The opinion of the court was delivered by: John D. Bates United States District Judge
Defendants are citizens of the Republic of Trinidad and Tobago ("Trinidad") charged with conspiracy to commit hostage taking resulting in death and hostage taking resulting in death in violation of 18 U.S.C. § 1203. The charges stem from the abduction and death of a United States citizen, Balram Maharaj, in Trinidad in April 2005. Twelve defendants have been extradited to face charges related to Maharaj's kidnapping and seven defendants are scheduled to stand trial in May 2009.*fn1 Five of those defendants have motions to suppress currently pending before the Court and, after a two-day evidentiary hearing held on March 5 and 6, 2009,*fn2 the motions are now ripe for decision. Anderson Straker and Kevin Nixon move to suppress out-of- court photographic identifications made by one of their alleged co-conspirators. Zion Clarke moves to suppress three statements he made to the Federal Bureau of Investigation ("FBI") during interviews in Trinidad and during his extradition to the United States, as well as one statement he made to the Trinidad police. Ricardo De Four and Kevon Demerieux move to suppress statements they made to the Trinidad police and Demerieux also moves to suppress a statement that he made to the FBI while being interviewed in Trinidad. 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 identifications and statements that defendants seek to suppress. The Court must first look to the circumstances surrounding the photographic identification procedure used to identify Straker and Nixon in order to determine whether it was sufficiently reliable so as not to violate defendants' due process rights under the Fifth Amendment. The Court heard testimony from FBI Special Agent William T. Clauss, the lead FBI investigator on the case and the individual who conducted the photographic identification procedure with Russel Joseph, a witness and alleged co-conspirator. Clauss's testimony on this subject went unrebutted and the Court found him to be a credible and forthright witness.
The Court must also make factual findings concerning the background and circumstances in which the statements of Clarke, De Four and Demerieux were taken, in order to determine whether they were provided with notice of any Miranda warnings under the Fifth Amendment, how they responded to the notices, and whether their statements were voluntarily given. To make these findings, the Court again heard testimony from Special Agent Clauss, who conducted three of the interviews at issue here (two with Clarke and one with Demerieux) and acted as the FBI's primary liaison with the Trinidad police. The Court also heard testimony from FBI Special Agent Edgar Cruz, who offered testimony on the limited topic of Clarke's extradition to the United States and the statement Clarke made during his extradition. Five officers from the Trinidad police force presented testimony as well -- Wendell Lucas, Kendell Abraham, Michael Seales, Larry Lodhar and Eric Park. The Court also heard testimony from Alexis Persad, a Justice of the Peace in Trinidad who was present while Demerieux gave a statement to the Trinidad police. The testimony of the FBI, the Trinidad officers and Persad went 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.
Defendants did not present any witnesses, instead relying on the testimony, including cross-examination, of the FBI agents and the Trinidad officials to support their suppression motions. Only De Four presented additional testimonial evidence, in the form of a sworn affidavit from his Trinidad attorney, John Larry Williams, on the issue of the alleged promise of leniency made to De Four by the Trinidad police.*fn3 Def. Ex. 16 (Williams Aff.). With this preface, the Court turns to the task of making the factual determinations necessary to resolve the motions.
I. Motions to Suppress Photographic Identifications -- Straker and Nixon
Straker and Nixon were both identified by Russel Joseph -- an alleged co-conspirator who has already pled guilty -- during a photographic identification procedure conducted by FBI Special Agents Clauss and Christopher Carbonneau at the Federal Courthouse in Washington, D.C. on August 11, 2006. Straker and Nixon contend that admission of those out-of-court identifications would violate the Fifth Amendment because the identification procedure was impermissibly suggestive and, therefore, unreliable. Based on Clauss's testimony at the suppression hearing, and the exhibits admitted in connection therewith, the Court makes the following findings.
Prior to conducting the photo identification procedure on August 11, 2006, Clauss met with Joseph on four separate occasions. Tr. at 123, 132. During those meetings, Joseph explained his role in the plot to abduct Maharaj and he also gave details about the roles of his co-conspirators. Id. at 105. Joseph indicated to Clauss that he would not have difficulty identifying any of the individuals whom he had discussed. Id. at 112.
