The opinion of the court was delivered by: John D. Bates United States District Judge
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 18 U.S.C. § 1203, and aiding and abetting.*fn1 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 Trinidad. An evidentiary hearing was held on December 2 and 3, 2008.*fn2 For the reasons that follow, the Court will deny defendants' motions.
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.*fn3
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.*fn4 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 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.
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).*fn5 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 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, Clauss and Cruz lacked the authority to carry weapons in Trinidad and, hence were unarmed.*fn6 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 not*fn7 -- 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.*fn8 Straker asked to have the form so that he could read it himself. Tr. at 87, 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), 144 (Cruz), 189-90 (Freeman).*fn9 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 assaulted him. Id. at 19, 91, 142-43, 165-66.*fn10 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.*fn11 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.
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 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 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).*fn12 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.*fn13 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 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 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, 552 F.3d 177, 198-201 (2d Cir. 2008); United States v. Yousef, 327 F.3d 56, 145-46 (2d Cir. 2003) (noting that where United States law enforcement agents participate in questioning abroad, Miranda warnings may be required); Suchit, 480 F. Supp. 2d at 52 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, 552 F.3d at 200 (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (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, 384 U.S. 436 (1966), the Supreme Court held that the Fifth Amendment prohibition against compelled self-incrimination requires that custodial interrogation 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. Id. at 479. Subsequently, the Supreme Court in Edwards v. Arizona, 451 U.S. 477 (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." 451 U.S. at 484. 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." Id. at 484-85.
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, 486 U.S. 675, 681-82 (1988); Minnick v. Mississippi, 498 U.S. 146, 151-52 (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, 486 U.S. at 681. Put another way, the Edwards rule serves "'to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.'" Minnick, 498 U.S. at 150 (quoting Michigan v. Harvey, 494 U.S. 344, 350 (1990)).
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, 512 U.S. 452, 459 (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." Id. at 459-62 (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, 479 U.S. 523, 528-29 (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, 451 U.S. at 484-85. 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, 462 U.S. 1039, 1045-46 (1983) (plurality); United States v. Ware, 338 F.3d 476, 481 ...