The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Defendants Francois Karake, Gregoire Nyaminani and Leonidas Bimenyimana face a four-count indictment relating to the March 1, 1999 killings of two American tourists in Bwindi Impenetrable National Forest ("Bwindi") in southwestern Uganda. The attack on Bwindi that resulted in the deaths of the Americans was carried out by the Liberation Army of Rwanda ("ALIR"). Several other tourists and one Ugandan national park guard were also killed as a result of ALIR's attack. The United States government asserted extraterritorial jurisdiction to prosecute defendants, all of whom are Rwandan nationals and former members of ALIR. The indictment charges defendants with two counts of murder, 18 U.S.C. § 2332(a), conspiracy to commit murder, 18 U.S.C. § 2332(b), and using a firearm during a crime of violence, 18 U.S.C. § 924(c) & (j). If convicted, defendants face the death penalty.
Defendants have moved to suppress the statements they made to Rwandan and American officials during the course of the investigation into the attack at Bwindi. The investigation spanned roughly four years and required the cooperation of law enforcement officials from at least four countries -- Uganda, Rwanda, the United Kingdom and the United States. The investigation produced a total of 29 statements that defendants seek to suppress: 15 by Nyaminani, 7 by Karake, and 7 by Bimenyimana. These many statements fall into two categories: (1) statements made to Rwandan officials out of the presence of any Americans; and (2) statements made in the presence of both American and Rwandan investigators. Except for Nyaminani's two earliest statements, all of the statements at issue were made while defendants were housed at what the Rwandans have referred to as a military "barracks," known as Kami, located outside the Rwandan capital of Kigali. (5/3 p.m. tr. at 65.) Kami Camp, approximately 200 acres in size, houses between 90 and 120 Rwandan soldiers. (Id. at 52.) According to Captain Alex Kibingo, who was in charge of Kami during the relevant time period, the camp was used to store military equipment such as uniforms, guns and bullets. (Id. at 51.) Kami also served as a detention center for Rwandan soldiers who were subject to disciplinary action (id. at 53-54), and captured ALIR soldiers prior to their transport to repatriation camps in Rwanda's Ruhengeri province.*fn1 (Id. at 11.) Most, but not all, of the statements obtained by Rwandan officials out of the presence of Americans were taken at Kami by Kibingo. Defendants were transported from Kami to the Rwandan National Police Headquarters at Kacyiru ("Police Headquarters" or "Kacyiru") for all of the interrogations in which American investigators participated.
Defendants advance two principal arguments. First, they argue that their statements were the product of physical and psychological coercion, resulting from both their conditions of confinement and their treatment while in Rwandan custody, and were therefore obtained in violation of the due process clause of the Fifth Amendment. Second, defendants claim that the Miranda warnings issued by American interrogators were inadequate to permit defendants to make a knowing and voluntary waiver of their Fifth Amendment rights against self-incrimination. Moreover, defendants advance a corollary argument that a joint venture existed between the United States and Rwandan governments, and therefore, they were entitled to the protections provided by Miranda v. Arizona, 384 U.S. 436 (1966), with respect to the interrogations conducted outside the presence of any American officials. See, e.g., Reid v. Covert, 354 U.S. 1, 5-7 (1957); United States v. Covington, 783 F.2d 1052, 1056 (9th Cir. 1986). Defendants' motion therefore presents several legal questions: 1) Has the government demonstrated by a preponderance of the evidence that each confession was voluntary within the meaning of the Fifth Amendment? 2) Was there a knowing, voluntary and intelligent waiver of Miranda during the joint interrogations conducted by Americans and Rwandans?*fn2 3) Did a joint venture exist between the American and Rwandan governments, and, if so, what was the scope and legal effect of that joint venture? As all parties agree, the resolution of these issues is intensely fact-specific. See, e.g., Haynes v. Washington, 373 U.S. 503, 513-14 (1963) (voluntariness determination requires examination of the "totality of the circumstances"); Covington, 783 F.2d at 1056 ("Whether or not United States officials are substantially involved, or foreigners are acting as their agents or employees, is a question of fact to be resolved in each case."). But, in determining the answers to these questions, it is not the Court's role to decide the issue of guilt or the truthfulness of the many confessions. See United States v. Bowie, 198 F.3d 905, 912 (D.C. Cir. 1999) ("Suppression hearings do not determine a defendant's guilt or punishment.").
The Court conducted a five-week evidentiary hearing to determine the suppression issues. Over the course of 22 days of testimony and one day of oral argument, the Court heard from 19 witnesses (11 defense, 8 prosecution), including 11 Rwandan nationals, 8 of whom testified in the Rwandan language Kinyarwanda. The Court received written reports and heard testimony regarding defendants' physical and mental condition from six expert witnesses -- two psychiatrists, two forensic pathologists, a dermatologist and an internist with expertise in the treatment of torture survivors. Two former cabinet ministers from the current Rwandan government testified. Two Rwandan witnesses were permitted to use a pseudonym and to testify under seal regarding their treatment as detainees at Kami Camp. The transcript from the hearing consists of 3913 pages, and the record includes more than 110 exhibits, including photographs and a video of Kami Camp, photographs of defendants and the victims, defendants' written statements, as well as the notes, reports and correspondence of both American and Rwandan investigators. In addition to Defendants' Joint Motion to Suppress ("Defs.' Mot.") and the government's opposition thereto, the Court received briefing from the parties on the permissible scope of cross-examination of defendants, the application of Fed. R. Crim. P. 12.2 as it relates to the government's ability to use a defendant's statements to his own expert for impeachment purposes, matters related to discovery of classified information under CIPA, and supplemental briefing on legal issues identified by the Court as critical to the resolution of the motion.
Based on the record and the arguments of the parties, the Court makes the following findings of fact and conclusions of law, and holds that the statements defendants gave to both the Rwandan and American interrogators starting in December 2001 are the product of coercion and therefore inadmissible.
Explaining the causes of the well-known and turbulent history of Rwanda is a task that need not be attempted here. Nevertheless, this history provides the backdrop to the events which are before the Court and is important to an understanding of the complicated factual setting presented by this case.
While the origin of the classification is a matter of some dispute, it is clear that for much of the second half of the twentieth century Rwandan society was divided largely along ethnic lines between Hutu, Tutsi and Twa.*fn3 The Hutu majority, which was thought to have been disfavored under Belgian colonial rule, assumed power in a series of elections in 1960-61 known as the "Hutu Revolution." With the establishment of a Hutu-dominated government, many members of the previously ascendant Tutsi minority were displaced or fled, creating a substantial refugee population. In the mid-1980s, this refugee population spawned the Rwandan Patriotic Front ("RPF"), a group made up primarily of Tutsi refugees who had grown up in neighboring countries and advocated the overthrow of Rwanda's Hutu regime. The military wing of the RPF, known as the Rwandan Patriotic Army ("RPA"), invaded Rwanda in 1990. The invasion was repelled, however, by the Armed Forces of Rwanda (known by its French acronym "FAR"), with the assistance of several foreign nations. Despite the failed 1990 invasion, the RPA continued to engage in guerrilla warfare over the next several years. From 1990 to 1994, divisions continued to grow within Rwanda between hard-line proponents of Hutu solidarity, on the one hand, and the Tutsi minority and moderate Hutus, on the other.
