United States v. Hamidullin
United States v. Hamidullin
Opinion of the Court
MEMORANDUM OPINION
(Defendant’s Motion to Suppress Statements)
This case involves the detention' and subsequent prosecution of Defendant Irek Ilgiz Hamidullin (the “Defendant”) in the immediate aftermath of his alleged participation in an armed attack on Camp Leyza, .an Afghan Border Police compound, in the Khost Province of Afghanistan on November 29, 2009. The case is presently before the Court on the Defendant’s Motion to Suppress Statements (the “Motion”) related to an April 17, 2010 interview with Federal Bureau of Investigations (“FBI”) agents.
The Defendant does not dispute either the adequacy of the Miranda warnings he received or his acknowledgement that he understood those rights prior to questioning. Rather, the central dispute before the Court is whether the Defendant waived his right to counsel and his right to remain silent as to specific selected topics. Both the United States and the Defendant have submitted detailed memoranda supporting their respective positions, and the Court heard oral argument on June 17-18, 2015. For the reasons stated herein, Defendant’s Motion‘will be denied.
I. BACKGROUND
Between March 29, 2010 and April 17, 2010, agents from the FBI interviewed the Defendant fifteen times while in U.S. custody following his involvement in the November 29, 2009, attack on Camp Leyza. The Court has received and reviewed compact discs containing video recordings of each of the interrogations as well as the transcripts thereof, prepared by govern-' ment translators. Before each interrogation began, the Defendant received his Miranda warnings and unequivocally consented to questioning. As the Government explains ‘in its brief, and the videos portray, the Defendant was often selective regarding the questions he would answer and the subjects he chose to avoid. (Gov’t’s Resp. to Mot. Suppress 4-6, ECF No. 76.) Prior to April 17, 2010, he exhibited little hesitation to discuss his personal background, affiliation with the Haqqani Network, political leanings or the events of November 29, 2009.
The April 17, 2010
The Government argues that the Defendant’s use of “practitioner was — at best— an ‘ambiguous or equivocal’ reference to an attorney, [which] did not require the agents to cease questioning.” (Gov’t’s Resp. to Mot. Suppress 1.) Similarly, the Government asserts that the Defendant’s refusal to answer certain questions concerning the video reflected an “equivocal refusal to answer certain questions,” particularly “given his more than two-week history with the agents of selectively waiving his Miranda rights for certain' topics while willingly answering questions about others.” (Id.) Additionally, the Government contends that the Court should give particular credence to the interview immediately preceding the April 17, 2010 interview — the April 13, 2010 interview— wherein the Defendant made five demands concerning, inter alia, his access to books and contact with his family. (Id. at 15.). Because the Defendant’s recalcitrance appears to be directly linked to the agents’ inability to timely fulfill his requests, the Government maintains that his refusal to talk was merely posturing and therefore an ambiguous invocation or request. As a result, the Government contends, the safeguards provided by Miranda and its progeny should not apply.
II. STANDARD OF REVIEW
The Fifth Amendment provides, in pertinent part, that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. In Miranda v. Arizona, the Supreme Court found that this constitutional right against self-incrimination required certain “procedural safeguards” when a suspect was subject to a custodial interrogation by law enforcement, particularly informing a defendant of his rights to both remain silent and consult an attorney. 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “Both [safeguards]
Where a defendant invokes only his right to remain silent, “the admissibility of statements obtained after [he] ha[d] decided to remain silent [would] dependí ] under Miranda on whether his right to cut off questioning was scrupulously honored.” United States v. Johnson, 400 F.3d 187, 193 n. 2 (4th Cir. 2005) (quoting Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (internal quotation marks omitted)) (alterations in original). “When a suspect ‘expressed] his desire to' deal with the police only through counsel,’ the police cannot interrogate him ‘until counsel has been made available to 'him, unless the accused himself initiates'further communication, exchanges, or conversations with the police.’ ” Johnson, 400 F.3d at 193 (quoting Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). Nevertheless, “the Supreme Court has repeatedly held that although statements obtained in violation of Miranda are inadmissible in the- government’s case-in-chief ’at trial, such statements, if reliable, may be used for other purposes and in other ways.” United States v. Nichols, 438 F.3d 437, 442 (4th Cir. 2006) (citing Oregon v. Elstad, 470 U.S. 298, 307, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985)).
