Zion Clarke v. Lynch , 800 F.3d 570 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 4, 2014 Decided September 1, 2015
No. 11-3054
UNITED STATES OF AMERICA,
APPELLEE
v.
ANDERSON STRAKER, ALSO KNOWN AS GYPSY’S SON, ALSO
KNOWN AS ANDY,
APPELLANT
Consolidated with 11-3055, 11-3056, 11-3057, 11-3058,
11-3059, 11-3061
Appeals from the United States District Court
for the District of Columbia
(No. 1:06-cr-00102)
No. 11-5124
ZION CLARKE, ET AL.,
APPELLANTS
v.
2
LORETTA E. LYNCH, ATTORNEY GENERAL, U.S. DEPARTMENT
OF JUSTICE AND VINCENT H. COHEN JR., ACTING UNITED
STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00753)
Victoria Killion, Charles B. Wayne, Andrew M. Treaster,
Jonathan S. Zucker, Paul S. Rosenzweig, Steven R. Kiersh, and
Andrew Macurdy, appointed by the court, argued the causes for
appellants. With them on the briefs were Justin S.
Antonipillai, Leeann R. Morentz, Jeffrey B. O=Toole,
Christopher S. Rhee, Jocelyn A. Wiesner, and Pleasant S.
Brodnax III, appointed by the court. Lisa S. Blatt entered an
appearance.
David B. Goodhand and W. Mark Nebeker, Assistant U.S.
Attorneys, argued the causes for appellees. With them on the
brief were Ronald C. Machen Jr., U.S. Attorney, Bruce R.
Hegyi, Trial Attorney, U.S. Department of Justice, and R.
Craig Lawrence, Elizabeth Trosman, and Elizabeth H.
Danello, Assistant U.S. Attorneys.
Before: TATEL, MILLETT and PILLARD, Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: The Hostage Taking Act, 18 U.S.C. § 1203,
prescribes criminal penalties for foreign nationals who abduct
American citizens. In this case, nationals of the Republic of
3
Trinidad and Tobago abducted wealthy individuals, held them
captive in the island’s mountainous forests, and extorted
ransoms from terrified family and friends. The scheme
proved quite profitable—at least until they kidnapped an
American citizen and ran headlong into the Hostage Taking
Act. The conspirators were extradited to the United States,
tried, and convicted of violating the Act. But does that statute
apply if, as defendants allege, the victim secured his United
States citizenship through fraud? The district court held that it
does, and for the reasons set forth in this opinion, we agree.
Rejecting all of the conspirators’ other challenges, we affirm
their convictions in all respects.
I.
By early 2005, defendants Wayne Pierre, Ricardo De
Four, and Zion Clarke had perfected their hostage-taking
protocol and regularly extorted six-figure ransoms
(Trinidadian dollars). Looking to up the ante, the three
enlarged their organization to include defendants Kevon
Demerieux, Kevin Nixon, Christopher Sealey, and Anderson
Straker, and set their sights on Trinidad-native Balram
Maharaj, whom they believed had amassed a fortune in the
United States. Although naturalized as an American citizen in
1995, Maharaj frequently visited his children in Trinidad.
Defendants, assisted by a host of unindicted co-conspirators,
planned to abduct Maharaj during one of those visits.
On the night of April 6, 2005, defendants executed their
plan. Sealey and Nixon, armed with handguns, dragged
Maharaj from Samaan Tree Bar in Aranguez, Trinidad and
forced him into a getaway car while De Four drove ahead in a
separate vehicle to clear the way. Sealey and Nixon delivered
Maharaj to an isolated camp deep within the forest where
Clarke and Demerieux guarded him. A nightmare ensued.
4
The two guards tied Maharaj to a post and gave him little
food and water. Suffering from severe diabetes, hypertension,
and tuberculosis, Maharaj pleaded for medication. Clarke and
Demerieux ignored his pleas while their co-conspirator,
Winston Gittens, used Maharaj’s worsening health as leverage
to demand three million Trinidadian dollars from his family.
Bound and gagged, Maharaj repeatedly refused defendants’
attempts to record a “proof of life” video, even when Straker
threatened to harm Maharaj’s son. After six days in captivity,
Maharaj slipped into a diabetic coma and died.
Well aware that they had killed a United States citizen,
defendants voted to conceal their crime. “No body, no
evidence, no case,” proclaimed Pierre. Using a machete and
their bare hands, Clarke, Demerieux, and Pierre removed
Maharaj’s internal organs and dismembered his body. They
packed the remains in Styrofoam containers and buried them in
the woods. As with most buried secrets, however,
defendants’ misdeeds eventually surfaced.
In late 2005, the Trinidad and Tobago Police Service
began an investigation of defendants’ hostage-taking ring.
Assisted by the FBI, Trinidadian police ultimately uncovered
evidence of Maharaj’s death. The United States extradited
defendants and charged them with conspiracy and
hostage-taking resulting in death in violation of the Hostage
Taking Act. The facts and circumstances surrounding the
kidnapping are largely undisputed—indeed, five of the seven
defendants confessed. Defendants primarily argue that
Maharaj misrepresented key facts on his immigration
applications, thus negating his United States citizenship—an
essential element of a Hostage Taking Act prosecution. The
district court rejected this argument, as well as numerous other
objections. After a ten-week trial, the jury convicted
5
defendants of all charges, and the district court sentenced them
to life imprisonment without the possibility of release.
