauss and Cruz bearing witness to his

signature. Tr. at 95; Gov't Ex. 16; see also Tr. at 147 (Cruz's testimony noting that Straker did

not have questions about his rights before he signed the waiver and appeared willing to talk).

More significantly, Straker already had familiarity generally with the Miranda warnings from his

January 2006 interview with the FBI, at which time he asked several questions over the course of

three hours, and demonstrated that he understood his rights well enough to make an initial

decision declining to speak about the investigation until he had consulted with his Trinidad

attorney. Tr. at 87-89, 105-06, 144. He also had been represented by Guerra during his 18-

month period of incarceration in Trinidad, who had been advising Straker generally not to speak

to police or sign documents. See Guerra Affidavit ¶ 3. Thus, the waiver was knowing and

intelligent. The only question that has genuinely been placed in dispute by Straker is the

voluntariness of the waiver. See Straker Mem. at 11-17 (ECF #188).

The Court begins with the circumstances surrounding the waiver on July 29, 2007. The

22 only coercive circumstance surrounding his signing of the waiver is his placement in handcuffs

and/or leg irons. But this is a routine incident of police custody -- one that a defendant would

reasonably regard as such -- and thus is not viewed as coercive. See United States v. Doe,

(7th Cir. 1998) (holding that Miranda waiver obtained while defendant was

handcuffed in a squad car did not render the waiver involuntary). Moreover, Straker has pointed

to no other circumstances that day indicating a coercive atmosphere. Indeed, the only FBI

actions that appeared to cause Straker distress were the attempts to photograph him during the

extradition in accordance with FBI extradition procedures. Tr. at 117-18. But the record does

not indicate that those photograph attempts occurred prior to Straker signing the waiver.

Moreover, the Court is unaware of any case indicating that the taking of a routine custodial

photograph is considered coercive -- such a contention, on its face, strikes the Court as

implausible. More significantly, the fact that Straker resisted (successfully) the FBI's attempts to

photograph him, but readily acceded to signing the waiver, corroborates the finding that Straker

was fully capable of refusing requests from the FBI that day, undermining any contention that he

signed the waiver based on an atmosphere of coercion.

Furthermore, the Court observes that the July 29, 2007 interview took place 18 months

after their first meeting, and the FBI had no further conversations with Straker up to that point.

Hence, there was no occasion for the FBI to "badger" Straker into signing the waiver -- the

central concern of Edwards.15 See Minnick,

(observing that the purpose of

15 Some circuits have suggested, in different formulations, that the lapse of time or a transfer from police custody back into general population erases the prophylactic protection from police interrogation required by Edwards. See Isaacs v. Head,

(11th Cir. 2002) (observing that "'if a rule is devised to prevent badgering a suspect into giving up his right to counsel, and because of an immense time gap, no badgering even arguably occurred, then (continued...)

23 Edwards is "'to prevent police from badgering a defendant into waiving his previously asserted

Miranda rights'") (quoting Michigan v. Harvey,

(1990)). Indeed, the FBI

purposefully refrained from engaging in any contact with Straker at the request of the Trinidad

director of public prosecutions. Tr. at 109.

ii. Alleged Coercive Effects Arising from the January 2006 Interview and Incarceration in Trinidad Prisons

Perhaps recognizing that the circumstances of July 29, 2007 contain no indicia of

coercion, Straker contends that his entire statement that day -- including his waiver -- was not

voluntary because the circumstances of his custody in the 18-months leading up to his extradition

made him fearful of the FBI and put him in a state of mind vulnerable to police questioning. See

Straker Mem. at 11-17 (ECF #188). The standard for the voluntariness of a Miranda waiver is

the same as the standard for voluntariness of a confession. Colorado v. Connelly,

(1986).16 Hence, the Court considers Straker's argument that his Miranda waiver was

coerced, together with his argument that the entire statement provided on that date was

15 (...continued) blind obedience to the rule is not required'") (quoting with approval Clark v. Maryland,

(Md. 2001)). The Supreme Court has granted certiorari to address this very issue. See Shatzer v. Maryland,

(Md. 2008), pet. for cert. granted sub nom. Maryland v. Shatzer, --- S. Ct. ---,

(U.S. Jan. 26, 2009). The Court need not resolve the question whether the Edwards protection expires after a lapse of time because the holding here rests on the finding that Straker initiated communication with the FBI about the investigation and, hence, the second interview was permissible consistent with Edwards. The lapse of time is notable here only in considering the totality of circumstances, under Bradshaw's second inquiry, to determine whether Straker's written waiver of his Miranda rights after the initiation of communications was a voluntary, knowing, and intelligent waiver. 16 Although the voluntariness of a confession, on the one hand, and the validity of a Miranda waiver, on the other, are typically discrete inquiries (see United States v. Bradshaw,

(D.C. Cir. 1991)), the analyses collapse into a single one where, as here, a Miranda waiver is challenged on the basis that it is involuntary, supported by the same circumstances that allegedly demonstrate the confession itself is involuntary.

24 involuntary.

Under either standard, the defendant's statement -- his waiver or his confession -- must

be "the product of a free and deliberate choice rather than intimidation, coercion or deception" or

some other police overreaching.

(quoting Moran v. Burbine,

(1986)).

Under both circumstances, the government bears the burden of proving voluntariness by a

preponderance of the evidence.

The backbone of Straker's coercion argument is that Clauss punched him in their first

January 2006 meeting, and that Sergeant Lucas struck him with a flashlight. See Straker Mem. at

4-5, 15 (ECF #188). The subject of whether Straker was struck by Trinidad police or the FBI

was the focus of much testimony at the motions hearing. In the end, there simply is no evidence

to support Straker's contention that he was struck by either officer, not even the testimony of his

former attorney, Theodore Guerra, or his forensic medical expert, Dr. Arden.