On April 6, 1994, the airplane carrying the long-time President of Rwanda, Juvenal Habyarimana, was shot down outside Kigali. (5/22 a.m. tr. at 21.) Responsibility for the assassination has never been confirmed. Habyarimana's death touched off a slaughter of the minority Tutsi population and many Hutus who were considered to be sympathetic to the Tutsis. The extent of the violence that followed is astonishing. Within the first five days after Habyarimana's plane went down, an estimated 20,000 Rwandans were killed, primarily Tutsis. Additionally, many prominent moderate Hutus were murdered, incluing Prime Minister Agathe Uwilingiyimana. Over a period of three months more than 500,000 Rwandans were killed in the genocide. Death estimates range from 800,000 to more than a million, or perhaps three-quarters of Rwanda's pre-genocide Tutsi population. The slaughter ended only with the defeat of the Hutu government by the RPA in July 1994.
The end of the genocide and the transfer of power to the RPF did not, however, result in the cessation of violence in Rwanda. The FAR fled to the Democratic Republic of Congo ("DROC") and became the ex-FAR. (5/3 a.m. tr. at 46-48.) The ex-FAR, along with genocidal civilian gangs known as the Interahamwe and other Hutu refugees, eventually formed a rebel force called the Army for the Liberation of Rwanda ("ALIR"). (Id.) Thus, much like the period from 1990-1994, warfare continued with ALIR making repeated guerrilla-style incursions into Rwanda until at least 2001. (5/3 a.m. tr. at 49, 55.)
The history of these warring factions is inextricably intertwined with the lives of the Rwandan witnesses who testified during the suppression hearing. For example, Alfred Ndabarasa, one of the Rwandans leading the investigation into the events at Bwindi, was raised by Rwandan refugees in Uganda and joined the RPA in 1989. (5/2 a.m. tr. at 24-26.) He participated in the RPA's October 1990 invasion of Rwanda. (Id. at 26.) Ndabarasa today serves as the Acting Director of Operations for Rwanda's foreign intelligence agency, the External Security Service. (Id. at 27-28). Similarly, Captain Alex Kibingo, who was the commander in charge of Kami Camp from 1999 until 2004, was raised in the Congo by Rwandese parents and joined the RPA in 1991. (5/3 a.m. tr. at 39-40.) Kibingo suffered multiple injuries during his service in the RPA. During the 1994 invasion, Kibingo sustained head injuries from shrapnel in a battle with the FAR (id. at 45), and in 1999, he was shot in the stomach while fighting ALIR. (Id.) As will be discussed further herein, defendants were members of ALIR and fought the RPA. In addition, two Hutus who had served as cabinet ministers in the RPF government testified. Theobald Gakwaya, the Minister of the Interior from March 2000 to April 2001 (5/17 a.m. tr. at 60), and Emmanuel Habyarimana, the Minister of Defense from May 2000 until early 2003 (5/17 p.m. tr. at 46), testified about their tenure in government service before they fled their country to seek asylum. Thus, while the events critical to resolving defendants' motion take place primarily between 1999 and 2003, the sins of the past and the long history of civil war in Rwanda provide important context to defendants' motion.
B. Background of the Defendants
The first defendant named in the indictment, Francois Karake, was born in June 1964 in the Byumba Province of Rwanda. (5/22 a.m. tr. at 15.) Karake is a Hutu. (Id. at 14.) He received six years of primary schooling, but did not attend secondary school. (Id. at 17.) After completing this basic education, Karake worked with his parents doing carpentry work and farming. (Id.) In 1981, Karake moved to Kigali to work with one of his brothers, who had a business trading agricultural products. (Id. at 18.) That brother died, however, between 1987 and 1989. (Id.) At the time the 1990 war broke out, Karake testified that he was doing "different kinds of work" in Kigali, including "bricklaying." (Id. at 19.) According to Karake, when he heard on the radio about the RPA invasion, he returned home because the war was close to where his parents lived. (Id. at 19-20.) He eventually returned to Kigali, however, and resumed working in construction. (Id. at 20.) Four years later, with the assassination of President Habyarimana, the war came to Kigali. According to Karake, the day after the President's plane went down, RPA soldiers, who were stationed in Kigali to conduct peace talks, directed gunfire toward the area where Karake lived. (Id. at 22.) Karake testified that he fled Kigali within a week to escape the violence. (Id. at 22-23.) He never reached his parents in Byumba because the RPA surrounded the refugees and took them to a camp in Muhondo where, according to Karake, there was inadequate food and housing. (Id.at 27.) Karake fled this camp as well, spending time over the next several months in Rwandan refugee camps operated by the remnants of the Habyarimana government. (Id. at 30-34.) Eventually, however, the RPA attacked the camps where he had been living, forcing him to flee to the DROC.
Karake settled at a refugee camp in Kibumba, DROC. (Id. at 34.) In Kibumba, where the residents were dependent on the assistance of non-governmental organizations for food, Karake married and had a child. (Id. at 36-37.) He spent about two years in Kibumba before the RPA forces attacked the camp in 1996. (Id. at 38-39.) He and his family fled to yet another camp called Mwisake, but were there no more than a month before the RPA again attacked. (Id. at 42.) Karake was away from Mwisake the day it was attacked, however, and as a result was separated from his wife and child. (Id. at 43-44.) He spent the better part of the next year moving from camp to camp in the Congo trying to avoid RPA attacks. (Id. at 44-53.) In 1997, Karake met some ex-FAR soldiers who had come to the refugee camp at Kirumbo Bisumba to train the refugees to defend themselves against the RPA. (Id. at 51.) The training he received lasted about three months. (Id. at 52.)
Karake described numerous horrors he witnessed committed by RPA soldiers. He testified to seeing refugees jumping into rivers to escape RPA gunfire. (Id. at 42-43.) He recounted bombs or mortars falling on the refugee camps. (Id. at 46.) He told of being shot in the leg by an RPA soldier as he stooped to rescue a child who was attempting to breast-feed from his mother, who was already dead of a gunshot wound. (Id. at 46-47.) He claimed that the RPA destroyed a bridge as refugees were attempting to flee across it, causing many to fall into the river. (Id. at 48-49.) In 1998, Karake attempted to return home to Rwanda after hearing radio announcements indicating that the refugees would be welcomed back, but instead the group he was with was attacked by the RPA when they arrived in Ruhengeri. (Id. at 54-55.) It was at this point, Karake testified, that he sought out the ex-FAR soldiers and joined ALIR with the intent to overthrow the RPF government of Rwanda. (Id. at 55-56.) Karake was assigned to ALIR's Irondelle Company. (Id. at 57.) Karake remained a member of ALIR and Irondelle Company, serving as a "first soldier"*fn4 (5/23 a.m. tr. at 23-24)until 2000, when he returned to his family in Ruhengeri. (5/22 a.m. tr. at 70.) He was captured by RPA soldiers in August of that year. (Id. at 70-71.)