Defendants now appeal their convictions on numerous
grounds. We address the arguments pertaining to Maharaj’s
citizenship in Part II and then consider defendants’ other
arguments in Parts III through XI.
II.
Enacted to fulfill the United States’ obligations under the
International Convention Against the Taking of Hostages, the
Hostage Taking Act, 18 U.S.C. § 1203, makes extraterritorial
hostage-taking a criminal offense when the victim is a United
States national. On appeal, it is undisputed that at the time of
his death Balram Maharaj possessed an authentic certificate of
naturalization.
Before trial, however, defendants uncovered evidence
they claim demonstrates that Maharaj obtained his
naturalization through fraud. According to this evidence,
Maharaj, formerly Aladdin Barlow John, first entered the
United States in 1967 as a non-immigrant transit en route to
Canada. Following a short visit there, Maharaj returned to the
United States, briefly settling in New York before enlisting in
the Army in 1968. He deserted seven months later. In order
to avoid prosecution for desertion, Maharaj completed a
clemency program and was ultimately discharged from the
Army as undesirable.
In April 1986, the Immigration and Naturalization Service
(INS), having discovered that Maharaj had overstayed his 1967
transitory permit, ordered him to leave the United States. But
instead of leaving, he petitioned INS for permanent-resident
alien status, also known as a green card. Asked on his green
6
card application whether he had ever been convicted of a crime
involving moral turpitude, Maharaj checked “no” even though,
defendants claim, he had once pleaded guilty to petty larceny
and was on probation. Maharaj also checked “no” when
asked whether he had ever suffered an “attack of insanity,”
narcotic drug addiction, or chronic alcoholism, even though his
ex-wife would years later attest in an unrelated proceeding that
he had previously spent time in a mental-health facility,
attempted suicide, and chronically abused alcohol and
prescription drugs. INS granted Maharaj’s petition.
After maintaining permanent-resident status for five years,
Maharaj applied for full naturalization in 1994. On the
application, Maharaj checked “no” when asked whether he had
ever been ordered deported. And when asked whether he had
ever knowingly committed a crime for which he had not been
arrested, he checked “no” even though his ex-wife had testified
that he once physically assaulted and raped her. INS granted
Maharaj citizenship in 1995.
The question whether Maharaj’s misrepresentations
negated his citizenship and, in turn, defendants’ guilt, was the
most contested issue throughout the proceedings in the district
court. Defendants first raised the issue in a motion to dismiss
the indictment, arguing that because conviction under the
Hostage Taking Act requires U.S. citizenship and because
Maharaj’s fraud negated his citizenship, the district court
lacked jurisdiction. The district court disagreed. Citing a
long and unbroken line of Supreme Court precedent, see, e.g.,
United States v. Zucca, 351 U.S. 91, 95 & n.8 (1956); see also
Bindczyck v. Finucane, 342 U.S. 76, 83 (1951), the district
court held that 8 U.S.C. § 1451, which permits the United
States Attorney to institute denaturalization proceedings in a
federal district court, is the exclusive procedure for voiding the
citizenship of a person naturalized due to fraud. United States
7
v. Clarke, 628 F. Supp. 2d 1, 9 (D.D.C. 2009). Citizenship,
the court held, remains valid until a district court, acting upon a
United States Attorney’s section 1451 motion, determines that
naturalization was “procured by concealment of a material fact
or fraud.” Id. at 6 (quoting 8 U.S.C. § 1451(a)). Given that
no district court had ever made such a finding as to Maharaj,
the court denied the motion. Clarke, 628 F. Supp. 2d at 10.
The district court also granted the government’s motion in
limine to exclude from trial any evidence regarding Maharaj’s
alleged fraud. Id. at 13. Conviction under the Hostage
Taking Act, the court held, requires the government to prove
that the victim acquired citizenship by birth or naturalization.
Id. at 13. Evidence disputing whether the victim should have
been naturalized or the circumstances surrounding
naturalization is irrelevant. Id. The court therefore rejected
defendants’ argument that they had a Sixth Amendment right
to present evidence regarding Maharaj’s alleged fraud to the
jury. Id. at 14. “[T]he jury,” the district court concluded,
“may not decide the validity of Maharaj’s citizenship.” Id. at
13.
At trial, the government offered Maharaj’s certificate of
naturalization and two passports as evidence of his citizenship.
An employee of the U.S. Citizenship and Immigration Service
testified that INS issued the certificate of naturalization in
1995. A State Department Fraud Program Manager testified
that Maharaj’s two passports, issued in 1995 and 2000, were
authentic. On cross examination, however, defense counsel
pointed out that Maharaj’s 1995 passport was unsigned and, as
the witness conceded, invalid. See 22 C.F.R. § 51.4(a) (“A
passport book is valid only when signed by the bearer in the
space designated for signature[.]”). The district court struck
the 1995 passport from evidence and ruled that challenges to
the authenticity of the 2000 passport, issued solely on the basis
8
of the stricken 1995 passport, were fair game. In sum, then,
the district court permitted defendants to argue that the
citizenship documents were inauthentic, i.e., forged or
counterfeit, but barred them from collaterally attacking INS’s
decision to naturalize Maharaj.
