evidence that the agents refrained from asking Shah questions when it appeared to them that he was not fully alert. The fact that they allowed him to sleep does not exhibit coercive tactics on their part in the least.
Shah's lawyer also contends that his eyesight and hearing was so poor that he was unable to understand his rights and make a knowing and voluntary waiver of them. With regard to his eyesight, Dr. Nold testified that he suggested that Shah's contact lenses be removed at some point during the flight, however, he did not know whether they were actually removed. (Nold Tr. at 606). Agent Pellegrino testified that Shah's contact lenses were removed a few hours into the flight, but after Shah had read his rights and signed the waiver form. (Pellegrino Tr. at 638-39; 651).
Shah did not testify but to bolster his claims regarding his hearing loss, a report from an audiologist was admitted into evidence which states that Shah suffers from "very significant bilateral hearing loss." (Def. Shah Ex. E). Shah's lawyer also contends that Shah had a limited vocabulary and use of the English language as shown by a notation in his United States prison medical records which states that Shah responded to a question by a Physician Assistant "in very little English." (Def. Shah Ex. D, p. 3).
Logically, in a criminal prosecution, all the evidence compiled, which would assist the fact finder in reaching a conclusion as to the guilt or innocence of a defendant, should be available for the fact finder's consideration. The fact that an accused's post-arrest statement is allegedly the result of coercive conduct on the part of those charged with his custody does not erase the probative value of that statement. While the circumstances under which the statement was given certainly should be scrutinized by a fact finder to determine the amount of weight to give that particular piece of evidence, the circumstances under which statements are obtained are not dispositive of the inherent reliability of that statement. See Oregon v. Elstad, 470 U.S. 298, 312, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985) (absent unduly coercive circumstances, "little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder").
However, our criminal justice system, through the policies enunciated by the Supreme Court, has developed prophylactic measures whereby law enforcement officials are required, except in exigent circumstances, to warn a suspect in custody that he has certain rights, including, inter alia, the right to remain silent and the right to have an attorney present during questioning. The accused also is warned that anything he says, if he decides to waive those rights, could be used against him in a criminal prosecution. The accused may knowingly and voluntarily waive his rights and answer questions.
These measures deter law enforcement agents from obtaining custodial statements through unduly coercive means. Thus, statements which are found to have been given without the administration of proper warnings, and without obtaining a voluntary waiver of the rights contained in those warnings, are inadmissible in evidence at any subsequent trial of that defendant. See Colorado v. Connelly, 479 U.S. 157, 166, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986) ("The purpose of excluding evidence seized in violation of the Constitution is to substantially deter future violations of the Constitution") (citations omitted).
At a hearing to determine whether a court should suppress such statements, it is the government's burden to establish, by a preponderance of the evidence, that the accused understood the rights which were administered to him and that he knowingly and voluntarily waived those rights. Connelly, 479 U.S. 157 at 168, 93 L. Ed. 2d 473, 107 S. Ct. 515; Lego v. Twomey, 404 U.S. 477, 489, 30 L. Ed. 2d 618, 92 S. Ct. 619 (1972). In analyzing the admissibility of a statement and whether the defendant understood his rights and made a knowing and voluntary waiver of those rights, the court must consider whether, under "the totality of the circumstances", the accused knowingly and voluntarily waived his rights or was coerced into answering questions by means which would violate the accused's constitutional rights. Moran v. Burbine, 475 U.S. 412, 421, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1985).
Most foreign countries have a system of law entirely different from that which we enjoy in this country. Indeed, in some countries there is no presumption of innocence; there is no right to remain silent and a putative defendant is not entitled to counsel. This country certainly cannot impose our system of law and constitutional rights on foreign sovereign nations. Nor would we expect such a foreign government to impose its legal system on our proceedings. An extradition proceeding in this country follows our law and conversely we cannot expect our law to govern proceedings in foreign countries.
The rationale behind the policies set by the Supreme Court in Miranda and like cases just has no relevance to proceedings in a foreign country. The courts of this nation cannot enforce our constitutional guarantees as against foreign government officials acting in their own lands. The fact that the actions of these governmental officials occurred during extradition or expulsion to this country does not make the foreign officials agents of the United States.
In this case, each defendant after being taken into United States custody, signed a waiver of rights after being administered warnings by United States law enforcement agents, and, each defendant indicated they were willing to answer questions.