Joseph met Straker on two separate occasions. Id. at 125. The first was at the Mellow Moods bar on the day of Maharaj's kidnapping. Id. at 106. Joseph observed Straker at the Mellow Moods bar during the group meeting prior to the kidnapping. Id. at 126. Then, later the same day, after Maharaj had been abducted and delivered to his captors, Joseph returned to the Mellow Moods bar and once again observed Straker. Id. at 106, 126. Joseph's second interaction with Straker occurred several days after the kidnapping. At that time, Joseph met Straker in Santa Cruz and the two men walked together to the forest campsite where Maharaj was being held. Id. at 106. After they arrived, Joseph watched Straker interrogate Maharaj. Id.
At the conclusion of Straker's questioning, Straker and Joseph descended the hill together and carried on a conversation until they reached the bottom and parted ways. Id. at 106-07.
Joseph's interactions with Nixon (a.k.a. Shaka) were confined to the day of the kidnapping. Id. at 135. When the group departed from the Mellow Moods bar, Joseph and two others, including Nixon, got in what would be the getaway car and proceeded to the Samaan Tree bar to abduct Maharaj. Id. at 107. As Nixon exited the vehicle, he instructed Joseph to wait for the signal. Joseph then parked the car in a position where he could observe the bar. Id. Once in position, he observed another individual enter the bar and he then observed Nixon give the signal to bring the car around. Id. Nixon and the other individual then forced the victim into the car and Joseph drove away with all three men in the back seat. Id. As they left the scene, Nixon held a gun to Maharaj's head. Id. at 108. They returned to the area near the Mellow Moods bar and left the victim near a cocoa field. Id. Shortly thereafter, however, Joseph and Nixon went back to the cocoa field to retrieve the victim. Id. After dropping off another unidentified individual, Joseph and Nixon proceeded up Grand Curacaye Road and gave custody of Maharaj to two other individuals. Id. Joseph and Nixon then drove back to the Mellow Moods bar to rejoin the others. Id.
Clauss testified that based on Joseph's experience with the defendants, he considered doing a one photograph identification for each individual, but ultimately "came to the conclusion that despite the fact that Mr. Joseph had identified several individuals by name, at length and in detail . . . to lend a little bit more objectivity to it, we decided to place the photographs of the individuals we believed he had identified into a six-person photographic lineup." Id. at 109-10. A total of ten six-person photo arrays were prepared by the FBI with the help of the South Florida High Intensity Drug Trafficking Area ("HIDTA"). Id. at 110-11. Although Clauss did not prepare all of the lineups himself, he testified that he reviewed each of them critically before showing them to Joseph. Id. at 111. The lineups contained six photographs of black males, arranged in two rows of three. Gov't Ex. 37a (scanned copy of Straker photo array); Gov't Ex. 38 (scanned copy of Nixon photo array). None of the photographs appear to be more recently taken than the others and all were taken from the neck up and from a full-face viewpoint. Id. The men appear to be approximately the same age and have approximately the same physical build, hair color, hair length and hair style. Id. Each lineup contained only one suspect and the suspects' photographs were not placed in the same location in each lineup -- they were placed randomly. Tr. at 139-40. In Straker's lineup all of the men pictured had facial hair (as does Straker), Gov't Ex. 37a; Gov't Ex. 37b (computer printout of Straker photo array), whereas in Nixon's lineup several of the men pictured did not have facial hair (Nixon does), Gov't Ex. 38.
The identification procedure took place at the Federal Courthouse in Washington, D.C., on August 11, 2006. Tr. at 111; Gov't Ex. 39 (FBI summary of Aug. 11, 2006 identification procedure). In addition to Clauss and Joseph, FBI Special Agent Christopher Carbonneau, Assistant U.S. Attorney Bruce Hegyi and Joseph's attorney Allen Orenberg were also present at the outset of the interview. Id. After Clauss and Carbonneau advised Joseph of their identities and the purpose of the interview, Hegyi and Orenberg left the room. Tr. at 129-30; Gov't Ex. 39. Only Clauss, Carbonneau and Joseph were present in the room during the identification procedure. Tr. at 111-12; Gov't. Ex. 39. Before showing Joseph the lineups, Clauss advised Joseph that he "was going to be showing him a series of photographs, that each page would contain six photographs, and [he] advised him to take his time, review the lineups, and advise [him] if he recognized anybody that he saw in the page." Tr. at 112. Clauss testified that in conducting the identification procedure, he placed the stack of ten lineups in front of him face down. Id. One at a time, Clauss then proceeded to turn over the lineups and place them in front of Joseph. Id. Each time Joseph inspected a new lineup, he would point to a photograph and verbally identify the individual by name. Id. at 113. Once Joseph positively identified an individual, Clauss instructed him to circle the number below the photograph and place his initials and the date. Id. Clauss testified that Joseph had no hesitation whatsoever in identifying the suspects from the photo arrays. Id. Joseph also indicated to Clauss that "[h]e was absolutely positive" about the identifications that he made. Id.