After his capture, Karake was sent to an RPA camp at Mweso, DROC, where he spent between six and seven months. (5/22 p.m. tr. at 5.) While at Mweso, Karake was held in a room he described as infested with fleas. When he first arrived there were two other people also being held in his room, but on the first day he was there one was taken away. Shortly thereafter, Karake heard gunshots. (Id. at 4.) The same scenario played out the following day when the second man was led away and soon thereafter Karake heard gunshots. Karake never saw either man again. He testified to "waiting" for the "day that I would be taken . . . [to] be killed." (Id. at 4-5.) Karake claims to have been deprived of food, water and clothes while at Mweso. (Id. at 7.) He was also questioned regarding ALIR's operations and the 1994 genocide. (Id.) Karake was beaten on multiple occasions with sticks and firewood; he was kicked and cut with barbed wire on other occasions, leaving visible scars. (Id. at 8-12.) During this time he wrote approximately three statements regarding his knowledge of ALIR and the genocide. (Id. at 14.) In March 2001, Karake was transferred to a repatriation camp in Gisengi, from which he was eventually released and permitted to return home to Rwambona in April 2001. He remained in Rwambona with wife and two children until he was taken into custody by the RPA as part of the investigation into the Bwindi attacks. (Id. at 14-15.)
Like Karake, Gregoire Nyaminani is a Hutu who grew up in the Byumba province in northern Rwanda. (5/23 p.m. tr. at 70.) Born in 1970, Nyaminani attended seven years of primary school before leaving school to work on his family's farm. Though his education was primarily conducted in Kinyarwanda, Nyaminani also learned to speak some French, though not enough to carry on a conversation. (Id. at 69-74.) Nyaminani remained in Byumba until after the defeat of the RPA invasion in 1990. (Id. at 76-77.) After seeing the consequences of the invasion for the people in his region, including physical injury and displacement from their homes, Nyaminani decided to join FAR in 1992. (Id. at 77-79.)
After receiving three months of training, Nyaminani was sent to the front to fight RPA insurgents at Mutara Gabiro. (Id. at 81.) During his 10 months at the front, during which time he was injured and his unit suffered multiple casualties, Nyaminani witnessed numerous atrocities committed by the RPA against civilians. One civilian was tortured (the RPA "pierced his mouth") because he had shared information with FAR soldiers. (Id. at 82-83.) Another was stabbed "in the ear" with a knife or bayonet such that "it came through the other ear." (Id. at 83.) He saw people whose arms or legs had been cut off, others whose eyes had been "removed," and still others who had been hanged in their homes by RPA soldiers. (Id. at 83-84.) After completing his tour of duty at the front, Nyaminani returned to Kigali in late 1993 and was assigned to a military police unit that guarded the country's crop storage site. (Id. at 85-86.) He continued this assignment until fleeing to escape the advancing RPA in 1994. (Id. at 86-87.)
Nyaminani settled at a refugee camp in Goma, DROC, which was run by former leaders of the Habyarimana government. (5/24 a.m. tr. at 10-11.) In 1996, the RPA destroyed the camp by setting up "big guns" on a hill overlooking the camp and bombing it from that position. (Id. at 13.) Nyaminani fled into the Congolese jungle, where he and other refugees were hunted by the RPA. (Id. at 14-15.) During this time Nyaminani claims to have witnessed RPA soldiers capture a group of refugees, kill them by hitting them in the head with a "small hoe," and then burn the bodies. (Id. at 15-16.) During his time in the Congolese jungle Nyaminani saw evidence of other mass killings by the RPA. (Id. at 18.)
Between 1996 and 1998 Nyaminani was captured twice by the RPA. (Id. at 19.) The first time he was captured, in 1997, Nyaminani was taken to Kwagasuko, DROC, where he was imprisoned in what he described as "a toilet." (Id. at 20.) It was an enclosure approximately 1 meter by 1.2 meters where he was kept with two other people and a goat. (Id. at 20-21.) Nyaminani described being tied up and beaten by RPA soldiers while at Kwagasuko. (Id. at 21-22.) One of the other prisoners died from this mistreatment, but Nyaminani and the other managed to escape. (Id.) In 1998, the RPA began announcing that refugees should return to Rwanda. (Id. at 22.) Nyaminani and other refugees arrived at a camp called Rubare, but Nyaminani received word that the RPA planned to kill the refugees at Rubare. (Id. at 23-24.) He began to tell other refugees, but was locked up after RPA soldiers learned what he was doing. (Id. at 24-25.) Nyaminani was able to escape yet again, however, after some colleagues with a gun scared off the guards by firing at them. (Id.)
Soon after his second escape, Nyaminani witnessed the killing of still more refugees at the Ka Rumangabo refugee camp. (Id. at 28-29.) It was after this experience that Nyaminani joined ALIR, in January 1998. (Id. at 28-30.) Nyaminani was assigned to ALIR's Irondelle Company. (Id. at 31.) While fighting as a member of ALIR, Nyaminani sustained a minor head injury from a grenade blast. (Id. at 33.) He also watched as the RPA trapped civilians on the bank of a large river called Ruhoro, shooting some and forcing the others to jump in to avoid being killed. (Id. at 34.) Nyaminani remained a member of ALIR, attaining the rank of First Sergeant (5/26 a.m. tr. at 92), until his capture by the RPA in battle on June 15, 2001. (5/24 a.m. tr. at 32.)
The third defendant, Leonidas Bimenyimana, who also goes by the nickname or pseudonym "Zappy Gadi," is a Hutu who was born in the Ruhengeri Province in northern Rwanda. (5/30 a.m. tr. at 58.) He is 38 years old. (Id.) Bimenyimana's parents were farmers and raised eight children: four boys and four girls. Though three of his sisters are still alive, Bimenyimana is the only surviving son. (Id. at 60.) Bimenyimana received substantially more schooling than did his co-defendants. He attended five years of secondary school in the DROC (6/1 a.m. tr. at 9), in addition to eight years at a Rwandese primary school. (Id.) While in school he learned to read and write French, though not fluently, and was taught some English. (5/30 a.m. tr. at 59.) Bimenyimana's wife and three children currently live with his parents on their farm. (Id. at 60-61.)
Bimenyimana joined the FAR in 1988 and spent one year studying at ESO, which was the FAR's military academy. (6/1 a.m. tr. at 9.) Bimenyimana attained the rank of sergeant, and during the 1990 war, commanded a section of 11 or 12 soldiers. (Id. at 15-16.) After the war, Bimenyimana was promoted to the rank of "first sergeant." (Id. at 28.) In 1992, Bimenyimana attended another military school known as Egena, where he trained to become a judicial police officer. (Id. at 25.) After graduating in 1992, he returned to Ruhengeri to serve in that position.
(Id.) He remained in this position, assisting with crime scene investigations and presenting evidence in court in criminal cases, until April 6, 1994, when President Habyarimana's plane was shot down. (Id. at 26.) Bimenyimana fought with the FAR until the RPF's victory, at which point he fled the country. (Id. at 27.)
By 1997, however, Bimenyimana had returned to his family home in Ruhengeri. (5/30 a.m. tr. at 66.) According to Bimenyimana, the RPA began to harass his family in an attempt to capture him, and eventually killed 11 members of his family. Bimenyimana described the deaths of three of his family members at the hands of the RPA, all in 1997. (Id. at 65-66.) The first was his younger brother, who was taken from the family home and imprisoned at a military camp called Nyamilima, where he was beaten to death. (Id. at 65.) The RPA returned later that year and took Bimenyimana's cousin from their home, tied him up, placed his head on a stone on the ground and then beat his head with another stone until he died. (Id.) The RPA returned twice more, first to burn his father's house to the ground, and the next time to burn the home of his grandfather, who was killed in the fire. (Id. at 65-66.)