Clauss and Lucas each strongly denied that either had struck Straker or otherwise

subjected him to any abuse, and their testimony was corroborated by the testimony provided by

Cruz and Freeman. Tr. at 19, 91, 142-43, 165-66. The testimony of all four officers was

consistent -- not only in their denials of any physical assault, but also in their cohesive

descriptions of the entire course of the interview, including the order in which events occurred,

the atmosphere of the interview, the description of Straker's statements about his contacts with an

attorney, Clauss's resemblance to his biological father, and the circumstances surrounding the

termination of the interview. More significantly, a photograph of Straker was taken at the end of

the January 9, 2006 interview, and there is no indication whatsoever that there is a lump on the

head, a laceration on the mouth, or any other head injury, as Straker claims he incurred. See

Gov't Ex. 6. The photograph provides powerful corroboration of the testimony provided by

25 Lucas and the FBI agents.

Straker's main piece of evidence in support of his contention that Clauss hit him is the

unsworn statement of his Trinidad attorney, Theodore Guerra, stating the Straker told him he was

"assaulted by an American Police Officer in the presence of local police," which resulted in a

"substantial lump on his head." See Guerra Affidavit ¶ 5. However, Guerra was not present the

day of the interview. Id. ¶ 4. The only basis for Guerra's belief that the assault occurred is the

existence of a lump and Straker's unsubstantiated allegation about the event. Id. ¶ 5 (noting that

on January 9, he observed a lump on Straker's head, and "Mr. Straker informed me that he was

assaulted by an American Police Officer in the presence of local police"). Thus, Guerra's

statement is of little probative value. Moreover, Straker's description of the assault, as he

reported it to others, appears to have changed over time. Although he told Guerra that he was

"assaulted by an American Police Officer in the presence of local police" -- and hence, the

lump -- he later apparently told Dr. Arden that "the FBI agent reached across the table and struck

him with a fist one time in his face, specifically striking him just above the right side of his upper

lip," which caused a laceration. Tr. at 170, 173, 179-80 (emphasis supplied). He also added a

new dimension to the alleged assault, alleging that the lump on the crown of his head was caused

by a "constable" -- presumably, then-Constable Lucas -- who "struck him twice on the top and

the right rear of his head with a flashlight." Id. at 170. But Guerra's affidavit contains no

reference to a laceration on the mouth or an assault by a Trinidad police officer. See Guerra

Affidavit ¶¶ 1-8. These inconsistencies in Straker's hearsay statements substantially undermine

the credibility of the allegations.

Additionally, other evidence in the record indicates that, contemporaneous with the

events in January 2006, Straker attributed the lump to other causes. In particular, according to

26 medical report notes dated January 11, 2006, Straker had complained of a small lump caused by

"hitting his head on a louvre" (window blinds). Gov't Ex. 8. Corporal Simmons' memorandum

about the incident, also from January 2006, notes that Straker had even asserted "he had these

injuries before he was arrested" and wished to decline medical treatment. Gov't Ex. 7.

Additionally, the St. George Street Center (where Straker was treated in January 2006) reviewed

its records shortly before the motions hearing in this case, and provided a memorandum that

confirms there was no report of an assault. Gov't Ex. 9.

Straker introduced medical expert testimony to corroborate his claim of assault, but that

evidence ultimately does not advance his claim. Dr. Arden, an expert in the field of forensic

pathology and the interpretation of injuries, testified that, based on his medical examination of

Straker on January 23, 2008, he determined that Straker's scars are consistent with his allegation

that an FBI agent punched him in the mouth and another officer hit him on the head with a

flashlight. Tr. at 170-76. But he readily concedes that he has no way of knowing the source of

the injury, or how old the injury is. Tr. at 184-85 (acknowledgment by Dr. Arden that he was

unable to determine whether Straker's scars were "months or years or even decades" old, and that

the injuries were "consistent with numerous explanations" other than the one proffered by

Straker). With virtually no evidence to support Straker's claim of an assault -- and substantial

credible testimony from four witnesses that the alleged assault did not occur, along with a

photograph corroborating that testimony -- the Court finds that Straker was not struck or abused

at the January 9, 2006 interview.17

17 The Court notes that Clauss testified that Straker told him in passing that Guerra, in fact, told Straker to fabricate the assault. Tr. at 96-97, 123. Straker's counsel contends that it is important to receive live testimony from Guerra to address Clauss's allegation. The Court finds (continued...)

27 Straker suggested at the motions hearing that the atmosphere of the January 2006

interview was threatening in other respects. The evidence, however, does not support his

contention. He was handcuffed during some part of the interview, but the testimony of Clauss

and Cruz indicates that he was uncuffed at some point after Lucas had brought him up from the

police station holding cell. Tr. at 56, 76, 86-87, 129. Straker tried to establish that all of the FBI

agents were armed, but the testimony actually demonstrated the contrary -- neither Clauss nor

Cruz was armed. Id. at 75-76, 128. Freeman, if he was armed, did not have his weapon exposed.

Id. And again, the atmosphere of the interview was, by the accounts of all participants, a calm

one. It can fairly be described as a slow-moving exchange in which the FBI purposefully let a

fairly uneventful interview linger on until it became clear that Straker would not waive his rights,

and Straker kept the conversation going at a superficial level to obtain whatever information he

could from the FBI. Tr. at 18, 60, 86, 107-08, 143-44, 189-90. Hence, the Court concludes that

there was nothing about the January 2006 interview that would have led Straker to believe he

should fear abuse from the FBI or Trinidad police.

Straker also contends that the prison conditions in Trinidad are so harsh as to render his

waiver of Miranda rights invalid. See Straker Mem. at 13-15 (ECF #188). Guerra, who has

personal knowledge of the prison conditions, states that there is extreme overcrowding, terrible

food, little hygiene available to prisoners, and conditions giving rise to injuries. Gov't Ex. 11, ¶

7. Poor prison conditions also have been described by U.S. Department of States reports on

17 (...continued) no need to resolve the issue of Straker's motives for alleging the assault and, hence, no need to question Guerra. See also Order (filed Jan. 26, 2009) (denying Straker's request to conduct deposition of Guerra under Fed. R. Crim. P. 15(a)). For the purpose of resolving Straker's suppression motion, it is sufficient to find that the alleged assault did not occur.

28 human rights practices in Trinidad for the years 2005 and 2006. See Straker Exs. 9 and 10. The

reports describe the conditions as "harsh," and describe overcrowding resulting in as many as five

prisoners in each 10 by 10 feet cell, "bad food," "denial of prison visits by relatives," outbreaks of

disease, lack of medication, and beatings by prison officers. Id. It is certainly reasonable to infer

from this record that Straker was kept in an overcrowded prison prior to his extradition, with low

quality food and poor hygiene. But there is no basis for inferring that Straker experienced the

harsher conditions of concern raised by Guerra and the State Department -- he does not allege

that he was assaulted while in prison or that he was not provided food or medical treatment.