It must first be stated that a technical deficiency in the administration of Miranda warnings is not in and of itself a violation of the Fifth Amendment. Elstad, 470 U.S. at 306, n.1. As is well-established, "the . . . Miranda warnings are 'not themselves rights protected by the Constitution, but [are] instead measures designed to insure that the [suspect's] right against compulsory self-incrimination [is] protected.'" New York v. Quarles, 467 U.S. 649, 654, 81 L. Ed. 2d 550, 104 S. Ct. 2626 (1984), quoting Michigan v. Tucker, 417 U.S. 433, 444, 41 L. Ed. 2d 182, 94 S. Ct. 2357 (1974). This Circuit has recognized that "it is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period." United States v. Morales, 788 F.2d 883, 886 (2d Cir. 1985), citing Elstad, 470 U.S. at 309; but see United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991) ("A confession is not voluntary when obtained under circumstances that overbear the defendant's will at the time it is given.") The overall inquiry into whether a statement was voluntarily given, therefore, is to consider the totality of the circumstances of the interview to determine if the accused's will was somehow overborne by the agent's coercive conduct.
Yousef's Suppression Motion
Yousef argues that he was denied his Sixth Amendment right to an attorney during the questioning by the FBI agents, especially given that he was already indicted in the United States for the World Trade Center Bombing and that he had requested an attorney during his extradition proceeding in Pakistan. He also argues that the first Miranda warnings given by Agent Garrett in Pakistan were incomplete and defective, and therefore, the statement he gave to Agent Stern was tainted by the original defective Miranda warnings and taken in violation of the Fifth Amendment.
During the suppression hearing, but not in the papers submitted in support of his motion, Yousef also raised the argument that the Miranda warnings he received on board the plane were not sufficient since they did not contain a warning that whatever promises were made by the Pakistanis did not bind the United States. (Stern Cross-Examination at 197-98). The fact that Yousef's warnings did not include a disclaimer with regard to the promises made by a foreign government does not negate the sufficiency of the warning. Indeed, the Supreme Court has noted that requiring law enforcement personnel to adjust the standard Miranda warnings to address all the contingencies of a particular custodial situation is "neither practical nor constitutionally necessary." Oregon v. Elstad, 470 U.S. 298, 316, 84 L. Ed. 2d 222, 105 S. Ct. 1285.
I also reject the suggestion contained in Yousef's papers submitted in support of this motion that he did not sign the second waiver of rights form aboard the plane. (2/1/ 96 Br. at 7, n. 1). This assertion is not contained in Yousef's affidavit and has been sufficiently rebutted by the testimony of Agent Stern and the affidavit of Agent Garrett, both of whom witnessed Yousef read and sign the form. (Stern Tr. at 164; Garrett Aff. P 10).
While it is apparent that the original Miranda warnings administered by Agent Garrett lacked the warning that anything Yousef said could be used against him in court, I find that this deficiency was not so egregious so as to prevent admission of the statement taken by Agent Stern aboard the airplane. Yousef was fully advised of his rights prior to making the challenged statement, and he made a knowing and voluntary waiver of them.
The Supreme Court has held that "[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement," and thus, any statement made after the complete Miranda warning should be admissible. Elstad, 479 U.S. at 314. The admission of the subsequent, fully-warned statement depends on whether the original statement was voluntarily given and suffered only from a procedural defect or whether it was taken subject to coercive measures. A procedurally-defective warning can be cured by a complete administration of subsequent Miranda warnings. Id.
Therefore, if both of Yousef's statements were voluntarily given, the deficiency in the warnings surrounding the first statement will not preclude admission of the second. See Rollins v. Leonardo, 733 F. Supp. 763, 766 (S.D.N.Y. 1990) (on habeas corpus petition from state court conviction, federal district court held as proper the admission of a second voluntary statement given after administration of full Miranda warnings).
The "totality of the circumstances" test for whether a statement was voluntarily given consists of an inquiry into the characteristics of the accused, the conditions of the interrogation, and the conduct of the law enforcement officials. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); Green v. Scully, 850 F.2d 894, 901 (2d Cir.), cert. denied, 488 U.S. 945, 109 S. Ct. 374, 102 L. Ed. 2d 363 (1988). The relevant characteristics of the accused are his experience and background, including his education and intelligence. The conditions of the interrogation include the place and length of the interrogation. Facts bearing on the law enforcement agent's conduct include the repeated and prolonged nature of the interrogation, whether there was any physical abuse, the period of restraint, and whether any psychologically coercive tactics were used. See Rollins, 733 F. Supp. at 766, citing Green, 850 F.2d at 902.