“To invoke the right to counsel, a suspect must take an action that ‘can reasonably be construed to be an expression of a desire for the assistance of an attorney.’ ” Johnson, 400 F.3d at 194 (citation omitted). Likewise, if a suspect “indicate[s] in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602. To avail himself of such protections,'he must unequivocally assert his intention to remain silent or consult his counsel. Berghuis, 560 U.S. at 381-82, 130 S.Ct. 2250. Ambiguous insinuations are ineffectual. Id. “[I]f [the] reference [to consult an attorney] is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, Edwards does not require that officers stop questioning the suspect.” Dávis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (emphasis in original). Requiring an unambiguous or unequivocal invocation of Miranda’s procedural safeguards protects officers from “mak[ing] difficult judgment calls about whether the suspect in fact wants a lawyer ... with the threat of suppression if they guess wrong.” Id. at 461, 114 S.Ct. 2350. To proceed in any other fashion “would place a significant burden on society’s interest in prosecuting criminal activity.” Berghuis, 560 U.S. at 382, 130 S.Ct. 2250 (citation omitted).
Determining whether an invocation is ambiguous .or unequivocal is contextual. Several courts of appeal have recognized that the Supreme Court’s decision in Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 83 L.Ed.2d 488.(1984) instructs courts to focus only on events prior, not subsequent, to the putative invocation. United States v. Hunter, 708 F.3d 938, 945 (7th Cir. 2013); Sessoms v. Grounds, 776 F.3d 615, 627 (9th Cir. 2015). This Court finds the reasoning articulated in Smith to be instructive.
But even where a defendant clearly invokes his rights, he may waive those rights based upon behavior occurring after invocation. Smith, 469 U.S. at 98, 105 S.Ct. 490. “[W]aivers can be established [by] formal or express statements of waiver,” but also can be “implied
Based on the foregoing analytical framework, the Court will turn to whether the Defendant unambiguously and unequivocally invoked his right to counsel.
Ill, ANALYSIS
A. Invocation of Right to Counsel
The April 17, 2010 interview begins about sixteen minutes after the start of the recording.
The Defendant continues’ to provide unsolicited comments on the ritualistic slaying of an animal in the video, seeming to indicate that it was handled improperly. (April 17, 2010 Intrv. 21:10-21:24.001.) Nearly twenty-two minutes into the video, after the'Defendant again notes that he has seen the video, one of the FBI agents explains that he wants the Defendant to keep watching for a minute. (Id. at 21:36.001.) The Defendant chuckles at the video and again makes comments about its content. (Id. at 21:46-23:15.001.) Approximately twenty-four minutes into the conversation, the Defendant remarks that the Central Intelligence Agency obtained the pre-attack video for the FBI. (Id. at 23:57-24:02.001.) He continues his commentary by pointing to objects on the screen. (Id. at 24:14-24:48.001.)
After, twenty-five minutes an agent intervenes and asks if they may speak to him about the video. The Defendant responds, “no I don’t must talk to my praeti-tioner and then I talk to you. About my family. Last time the Red Cross came they did not bring nothing for me.” (April 17, 2010 Intrv. 25:01-25:18.001.) The FBI agent then inquires about the Red Cross not bringing him anything. (Id. at 25:18-25:19.001.) The Defendant responds that they came two times and brought him nothing. (Id. at 25:20-25:25.001.) The Defendant then sits back in his chair with his arms folded looking at the video. About twenty seconds later, one of the FBI, agents remarks that the individual on the video “is very interesting.” (Id. at 25:45-25:47.001.) The Defendant replies “not I am.” (Id. at 25:50.001.)
It is now well established in Fifth Amendment jurisprudence that where “a suspect ‘expressed] his desire to deal iyith the police only through counsel,’ the police cannot interrogate him ‘until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.’” Johnson, 400 F.3d at 193 (quoting Edwards, 451 U.S. at 485, 101 S.Ct. 1880). Equally fundamental is the necessity that the invocation of the right to counsel, in the course of an interrogation, must be unambiguous or unequivocal. Berghuis, 660 U.S. at 381-82, 130 S.Ct. 2250. The determinative question therefore distills to whether within the context of the discussion on April 17, 2010 the Defendant’s request for a “practitioner”
The Court acknowledges that the phrase “I must speak with my practitioner and then I talk to you” could arguably be sufficient to invoke Miranda’s prophylaxis if viewed in isolation and without his earlier demands, See Johnson, 400 F.3d at 195-96. That, however, is not the case here. It is the total context that renders the invocation ambiguous and equivocal. Here, the Defendant’s refusal to answer questions was inextricably intertwined with his five demands — a cudgel to pressure the agents to fulfill his requests unrelated to counsel or questioning. Moreover, the FBI agents spent a notable portion of the April 13, 2010 interview discussing the Defendant’s five demands. (See Apr. 13, 2010 Interview, Gov’t’s Ex. 13.) In light pf these circumstances, the FBI agents could have reasonably construed his request tp speak with his practitioner as simply a transparent tactic, or at best an equivocal invocation. Edwards, therefore, did not require that the agents stop questioning the Defendant at that point.