Although he was placed in isolation for a month or so in early 2006 due to concerns about his

tuberculosis, the record indicates that he was transferred to general population by February or

March of 2006. See Straker Mem. at 7 (ECF #188); Gov't Ex. 10, at 4 (extract of magistrate case

book) (indicating Straker -- defendant "3" - was medically cleared to appear in court by March

2006). In short, the prison conditions, while overcrowded and posing risks to his well-being,

were not so severe that one would conclude that Straker's ability to make a voluntary waiver of

his Miranda rights was impaired.18 See In re Terrorist Bombings of U.S. Embassies in East

Africa,

(recognizing that harsh prison conditions do not necessarily render

18 Even if the prison conditions made Straker more pliable -- an assertion belied by Straker's own actions on July 29th -- the Court would be constrained in considering them as part of the analysis of whether Straker voluntarily waived his Miranda rights or confessed to his involvement in the hostage taking of Maharaj. The Supreme Court has emphasized that "[t]he sole concern of the Fifth Amendment . . . is governmental coercion," in contrast to pressures from other external sources. See Connelly,

. Thus, in the absence of some coercive police action that exploits a person's mental state, his weakened state of mind arising from external sources would have limited, if any, weight in the voluntariness analysis. See

("Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law."); United States v. Bradshaw,

(observing that Connelly holds that "police coercion is a necessary prerequisite to a determination that a waiver was involuntary"); United States v. Hilario-Hilario,

(1st Cir. 2008) (same).

29 statements involuntary, but instead should be weighed as one data point in the totality of the

circumstances).

In short, because Straker initiated communications with the FBI after the initial January 9,

2006 interview -- in a context in which he had indicated he might want to talk and had even

taken a business card -- and then voluntarily, knowingly, and intelligently waived his Miranda

rights at the time he signed the advice of rights form, the Court concludes that the Edwards rule

does not bar Straker's July 29, 2007 statement from being admitted at trial.

C. Legal Analysis -- Sixth Amendment

Straker's initial motion to suppress rested exclusively on his right to counsel under the

Fifth Amendment, and for the reasons set forth above, the Court concludes that the FBI obtained

the statement consistent with his Fifth Amendment rights. At the motions hearing, however, it

became apparent that Straker wished to reserve his right to seek suppression based on his

separate Sixth Amendment right to counsel. Tr. at 300-01. The return of an indictment against

him on September 20, 2006 -- well before his July 29, 2007, statement -- had, of course,

triggered his right to counsel under the Sixth Amendment in all U.S. proceedings. See Brewer v.

Williams,

(1977). Counsel then submitted supplemental briefing on whether

the FBI's interrogation of Straker during his extradition, without counsel, presented a Sixth

Amendment violation. In particular, the parties addressed whether Straker's waiver of his right to

counsel under the Fifth Amendment after being advised of his Miranda rights also waived his

separate right to counsel under the Sixth Amendment.

The Supreme Court addressed this very issue in Patterson v. Illinois,

(1988), and held that "[a]s a general matter . . . an accused who is admonished with the warnings

prescribed by this Court in Miranda has been sufficiently apprised of the nature of his Sixth

30 Amendment rights, and of the consequences of abandoning those rights, so that his waiver on

this basis will be considered a knowing and intelligent one."

(citation omitted). In

other words, a defendant's knowing and intelligent waiver of Miranda rights also constitutes a

knowing and intelligent waiver of his right to counsel under the Sixth Amendment during

postindictment questioning.

. The Supreme Court gave three primary reasons for

this conclusion. First, the Miranda warnings make it clear to the accused that he has "a right to

consult with an attorney, to have a lawyer present while he [is] questioned, and even to have a

lawyer appointed for him if he [can] not afford to retain one on his own," thus conveying "the

sum and substance of the rights that the Sixth Amendment provide[s] him."

. Second,

the Miranda warnings make the accused "aware of the consequences of a decision by him to

waive his Sixth Amendment rights during postindictment questioning" by informing him "that

any statement could be used against him in subsequent criminal proceedings."

Third, the

warning advises the accused of "what a lawyer could 'do for him' during postindictment

questioning: namely, advise [him] to refrain from making any such [inculpatory] statements."

. The lower courts have, since then, consistently applied Patterson's holding that a

knowing and intelligent waiver of Miranda rights also waives the accused's right to counsel under

the Sixth Amendment. See, e.g., United States v. Garlewicz,

(8th Cir. 2007);

United States v. Gonzalez-Lauzan,

(11th Cir. 2006); United States v.

Spruill,

(7th Cir. 2002); United States v. Percy,

(9th Cir.

2001); United States v. Posada-Rios,

(5th Cir. 1998); United States v.

Muca,

(4th Cir. 1991); Riddick v. Edmiston,

(3d Cir.

1990).

Straker contends that Patterson should not be applied to his case because it did not

31 address whether a Miranda waiver sufficed to waive Sixth Amendment rights where a defendant

was already represented by counsel or appointed counsel. See Straker Mem. at 2-8 (ECF #313).

He notes that the Supreme Court cautioned that the analysis would shift where a defendant has

asserted his right to counsel. Id. at 7. But assuming arguendo that Straker's relationship with

Guerra constitutes a relationship with counsel protected by the Sixth Amendment,19 the Court

nonetheless finds no merit to his argument that Patterson does not apply. The passage in

Patterson that he relies upon refers to the holding in Michigan v. Jackson,

(1986),

extending the Edwards v. Arizona bright-line rule against further interrogation based on the Fifth

Amendment to cover defendants who have invoked their right to counsel under the Sixth

Amendment. See Straker Mem. at 2-7 (ECF #313) (citing Patterson,

-91 & n.3)).

In other words, Patterson made clear that its holding could not be used to circumvent the

otherwise applicable protections from Edwards.

. But as discussed in detail

above, the Edwards-based prophylactic bar on questioning does not apply here because Straker,

on his own, initiated communications with the FBI. The finding concerning "initiation" under

Edwards is equally applicable in the Sixth Amendment context. See Jackson,

(recognizing that the Edwards rule permits reinterrogation where the accused initiates

communications, and "the same rule" applies in the Sixth Amendment context); United States v.