That same year, 1997, Bimenyimana joined ALIR and assumed the rank of first sergeant. (6/1 a.m. tr. at 28.) He was assigned to lead the third platoon of Irondelle Company, which was under the command of an individual by the name of Ntabwoba. (Id. at 28-29.) In the second half of 1999, having been promoted to chief adjutant, Bimenyimana left Irondelle Company to study for six months at an ALIR military academy called ESM in Masisi, DROC. (Id. at 33.) Bimenyimana received a further promotion to second lieutenant in 2001. (Id. at 35.) He remained a member of ALIR until his capture by the RPA in June 2002. (Id. at 34-35.)
Early on the morning of March 1, 1999, ALIR forces attacked Bwindi Impenetrable National Forest in Uganda. (5/22 a.m. tr. at 57.) Though the motivations for this attack remain disputed, it is clear that the ALIR unit responsible for the attack that day was Irondelle Company, under the command of Ntabwoba. (5/24 a.m. tr. at 38.) Irondelle Company consisted of three platoons, one of which was headed by Bimenyimana. (Id. at 37.) Nyaminani was one of four section leaders within Bimenyimana's platoon. (6/1 a.m. tr. at 31-32.) The other three sections in that platoon were headed by Jean-Bosco Hategekimana, Rukundo and Tindo. (Id. at 32.)
On the morning of the attack, several groups of tourists and approximately five Ugandan park rangers were staying at various campsites within the park. One park ranger, Paul Ross Wagaba, was killed during the initial raid on Bwindi. (Gov't Ex. 99, tab 22 at 1.) Though a few tourists managed to evade detection by the ALIR soldiers (Gov't Ex. 99, tab 1 at 1), most were gathered together by the ALIR soldiers at the Abercrombie and Kent ("A&K") campsite. (Id.) Various reports intimate that a female French tourist assisted ALIR soldiers in dividing the tourists between those who spoke English and those who spoke French. (Gov't Ex. 99, tab 1 at 1; Gov't Ex. 99, tab 18 at 2). The English-speaking tourists were then taken hostage while the French speakers were permitted to remain at Bwindi. (Gov't Ex. 99, tab18 at 2; 5/15 p.m. tr. at 17.) Of the group gathered at A&K, seventeen tourists were taken hostage, including four Americans, six British, three New Zealanders, and one citizen each from Australia, Canada, Switzerland and Uganda. (Gov't Ex. 99, tab18 at 2.)
The seventeen hostages were forced to march with the ALIR soldiers out of A&K and toward the DROC. (Id. at 2.) Two tourists were released soon after leaving the camp when an American woman, Linda Adams, feigned an asthma attack. (Id.) She and Fiona Morley, a British citizen, were left behind. (FBI 18 at 2.) Of the remaining 15 hostages, seven survived, including one American. (Id.) The eight who perished appear to have been killed in three separate incidents. (5/16 a.m. tr. at 7-8.) In one incident, three men were killed together, including American Robert Haubner. (Id. at 8.) Haubner was identified, at least in part, by a tattoo on his "left shoulder." (Def. Ex. K-21; K-4; 5/16 a.m. tr. at 8.) A man and woman were killed in another location. (5/16 a.m. tr. at 8.) The third set involved three women, including an American, Susan Miller, who was married to Haubner.*fn5 (Id.) Two of the victims were found with handwritten notes on or near their bodies. (Gov't Ex. 99, tab 22 at 3.) One read: "Here lies the Anglo-Saxon who betrayed us, favoring the Nilotics to the detriment of the Bantu cultivator farmers. If you do not learn these lessons, it is because you do not understand. You will now understand by the forces of nature." (Id.) The second read: "This is the punishment of the Anglo-Saxon who sold us. You protect the minority and oppress the majority." (Id. at 4.)
The remaining seven hostages survived, among them American Mark Ross. Ross was given a note by the ALIR leader, Commander Ntabwoba, with instructions to deliver it to the United States Ambassador. (Id. at 2-3; 5/22 a.m. tr. at 66.) Similar to the warnings found with the murdered victims, the note read:
People cannot ignore our problem. You have supported the Tutsi minority in Rwanda in oppressing and massacring the Hutus without constraint. You have looked on as they have killed the Bantus in the DRC. You have encouraged this without same. The Nilotics can never colonize the whole of Africa. All Africans know your imperialist secret. . . . We are addressing this to the westerners, above all Americans and Anglo-Saxon. (Id. at 3.) After agreeing to deliver the note as instructed, Ross and the other hostages were released.
A. The Initial Investigation (March 1999 -- October 2000)
Two days after the attack, on March 3, 1999, a team of FBI investigators departed Washington, D.C. for Kampala, Uganda. (5/15 p.m. tr. at 17.) Among the investigators was FBI Special Agent Jennifer Snell Dent ("Dent"), who would later become the lead agent on the case and one of the government's primary witnesses at the suppression hearing. (Id. at 18.) Upon arriving in Kampala, the FBI met with U.S. embassy personnel, Ugandan military and police officials, and various witnesses. (Id. at 17.) Among the Ugandan officials interviewed were the Ugandan solicitor general, the director and deputy director of the directorate of prosecution, and the director of the criminal investigative department. (5/19 p.m. tr. at 7.) Together with the Ugandan officials and British investigators who had also arrived in Uganda, the FBI agents visited the crime scene at Bwindi. (5/15 p.m. tr. at 17.) By the time the FBI arrived, the Ugandan authorities had already completed an autopsy of Robert Haubner, which indicates the cause of death as a "brain laceration," and notes the existence of a tattoo on Haubner's left shoulder.*fn6 (Def. Ex. K-21.) Agent Dent and her colleagues remained in Uganda for approximately 10 days before returning to the United States. (5/15 p.m. tr. at 18.)
There were few developments in the investigation for nearly a year. Coinciding with the one year anniversary of the attack, in March 2000, the State Department launched the Rewards for Justice campaign, which offered monetary rewards to any person who provided information leading to the arrest and prosecution of those responsible for the Bwindi attack. (Id. at 19.) The Rewards for Justice posters were issued in both English and French.(Gov't Ex. 2 & 2a.) The FBI requested that they be distributed in Kinyarwanda and Swahili as well. (5/15 p.m. tr. at 20.) Special Agent Dent also returned to Uganda to conduct interviews of people who "walked into the embassy in response to the program." (Id. at 21.) It does not appear that these interviews provided the FBI with any significant information. Indeed, no money was ever paid out under the Rewards for Justice campaign. (5/11 p.m. tr. at 17.)
The first real progress in the case occurred when an ALIR soldier, Jean Paul Bizimana, decided to defect to Uganda. (Gov't Ex. 29, tab 1 at 2.) Bizimana, a former member of the Interahamwe and ex-FAR, first approached the Ugandan police in December 1999 and was taken into custody at that time. (Id.) In October 2000, Dent returned to Kampala to interview Bizimana. (5/15 p.m. tr. at 22.) The interview took place on October 8, 2000. (Id.) Bizimana told the FBI that he was in Bwito, DROC at the time of the Bwindi attack. (Gov't Ex. 29, tab 1 at 7.) Approximately two weeks after the attack, however, he witnessed a group of soldiers led by Captain Ntabwoba march through Bwito on their way to Massese, DROC. (Id.) These soldiers were carrying a number of unusual valuables, including luggage, radios, cameras and binoculars. (Id.) Bizimana provided a physical description of several ALIR soldiers who were of interest to the FBI, including Ntabwoba and a Colonel Bemera, who was one of the highest ranking officers in ALIR. (Id. at 8-10.)