At the hearing, the government was unable to produce the actual lineups that were presented to Joseph because their whereabouts are unknown. Id. at 114. Instead, Clauss reviewed scanned copies of the lineups that contained photographs of Straker and Nixon. Gov't Exs. 37a, 38. Clauss also examined a printout of Straker's lineup generated from the original computer file. Gov't Ex. 37b. Clauss testified that, in terms of color and clarity, the computer printout of Straker's lineup was identical to what was shown to Joseph. Tr. at 118. With respect to Nixon's lineup, Clauss stated that the colors in the photographs shown to Joseph were much clearer and more vibrant than the colors reflected in the scanned copy, which were faded in appearance. Id. at 120-21, 142-43; Gov't Ex. 38. After reviewing the first scanned photo array, Gov't Ex. 37a, Clauss verified that he had watched Joseph circle the number two (beneath Straker's photograph), write his initials "RJ" and the numbers "11.8.06" (i.e., Aug. 11, 2006) next to the circled number, and indicate verbally that the individual in the photo was Straker. Tr. at 117-18. Likewise, after examining the second scanned lineup, Gov't Ex. 38, Clauss stated that he had watched Joseph circle the number four (beneath Nixon's photograph), write his initials "RJ" and the numbers "11.8.06" next to the circled number, and indicate verbally that the individual in the photo was Shaka (Nixon's alias). Tr. at 119-20.
When a defendant challenges an out-of-court identification as a violation of due process under the Fifth Amendment, the court must assess the sufficiency of the identification procedure using a two-part test. Initially, the court must determine whether "'the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Neil v. Biggers, 409 U.S. 188, 197 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)); United States v. Washington, 12 F.3d 1128, 1134 (D.C. Cir. 1994). "Factors to consider in assessing suggestiveness include the 'size of the array, the manner of presentation by the officers, and the array's contents.'" United States v. Cooper, 85 F. Supp. 2d 1, 36 (D.D.C. 2000) (quoting United States v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1992)). However, if the court concludes that the identification procedure was suggestive, that alone "does not violate due process so long as the identification possesses sufficient aspects of reliability." Manson v. Brathwaite, 432 U.S. 98, 106 (1977). Step two of the inquiry, then, requires the court to examine "whether, under the totality of the circumstances, the identification was sufficiently reliable to preclude a substantial likelihood of misidentification." Washington, 12 F.3d at 1134. Reliability is assessed by considering a number factors, including: "'the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Id. (quoting Manson, 432 U.S. at 114).
Here, there is nothing in the record to support defendants' contention that the identification procedure or the photo arrays themselves were suggestive. Clauss's testimony establishes that the procedure used to conduct the photographic identification with Joseph on August 11, 2006 was not suggestive. In fact, the record leads to precisely the opposite conclusion -- the procedure was unquestionably fair and Clauss took great pains to conduct the identification in a deliberate and impartial manner.
As for the contents of the photo arrays themselves, there is also no evidence that they were suggestive. The arrays were of a sufficient size (six photographs, in two rows of three) so as to prevent any signaling to the witness, and the photographs of the suspects were placed at random in each of the ten arrays that Joseph examined. None of the photographs appeared to be more recently taken than the others and all were taken from a full-face viewpoint. All of the men pictured shared the same general physical characteristics as defendants with respect to skin color, age, physical build, hair color, hair length and hair style. Nevertheless, Nixon contends that his lineup was suggestive "because other subjects . . . differed substantially in appearance from Mr. Nixon with regard to complexion and facial hair." Nixon Mot. at 2 (ECF #289). With regard to complexion, the Court does not agree that there is a "substantial difference" between Nixon's complexion and the complexions of those pictured along with him such that the lineup is in any way suggestive. As for facial hair, it is true that not all of the subjects pictured with Nixon had facial hair, as he did, but this alone is insufficient to make the photo array impermissibly suggestive. See, e.g., United States v. Hines, 455 F.2d 1317, 1329-30 (D.C. Cir. 1971) (finding that a lineup was not suggestive when three of four lineup subjects had facial hair, but defendant did not); Schawitsch v. Burt, 491 F.3d 798, 803 (8th Cir. 2007) ("Reasonable variations in hair length and facial hair are not impermissibly suggestive, especially as they can vary on any given person at different times."). Straker has no claim that facial hair had any bearing on his identification because all of the men pictured in his photo array, including him, had facial hair.