Cain,

(4th Cir. 2008) (noting that the Sixth Amendment "permits a defendant

to initiate contact with and give statements to the Government on his own accord"); Garlewicz,

19 Guerra's representation of Straker was limited to his Trinidad case. See Guerra Affidavit ¶ 2. Straker was not represented by counsel in the U.S. proceedings at the time of his extradition. Moreover, as the government points out, Straker could not have asserted any rights under the Sixth Amendment at the time of his January 2006 interview because he had not then been indicted in the United States.

32

("where the defendant initiates contact . . . he may validly waive his Sixth

Amendment rights, even if he is represented by an attorney").

Furthermore, like the petitioner in Patterson, Straker has not identified what further

information about his Sixth Amendment rights the FBI could have provided beyond what was

described in the Miranda warnings he received. And under Patterson, the Miranda warnings

provided by the FBI sufficiently apprised Straker of "the nature of his Sixth Amendment rights,

and of the consequences of abandoning those rights, so that his waiver on [that] basis will be

considered a knowing and intelligent one." Patterson,

.

II. Sealey's Motion to Suppress

Sealey moves to suppress two statements that were taken from him on August 8, 2006 --

one to the Trinidad police and the other to FBI. See Sealey Mem. at 3-5 (ECF #223); Sealey

Supplemental Mem. at 2-3 (ECF #234); Gov't Ex. 18 (Trinidad record of Sealey interview);

Gov't Ex. 21 (FBI summary of Sealey interview). He contends that his statement to the Trinidad

police was taken without any Miranda warnings, which he contends were required in light of the

alleged participation by the FBI in that interview. Sealey Mem. at 4 (ECF #223). He also

suggests that his waiver of rights with respect to the FBI was not made knowingly and

intelligently.

And he contends that, in any event, the statements should be excluded because

he made them involuntarily. Id. at 5. The Court sets forth its factual findings and legal analysis

below.20

20 The Court draws primarily from the testimony of the two Trinidad officers at the August 8, 2006 interview -- Gosyne and Pinder -- and FBI Agent Freeman for these findings. The Gosyne and Pinder testimony refers to the police station diary extracts submitted as Gov't Exhibits 19 and 19-A, which require the following explanation. Gosyne created extracts of the station diary in preparation for the motions hearing by writing down word for word the relevant (continued...)

33 A. Factual Findings

Sealey was arrested by Trinidad police the morning of August 8, 2006, and detained in

the holding cell at the Arouca police station. Tr. at 69-72, 264, 270-71. Gosyne was walking

through the holding cell that afternoon, when Sealey stopped her at about 5:00 p.m. to ask her for

a drink of water. Id. at 226-27; Gov't Ex. 19 (station diary extract, entry no. 30). In response, she

brought him water, at which point he said that he wanted to speak with her about a kidnapping.

Id. at 226-27. She identified herself as a Trinidad police officer, and cautioned him as to his

rights under Trinidad law, advising him that he was not obliged to say anything and that his

statements would be taken down in writing and given in evidence. Tr. at 227. Sealey responded

that he still wished to talk because he wanted to clear himself. Id. at 227-28. Gosyne advised

Sergeant Ramdeen of Sealey's request, and Ramdeen had Sealey brought up to his office on the

second floor of the station. Id. at 228-29. Ramdeen also requested the presence of a Justice of

the Peace. Id. at 229. No questioning took place while the police waited for a Justice of the

Peace to arrive. Id.

Justice of the Peace Asquith Clarke arrived around 7:00 p.m., and was immediately given

time to speak privately with Sealey. Id. at 229; Gov't Ex. 19 (station diary extract, entry no. 31).

After that meeting, the Justice of the Peace advised the police that Sealey wanted his father,

Hugh David Sealey, to be present for his statement. Tr. at 230. Pinder was sent out to find

Sealey's father, and returned with him at about 7:45 p.m. Id. at 230, 265-66; Gov't Ex. 19 (station

20 (...continued) entries from the original station diary. See Gov't Ex. 19. The government also submitted a photocopy of those entries from the original station diary, but the photocopy is not easily readable. See Gov't Ex. 19-A. Because Gosyne's handwritten reproduction is the more legible version (Ex. 19), the Court cites to that version of the extracts. The same entries, however, can be found on Gov't Ex. 19-A.

34 diary extract, entry no. 34). Sealey, his father, and the Justice of the Peace then had a private

meeting in a cubicle at the station. Tr. at 230-31. The handwritten certification of the Justice of

the Peace states that, during that meeting, he asked Sealey questions to confirm that Sealey was

making the statement knowingly and voluntarily, and Sealey's responses confirmed that he was:

I . . . asked the suspect if he was threatened or abused or promised anything to give the statement and he said no. He was giving the statement on his own free will. I also told him he was not obliged to give any statement and he said he wanted to give a statement and he wanted the police to write the statement. I then recalled the police officers to the room.

Gov't Ex. 18 at 237; Tr. at 241-42. The Trinidad police then got ready to commence the

interview.

While this was happening, Freeman arrived, having been notified by Clauss earlier that

day that Sealey had been arrested. Tr. at 192-93. Pinder and Gosyne did not, however, include

Freeman in their preparations, having had no discussions with him about the investigation before

that day. Id. at 257, 272-73. Freeman was also excluded from the interview conducted by the

Trinidad police, although he was allowed to remain in a nearby adjacent cubicle over 10 feet

away and could hear the interview taking place. Id. at 196. None of the Trinidad officers had

consulted him about the interview before it was scheduled, nor did they discuss their plans for the

interview once Freeman arrived. Id. at 221, 257, 273. Hence, Freeman did not make any

suggestions to the officers about any areas of inquiry. Id.

In the presence of Sealey's father, the Justice of the Peace, and Sergeant Pinder, Gosyne

began the interview of Sealey at about 8:15 p.m., and concluded the interview at 9:45 p.m. Id. at

242-43. Gosyne made a handwritten transcript of the interview and also acted as the questioner.

Id. at 237-39. She began by reading him his rights as required by the Trinidad "Judges' Rules,"

and asked him to sign the following statement: "I, Michael Bourne, also known as Christopher

35 Sealey and Boyie, wish to make a statement. I want someone to write down what I say. I have

been told that I need not say anything unless I wish to do so and that whatever I say may be given

in evidence. I have also been told that I have the right to retain a legal adviser." Tr. at 237; Gov't

Ex. 18, at 230. Sealey said that he understood, and then signed as "Christopher Bourne" -- one of

his aliases -- and his father and the Justice of the Peace also signed, bearing witness to his

signature. Tr. at 237, 242; Gov't Ex. 18, at 230.