B. The Rwandans Join the Investigation (November 2000 -- November 2001)
On this same trip in October 2000, Dent also traveled to Kigali to seek the assistance of Rwandan authorities. (5/15 p.m. tr. at 23-34.) She met with Frank Mugambage, the Commissioner General of the Rwandan National Police, to inform him of the Rewards for Justice campaign and to indicate the FBI's interest in speaking with anyone who might have knowledge of the Bwindi attack. (Id.) Dent provided Mugambage with a list of the items stolen during the attack, two composite sketches produced by Scotland Yard, and a list of names and descriptions of the individuals who were of interest to the FBI. (Gov't Ex. 99, tab 5.) Dent provided the same information to the U.S. embassy's Regional Security Officer ("RSO").*fn7 (Id.)
After meeting with Dent, Mugambage issued a memo to the Army Chief of Staff informing him that the FBI "requested" assistance from "the Rwandan Police" in investigating the Bwindi attack. (Def. Ex. K-4.) The memo notes that the FBI "provided information they have so far gathered," and suggests that "the criminal investigations department . . . get together and work out how to handle this matter." (Id.) Three different agencies within the Rwandan government were included in the "criminal investigations department" -- the National Police, the Department of Military Intelligence ("DMI"), and the External Security Service ("ESS"). Mugambage sent copies of his memo to Jack Nziza, head of DMI, and Patrick Karegeya, head of ESS.*fn8 (Gov't Ex. 65; Def. Ex. K-4.)
The National Police, ESS and DMI took collective responsibility for conducting the Rwandan government's investigation into the events at Bwindi.*fn9 Still, little progress was made for several months. In the summer of 2001, however, the investigation began in earnest. In May and June of that year, a "major offensive" was undertaken by ALIR, resulting in the RPA's capture of upwards of 2,000 ALIR members. (5/2 a.m. tr. at 33-35.) Aware of the ongoing border clashes, the FBI sent word through Legat Paris to the RSO at the U.S. embassy in Kigali instructing him to ask the Rwandans to interrogate "those recently apprehended" for information regarding Bwindi. (Gov't Ex. 99, tab 2 at 2.) In July, Ndabarasa was instructed by the head of ESS, Patrick Karegeya, to meet with Police Commissioner General Mugambage regarding an assignment. (5/2 a.m. tr. at 29.) At this meeting, Ndabarasa was briefed on the events at Bwindi and told to travel to the northern province of Ruhengeri, where most of the captured members of ALIR were being held, to gather information regarding the Bwindi attack. (Id. at 32-36.) Ndabarasa was accompanied to Ruhengeri by Eric Kayiranga, a police officer. (Id. at 37-38; 5/12 a.m. tr. at 44.)
Among those captured in the spring of 2001 was Nyaminani, who had been taken prisoner in a battle on June 15. (5/24 p.m. tr. at 3.) Nyaminani spent roughly two weeks at two different RPA military installations before being transferred to Mudende repatriation camp in Ruhengeri. (Id. at 3-4.) Though Nyaminani alleges that he was subjected to verbal abuse from RPA soldiers while at Mudende and claims to have feared for his life due to his status as a prisoner of war, he does not allege any physical mistreatment. (Id. at 6-9.) While at Mudende, he was questioned twice by Kayiranga and Ndabarasa. (Id. at 5.) Ndabarasa learned of Nyaminani through an earlier interview with a captured ALIR soldier named Desire Hategekimana. (5/12 a.m. tr. at 46-49.) The exact dates of Ndabarasa's interviews with Nyaminani are unknown, and no notes from the meetings were introduced into evidence. In a report to Commissioner Mugambage dated July 22, 2001, however, Ndabarasa summarized the results of his investigation to that point.*fn10 (Gov't Ex. 43.) The report refers to Nyaminani as a "POW" and explains that, despite the fact that Nyaminani "vehemently denie[d] participation," he was still considered a suspect because he served in Bimenyimana's platoon, which was believed "to have been the point force in the attack." (Id.) During the Mudende interviews, Nyaminani admitted that he knew of the attack and named several ALIR members who participated, including Bimenyimana (id.), but claimed to have stayed at the edge of the park rather than entering the area where hostages were taken. (5/12 a.m. tr. at 53-54, 58.) This account was echoed by Desire Hategekimana. (Id. at 54.) Nevertheless, as Ndabarasa put it during his testimony, he was "not satisfied" with Nyaminani's responses. (Id. at 53.)
Ndabarasa's report refers to the fact that two of the nine victims at Bwindi were Americans, but makes no mention of any other victim's nationality. (Gov't Ex. 43.) He also states that the captured ALIR Chief of Staff, Pierre Habimana (also known as Bemera), "accepts that it was" part of ALIR's purpose to kill "RPA allies including American citizens." (Id.) Upon receiving the report, Ndabarasa's superiors informed him that it "was not enough," and he was instructed "to do more." (5/12 a.m. tr. at 56.)
Ndabarasa therefore returned to Ruhengeri to conduct further interviews. Sometime "towards the end of July," after his initial interviews at Mudende, Nyaminani was transferred to another repatriation camp called Nkumba. (5/24 p.m. tr. at 7.) At Nkumba, Nyaminani was subjected to further questioning regarding Bwindi. (Id. at 10.) In addition to Ndabarasa and Kayiranga, Nyaminani was interrogated by Major Jean Bosco Kabanda, a high-ranking DMI soldier, and four other soldiers serving at Nkumba Camp. (Id. at 10.) Nyaminani was also questioned by Kalisa Karangwa, a police officer who was assigned to assist Eric Kayiranga. (5/2 p.m. tr. at 26.) These interviews were conducted outdoors on the grounds of Nkumba Camp. (5/12 a.m. tr. at 58; 5/2 p.m. tr. at 32.) As was the case with Ndabarasa at Mudende Camp, Karangwa was steered to Nyaminani by Desire Hategekimana. (5/2 p.m. tr. at 31; Gov't Ex. 51 & 51a.) Karangwa's interview resulted in a written statement from Nyaminani regarding his role in the attack.*fn11 (Gov't Ex. 50 & 50a.) This statement, dated July 23, 2001, reflects Nyaminani's admission that he was at Bwindi on March 1, 1999, but that he "did not reach exactly to Bwindi." (Gov't Ex. 50a at 1.) He admitted to seeing other soldiers return from Bwindi with "bags" that "contained [a] camera" and other goods, but denied any knowledge of how the whites had died. (Id. at 2.) In reviewing the statement, which was in fact written by Karangwa, Nyaminani specifically asked for the word "death" to be scratched out of the statement in his response to a question regarding "those who killed" at Bwindi. (5/2 p.m. tr. at 37-38; Gov't Ex. 50 at 2.) This statement, according to Ndabarasa, was also unsatisfactory, for it was "not enough." (5/12 a.m. tr. at 60.) All told, Ndabarasa estimated that he and Eric Kayiranga interviewed Nyaminani three to four times in July 2001. (Def. Ex. B-4 at 2.)