In its final instructions, the district court reminded the jury
that the victim’s citizenship was an essential element of the
crime that the government must prove beyond a reasonable
doubt. The 2000 passport and the naturalization certificate,
the court instructed, may be considered as evidence of
citizenship. In closing arguments, defense counsel pressed
this point, claiming that the invalidity of the 1995 passport
called into question the authenticity of the 2000 passport, as
well as the naturalization certificate.
After the jury returned a guilty verdict, defendants,
reiterating their earlier arguments, moved for a judgment of
acquittal, or alternatively a new trial. Relying on its prior
reasoning, the district court denied the motion. United States
v. Clarke, 767 F. Supp. 2d 12, 65 (D.D.C. 2011).
The criminal trial was not the only forum in which
defendants challenged Maharaj’s citizenship. Prior to trial,
defendants submitted affidavits to the United States Attorney
for the District of Columbia detailing Maharaj’s alleged fraud
and requesting initiation of section 1451 proceedings. When
the U.S. Attorney took no action, defendants petitioned the
district court for a writ of mandamus requiring the U.S.
Attorney to initiate denaturalization proceedings. The
government moved to dismiss pursuant to Federal Rules of
Civil Procedure 12(b)(1) for lack of jurisdiction and 12(b)(6)
for failure to state a claim. The district court granted the Rule
12(b)(1) motion, finding that defendants lacked constitutional
standing because they failed to demonstrate that their requested
9
remedy—initiation of section 1451 proceedings—would
redress their claimed injury, i.e., denial of the right to present
evidence in the criminal trial. It is “wholly speculative,” the
court concluded, whether the U.S. Attorney could meet the
high burden of proof necessary to denaturalize Maharaj,
“especially in light of evidentiary problems that may arise so
long after Maharaj’s death and his inability to defend himself.”
Clarke v. Holder, 767 F. Supp. 2d 106, 109 (D.D.C. 2011).
Alternatively, the district court found that even if defendants
could establish standing, they failed to meet the threshold
requirements for mandamus relief because the U.S. Attorney
had no clear duty to seek posthumous denaturalization of
Maharaj. Id. at 112–13.
On appeal, defendants argue that the district court lacked
jurisdiction under the Hostage Taking Act and erred in
excluding evidence contesting the validity of Maharaj’s
naturalization. Defendants also appeal the district court’s
denial of their petition for a writ of mandamus. We address
each issue in turn.
The Criminal Conviction
Defendants argue that “[s]ubject matter jurisdiction . . .
hinges entirely on Mr. Maharaj’s citizenship.” Def. Br. 12.
This, however, misapprehends the nature of federal court
jurisdiction in criminal cases. A claim that an element of the
offense is unsatisfied—that the victim was not a United States
citizen, for example—goes only to a defendant’s guilt or
innocence. In other words, jurisdiction hinges not on the
merits, but rather on the court’s constitutional or statutory
power to adjudicate the case. Lamar v. United States, 240
U.S. 60, 64 (1916) (“Jurisdiction is a matter of power, and
covers wrong as well as right decisions.”). Under 18 U.S.C.
§ 3231, federal district courts possess statutory authority over
10
“all offenses against the laws of the United States.” Because
violation of the Hostage Taking Act is an offense against the
laws of the United States, our jurisdictional inquiry ends and
we turn to the merits of defendants’ appeal. United States v.
Fahnbulleh, 752 F.3d 470, 476 (D.C. Cir. 2014) (“If an
indictment or information alleges the violation of a crime set
out in Title 18 or in one of the other statutes defining federal
crimes, that is the end of the jurisdictional inquiry.”) (internal
quotation marks omitted).
Defendants make two arguments. They first claim that
the district court’s exclusion of evidence regarding Maharaj’s
alleged fraud violated their constitutional right to present a
complete defense. They also argue that the district court
removed the citizenship question from the jury, thus relieving
the government of its burden to prove Maharaj’s citizenship
beyond a reasonable doubt.
With respect to both arguments, our starting point is the
text of the Hostage Taking Act. Section 1203(b)(1)(A)
criminalizes hostage-taking that occurs outside the United
States if “the person seized or detained is a national of the
United States.” A “national of the United States” is, in turn,
defined by reference to the Immigration and Nationality Act as
“a citizen of the United States.” 18 U.S.C. § 1203(c); 8 U.S.C.
§ 1101(a)(22). By its plain language, then, section 1203
broadly protects United States citizens. The statute imposes
no restriction on this protection. It does not, for example,
exclude citizens who, in retrospect, are unworthy of the honor.
Nor does it exclude persons whose citizenship might at some
later time be invalidated. In other words, section 1203
protects victims according to their status at the time of the
hostage-taking.