With these factors in mind, I find that Defendant Yousef made a knowing and voluntary waiver of his rights after having been fully warned of them by Agent Stern aboard the plane. The fact that the first Miranda warnings given by Agent Garrett may have been technically deficient does not taint the subsequent freely-given waiver. The facts show that Yousef is highly-educated and exhibited a complete understanding of the seriousness of the charges pending against him. (Stern Tr. at 162; 166). The physical circumstances of the interrogation were not coercive, as Yousef was seated in a room separated from everyone aboard the plane except Agents Stern and Parr, and a Hostage Rescue Team member, who was responsible for his custody. (Stern Tr. at 161). The entire interrogation lasted six hours, but that included four breaks during which time Yousef was allowed to use the bathroom, eat and drink. (Stern Tr. at 167).
The conduct of the agents similarly did not create a coercive interrogation such that Yousef suffered a complete loss of free will, preventing him from making a voluntary waiver. There is not even a suggestion that any of the agents attempted to trick or otherwise coerce Yousef into giving a statement. Indeed, Yousef appears to have controlled the circumstances of the interview, as the agents complied with his demand that they refrain from taking contemporaneous notes while questioning him. (Stern Tr. at 164-65). No argument was even made that Agent Garrett's initial omission of the warning that anything Yousef said could be used against him was anything more than an inadvertent omission. (Garrett Tr. at 142-43; 154). Moreover, Agent Stern did not use any of the information elicited by Agent Garrett in his prior questioning of Yousef. (Stern Tr. at 164-64; 176).
There is no record of any physical or psychological threat made by any of the agents to induce Yousef's cooperation. Although Yousef was handcuffed and in leg chains during the entire period of his interrogation, his movement was not unduly restricted. (Stern Tr. at 192). The fact that Yousef was handcuffed does not by itself render the custody coercive. The questioning does not appear to have been unduly prolonged either, as the most extensive single period of questioning lasted only three hours, and break periods of up to six hours were provided. (Stern Tr. at 192). I hold that considering the totality of the circumstances involved, Yousef knowingly and voluntarily waived his right to remain silent and his right to have counsel present during questioning.
Yousef's argument that his post-indictment status somehow heightens his right to have counsel present during questioning regardless of any voluntary waiver is also meritless. While it is fundamental that an accused in custody has a right to have an attorney present during questioning by law enforcement officials, the fact that the accused is indicted does not heighten the right to an attorney. See Patterson v. Illinois, 487 U.S. 285, 296, 101 L. Ed. 2d 261, 108 S. Ct. 2389 (fact that defendant's Sixth Amendment right to counsel came into existence with his indictment did not preclude police from questioning defendant and did not preclude admission into evidence of uncounseled statements if defendant knowingly and intelligently waived right to counsel).
Yousef makes the additional argument that he in fact requested an attorney during the Pakistani extradition proceeding and therefore this request should have been extended to the entire period of his interrogation by United States law enforcement agents and should be considered as his invocation of his constitutional right to counsel. The courts in this circuit have long recognized that United States law enforcement agencies cannot be held responsible for the manner in which foreign governments act in extradition or expulsion proceedings of someone in their custody. As stated in United States v. Lira, 515 F.2d 68, 71 (2d Cir. 1975), United States law enforcement agencies "can hardly be expected to monitor the conduct of representatives of each foreign government to assure that a request for extradition or expulsion is carried out in accordance with American constitutional standards."
Indeed, as stated above, the purpose of the rule that any statement taken in violation of Miranda is inadmissible is to prevent and deter United States law enforcement personnel from taking involuntary statements that are the result of unduly coercive custodial circumstances. This rationale cannot be applied to foreign countries since the law enforcement agencies would not be affected by the application of the exlusionary rule by a United States Court. See United States v. Welch, 455 F.2d 211, 212 (2d Cir. 1972) (recognizing that the Miranda requirements have little if any deterrent effect upon foreign police). Any request that Yousef made of the Pakistani government prior to his surrender to United States officials, therefore, cannot be extended to require the United States officials to proceed as if the request was made of them. See Sahagian v. United States, 864 F.2d 509, 514 (7th Cir. 1988), cert. denied, 489 U.S. 1087, 103 L. Ed. 2d 852, 109 S. Ct. 1548 (1989) (United States courts cannot assume the responsibility of supervising the integrity of the judicial system of another sovereign nation, even when a person claims to have been denied constitutional rights in a foreign extradition proceeding).
Once in the custody of the United States, Yousef never requested an attorney or asked to halt the questioning until one was provided to him. (Stern Tr. at 167). Such a request for an attorney would be the only one that United States law enforcement agents are required to grant in the circumstances presented here.