Defendant Nyaminani testified that for the duration of his stay at Nkumba Camp after giving his statement to Karangwa, he was subjected to various forms of mistreatment. (5/24 p.m. tr. at 12.) He claims that one of the soldiers in charge of Nkumba, an individual named Gitega, told him that he would be killed if he didn't "do what they wanted." (Id.) He was forced to "crawl" through the mud in front of other prisoners at the camp. (Id. at 13.) He was singled out for other "demean[ing]" treatment or harassment in front of his colleagues, particularly by Major Kabanda, and was subjected to what he viewed as threats, including references to "cockroaches . . . know[ing] their mother," if he failed to tell them more about Bwindi.*fn12 (Id. at 13-15.)
Nyaminani also testified that people were sometimes taken from Nkumba in cars at night and never returned, providing further reason for him to fear for his life. (Id. at 15-16.)
During the months of August and September, U.S. defense attache Major Richard Skow, who had been assisting FBI investigators (Gov't Ex. 99, tab 26 at 4, tab 32 at 7-8), conducted interviews of some Bwindi suspects. (Gov't Ex. 99, tab 28 at 5.) Around August 7, 2001, Skow interviewed Jean Bosco Hategekimana and cabled Dent to inform her that Hategekimana had "indicated that he was a participant in the attack at Bwindi." (5/15 p.m. tr. at 28, 45.) In early September, Skow interviewed Colonel Bemera regarding the events at Bwindi. (5/3 p.m. tr. at 27-30.) Also in August 2001, Bryan Bachmann arrived in Kigali to serve as the State Department's RSO for Rwanda. (5/10 p.m. tr. at 66.) Bachmann began familiarizing himself with the U.S. embassy's case file regarding Bwindi soon after arriving at his post in Kigali, and in October he met with Commissioner General Mugambage to reiterate the U.S. government's request for assistance in solving the murders. (Id. at 66-68.) Bachmann stated that while the embassy's case file indicated that the U.S. government had turned over to the Rwandans "substantial information" derived from its investigation of the Bwindi attack (id. at 74), there was no indication in the file, nor did he ever acquire personal knowledge, that the Rwandans had undertaken any investigation into Bwindi prior to being asked for assistance by the U.S. (Id. at 72.)
In November, the FBI began planning another trip to Rwanda. (Gov't Ex. 99, tab 32.) The FBI, along with the U.S. prosecution team, was concerned that the suspects being housed at Mudende Camp were due to be repatriated and released "at any time." (Id. at 5.) The FBI hoped to meet with the head of DMI, Jack Nziza, as well as Commissioner General Mugambage. (Id. at 8.) The FBI's travel preparation memo noted that Jean Bosco Hategekimana had identified "the rebels that remained behind with the tourists at Bwindi." (Id. at 8-9.) This list of rebels included Bimenyimana, but did not mention either Nyaminani or Karake. (Id.) The memo also states that "Gregoire Minani" and "Desire Hakizimana" had "confessed to [their] participation in the Bwindi attack," but the memo did not specify any details regarding the extent of their "participation." (Id. at 9.)
On November 29, 2001, Nyaminani, Desire Hategekimana, another individual named Fulgence Nyibizi, and others were transported from Nkumba Camp to Kigali.*fn13 (Id. at 20.) During a stop in the town of Ruhengeri, Nyaminani witnessed an unidentified number of white persons speaking with some of the other people who had come from Nkumba, but Nyaminani did not speak with these people at that time. (Id. at 19.) After arriving in Kigali, a DMI soldier named Julien Rwangarabe transported the prisoners, including Nyaminani, to Kami Camp. (Id. at 22.) Nyaminani does not allege that he suffered any mistreatment this first night at Kami Camp. The following day, he was picked up at Kami by Rwangarabe and brought to Kacyiru National Police Headquarters, where he was questioned by a group of Rwandans that included Ndabarasa, Kayiranga, Rwangarabe and a senior police officer named John Gacinya. (Id. at 22.) During this questioning he was informed that the next day he would be meeting with "whites," and that he "had to explain about the whites that had been killed in Bwindi." (Id. at 23.)
C. The Interrogations (November 2001 -- February 2003)
In late November 2001, Dent returned to Rwanda with her investigative team to begin interviewing the Bwindi suspects who had been identified by Rwandan investigators. Upon arriving, the FBI team met with Bryan Bachmann and other embassy personnel before their meeting "with the Rwandan National Police and Rwandan military personnel to discuss [the FBI's] objectives and . . . interest in meeting with anyone who might know anything about the Bwindi attack." (5/15 p.m. tr. at 44.) The Americans met with Commissioner General Frank Mugambage and the head of DMI, Jack Nziza. (Gov't Ex. 99, tab 32 at 8.) According to Bachmann, by this time the relationship between the American and Rwandan investigative teams had developed into "a very good partnership." (5/10 p.m. tr. at 83.) Both sides shared investigative information freely. (Id. at 81-84.) The two teams were, as Dent put it, "working hand in hand." (5/16 p.m. tr. at 3.) The U.S. investigators found the Rwandans to be exceptionally accommodating. In describing this relationship to the grand jury, Dent testified that the Rwandans had "been great":
Every time, you know, we're sitting down to talk to someone and we learn of a couple more people that might have just a little bit more information, they . . . just brought the repatriation books in, and it's got the person's picture, their family history, and where they're presently located.
And I mean, we'll be sitting there mid-interview and, you know, one of the RPA guys will pick up the phone and . . . tell one of his colleagues, . . . go find this guy. And then we interview him the next day.
(5/16 p.m. tr. at 57-58.)
The close working relationship of the American and Rwandan investigative teams was also apparent in the interrogation process. Rwandan officials were a constant presence in the interview room at Kacyiru when the FBI was questioning the Bwindi suspects. (5/15 p.m. tr. at 63-64; Gov't Ex. 27.) Several Rwandan officials served as translators during these early interviews, including John Gacinya, Alfred Ndabarasa, Eric Kayiranga, and Egide Ruzigamanzi. (Id.; 5/2 a.m. tr. at 80.) Isidore Kayumba, a Rwandan national who worked for the State Department as an investigator under Bachmann, also assisted with translation. (Id.) Rwandan officials were also active participants in questioning the Bwindi suspects. (5/11 p.m. tr. at 41; 5/15 p.m. tr. at 59-60.) They acted, according to Ndabarasa, as "investigators." (5/2 a.m. tr. at 80.) Indeed, not every question that was asked by a Rwandan was translated into English for the benefit of the American investigators. (5/11 p.m. tr. at 41, 44.)
The Rwandans also assisted the FBI in administering an advice of rights, or modified Miranda warnings, to each suspect prior to the interrogation. (5/12 a.m. tr. at 85-86.) Because there was no advice of rights form available in Kinyarwanda (5/10 a.m. tr. at 47-48), the FBI used a form written in either English or French.*fn14 (5/15 p.m. tr. at 58.) With a few exceptions,*fn15 the advice of rights would be provided to the translator and read to the interviewee. (5/15 p.m. tr. at 67.) The FBI agents would not read the advice of rights aloud in English; the translator would simply take the form and translate it into Kinyarwanda. (5/19 p.m. tr. at 118-19.) At the conclusion of this exercise, the FBI would ask a series of questions designed to ensure that the interviewee understood his rights. (Id. at 119-20.) These questions asked whether the interviewee "[is] willing to make a statement and answer any questions," "do[es] not want a lawyer at this time," "understand[s] and know[s] what [he is] doing," and whether any "promises or threats have been made to [him, or] pressure or coercion of any kind has been used against [him]." (Id.; Gov't Ex. 31.) The questions would be posed one at a time and a translated response would be received before moving on to the next question. (5/15 p.m. tr. at 67.)