11
True, section 1203 is written in the present tense—the
statute applies if “the person seized or detained is a national of
the United States.” But that clause appears in a criminal
statute that requires examination of past events—whether the
victim was seized or detained. See Cullen v. Pinholster, 131
S. Ct. 1388, 1398 (2011) (use of backward-looking language
such as “resulted in” and “involved” in federal habeas statute,
28 U.S.C. § 2254(d), requires examination of the state-court
decision at the time it was made). A more familiar statute, the
Armed Career Criminal Act, provides a helpful parallel. The
ACCA imposes a sentence enhancement if the defendant “has
three previous convictions . . . for . . . serious drug offense[s]”
for which “a maximum term of imprisonment of ten years or
more is prescribed by law.” 18 U.S.C. § 924(e) (emphasis
added). As the Supreme Court has explained, “[t]he plain text
of ACCA” therefore “requires the court to determine whether a
‘previous conviction’ was for a serious drug offense.” McNeill
v. United States, 131 S. Ct. 2218, 2221–22 (2011) (emphases
added). To answer that “backward-looking question,” the
Court held that the sentencing court must “consult the law that
applied at the time of that conviction.” Id. at 2222. So too
here. Determining whether an American citizen was seized or
detained under the Hostage Taking Act requires examination
of the victim’s status at the time of the abduction.
This focus on status at the time of the crime is hardly
unusual. For instance, convictions under the federal statute
that bars felons from possessing firearms rest solely upon the
fact of the prior felony. Lewis v. United States, 445 U.S. 55,
62–65 (1980). The validity of the prior conviction is
irrelevant even when that conviction is patently
unconstitutional. Id.; see also Custis v. United States, 511
U.S. 485, 493–97 (1994) (defendants in federal sentencing
proceedings may not, with a narrow exception for certain
convictions obtained in violation of the right to counsel,
12
challenge the validity of prior state convictions used to
enhance sentences under the Armed Career Criminal Act).
Likewise, defendants accused of providing material support to
designated foreign terrorist organizations in violation of 18
U.S.C. § 2339B may not challenge the validity of the
designation. United States v. Hammoud, 381 F.3d 316, 331
(4th Cir. 2004) (en banc) (“Congress has provided that the fact
of an organization’s designation as an FTO is an element of
§ 2339B, but the validity of the designation is not.”), rev’d on
other grounds, 543 U.S. 1097 (2005); see also United States v.
Mandel, 914 F.2d 1215, 1222 (9th Cir. 1990) (defendants
charged with illegally exporting items on the Secretary of
Commerce’s Commodity Control List may not challenge the
validity of the Secretary’s designation).
Finally, our interpretation of the Hostage Taking Act
reinforces its purpose. When President Reagan proposed the
bill that ultimately became the Act, he declared that it would
“send a strong and vigorous message to friend and foe alike
that the United States will not tolerate terrorist activity against
its citizens[.]” President’s Message to the Congress
Transmitting Proposed Legislation to Combat International
Terrorism, Pub. Papers, Admin. of Ronald Reagan 3–4 (Apr.
26, 1984). This “strong and vigorous message” would be
severely diluted if foreign nationals could target American
citizens for abduction and then avoid prosecution in the United
States by impugning the victim’s character. This is especially
true where, as here, defendants targeted the victim not only
because he was an American, but also because he had assets in
the United States. Permitting them to escape prosecution by
arguing that Maharaj was undeserving of United States
citizenship would weaken the protection Congress intended to
extend to Americans abroad.
13
For all of these reasons, the district court properly
excluded evidence of Maharaj’s alleged fraud as irrelevant.
Congress has vested sole naturalization authority in the
Attorney General, 8 U.S.C. § 1421(a), and a certificate of
naturalization represents conclusive evidence of the Attorney
General’s determination, Tutun v. United States, 270 U.S. 568,
577 (1926); 8 U.S.C. § 1443(e). As explained above, whether
the Attorney General, acting through INS, should have issued a
certificate to Maharaj—as opposed to whether the certificate
was itself authentic—is irrelevant under the Hostage Taking
Act.
The Mandamus Proceedings
This brings us to defendants’ appeal of the district court’s
denial of their petition for a writ of mandamus requiring the
United States Attorney to initiate posthumous denaturalization
proceedings against Maharaj under 8 U.S.C. § 1451. Recall
that the district court denied the petition on the grounds that
defendants lacked standing and, alternatively, that they failed
to meet the requirements for mandamus relief. Clarke v.
Holder, 767 F. Supp. 2d 106, 116 (D.D.C. 2011). Because we
agree with the former ruling, we need not address the latter.
In order to have Article III standing to bring their
mandamus action, defendants must prove that they suffered (1)
an “injury in fact” that is (2) “fairly . . . traceable to the
challenged action,” and that is (3) likely to be “redressed by a
favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61 (1992) (internal quotation marks omitted). The
district court found that defendants failed to establish the third
element, redressability, i.e., “a substantial likelihood that the
relief requested will redress the injury claimed.” Duke Power
Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 75 n.20
(1978) (internal quotation marks omitted). Reviewing
14
defendants’ evidence, the district court thought it “wholly
speculative” whether the government could meet section
1451’s burden of proving fraud by “clear, unequivocal, and
convincing evidence.” Clarke, 767 F. Supp. 2d at 109, 112
(quoting Fedorenko v. United States, 449 U.S. 490, 505
(1981)). Given this, defendants’ alleged “injury—their
hostage taking convictions—is not redressable by an order
directing [the government] to initiate [a section 1451]
proceeding.” Clarke, 767 F. Supp. 2d at 109.