Sealey then proceeded to describe his involvement in the Maharaj kidnapping, with

Gosyne asking him to stop periodically so that she could write everything down. Tr. at 239. His

father and Justice of the Peace Clarke remained in the cubicle for the full statement, along with

Pinder and Gosyne. Id. Gosyne noted that Sealey wanted to clear his name about the murder of

Maharaj, in contrast to the kidnapping. Id. at 244. When he finished his narrative, Gosyne

followed up with specific questions, which Sealey answered, all of which were also transcribed

by Gosyne. Id. at 239. She occasionally made mistakes, which she noted with a cross mark and

asked him to place his initials -- "CB" -- in the margin. Id. at 255, 260-61. Gosyne then read the

entire statement back to Sealey, and where Sealey noted mistakes, his corrections were noted,

and he placed his signature next to the correction. Id. After that process concluded, Gosyne

asked him to make the following statement in his own handwriting: "The above statement has

been read to me, and I have been told that I can correct or add anything I wish. This statement is

true. I have made it of my own free will." Id. at 240-41. Sealey agreed to do so, and his father

and the Justice of the Peace signed as well. Id. at 240-41, 269.21 Sealey's demeanor during the

21 Gosyne's procedure for taking Sealey's statement by writing it in her own hand and requesting handwritten acknowledgments and initials in multiple sections may, at first glance, (continued...)

36 interview was cooperative and coherent. Tr. at 268.

The Justice of the Peace then added his handwritten certification as to the circumstances

of the interview, summarizing his initial private meeting with Sealey and his father and Sealey's

waiver of rights, and then confirming that Sealey had been read the full statement in the presence

21 (...continued) sound like a departure from protocol, and Sealey suggests there was something improper about it. See Sealey's Mem. at 5 (ECF #223) (describing the taking of the statement as "carefully orchestrated," noting that it was "handwritten by the arresting officer"). But the record shows that the process closely conforms to the requirements of the Judges' Rules, which are the guidelines governing police treatment of suspects in custody. Tr. at 10. That document provides:

(a) If a person says that he wants to make a statement he shall be told that it is intended to make a written record of what he said. He shall always be asked whether he wishes to write down himself what he wants to say; if he says that he cannot write or that he would like someone to write it for him, a police officer may offer to write the statement for him. If he accepts the offer the police officer shall, before starting, ask the person making the statement to sign, or make his mark to, the following: "I, ............................, wish to make a statement. I want someone to write down what I say. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence."

(b) Any person writing his own statement shall be allowed to do so without any prompting as distinct from indicating to him what matters are material. ....

(d) Whenever a police officer writes the statement, he shall take down the exact words spoken by the person making the statement, without putting any questions other than such as may be needed to make the statement coherent, intelligible, and relevant to the material matters; he shall not prompt him;

(e) When the writing of a statement by a police officer is finished the person making it shall be asked to read it and to make any corrections, alterations, or additions he wishes. When he has finished reading it he shall be asked to write and sign or make his mark on the following Certificate at the end of the statement: "I have read the above statement and I have been told that I can correct, alter, or add anything I wish. This statement is true. I have made it of my own free will."

Gov't Ex. 3, at 385-86. Nothing in the Judges' Rules implies or indicates that Gosyne's role in writing the statement for Sealey should be viewed with suspicion.

37 of his father before making the handwritten certification that it was correct.22 Id. at 242; Gov't

Ex. 18 at 237-38. The interview ended at 9:45 p.m., having lasted about 90 minutes. Tr. at 24-

43. Gosyne then asked Sealey whether he wanted to have dinner -- according to the station diary

extract, he had refused an earlier offer of dinner at 6:00 p.m. Gov't Ex. 19 (station diary extract,

entry no. 41). He again refused, stating that he was not hungry. Id.

At that point, the Trinidad police then allowed Freeman to conduct his interview of

Sealey. Tr. at 197. Freeman asked Sealey if he wanted to take a restroom break or wanted water,

but Sealey declined. Id. Freeman began the interview by advising Sealey of his rights under

American law, using an "international advice of rights" form. Id. at 197. That form advises a

suspect of his Miranda rights, but explains that appointment of counsel cannot be guaranteed by

the FBI in a foreign country for a person not in U.S. custody. Gov't Ex. 20. It states in full:

We are representatives of the U.S. government. According to our laws, you are entitled to certain rights. Before we ask you any questions, we want to be certain that you understand such rights.

You do not have to speak to us nor do you have to answer any questions. Even though you may have spoke[n] to the Trinidad authorities, you do not have to speak to us right now. If you do speak to us, everything that you say can be used against you in a court of law, in the United States or anywhere else.

In the United States, you would have the right to seek advice from an attorney before we asked you any questions and to have an attorney with you during interrogation. If you were in the United States and could not afford an attorney, you would be provided an attorney at no cost before submitting any questions, if you so desired. Since you are not in our custody, nor are we in the United States, we cannot assure that you will have access to an attorney, nor can we assure that you will be provided with an attorney before

22 The Justice of the Peace certification states, inter alia: "[Gosyne] asked him if he was satisfied with what she wrote as she read the statement to the suspect in the presence of his father. He said he was satisfied that it correctly recorded, and he signed and date[d]. Along with PC Pinder, the suspect and myself signed and dated it. The suspect then wrote a certificate from the Judges' Rule[s] to which again he signed and dated it. His father did likewise, PC Pinder and I did likewise." Tr. at 241-42; Gov't Ex. 18.

38 we ask you any questions, or when we are asking such questions. If you wish to have an attorney but Trinidad authorities do not allow you access to one, or if they refuse to provide you an attorney at this time, you may opt not to speak to us. If you decide to speak to us without an attorney present, you reserve the right to decline to answer our questions at any time.

Moreover, you should understand that if you choose not to speak to us, that fact may not be used as evidence against you in a court of law in the United States.

It ends with the following acknowledgment and waiver of rights:

I have read this notice of my rights and understand what my rights are.

I am prepared to give a statement and to answer questions.

I do not wish to have an attorney at this time.

I understand and I know what I am doing.

I have received no promises or threats nor have I been subject to pressure or coercion of any sort.

Id. Freeman read him the form, and provided a copy of the form to Sealey to read. Tr. at 199.