Even if the procedure had been suggestive in this case, Joseph's identifications were clearly reliable in light of the circumstances. Joseph did not identify two men with whom he had a brief, split-second encounter; rather, he identified two men who were his alleged co-conspirators. Joseph spent a substantial amount of time with both men on the day of the crime and, in Straker's case, Joseph had another sustained interaction with him several days later as they hiked to and from the campsite where Maharaj was being held. Clauss also testified that prior to the identification procedure, Joseph indicated that he would not have difficulty identifying any of his co-conspirators. Joseph's confidence was confirmed by the procedure itself, as he was "absolutely positive" of his identifications and identified both Straker and Nixon by name, and without hesitation, when he was shown the photo arrays. Under these circumstances, there is no question that Joseph's identifications of Straker and Nixon were reliable. Because the identification procedure was not impermissibly suggestive and the identifications were sufficiently reliable, defendants' motions to suppress their photographic identifications will be denied.
II. Clarke's Motion to Suppress
Clarke has moved to suppress three statements he made to the FBI -- two of which were made during interviews conducted in Trinidad, on January 4 and 6, 2006, shortly after his arrest, and one which was made to Special Agent Cruz on August 4, 2008 during Clarke's extradition to the United States. He has also moved to suppress a statement that he made to the Trinidad police on January 5, 2006. Clarke contends that all four statements are inadmissible because he was not properly advised of his Miranda rights. He asserts that Miranda warnings were required prior to his January 5, 2006 statement because that statement was the product of a joint venture between the FBI and the Trinidad police. Clarke also argues that his statements should be suppressed because they were not made voluntarily. Four witnesses gave testimony about the circumstances surrounding Clarke's statements -- from the FBI, Special Agents Clauss and Cruz, and from the Trinidad police, Sgt. Lucas*fn4 and Constable Abraham. Based on that testimony and the relevant exhibits admitted in evidence, the Court makes the following findings.
After making an initial trip to Trinidad in late 2005 to meet Sgt. Lucas and inform him of the FBI's ongoing investigation into Maharaj's kidnapping, Clauss returned to Trinidad, accompanied by Cruz, on January 3, 2006 to conduct follow-up investigation. Tr. at 15-17. Shortly after their arrival, the FBI learned from Lucas that the Trinidad police were planning to make two arrests related to the Maharaj case in the early morning hours of January 4, 2006. Id. at 17-18. The FBI had no prior knowledge that the Trinidad police were planning to conduct arrests and the Trinidad police did not ask the FBI to participate in the arrests. Id. at 18, 81-82, 99. Further, there was no discussion between the FBI and Trinidad law enforcement officials about the specifics of the investigation, nor was there any discussion that they would divide tasks or work together. Id. at 81 (Clauss), 243-44 (Lucas). As Clauss testified, the FBI and the Trinidad police were conducting "parallel investigations that were clearly similar in nature, but I didn't feel a need to tell them what they should or shouldn't do, nor would I be in a place to do that. I'm a guest in their country." Id. at 81.
One of the individuals arrested on the morning of January 4, 2006 was Zion Clarke. Clarke was arrested at his home by a team of Trinidad police officers led by Lucas. Id. at 154-55. When they arrived at the home, Lucas identified himself as a Trinidad police officer and informed Clarke that he was investigating the Maharaj kidnapping. Id. at 156. Lucas then 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 statements may be put into writing and used against the accused in court. Id. at 156-57, 239; see also Gov't Ex. 1 (Judges' Rules and Administrative Directions to the Police, Home Office Circular No. 89/1978); Gov't Ex. 1a (Judges' Rules and Administrative Directions to the Police, Ministry of Home Affairs Circular No. 1/1965) (collectively, "Judges' Rules");*fn5 Gov't Ex. 2 (Trinidad & Tobago Police Service, "Reminder to Law Enforcement Officers Re: Cautions").*fn6
Clarke did not seek to invoke his rights at that time. Tr. at 157. He was then taken to the Arouca police station. Id. at 18-19. Later that day, at approximately 7:45 p.m., Clarke was brought to the homicide office, where he met with Lucas. Id. at 166. Lucas once again identified himself, explained the purpose of his investigation and re-advised Clarke of his rights under Trinidad law.