Defendants challenge the district court’s conclusion on
two grounds. First, they claim that their “injury is the lack of
opportunity to present a defense,” which is “necessarily . . .
redressed if the Government is compelled to bring a § 1451
hearing against Mr. Maharaj.” Def. Mandamus Br. 9.
Second, they argue that the district court’s evidentiary rulings
in the criminal trial, together with its dismissal of their
mandamus petition, ensnare them in a catch-22: defendants
“could not show the citizenship evidence at trial because the
district court had ruled that a Government-initiated § 1451
proceeding was the exclusive avenue for presenting such
evidence, but they could not present the evidence in a § 1451
proceeding because the district court would not allow them to
challenge the Government’s inaction.” Id. at 8.
Both arguments are foreclosed by the conclusion we
reached in the previous section, i.e., that conviction under the
Hostage Taking Act depends upon the victim’s citizenship at
the time of the crime. Balram Maharaj possessed American
citizenship when defendants abducted him in 2005. Whatever
happens now is irrelevant. In other words, even if the
government were to strip Maharaj of his United States
citizenship under section 1451, defendants’ convictions would
stand because Maharaj possessed a valid naturalization
certificate at the time of the crime. Defendants’ alleged injury
15
is therefore incapable of redress not because the outcome of the
section 1451 proceeding is too speculative (as the district court
found), but because the outcome of those proceedings could
not possibly affect defendants’ right to present a full defense to
a charge under the Hostage Taking Act.
We reach this conclusion despite section 1451’s
relation-back provision, which provides that denaturalization
on account of fraud “shall be effective as of the original date of
the [naturalization] order and certificate.” 8 U.S.C. § 1451(a).
Based on this provision and pre-section 1451 case law
espousing the relation-back principle, defendants argue that
denaturalization on account of Maharaj’s fraud would
retroactively void his naturalization, meaning that he never
possessed citizenship and thus was not a national under the
Hostage Taking Act. Def. Mandamus Br. 11 n.8.
The Supreme Court, however, has rejected mechanical
application of section 1451’s relation-back principle.
Costello v. Immigration and Naturalization Service, 376 U.S.
120, 130 (1964). In Costello, the Court examined section
1451’s language and legislative history to determine whether
the provision applied to the “general deportation provisions” of
the Immigration and Nationality Act. Id. at 129. The Court
concluded that Congress intended the relation-back provision
simply to codify pre-existing case law that retroactively voided
fraudulently-acquired naturalization for the purpose of
determining derivative citizenship, i.e., citizenship conveyed
to children through the naturalization of one or both parents.
Id. Calling relation-back a “legal fiction,” the Court refused,
absent express congressional command, to extend that fiction
to require deportation of a denaturalized individual on the
theory that crimes committed prior to his denaturalization
rendered him an alien despite possession of a then-valid
naturalization certificate. Id. at 130, 132.
16
Likewise, nothing in the text or legislative history of
section 1451—or the Hostage Taking Act—suggests that
Congress intended the relation-back doctrine to apply in a
criminal prosecution. Indeed, as explained above, applying
the doctrine in this context would weaken the purpose of the
Hostage Taking Act. See supra at 11. We therefore decline,
as did the Supreme Court in Costello, to extend the legal fiction
of relation-back into the realm of criminal law. See Costello,
376 U.S. at 130.
III.
Objections to Introduction of Evidence of Other Crimes
Defendants challenge the district court’s admission, over
their repeated objections, of evidence of three other, uncharged
hostage takings that occurred within four months of the
Maharaj hostage taking. 1 We conclude that the district court
did not err in admitting that evidence. It was relevant under
Rule 404(b) as background showing how the conspiracy
1
All defendants, with the exception of Straker, state in a footnote in
their brief their intention to join this argument. Def. Br. 29 n.9.
While adoption by reference pursuant to Federal Rule of Appellate
Procedure 28(i) may streamline the appeal of common legal issues, it
threatens to confuse those issues that litigants do not share. See
United States v. Renteria, 720 F.3d 1245, 1251 (10th Cir. 2013),
cert. denied, 134 S. Ct. 969 (2014); United States v. Santana-Pérez,
619 F.3d 117, 122 (1st Cir. 2010). The evidence of other crimes
was admitted only against Pierre, De Four, and Clarke. The
remaining defendants, against whom the evidence was not admitted,
fail to articulate how it affected their rights. Any potential prejudice
to them of being tried jointly with the defendants against whom the
prior-crimes evidence was admitted is addressed in connection with
objections that certain defendants’ trials should have been severed.
17
formed and certain defendants’ intent. Given the care the
district court took to limit and focus the evidentiary
presentation, its prejudicial potential did not outweigh its
probative value under Rule 403.
A.
Before trial, the government submitted a notice of its
intent to introduce evidence that some of the defendants
participated in uncharged hostage takings. The district court
admitted the evidence as relevant to issues other than the
defendants’ bad character—namely “the background of the
conspiracy and how the relationships between the participants
developed, as well as defendants’ motive, intent, knowledge,
preparation, and plan.” United States v. Straker, 567 F. Supp.