Sealey then signed the document "Christopher Bourne" and initialed each line of the waiver

section. His father and Pinder were both still with him for the advice of rights, and they each

signed as witnesses. Id. at 216, 269-70; Gov't Ex. 20. Pinder then left, but Sealey's father

remained for the rest of the interview. Tr. at 216, 272-73. The interview proceeded without

interruption. Sealey did not ask to stop the interview, nor did he appear to be in distress or

discomfort. Id. at 200. The interview concluded around 10:30 or 11:00 p.m. that night, taking a

total of 30 minutes to an hour. Id. at 214 (indicating that waiver of rights was signed at 10:45

p.m.); Gov't Ex. 19 (station diary extract, entry no. 42) (noting that Freeman left the police

station at 10:30 p.m.).

Sealey was indicted in the United States the next month, on September 20, 2006. On July

27, 2007, the Trinidad government issued a warrant surrendering Sealey for extradition to the

39 United States to face the hostage taking charges in this case. See Gov't Ex. 23. Sealey was

transferred to the custody of the FBI on July 29, 2007, for extradition to the United States, along

with Straker and two other co-defendants. Tr. at 100-01.

B. Fifth Amendment Analysis

1. Sealey's Statement to the Trinidad Police

Sealey contends that his statement to the Trinidad police on August 8, 2006 should be

suppressed on the ground that the Trinidad police were required to provide Miranda warnings

under the "joint venture" doctrine, but failed to do so, and that, in any event, applying due

process standards, the statements should be excluded as involuntary. The Court recognized in

Section I.B above that the Fifth Amendment privilege against self-incrimination protects

nonresident aliens facing a criminal trial in the United States where the questioning is conducted

by United States authorities abroad. However, when a person makes a statement to foreign

police officers abroad, rather than U.S. officers, two additional issues regarding the reach of the

Constitution may arise.

The first is the threshold issue of the applicability of Miranda to statements obtained by

foreign officers acting abroad. Such statements generally are not governed by Miranda unless,

under the "joint venture" doctrine, United States law enforcement agents actively participate in

the questioning of the defendant or the foreign officials act as agents or virtual agents of the

United States.23 See In re Terrorist Bombings of U.S. Embassies in East Africa,

(citing Yousef,

); United States v. Abu Ali,

(4th Cir.

2008); United States v. Karake,

(D.D.C. 2003). The second issue is

23 There is not, however, a consensus on the level of cooperation necessary to support a finding of a "joint venture." See Yousef,

.

40 whether -- in the absence of any U.S. involvement -- the admissibility of a defendant's statement

should be assessed under the Due Process Clause by the traditional "voluntariness" standard or a

"shocks the conscience" standard, or instead is admissible without regard to either standard. See

United States v. Karake,

, 52-53 & nn.73-74 (D.D.C. 2006) (discussing

whether the standard is "shocks the conscience" or voluntariness, suggesting the latter is correct);

Abu Ali,

(applying a voluntariness standard); United States v. Wolf,

, 972 n.3 (9th Cir. 1987) (questioning whether constitutional protection against involuntary

confessions applies to confessions coerced by foreign police in light of Colorado v. Connelly,

(1986)). Here, the government does not press for a "shocks the conscience"

standard, arguing instead that Sealey's statements to the Trinidad police satisfy the traditional

voluntariness standard; hence, the Court will evaluate his statements on that basis. See Gov't

Opp. at 18 (ECF #258).

The Court expressed doubts prior to the June 2007 trial of another defendant, David

Suchit, that the FBI's information-sharing with Trinidad during the course of their parallel

investigations of the Maharaj kidnapping amounted to a joint venture, but left the question

unresolved. See Suchit,

& n.25. The Court has now reviewed sufficient

evidence to conclude that, at least as to the interview of Sealey on August 8, 2006, there was no

joint venture. Under Sealey's theory, there was a joint venture because the Trinidad police and

the FBI conducted a single joint interview that day, rather than two separate interviews, and were

working together in many other aspects of the investigation. See Sealey's Supp. Mem. at 2-3 &

n.4 (ECF #234). But there is simply no evidence to support his "single interview" theory. The

testimony, outlined supra at 33-39, overwhelmingly established that there were two distinct

interviews: the first one with the Trinidad police -- that is, Constables Gosyne and Pinder, with

41 Sealey's father and the Justice of the Peace also present, but excluding Freeman; and the second

with Freeman and Sealey's father (with Pinder departing after Sealey signed the FBI waiver of

rights). Furthermore, the Trinidad police and Freeman were not acting jointly with respect to the

investigation of Sealey at the time the interview took place. The FBI did not participate in

Sealey's arrest on August 8, 2006, nor was it even remotely involved in setting up Sealey's

interview with the Trinidad police. More significantly, Freeman was not allowed to participate

in the Trinidad officers' interview of Sealey, observe the interview, or submit any questions. He

was only permitted to conduct his own separate interview. Whatever information-sharing or

cooperation might have occurred with respect to other defendants, there is nothing to support a

finding that the Trinidad police and the FBI were acting "jointly" on August 8, 2006, under even

a broad view of the "joint venture" standard. Because there was no joint venture with respect to

the investigation of Sealey, Miranda does not determine the admissibility of Sealey's statement to

the Trinidad police.24

The Court next considers whether Sealey's statement to the Trinidad police may be

admitted at trial consistent with due process. The evidence demonstrates overwhelmingly that

24 Had there been a joint venture with respect to investigating Sealey, Miranda would not preclude the admissibility of Sealey's statement to the Trinidad police because they provided warnings that were functionally equivalent to those required by Miranda. Gosyne testified that she advised Sealey of his right to remain silent and his right to retain a legal adviser, and also informed him at least twice that his statements could be used in evidence against him. Sealey signed a statement acknowledging that he had been so advised, and then voluntarily, knowingly, and intelligently waived his rights, as discussed in more detail above. Although the warnings did not include any advice on appointment of counsel, no such warnings were required because appointment of counsel to the indigent during interrogation is not required under Trinidad law. See In re Terrorist Bombings of U.S. Embassies in East Africa,

("If the suspect chooses to make a knowing and voluntary waiver of his rights after a warning adapted to the circumstances of questioning overseas and chooses to speak with a U.S. agent, then neither the Fifth Amendment nor Miranda will bar the admission of his statement at trial.").