At oral argument defense counsel, with respect to the legal significance of the Defendant’s demands, ■ explained that he could find “no ... rationale for the proposition that [courts] should construe one’s request for- a practitioner or counsel through some lens of a motivation factor.” (Mots. Hr’g Tr., June 18, 2015, 396:20-24 (hereinafter, “June 18' Tr.”)) The Government countered that because the Defendant’s use of “practitioner ... related- directly to the five conditions that he had made that had nothing to do with his right to counsel or his. right to remain silent ... [i]t [was)[ ] ambiguous.” (Id. at 411:10-18.) Although the Court is not convinced that the motivation factor, standing alone, is necessarily determinative of ambiguity, it is a critical element in the analytical equation,. It bears directly on the bona fides of his request.
In elucidating the underpinnings of Miranda’s procedural safeguards, the Supreme Court, in Connecticut v: Barrett, noted that the “prophylactic rules [delineated in Miranda were] designed' to insulate the exercise of Fifth "Amendment rights from the government ‘compulsion, subtle or otherwise',’ that ‘operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.’ ” 479 U.S. 523, 528, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987) (citation omitted). Later, in McNeil v. Wisconsin, the Supreme Court reiterated that the “purpose of the Mirandar-Edwards guarantee” of right to counsel protects “[a] suspect’s ‘desire to deal with the police only through counsel,’ ” and thus “at a minimum” requires “some statement.that can reasonably be construed to. be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.” 501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (emphasis in original) (citations omitted);
It is important to keep in mind that the Defendant never expressed an unconditional intention to curtail further conversation — only to defer it until his unsettled demands were fulfilled. ■ While a defendant’s right to remain silent and to seek counsel must be scrupulously honored, the rule is designed to protect against the legal consequences of coerced and uncoun-seled self-incrimination. The Defendant, by his own admission, had explained his involvement in the attack on Camp Leyza in great detail on prior occasions. His reluctance to, continue the discussion on April 17, 20Í0 obviously had a singularly tactical piurpose. The safeguard of Miranda was promulgated as a protective shield, not a tool for manipulation..
Accordingly, the Defendant’s Motion to Suppress based upon his invocation of counsel is without merit.
B. Invocation of Right to Remain Silent
Closely related to the Defendant’s invocation of his right to counsel is the question of whether the Defendant invoked his right to remain silent and, if so, whether his invocation was scrupulously honored by the FBI Agents.
Ás was this Defendant’s practice on various occasions prior to the April 17, 2010 interview, a defendant may selectively waive his Miranda rights by agreeing to answer some questions, but not others. See Michigan v. Mosley, 423 U.S. at 103-04, 96 S.Ct. 321 (holding that the right to remain silent includes the ability to “control ... the subjects discussed”); Burno v. United States, 953 A.2d 1095, 1102 (D.C. 2008) (recognizing that “an accused may selectively assert his right to silence” by agreeing to answer some questions and not others); Arnold v. Runnels, 421 F.3d 859, 864 (9th Cir. 2005) (same).
The Defendant draws the Court’s attention to two statements that he maintains invoked his right to remain silent. First, the Defendant points to his declaration that he gave the FBI agents what they wanted so they should send him away to his cell. (April 17, 2010 Intrv. 28:38-28:44.001.) Next, the Defendant characterizes his statement, “you said if I don’t want to talk with you, I don’t have to” as ah unambiguous assertion of his right to remain silent. (Id: at 26:28-26:32.001.)