Id. at 166, 241; Gov't Exs. 1, 1a. After being apprised of his rights, Clarke agreed to give a statement to the Trinidad police, but he asked if he could first take a rest. Tr. at 167-68. He was then brought to his holding cell by Constable Abraham. Id. at 168, 271. Abraham testified that at the time he accompanied him to his cell, Clarke did not appear to be injured or ill. Id. at 271. Shortly thereafter, Lucas checked on Clarke to ask whether he was comfortable or wanted anything to eat or drink. Id. at 168-69. Clarke indicated that he was comfortable, but he declined food and drink at that time. Id. at 169.
Later that night, at approximately 8:30 p.m., Clauss and Cruz arrived at the Arouca station and requested access to Clarke in order to conduct an interview. Id. at 31. Lucas told Clauss that if Clarke was willing to speak to the FBI, he would allow them to conduct an interview. Id. at 170. Abraham went to Clarke's cell to make the inquiry and Clarke indicated that he would be willing to speak to the FBI. Id. at 170, 272. Clarke was then brought to the homicide bureau office where he was seated in a cubicle. Id. at 31-32, 170-71. At that time, Clauss and Cruz identified themselves as FBI agents and informed Clarke that they too were conducting an investigation regarding the Maharaj kidnapping. Id. at 32. Clauss then presented Clarke with an international "notification of rights" form. Id.; Gov't Ex. 7 (notification of rights form signed by Clarke on Jan. 4, 2006); Gov't Ex. 8 (FBI summary of interview with Clarke on Jan. 4, 2006). That notification informs a suspect of his Miranda rights -- most notably, the right to remain silent and the right to have counsel present during questioning -- 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. 7. It states in full:
We are representatives of the U.S. government. According to our laws, you are entitled to certain rights. Before we ask you any questions, we want to be certain that you understand such rights.
You do not have to speak to us nor do you have to answer any questions. Even though you may have spoke[n] to the Trinidad authorities, you do not have to speak to us right now. If you do speak to us, everything that you say can be used against you in a court of law, in the United States or anywhere else.
In the United States, you would have the right to seek advice from an attorney before we asked you any questions and to have an attorney with you during interrogation. If you were in the United States and could not afford an attorney, you would be provided an attorney at no cost before submitting any questions, if you so desired. Since you are not in our custody, nor are we in the United States, we cannot assure that you will have access to an attorney, nor can we assure that you will be provided with an attorney before we ask you any questions, or when we are asking such questions. If you wish to have an attorney but Trinidad authorities do not allow you access to one, or if they refuse to provide you an attorney at this time, you may opt not to speak to us. If you decide to speak to us without an attorney present, you reserve the right to decline to answer our questions at any time.
Moreover, you should understand that if you choose not to speak to us, that fact may not be used as evidence against you in a court of law in the United States.
It ends with the following acknowledgment and waiver of rights:
I have read this notice of my rights and understand what my rights are.
I am prepared to give a statement and to answer questions.
I do not wish to have an attorney at this time.
I understand and I know what I am doing.
I have received no promises or threats nor have I been subject to pressure or coercion of any sort.
Id. Before reading the form to Clarke, Clauss explained to him, in plain English, "that he did not have to speak with us, he had the right to remain silent." Tr. at 32. Clauss further explained that "because we were in Trinidad, we could not guarantee him access to an attorney, that that was a decision made by the Trinidad authorities, but if he wanted one and they would not provide one to him, he was under no obligation to speak to us." Id. at 32-33. Lastly, Clauss informed Clarke "that anything he did say to us could be used as evidence against him." Id. at 33. Once Clarke had received those basic warnings, Clauss read the entire form to him, aloud and verbatim. Id. at 32, 87. Clauss then handed the form to Clarke to allow him to review it and told him to initial and sign if he understood his rights and agreed to continue with the ...