United States District Court, D. Columbia.
[Copyrighted Material Omitted]
Re Document No.: 42.
For USA, Plaintiff: Jay I. Bratt, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC; Mona N. Sahaf, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COL, Washington, DC; Deborah A. Curtis, U.S. DEPARTMENT OF JUSTICE, NSD Counterespionage Section, Washington, DC; Thomas A. Bednar, U.S. Attorney's Office for the District of Columbia, National Security Section, Washington, DC.
RUDOLPH CONTRERAS, United States District Judge.
Denying Defendant's Motion to Suppress Statements
Defendant, Mr. Hitselberger, has been charged by the United States of America on three counts of violating 18 U.S.C. § 793(e), for willfully removing and retaining documents relating to the national defense. He has also been charged on three counts of violating 18 U.S.C. § 2071(a), for willfully and unlawfully removing public documents from their secured location. On three separate occasions, Mr. Hitselberger was interviewed by Naval Criminal Investigative Service (" NCIS" ) Agents. On the third occasion, Mr. Hitselberger was also interviewed by an agent from the Federal Bureau of Investigations. Mr. Hitselberger now moves to suppress statements made in these interviews as a violation of his Fifth Amendment right against self-incrimination and his Fourth Amendment right against unlawful searches and seizures.
II. FACTUAL BACKGROUND
James Hitselberger is a 56-year-old linguist. Mr. Hitselberger attended Georgetown University, where he studied Arabic, and the University of Texas, where he worked towards a PhD in politics and government. Govt's Opp'n to Mot. to Suppress, Ex. 2, Results of Interview with Hitselberger, April 5, 2013, ECF No. 46. He is fluent in Arabic, Farsi, and Russian. In June 2011, he was hired by Global Linguist Solutions, which assigned him to work for the United States Navy at a base in Bahrain. Mr. Hitselberger regularly worked with classified information. After being hired as a linguist, Mr. Hitselberger underwent training on the different types of classified information and the proper handling of such materials. Govt's Mem. in Supp. of Detention, 4, Dec. 12, 2012, ECF No. 13. The Government alleges that on April 11, 2012, two supervisors observed Mr. Hitselberger checking his email in a Restricted Access Area and then printing multiple pages clearly marked as SECRET from a SECRET printer. Compl. ¶ ¶ 12-13, Aug. 6, 2012,
ECF No. 1. The Government contends that Mr. Hitselberger was observed taking the classified documents from the printer, placing them into an Arabic-English Dictionary, and attempting to leave the building with the SECRET documents. Id. at ¶ 12. Mr. Hitselberger was stopped by his supervisor and his commanding officer after exiting the building and was asked to produce the documents he just printed. Id. The documents recovered from Mr. Hitselberger's backpack were marked as SECRET in red, bold type in the header and footer of each page. Tr. of Mot. Hr'g, Morning Session, Sept. 6, 2013, 24-25. The documents contained the availability of improvised explosive devices in Bahrain, schedule for the monthly travel of a high-ranking commander in Bahrain and information about the locations of U.S. armed forces in the region and their activities. Govt's Mem. in Supp. of Detention, 7, Ex. 7.
On April 11, 2012, NCIS Special Agents conducted a Command Authorized Search and Seizure of Mr. Hitselberger's living quarters in Bahrain. Compl. ¶ 14. Inside, Special Agents found documents classified as SECRET with the SECRET warning label cut off the top and bottom of the pages. Compl. ¶ 14. This document contained information about the location of U.S. forces and their undisclosed activities in the region. Govt's Mem. in Supp. of Detention, at 8, Exs. 10-11. The last document, located in the Hoover Institute's public library, was originally classified as SECRET. Govt's Mem. in Supp. of Detention at 10-11, Ex. 13. This document discusses gaps in U.S. intelligence with respect to the political situation in Bahrain. Id. at 10-11, Ex. 14.