2d 174, 178–79 (D.D.C. 2008). The evidence was strongly
probative, in the district court’s view, and thus its value was
not substantially outweighed by the “fairly low” danger of
unfair prejudice. Id. at 179.
The district court restricted the government’s presentation
of the “other crimes” evidence in order to avoid “unnecessary
presentation of cumulative evidence and to minimize the
danger of unfair prejudice.” Id. The district court precluded
the government from introducing any evidence concerning the
Gopaul hostage taking—an offense in which the hostage takers
apparently killed the victim after they received an
unsatisfactory ransom offer—because that evidence presented
“the most likely case for some degree of unfair prejudice.” Id.
Additionally, the court permitted the government to introduce
only three of the four other uncharged hostage takings the
government identified, id.; see also J.A. 961–62, and limited
the testimony on those to three hours each. J.A. 3171–72.
The government accordingly introduced at trial evidence
that defendants Pierre and De Four participated in three of the
18
uncharged hostage takings, and that defendant Clarke
participated in two of them. The evidence came in through
the testimony of the four cooperating co-conspirators and six
additional witnesses, including the victim of one hostage
taking and Trinidadian law enforcement officials involved in
investigating the other hostage takings. The district court
gave limiting instructions to the jury periodically during the
trial, informing it that the evidence of other hostage takings
was admissible only against the specific defendants the jury
found were involved in them and explaining the purposes for
which the evidence could, and could not, be considered. See
Clarke, 767 F. Supp. 2d at 27–28.
B.
On appeal, defendants argue that the district court’s
admission of evidence of the three uncharged hostage takings
violated Rule 404(b) because it was not admitted for any of the
valid purposes enumerated in that Rule, but impermissibly to
show their bad characters and propensity to commit the
charged crimes. The evidence’s probative value was
substantially outweighed by its unfair prejudicial effect, they
assert, and was presented in a confusing and prejudicial
manner, so should have been excluded under Rule 403.
The evidentiary limitation in Rule 404(b) implements the
fundamental tenet of our criminal justice system that
defendants may be convicted only for violating the law, not for
being bad people. United States v. Sutton, 801 F.2d 1346,
1360 (D.C. Cir. 1986). The Rule prohibits the admission of
evidence of a crime, wrong, or other bad act “when offered for
the purpose of proving that a defendant acted in conformity
with his character, but allows admission so long as the
evidence is offered for any other relevant purpose.” United
States v. Lawson, 410 F.3d 735, 741 (D.C. Cir. 2005); United
19
States v. Bowie, 232 F.3d 923, 930 (D.C. Cir. 2000); see also
Fed. R. Evid. 404(b)(1). Relevant, non-propensity purposes
include “proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2).
Even if a court determines that the prosecution’s
other-crimes evidence is relevant to an issue apart from
propensity, the evidence may nonetheless be excluded under
Rule 403 if its “probative value is substantially outweighed by
a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403; Bowie,
232 F.3d at 930. Even if it is concededly relevant, unduly
prejudicial evidence may be excluded to prevent jurors from
impermissibly relying on biases, dislikes, or the emotional
impact of the evidence, for example by drawing on
assumptions about a defendant’s bad character, rather than
proof of the criminal conduct charged. The Rule’s
requirement that the danger of unfair prejudice substantially
outweigh probative value calls on us, in close cases, to lean
towards admitting evidence. United States v. Douglas, 482
F.3d 591, 600 (D.C. Cir. 2007); United States v. Manner, 887
F.2d 317, 322 (D.C. Cir. 1989).
We review a district court’s admission of other-crimes
evidence for abuse of discretion, United States v. Mathis, 216
F.3d 18, 25–26 (D.C. Cir. 2000), according “substantial
deference” to the district court, Lawson, 410 F.3d at 741; see
also United States v. Long, 328 F.3d 655, 660 (D.C. Cir. 2003).
We review Rule 403 balancing decisions “only for grave
20
abuse.” Douglas, 482 F.3d at 596 (internal quotation marks
omitted). 2
1.
The district court did not abuse its discretion in concluding
that evidence of particular defendants’ involvement in
uncharged hostage takings was relevant to both how those
defendants started to work together as kidnappers, and their
motive and intent to kidnap wealthy civilians to extort ransom
money. “In a conspiracy prosecution, the government is
usually allowed considerable leeway in offering evidence of
other offenses” to, for example “inform the jury of the
background of the conspiracy charged” or “help explain to the
jury how the illegal relationship between the participants in the
crime developed.” Mathis, 216 F.3d at 26 (internal quotation
marks omitted); see Manner, 887 F.2d at 322. Evidence that
defendants jointly engaged in other criminal activity can be
relevant to shed light on how the “relationship of mutual trust”
developed between those individuals. See United States v.