42 Sealey voluntarily made the statement. First, as noted above, Sealey reached out to Gosyne

requesting to make a statement, motivated by a desire to clear his name with respect to

allegations concerning the murder aspect of the offense. Second, the police provided multiple

cautions to Sealey about his right to remain silent before he made his statement -- first, when

Sealey requested an opportunity to make a statement from his holding cell, then from the Justice

of the Peace, and finally, a caution immediately prior to the taking of his statement. Third,

Sealey requested the presence of his father, which was promptly granted. Fourth, the Justice of

the Peace met privately with Sealey and his father prior to the interview to ensure that Sealey was

acting voluntarily. During that meeting, Sealey denied that he had been threatened or abused

and, when told that he was not required to give a statement, responded that he "wanted to give a

statement" and he "wanted the police to write the statement." Lastly, at the end of the interview,

Sealey was given an opportunity to make corrections to the statement -- which he did -- and then

penned in his own handwriting that "I have made [the statement] of my own free will." The

Justice of the Peace then provided a certification further attesting to the voluntariness of the

interview. The duration of the interview was not unusually long -- 90 minutes -- and he was

offered food prior to the interview, and then again at the end. All of these circumstances are

compelling indications that Sealey voluntarily provided his statement.

Sealey's primary contention in support of a claim of coercion is based on the presumption

that he was held in jail for about a week before making the statement. See Sealey's Mem. at 3-5

(ECF #223); Sealey Supp. Mem. at 2 (ECF #234). But there was no evidence to support that

claim of prolonged detention. All of the evidence -- testimony from Lucas and Pinder, as well as

the original station diary extract -- demonstrates that Sealey was arrested the day of the interview

-- August 8, 2006. Sealey also contends the statement should be considered involuntary because

43 he requested counsel, but instead was provided access only to his father, whom he calls "a known

drug abuser." Sealey Mem. at 3 (#223). But the evidence does not suggest that Sealey requested

an attorney; it indicates only that he requested the presence of his father, which was promptly

granted.25 Sealey's brief also alleges that he cannot read or write. Id. at 3. Again, there was no

evidence to support that allegation, and some testimony indicating that he can, indeed, read,

considering that he wrote the Judges' Rules certification in his own hand. But even if the Court

assumes Sealey cannot read, it changes nothing -- Gosyne testified that she read out loud the

cautions concerning his legal rights. Based on the totality of the circumstances, then, the Court

finds that the evidence overwhelmingly establishes that Sealey provided his statement to the

Trinidad police voluntarily. Therefore, Sealey's motion to suppress his statement to the Trinidad

police will be denied.

2. Sealey's Statement to the FBI

Sealey's motion to suppress the FBI statement is premised on his contention that there

was only one un-Mirandized interview -- a factual contention that has no support in the

evidenitary record. See Sealey's Supp. Mem. at 2 n.4 (ECF #234). Hence, there is little left of

his argument that his statement to the FBI should be suppressed. Nonetheless, the Court has

conducted a plenary review of the evidentiary record and examined the relevant case law, and

concludes that there is no basis for suppressing Sealey's statement to the FBI.

Sealey was presented with the standard FBI international advice of rights form, which

advises a defendant of his Miranda rights before questioning, adapted to reflect the circumstances

25 Furthermore, there is no evidence to indicate that his father was a drug addict. But even if that were true, Sealey requested his father's presence, so it is unclear what bearing that would have on the motion.

44 of the questioning taking place abroad. The Second Circuit has recently held that the

international advice of rights form substantially complies with the cautions required by Miranda

and contains permissible adaptations to describe accurately the availability of counsel to a

detainee held by a foreign authority. In re Terrorist Bombings of U.S. Embassies in East Africa,

(reviewing validity of virtually identical international advice of rights

notification). The court noted that the first two warnings in the advice of rights form -- the right

to remain silent and the introduction at trial of any statements made thereafter -- are "entirely

consistent with the text and teaching of Miranda."

. With respect to the presence and

appointment of counsel, the court explained that the Supreme Court has made clear that, even in

a case arising in a purely domestic setting, government officials are permitted to -- indeed,

required to -- "'accurately describe[] the procedure for the appointment of counsel' under

applicable law," even if local procedures would not grant them ready access to an attorney.

at

207-08 (quoting Duckworth v. Eagan,

(1989)). "If, under those procedures,

'the police cannot provide appointed counsel, Miranda requires only that the police not question a

suspect unless he waives his right to counsel.'"

(quoting Duckworth,

).

Because the international advice of rights form advises suspects abroad that the United States

cannot assure their access to an attorney -- and at the same time, advises a suspect that he may

therefore choose not to speak -- it is a permissible variation of Miranda.

. For

the same reasons, this Court agrees that the international advice of rights form presented in this

case -- virtually identical to the one reviewed by the Second Circuit -- served to adequately

advise Sealey of his rights under Miranda.

Furthermore, the record clearly establishes that Sealey voluntarily, knowingly, and

intelligently waived those rights before making his statement to Freeman, who read the form out

45 loud to Sealey in the presence of Sealey's father and Pinder. Sealey signed the waiver, and his

father and Pinder signed as witnesses. The other circumstances of the interview indicate that

Sealey was quite conscious of his decision to make a statement about the Maharaj kidnapping, as

reflected by his reaching out to Gosyne with a request to make a statement in order to clear his

name with respect to any allegations of murder. Sealey was, moreover, in no physical discomfort.

He had been offered food at 6:00 p.m. and again at 9:55 p.m., declining both times. Before his

interview with Freeman began around 10:00 p.m., Freeman asked Sealey if he needed a restroom

break or water, which Sealey declined. His interview with Freeman was relatively short,

probably less than an hour. Together with the previous interview, the questioning, collectively,

was about three hours. In short, Sealey voluntarily waived his rights, with a full understanding as

to his legal rights. Therefore, the Court will deny Sealey's motion to suppress his statement to

the FBI.

III. Defendants' Motion for Return to Trinidad

Relying on the same factual allegations in support of his suppression motion, Straker

contends that he should be returned to Trinidad on the ground that his consent to extradition was

not voluntary -- that is, he had no real freedom of choice because he had been abused by Trinidad

police and the FBI, and he had been subjected to harsh conditions of confinement. See Straker

Mem. at 2-4 (ECF #210). In response, the government contends that the Supreme Court and this

Circuit have rejected such challenges to extradition under more egregious circumstances --

forcible abduction from one's home country -- and thus the request for relief should be denied.