Every interview of a defendant that was conducted with American officials present took place at the National Police Headquarters at Kacyiru. (5/2 a.m. tr. at 77-78.) The room where the interviews were conducted was a "big conference hall" with "a long table." (Id. at 78; Gov't Ex. 3-7.) There was a small bathroom off the conference room that was used by interviewers and interviewees alike. (5/15 p.m. tr. at 42-43.) Food and water were provided to the interviewees during the interrogation. (Id. at 40, 43.) The exterior door to the conference room typically remained open, except during the rainy season. (Id. at 38-39.) This door led to an adjacent "open area" (id. at 42) or "courtyard." (5/16 p.m. tr. at 49; see also Gov't Ex. 3-7.)
Over the course of fifteen months from November 2001 to February 2003, more than 50 interviews of Bwindi suspects were conducted in this room at Kacyiru by the FBI, Bachmann and a host of Rwandan officials, including 11 separate interrogations of Nyaminani, 7 of Karake, and 5 of Bimenyimana. In addition, there were an unknown number of interrogations conducted by Kibingo at Kami Camp over this same period of time. While it is unknown how many written statements were obtained from the defendants by Kibingo, two written statements from Nyaminani (Gov't Ex. 53, 53a, 54 & 54a), and one from Karake were introduced into evidence. (Gov't Ex. 52 & 52a.) Though no written statements obtained from Bimenyimana during his incarceration at Kami Camp were proffered, Kibingo also interrogated Bimenyimana about his role at Bwindi during this time. (5/4 p.m. tr. at 48.) It is this fifteen-month sequence of interrogations to which the Court now turns.
The first interview of any of the defendants*fn16 by the FBI was of Gregoire Nyaminani on December 1, 2001.*fn17
Present at the interview were FBI Agents Dent and David Paun, Assistant Legal Attache Ricky Chambers, Rwandan National Police Officers John Gacinya, Julien Rwangarabe, Eric Kayiranga and Egide Ruzigamanzi, U.S. embassy employee Isidore Kayumba. (Gov't Ex. 27; 29, tab 4 at 1.) Gacinya, the ranking Rwandan police officer, also served as the primary translator. At the outset of the interview, before any advice of rights was given, Nyaminani informed the FBI that Irondelle Company was made up of 3 platoons, one of which was led by Bimenyimana, and a "Special Section," of which he was a member. (Gov't Ex. 29, tab 4 at 1.) Nyaminani also defined the ALIR objectives as: (1) overthrowing the government of Rwanda; (2) releasing prisoners; and (3) targeting supporters of the government of Rwanda. (Id. at 2.) It was at this point in the interview that Nyaminani was orally advised of his rights. (Id.) The FBI apparently did not have an "unsigned or clean cop[y] of the advice of rights," so it was not possible for Nyaminani to acknowledge his consent in writing, but Agent Dent testified that he did verbally consent to the interview. (5/15 p.m. tr. at 65.)
After being advised of his rights, Nyaminani described the march to Bwindi and stated that the Special Section was "instructed to remain behind to fight off potential opponents." (Gov't Ex. 29, tab 4 at 3.) Nyaminani named 16 individuals whom he knew entered the park, including Commander Ntabwoba and Bimenyimana. (Id.) The FBI informed him that they did not believe his statements and terminated the interview after giving Nyaminani a pen and paper with instructions "to write down all that he could recall about the Bwindi operation." (Id. at 4.) At no point during the interview did Dent or any other investigator inquire as to Nyaminani's conditions of confinement. (5/16 p.m. tr. at 22-23.)
On December 2, the FBI conducted an interview of Jean-Bosco Hategekimana. Jean-Bosco informed investigators that Nyaminani had helped transport injured soldiers out of Bwindi, casting doubt on the version of events as described by Nyaminani on December 1. (5/15 p.m. tr. at 71-73.) Nyaminani was also identified to the FBI by Ernest Nkikabahizi on December 1 as a participant in the Bwindi attack. (Gov't Ex., tab 3 at 4.) Nkikabahizi, however, was not actually present at Bwindi on the day of the attack. (Id. at 1; 5/15 p.m. tr. at 69.) Based on the information received from Jean Bosco and Nkikabahizi, the FBI decided to interview Nyaminani a second time. (5/15 p.m. tr. at 73.)
Nyaminani was brought back to National Police Headquarters on December 5 for further questioning.*fn18 Present for the interview were FBI Agents Dent and Paun, Isidore Kayumba, ESS officer Alfred Ndabarasa, Rwandan police officers John Gacinya, Eric Kayiranga, Egide Ruzigamanzi, Julien Rwangarabe, and DMI soldier Jean Bosco Kabanda. Ndabarasa served as the primary translator. (Gov't Ex. 27.) Before the interview began, Nyaminani "provided two pages of handwritten notes in Kinyarwanda he'd prepared about the Bwindi operation" following his December 1 interview.*fn19 (Gov't Ex. 29, tab 7 at 1.) Nyaminani's written statement reiterates the story he told at his first interview, namely that his duty was to remain at the perimeter of the park "blocking the way," and that he remained there until the rest of Irondelle Company returned from the attack. (Gov't Ex. 9 (1/10/2002 e-mail from Isidore Kayumba to Bachmann).) Nyaminani identified a watch and camera as among the items that were looted from Bwindi. (Id.)
In his interview on December 5,*fn20 however, Nyaminani changed his story slightly. He admitted being a member of Irondelle Company's Third Platoon -- under the command of Bimenyimana. (Gov't Ex. 29, tab 7 at 1.) He admitted that he had entered the park and described the attack, including that two members of his platoon were shot. (Id. at 2.) Only after giving a general overview of his knowledge of the attack and the looting was Nyaminani read his rights. (Id. at 2-3.) He then signed the advice of rights form. (Id. at 3; Gov't Ex. 8.) Nyaminani continued to deny any involvement in the killing of any tourists. Rather, he claimed that his platoon was ordered to move out carrying the wounded soldiers. (Gov't Ex. 29, tab 7 at 4.) He also described seeing Commander Ntabwoba hand notes to some of the tourists after the entire company had marched out of the park and reached a clearing where they rested. (Id. at 4-5.) Nyaminani then stated that most of the soldiers moved out, but "Murenzi's section" remained behind with the tourists and carried out the murders. According to Nyaminani, Karake was one of the members of Murenzi's section. (Id. at 5.) This was the first time Karake's name had surfaced. (5/15 p.m. tr. at 81.)