Escobar-de Jesús, 187 F.3d 148, 169 (1st Cir. 1999)
(collecting cases). The district court admitted the
other-crimes evidence as tending to show that a criminal
relationship formed between Pierre, De Four, Clarke, and the
cooperating co-conspirators during other, uncharged hostage
takings. That prior criminal relationship helped to explain
how Pierre, De Four, and Clarke knew they could rely on one
2
“[T]he principles governing what is commonly referred to as
other crimes evidence are the same whether the conduct occurs
before or after the offense charged.” United States v. Latney, 108
F.3d 1446, 1450 (D.C. Cir. 1997) (internal quotation marks omitted).
It makes no difference, therefore, that two of the uncharged hostage
takings occurred before the Maharaj hostage taking and that one
occurred after.
21
another during the Maharaj hostage taking. The district court
did not impermissibly admit evidence of the uncharged hostage
takings merely to allow the government to provide the jury
with general background information that completed the
prosecutor’s narrative, see Bowie, 232 F.3d at 929, but rather
admitted it as tending to establish how the defendants in this
case formed the Maharaj hostage-taking conspiracy.
The uncharged hostage takings were also relevant to
establish the defendants’ state of mind. Information showing
that Pierre, De Four, and Clarke had worked closely before on
very similar hostage takings helped to dispel any doubt as to
whether they knowingly and intentionally joined together to
carry out these crimes in order to extract significant ransoms.
Intent, knowledge, and motive are “well-established
non-propensity purposes for admitting evidence of prior
crimes or acts.” Bowie, 232 F.3d at 930; see also Fed. R.
Evid. 404(b)(2). As we have previously observed, evidence
relevant to intent and motive “is particularly probative where
the government has alleged conspiracy.” Mathis, 216 F.3d at
26 (internal quotation marks omitted). To prove conspiracy to
commit hostage taking, the government was required to
establish that the conspiracy was knowingly formed and that
defendants willfully participated in the plan to commit it with
the intent to further some purpose of the conspiracy. See
United States v. Yunis, 924 F.2d 1086, 1096 (D.C. Cir. 1991).
Potential juror doubt about whether any of these three
defendants was somehow mistakenly swept up into activities
he did not know were part of a criminal conspiracy is
powerfully undermined by the evidence of similar criminal
teamwork with some of the same people, both before and after
the Maharaj hostage taking. Any questions about motive also
tended to be put to rest by evidence that the conspirators
successfully obtained ransoms in the other, uncharged hostage
takings. The district court thus permissibly held that the
22
other-crimes evidence was relevant for non-propensity
purposes. 3
2.
That conclusion does not end our inquiry. Even where
other-crimes evidence is relevant for a non-propensity purpose,
it nevertheless is inadmissible under Rule 403 if the potential
for prejudice from introducing the evidence outweighs its
probative value. See Douglas, 482 F.3d at 600. We see no
reason, however, to disturb the district court’s carefully
reasoned Rule 403 determination. See Straker, 567 F. Supp.
2d at 179. The district judge identified the strong probative
value of the evidence for the purposes we have just discussed:
to show the defendants’ willingness to trust one another and
work together to kidnap civilians as a means to extort ransom
3
Defendants also assert that the district court erred by concluding
that evidence of the uncharged hostage takings was probative of their
modus operandi. We express no view on that question because,
even if defendants were correct, it makes no difference here, given
that the evidence was properly admitted for other permissible
purposes. It is worth noting, however, that the defendants’
argument appears to hinge on a misunderstanding of the district
court’s opinion. Defendants point to the district court’s discussion
of ways in which the other hostage takings were similar to the
charged offense, and its observation that they were all close in time.
Straker, 567 F. Supp. 2d at 178. The district court did not thereby
hold that the evidence was admissible to show a similar modus
operandi in both the charged and uncharged offenses. That part of
its analysis instead related to whether the evidence of the uncharged
hostage takings met the “threshold level of similarity” to the charged
hostage taking, without which it could not have admitted the
evidence as relevant to defendants’ intent, motive, and knowledge.
See id. (citing Long, 328 F.3d at 661); see also Manner, 887 F.2d at
321.
23
money. The danger of unfair prejudice was minimal because
the other-crimes evidence added “‘no emotional or other
pejorative emphasis not already introduced by the evidence’”
of the crime charged in this case. Id. (quoting Lawson, 410
F.3d at 742). Indeed, the facts of this kidnapping are
significantly more damning because, unlike the uncharged
other crimes the judge allowed the prosecution to establish, this
one went awry. After defendants held their victim, an
American citizen, hostage for seven days without necessary
diabetes medication, he died. Several defendants then
dismembered his body with a machete and packed the pieces in
two large coolers in an effort to conceal their crime.
The district court effectively barred cumulative
evidentiary presentations and used safeguards to minimize any
potential prejudice from the admission of the other-crimes
evidence. In addition to limiting the number of other crimes
about which the prosecution could introduce evidence, and
strictly rationing the trial time allowed for those evidentiary
presentations, Straker, 567 F. Supp. 2d at 179; see also J.A.
961–62; J.A. 3171–72, the court paid careful attention to the
nature of the testimony that was introduced and prevented the
government from soliciting testimony about particularly
prejudicial details. See J.A. 3462–66; J.A. 3686–88. The
court excluded all evidence of two uncharged hostage takings,
including the one that raised the greatest risk of unfair
prejudice. As already noted, the evidence in that kidnapping
suggested that the captors intentionally killed their hostage in
response to an insufficient ransom offer, see Straker, 567
F. Supp. 2d at 179—a response arguably even more brutal than
the deprivation of life-sustaining medication that led to the
predictable demise of the victim in this case.