Murad's Suppression Motion
Murad argues that he did not understand the rights which were read to him and did not understand the rights forms which he signed. From the testimony of Agents Donlon and Pellegrino, and the Arabic interpreter, I hold that a careful and thorough Miranda warning was given and that Murad was knowledgeable of his rights and made a knowing and voluntary waiver of them. Murad understood English, the rights were complete, and the agents even added the warning that nothing said or promised to him by the Philippine authorities in any way bound the United States. (Snell Aff. Ex. B).
At the heart of Murad's motion for suppression is his conclusion that the statement given to United States law enforcement officials was the result of the continued effects of alleged mistreatment suffered while in the custody of Philippines law enforcement officials. Murad argues that the allegedly coercive nature of his custody in the Philippines was somehow imputed onto the United States law enforcement agents, and his waiver of his rights was not voluntarily given. Murad argues that "three months of threats, torture, denial of proper sustenance, and fear at the hands of the Philippine interrogators and the knowledge that he had already confessed, influenced the defendant in such a manner so that he could not have made a conscious and deliberate choice when asked to waive his rights after leaving the Philippines." (Br. at 4-5). Nowhere does Murad complain about his treatment by United States law enforcement agents during the time his Miranda rights were given to him and he signed the waiver. (See Dr. Hegarty Report, Ct.'s Ex. 2001 at 13: "He acknowledged that neither of the agents threatened him in any way.")
It is clear to me that the Philippine authorities who held Murad in custody were not acting as agents of the United States. Thus, I must consider only whether the circumstances of Murad's interview by the FBI agents aboard the plane were of such a coercive nature that Murad's will was overborne by the conduct of the agents and his waiver was therefore involuntary.
The "totality of the circumstances" review is an objective one in which I must consider "the accused's characteristics, the conditions of the interrogation, and the conduct of law enforcement officials." Anderson, 929 F.2d at 99, citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); Green v. Scully, 850 F.2d 894, 901-02 (2d Cir.), cert. denied, 488 U.S. 945, 109 S. Ct. 374, 102 L. Ed. 2d 363 (1988). No matter what characteristics an accused may display at a particular point in custody, if there is an absence of unduly coercive conduct on the part of the law enforcement officials involved in administering the Miranda warnings and obtaining a waiver of the rights contained therein, I cannot find that the interrogation was so tainted as to require suppression of the custodial statement. As stated by the Court in Elstad, the Fifth Amendment is not "concerned with moral and psychological pressures to confess emanating from sources other than official coercion." Elstad, 470 U.S. at 304 (citations omitted).
Even if I were to accept Dr. Hegarty's assessment that Murad suffered from post-traumatic stress disorder at the time the statement was made (which I do not); Murad's psychological state at the time the statement was given, without a showing of official coercion, does not dispose of the question of voluntariness. See Connelly, 479 U.S. at 162 (". . . a defendant's mental condition, by itself and apart from its relation to official coercion, should never dispose of the inquiry into constitutional "voluntariness".) There is absolutely no allegation that the FBI agents who questioned Murad in any way threatened, coerced, or tricked him into giving a statement. The circumstances of the questioning were not unduly coercive. I find that Murad understood his rights and made a knowing and voluntary waiver of them.
Shah's Suppression Motion
Shah argues that he did not understand English well enough to waive his rights when he was first in custody of United States officials. To support this he merely points to an entry in the medical log maintained at the Metropolitan Correction Center in this district which states: "Very little English." (Hearing Tr. At 720; Khan Ex. D). While it is quite common for a foreign born person, whose mother tongue is not English to have difficulty in discussing even common medical terms, that does not mean that such a person in any way is unable to carry on every-day conversation or discuss the rights he has under our system of law. The rights given by Agent Pellegrino to Shah are not difficult to understand. Unusual or difficult words were not included. And of prime import, Shah did indicate to Agent Pellegrino when he was having difficulty in understanding. Shah's arguments that he was unable to hear the reading of his rights particularly because of the engine noise and that he was unable to read the paper he signed must be rejected.
I find that Detective Besheer gave a truthful summary of what happened when Shah was surrendered to United States officials. Specifically, his testimony proves:
. . . after we had informed Mr. Shah as to why we were there and where he was going and for what reason, Special Agent Pellegrino took this form, informed Mr. Shah that he was going to give him his rights, and he proceeded to read each paragraph slowly and deliberately and waited for Mr. Shah to either answer or he would read the paragraph a second time, and he made sure he understood because once he completed reading the paragraph he would ask him if he understood the right.
Q. How did Mr. Shah respond each time he was asked whether he understood what had just been read to him?
A. He understood the rights, he responded with an affirmative answer when he was given his rights.
On a couple of them, and I cant remember which ones they were, which paragraph, he leaned further forward and he like twisted his head slightly and said, "What," and Agent Pellegrino repeated that particular paragraph for him.