Once the Defendant told the FBI agents to send him back to his cell, he arguably expressed his unwillingness to continue the interview, and thus, intimated his right to remain silent. Compare Burked v. Angelone, 208 F.3d 172, 200 (4th Cir. 2000) (suspect’s musings that “I just don’t think that I should say anything” and “I need somebody that I can talk to” failed to “constitute an unequivocal request to remain silent”). Positing the Defendant’s invocation of his right to remain silent, he clearly reversed course by spontaneously re-initiating conversation through his comments on the video within a minute of his request. See Edwards, 451 U.S. at 477, 101 S.Ct. 1880; Bui v. DiPaolo, 170 F.3d 232, 240 (1st Cir. 1999); Jacobs v. Singletary, 952 F.2d 1282, 1294-95 (11th Cir. 1992). Considering the Defendant’s history with the agents and his full understanding of both his rights and the interrogation process,
The next putative invocation of the right to remain silent was the Defendant’s comment, “you said if I don’t want to talk with you, I don’t, have to” in response to a question about identifying a flag in the video. Given the Defendant’s selective invocation of his right to" remain silent throughout the interrogation' process, the FBI agent reasonably understood the Defendant’s invocation of his right to remain silent as one indicating an unwillingness to discuss the flag in the video. The FBI agent' clarified that the Defendant did not have t'o answer the question. See United States v. Gordon, 895 F.2d 932, 940 (4th Cir. 1990) (holding where a defendant “ambiguously asserts his right to remain silent, the police are allowed to ask only limited questions to clarify the ambiguity.”) The Defendant then spontaneously points to the interpreter suggesting that the interpreter explain the flag in the video. The FBI agent simply retorts that the Defendant is- the one being asked to respond. Thereafter, the Defendant offers his opinion on the flag in the video. Contrary to his prior selective invocations, the Defendant did not choose to completely evade the subject. He resumes the conversation by half-heartedly directing the FBI agent to ask the interpreter. Again, it was the Defendant, not the agent, who rekindled the conversation.
As with the purported invocation of his right to counsel, a critical defect of.the Defendant’s invocation of his right to remain silent was that he explicitly premised it on demands met. Notwithstanding that critical .defect, the Defendant himself re-initiated conversations after each invocation. The Defendant, well-versed in the art of interrogations and his Miranda rights, faced no pressure to speak and ultimately decided to do so spontaneously. Therefore, any invocation of Miranda was knowingly, intelligently, and voluntarily waived.
Accordingly, the Defendant’s Motion to Suppress Statements on the basis of invoking his right to remain silent is without merit and will be denied.
IY. CONCLUSION
For the foregoing reasons, the Defendant’s Motion to Suppress Statements is denied.
An appropriate Order will accompany this Memorandum Opinion.
. Although the Defendant’s Motion to Suppress Statements is based upon the transcript of the video as opposed to the actual video, the Court will use the video recording. At
. All of the documents and recordings underlying the Motion have been declassified since the filing of the Motion.
. The Defendant half-heartedly asserts that one of the FBI agents standing next to him during the interview presented a coercive atmosphere, but the evidence simply does not support a finding that his statements were involuntary. The Court’s review of the video recording of the interview reveals that the FBI agent stood next to him sporadically during the interview and was certainly never hovering over him.
. The Defendant is placed in the interview room for roughly ten minutes before he is engaged by the FBI agents. An FBI Agent advises him of his .Miranda rights, and the Defendant acknowledges that he understands those rights and clarifies with the Agent that if he does not want to speak he does not have to do so. The Agent confirms the Defendant’s understanding. The Defendant is then left alone in the interview room until the interpreter enters the room to read the Defendant his Miranda rights in Arabic.
. For citation purposes, the Court will cite video interviews as follows: [Date of Interview] Intrv. [Insert Time in Minutes and Seconds], [Insert Session .001 or .002].) There is no indication that the “sessions” were actually separate portions of the interview or were preceded by a break. Rather, the different sessions simply indicate when the video recording began the timing anew; and usually this renewal of timing occurs after every, thirty-eight minutes.
. Notably, the Defendant admits that the FBI agents have enough information prior to the April 17, 2010 interview, to jail him. (April 17, 2010 Intrv. 20:00-20:26.002.) '
. The Court will assume that the defendant is using the word "practitioner” as referring to an attorney.
. The Court includes comments subsequent to the use of "practitioner” in order to provide the complete statement, which was made si-mtdtaneously, in its entirety.’
. As noted earlier, each interrogation of the Defendant prior to April 17, 2010 evidences
Reference
- Full Case Name
- United States v. Irekilgiz HAMIDULLIN, a/k/a Irek Ilgiz Khamidullah
- Cited By
- 2 cases
- Status
- Published