The FBI continued to conduct interviews of other Bwindi suspects through December 8, 2001, including a follow up interview of Jean Bosco Hategekimana (Gov't Ex. 29, tab 9 & 10), and a second trip to Ruhengeri to interrogate Silver Dukuzumuremyi. On the afternoon of December 8, after returning from Ruhengeri, the FBI conducted two more interviews, of Leonard Harerimana and Pierre Habimana (a.k.a. Colonel Bemera), at Kacyiru prior to departing Rwanda. The interviews of Harerimana and Bemera are relevant to the instant motion less for the information the FBI derived therefrom than for pinpointing the arrival of Karake at Kami Camp. Karake testified that he was taken from his home in Rwambona and driven first to Byumba before going on to Kigali, where he was taken directly to the National Police Headquarters at Kacyiru. Upon arriving at Kacyiru, Karake testified, he found Colonel Bemera and Leonard Harerimana standing in the courtyard area outside the conference room where the FBI was conducting interviews.*fn21 (5/22 p.m. tr. at 17-18.) Karake's testimony conflicts with that of Kibingo, who testified that Karake did not arrive at Kami until mid-January 2002. (5/3 p.m. tr. at 36.) However, the first written statement obtained from Karake at Kami by Kibingo bears a date stamp of December 28, 2001 (Gov't Ex. 52), which is consistent with Karake's testimony that it was approximately two and a half weeks after he arrived at Kami that he gave a written statement to Kibingo. (5/22 p.m. tr. at 18-32.) Kibingo testified that he delivered Karake's first statement to DMI Headquarters the morning after he obtained it. (5/4 a.m. tr. at 29.) It is reasonable to conclude that it would have been date stamped at that time, especially given the government's lack of any explanation for how or why the document might have been back-dated. Moreover, Dent testified that she learned of Karake from the Nyaminani interview on December 5 and informed the Rwandans soon thereafter of her desire to speak with him. (5/16 p.m. tr. at 5, 51, 57.) In light of Dent's testimony regarding the speed with which the Rwandans were able to track down suspects (id. at 57-58), the only fair inference from the record is that Karake actually arrived at Kami Camp by early December, soon after the FBI made its request to interview him. This is also consistent with Karake's version of events. (5/22 p.m. tr. at 15.) Therefore, the Court finds that Karake was taken into custody at Kami Camp on or about December 8, 2001, and gave his first written statement regarding Bwindi to Kibingo at Kami Camp sometime in mid- to late December.
According to Karake, the morning after he arrived at Kami Camp, Kibingo began interrogating him regarding Bwindi.*fn22 (Id. at 19.) The initial questioning lasted more than an hour and took place outside Kibingo's house. (Id. at 20; see also Gov't Ex. 58a-c.) At this time, Karake testified, "[t]here was no problem. [Captain Kibingo] treated me well." (5/22 p.m. tr. at 20.) "[B]ut," stated Karake,"what I told him, he did not believe." (Id.) Kibingo did not ask Karake to write a statement at this first meeting. (Id. at 21.) At a second meeting roughly one week later, Kibingo again questioned Karake outside his home, this time in front of Nyaminani and Leonard Harerimana. (Id. at 24-25.) Again, Karake denied involvement in the killings at Bwindi. (Id. at 25.) Kibingo "wasn't happy" with Karake's version of events and instructed all three men to leave. (Id.) As with the first meeting, no written statement was requested by Kibingo. (Id.) Kibingo denies that there were any conversations between him and Karake prior to the one that led to his first written statement. Instead, he claims that within a short time after professing his innocence, Karake returned and spontaneously confessed to three murders, but then wrote out a confession in which he confessed to killing only one tourist. (5/3 p.m. tr. at 65-70.)
Though the conditions under which Karake ultimately gave Kibingo a written confession are disputed and will be examined later, there is no question that Karake was subjected to questioning by Kibingo, and that the written statement was drafted soon thereafter. (5/3 p.m. tr. at 65-70; 5/22 p.m. tr. at 25-38.) Kibingo took no notes of his conversations with Karake, however, and no other witnesses were present. (5/3 p.m. tr. at 65; 68.) In his written statement, Karake admitted to participating in the attack at Bwindi and kidnapping white tourists.*fn23 (Gov't Ex. 52 & 52a.) Karake also inculpated himself in the killing of one white person ("a white (1)"), and named Habimana and Minani as others who killed at Bwindi. (Id.) The written statement does not identify the gender of the white person that he purportedly killed. (Id.) Immediately after receiving the statement, Kibingo informed Nziza by phone before delivering the statement to DMI headquarters the following morning. (5/4 a.m. tr. at 29.)
Karake's written statement is inconsistent with Kibingo's testimony of their conversation immediately prior to the drafting of the statement. Kibingo testified that Karake told him that he was ordered by Commander Ntabwoba to kill two individuals who were covered with bed sheets with an axe, and then kill a third person -- a man with a tattoo of an eagle on his arm.*fn24 (5/4 a.m. tr. at 21-23.) Despite reading the written statement immediately after Karake drafted it, Kibingo did not question him or even express any surprise regarding the inconsistencies, particularly the acceptance of responsibility for only one, rather than three, murders. (5/4 a.m. tr. at 27.) Instead, Kibingo claims that he merely "thanked him" for "a very good step taken." (Id.) But Kibingo's account is inconsistent with the information that was then passed on to the Americans. An internal FBI memo dated January 11, 2002, indicates that the initial information received from the Rwandans (presumably from Kibingo) was that Karake had killed a white woman.*fn25 (Gov't Ex. 99, tab 33 at 2.) There was no mention of two additional murders, nor was there any mention of a man with a tattoo. (Id.)
The Rwandan police contacted RSO Bachmann's investigator, Isidore Kayumba, on January 9, 2002, to inform him that they had an individual willing to talk about Bwindi. (5/10 a.m. tr. at 27; see also Gov't Ex. 30, tab 1.) Based on the information provided by the Rwandan police, Bachmann scheduled an interview with Karake on January 12, 2002. This interview took place at Kacyiru, in the same conference room where the FBI had conducted the December interviews. (5/10 a.m. tr. at 29-31.) According to Karake, Kayumba picked him up at Kami and drove him to Kacyiru. (5/22 p.m. tr. at 43.) Present at the interview were Rwandan officials Egide Ruzigamanzi and Captain John Bosco Kabanda. (5/10 p.m. tr. at 45.) Karake testified that Kibingo and Alfred Ndabarasa were also present for at least part of the interview (5/22 p.m. tr. at 44, 47), though this is not confirmed by Bachmann's testimony. Isidore Kayumba served as the interpreter. (Id. at 50; 5/10 p.m. tr. at 35.) Karake was provided with bottled water and bathroom breaks during the interview. (5/10 p.m. tr. at 62.)
According to Bachmann, Karake was read his rights in Kinyarwanda at the outset of the interview by Kayumba, and he consented to the interrogation in writing. (Id. at 49-51; see also Gov't Ex. 31.) Karake claims, however, that he did not sign the advice of rights until after "two hours" of questioning.*fn26 (5/22 p.m. tr. at 46.) There is nothing on the advice of rights form (Gov't Ex. 31), in Bachmann's notes (Def. Ex. K-4), or in Bachmann's cable summarizing the interview (Gov't Ex. 30, tab 1) that indicates at what time or point in the interview the advice of rights was executed. At some point, Bachmann took a photograph of Karake that depicts only his head and upper body. (Gov't Ex. 62.) Bachmann also testified that near the conclusion of the interview he asked the Rwandans who were present (except Kayumba) to leave him alone with Karake, at which time he inquired, using Isidore Kayumba to translate, about Karake's treatment at Kami Camp. (5/10 ...