On April 11, 2012, Mr. Hitselberger was escorted to the Naval Security Force offices, where he was held for approximately eight hours. Tr. of Mot. Hr'g, Afternoon Session, 148 -149, Sept. 6, 2013. During this time, he was guarded by Naval Security Force officers, until he was escorted to the NCIS offices for his interview. Tr. of Mot. Hr'g, 150. On the evening of April 11, 2012, NCIS special agents Raffi Kesici and John Fowler interviewed Mr. Hitselberger regarding the events earlier that day. Tr. of Mot. Hr'g, 120. The interview began at approximately 8:14 p.m. and Mr. Hitselberger signed a written waiver of his Miranda rights at 8:52 P.M. Tr. of Mot. Hr'g, 122-3; Govt. Ex. 11 (Interview Log Timeline). During the pre- Miranda conversation, Mr. Hitselberger made several statements about his relationship with his co-workers, his educational background and the collection he established at the Hoover Institution. Tr. of Mot. Hr'g, 121-4, 192. The agents did not ask Mr. Hitselberger any questions about the precipitating incident until after the Miranda warning was issued and the waiver was obtained. Tr. of Mot. Hr'g, 125. The interview occurred in a conversational and cordial tone. Tr. of Mot. Hr'g, 124.
After establishing a rapport with Mr. Hitselberger, Agents Fowler and Kesici administered Miranda warnings, reading verbatim from a pre-printed form. Tr. of Mot. Hr'g, 125; Govt. Ex. 10 (" Civilian Suspect's Acknowledgement and Waiver of Rights" ). Mr. Hitselberger read the form, initialed each line next to the right he was waiving, and then signed his name at the bottom, under a section stating:
I understand my rights as related to me and as set forth above. With that understanding, I have decided that I do not desire to remain silent, consult with a retained or appointed lawyer, or have a lawyer present at this time. I make this decision freely and voluntarily. No threats or promises have been made to me.
Govt. Ex. 10; Tr. of Mot. Hr'g, 126-7. After Mr. Hitselberger executed the waiver, Agents Fowler and Kesici began to ask questions about the incident they were investigating. Tr. of Mot. Hr'g, 127. The interview ended at approximately 11:25 p.m. See Govt. Ex. 11.
At approximately 10:30 p.m. Agents Fowler and Kesici asked whether Mr. Hitselberger would be willing to sign a written statement of the information already discussed in the interview. Tr. of Mot. Hr'g, 175. While Mr. Hitselberger seemed willing to provide a written statement, he requested an attorney to review the statement before it was signed. Tr. of Mot. Hr'g, 176; Govt. Ex. 10. Agent Kesici testified that Mr. Hitselberger " hesitated and said he's feel more comfortable consulting with a lawyer first or having a lawyer review his statement prior to providing it." Tr. of Mot. Hr'g, 176. At this point, the NCIS agents clarified that Mr. Hitselberger was requesting an attorney only to review his written statement, and not for the ongoing oral interview. Tr. of Mot. Hr'g, 176; Govt. Ex. 10. Mr. Hitselberger voluntarily arranged to come back the next morning at 10 a.m. to sign the written statement. Tr. of Mot. Hr'g, 177. At the end of the interview, Mr. Hitselberger was escorted to his temporary room, as his current room was still considered a crime scene. Tr. of Mot. Hr'g, 178.
The next day, April 12, 2012, Mr. Hitselberger returned to the NCIS offices between 10:00 or 11:00 a.m., past the time of his appointment. Tr. of Mot. Hr'g, 179. He explained to the agents that he was feeling tired and asked to return again at 3:00 p.m. Tr. of Mot. Hr'g, 179. When Mr. Hitselberger again missed his 3:00 p.m. appointment, two agents checked on his whereabouts and brought Mr. Hitselberger to the NCIS offices. Tr. of Mot. Hr'g, 180-1. The interview was conducted by Special Agents Fowler and Adlin Velez. Tr. of Mot. Hr'g, 228, 230. Agent Fowler explained to Agent Velez and Mr. Hitselberger that Mr. Hitselberger was there to consider memorializing the previous night's interview into a written statement. Tr. of Mot. Hr'g, 232. Before proceeding to the written statement, Mr. Hitselberger was reminded of the Miranda waiver he signed the night before. Tr. of Mot. Hr'g, 233-4. Mr. Hitselberger ...