See Gov's Opp. at 4-7 (citing United States v. Mejia,

(D.C. Cir. 2006), and United

States v. Alvarez-Machain,

(1992)). The Court notes that Sealey has summarily

joined in Straker's motion -- which puts him in an awkward procedural posture because the

46 relevant factual allegations are specific to Straker.26 See Sealey's Second Mot. to Adopt and Join

Motions (ECF #222). Nonetheless, the Court will consider the motion as applicable to both

defendants, and for the reasons stated below, will deny their request for return to Trinidad.

This Court considered substantially the same request made with respect to the first

defendant tried in this case, David Suchit, and determined that a defendant has no right to return

to his country of origin where his extradition has not violated the terms of the relevant extradition

treaty. See Suchit,

. The Court applies that same analysis here. The

Supreme Court has made clear that a court's jurisdiction over a defendant from another country

will depend primarily on whether the circumstances of the defendant's transfer to the United

States violated the terms of the relevant treaty, rather than on the degree of force involved in

obtaining custody. Alvarez-Machain,

. The terms of the treaty are paramount:

"If [the court] conclude[s] that the [t]reaty does not prohibit [defendant's transfer], the rule in Ker

applies, and the court need not inquire as to how respondent came before it."

. The

Supreme Court has further explained that, under the "rule in Ker" -- referring to Ker v. Illinois,

(1886) -- "'[t]he power of a court to try a person for crime is not impaired by the

fact that he had been brought within the court's jurisdiction by reason of a forcible abduction'" --

or, presumably, by other means involving some lesser degree of force -- absent a violation of the

treaty. Alvarez-Machain,

(quoting Frisbie v. Collins,

(1952)).

The Court reasoned that due process of law is satisfied when the defendant is provided "a fair

trial in accordance with constitutional procedural safeguards."

. Thus, in Alvarez-

26 Indeed, Sealey has not explicitly stated that he consented to extradition or that he did so under circumstances indicating coercion. However, because Sealey's motion is based entirely on Straker's motion, the Court will presume that Sealey consented to extradition, although the record is silent on this point.

47 Machain the Supreme Court held that a defendant's forcible abduction from Mexico by DEA

agents did not prohibit his trial in the United States, emphasizing that no term of the extradition

treaty with Mexico had been violated. Id. at 670.

Following Alvarez-Machain, this Circuit has held that where a defendant was transferred

to the United States under an informal cooperative arrangement with Panama, he was properly

tried here. See Mejia,

. The court found it dispositive that nothing in the relevant

extradition treaty prohibited the transfer; thus, the rule of Ker applied, and the jurisdiction of the

trial court over the defendant was affirmed. See Mejia,

.

This Court therefore first considers whether there was a violation of the United States

extradition treaty with Trinidad. See generally Extradition Treaty with Trinidad and Tobago

(signed Mar. 4, 1996, entered into force Nov. 29, 1999), Treaty Doc. 105-21, published at

. Defendant has not identified a violation of any provision of this extradition treaty

nor can the Court discern one. See Straker Mem. at 1-4 (ECF #210). Indeed, the treaty states in

Article 15: "If the person sought consents to surrender to the Requesting State, the Requested

State may surrender the person as expeditiously as possible without further proceedings." Here,

Straker concedes that he consented to extradition. See Straker Mem. at 2 (ECF #210).

Straker contends that the Court must look behind the face of his consent, and determine

whether it was voluntary, suggesting that the Court apply Fourth and Fifth Amendment case law

on voluntariness with regard to searches and confessions. See Straker Mem. at 3-4 (ECF #210).

He further urges that his consent was not voluntary because his overall "fear for his well-being"

resulted in a lack of "genuine freedom of choice."

.

It is not at all clear in light of Alvarez-Machain and Mejia that the Court is free to

superimpose the voluntariness standards of Fourth or Fifth Amendment case law on the

48 extradition treaty, particularly in light of the Supreme Court's refusal to create implied terms

without a solid foundation for the term in "the practice of nations regarding extradition treaties."

. Moreover, superimposing an imprecise "totality of the circumstances" standard

would be inconsistent with the Supreme Court's observation that "[e]xtradition treaties exist so as

to impose mutual obligations to surrender individuals in certain defined sets of circumstances."

(emphasis supplied). It bears noting, as well, that it would be fundamentally at odds

with the core presumption of Alvarez-Machain -- again, a forcible abduction case -- that the

express terms of a treaty trump any concerns about the voluntariness of a defendant's transfer to

the United States. See Mejia,

(emphasizing that, in Alvarez-Machain, the use of

force in the context of a forcible abduction was not prohibited considering that the treaty "'sa[id]

nothing about the obligations of the United States and Mexico to refrain from forcible abductions

. . . or the consequences under the Treaty if such an abduction occurs.'") (quoting

).

Even if the extradition treaty allowed the Court to look behind Straker's consent, the

Court finds that the totality of the circumstances indicates that Straker's consent to extradition

was voluntary. As detailed above, the Court has reviewed the factual record and determined that

there is no basis to credit Straker's claim that he was physically abused by either the FBI or the

Trinidad police. The Court also has considered Straker's claim that harsh conditions of

confinement rendered him incapable of making a voluntary statement on the day of extradition,

and concluded that, although prison conditions were likely overcrowded and lacking in hygiene,

there is no evidence that the conditions of Straker's confinement were so seriously deficient as to

overcome his ability to exercise his free will. The Court also observes that on the day of

extradition, he refused to have his photograph taken on multiple occasions. This kind of

49 independent decisionmaking confirms that his will was not so overborne that he lacked the

ability to make voluntary choices. See United States v. Hall,

(D.C. Cir.

1992) (actions that "demonstrate a capacity to make autonomous decisions" when police are

present indicate a defendant has the ability to make voluntary choices). Looking at the totality of

the circumstances, then, the Court finds that Straker freely and voluntarily consented to

extradition. Straker's motion for return to Trinidad will be denied, and to the extent the motion is

applicable to Sealey, it will also be denied.

CONCLUSION

For the foregoing reasons, the Court will deny Straker's motion to suppress his statement

to the FBI and Sealey's motion to suppress his statements to the Trinidad police and the FBI. The

Court also will deny Straker's and Sealey's motion for return to Trinidad. A separate order will be

issued herewith.

/s/ JOHN D. BATES United States District Judge Dated: February 10, 2009

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