Defendants further argue that the uncharged
hostage-takings evidence was “wholly unnecessary” to the
24
government’s case, such that any minimal probative value was
substantially outweighed by the prejudice it caused, in
violation of Rule 403. Defendants find unpersuasive the
theories discussed above, regarding the probativeness of the
other-crimes evidence to questions of relationship, motive, and
intent; they contend that the government had ample, less
prejudicial ways to make the same points. Defendants
contend that the evidence was unnecessary to show their
relationships, given other evidence that the defendants formed
friendships in boyhood or during military service. That
evidence, however, does not speak to their repeated experience
of trusting one another to carry through with felonious
conspiracies without revealing their activities to law
enforcement. Defendants also contend that the evidence of
the uncharged hostage takings was unnecessary to show their
intent or motive because they did not raise innocent-motive
defenses. That argument ignores the government’s burden,
regardless of the nature of the defense, to prove beyond a
reasonable doubt that defendants knowingly and intentionally
joined the conspiracy to kidnap Maharaj. See Douglas, 482
F.3d at 597; Old Chief v. United States, 519 U.S. 172, 187–88
(1997). In sum, the district judge’s careful sorting of the
other-crimes evidence and the limitations he placed on how
much other-crimes evidence the prosecution could use
successfully allowed the evidence which was most probative
while avoiding unfair prejudice. The district court did not
abuse its discretion by refusing to exclude the evidence of the
uncharged hostage takings under Rule 403.
3.
Lastly, we turn to defendants’ argument that the
government presented evidence of the uncharged hostage
takings in such a “disorganized and confusing fashion” that
they were prejudiced. Def. Br. 56 (citing United States v.
25
Sampol, 636 F.2d 621, 645 (D.C. Cir. 1980); United States v.
Foskey, 636 F.2d 517, 524 n.6 (D.C. Cir. 1980)). As we
discuss more fully, infra, in connection with the post-trial
severance motion, the district court concluded that the jury was
able to correlate the evidence with each defendant against
whom it was properly introduced, and to avoid spillover
consideration of evidence against defendants to whom it did
not relate. See Clarke, 767 F. Supp. 2d at 26–27. Defendants
have failed to persuade us that the district court abused its
discretion in so concluding. The government presented
evidence about the other hostage takings, in part through
testimony of cooperating co-conspirators who spoke about
some of the uncharged offenses before describing the charged
offense in greater detail. Because the cooperating
co-conspirators generally testified about the hostage takings in
chronological order and each hostage taking involved a
different victim, the jury was provided with clear guideposts
with which to differentiate and compartmentalize each event.
The district court repeatedly and carefully instructed the
jury as to which defendants were involved in which of the other
crimes, and cautioned the jurors to consider evidence only
against those specific defendants, thereby protecting all of the
defendants against any potential confusion stemming from the
other-crimes evidence. See Long, 328 F.3d at 662
(“[L]imiting instructions ordinarily suffice to protect the
defendant’s interests.” (citing Spencer v. Texas, 385 U.S. 554,
561 (1967)). The court gave limiting instructions concerning
the evidence of other hostage takings six times throughout the
course of the trial: after opening statements, the first time that
the other-crimes evidence was introduced by the government,
at several points during the trial, and as part of the final jury
instructions. In the various instructions, the court cautioned
the jury that the evidence of the uncharged hostage takings was
admissible for only limited purposes: informing the jurors of
26
the background of the conspiracy, helping them decide
whether there were relationships between the co-conspirators,
and aiding their determinations as to whether the defendants
had motive, intent, knowledge, or a plan to commit the
Maharaj hostage taking. The court also made clear that the
other-crimes evidence was admissible only against the
particular defendants the jurors found were involved in those
other crimes, alternating between specifically naming the
defendants involved in the other hostage takings and generally
referring to those defendants. Juries are presumed to follow
instructions that caution them to draw only permissible
inferences from Rule 404(b) evidence. See United States v.
Brown, 597 F.3d 399, 405–06 (D.C. Cir. 2010). The district
court’s detailed instructions guided the jurors to
compartmentalize and properly consider the evidence of
uncharged hostage takings.
Defendants have identified a handful of examples where
the district judge expressed some confusion regarding the
presentation of evidence of the uncharged hostage takings. In
several instances, the district court identified potential
confusion only to reinforce to the prosecution the importance
of making clear to the jury which hostage taking the witness
was discussing. Several references to confusion were made
during bench conferences out of the jury’s hearing. The
record portions on which defendants rely demonstrate not that
the evidence was presented in a misleading fashion, but rather
that the district court took great care to reduce the potential for
confusion. The isolated examples of confusion identified by
defendants do not show that the other-crimes evidence was so
unclear or misleading that the jury was unable to follow the
district court’s limiting instructions.
Defendants claim the government’s closing argument
intensified confusion about the other-crimes evidence by
27
stating that the same “crew” or “organization” carried out all of
the hostage takings, and that Pierre was the “godfather” of the
crew. Contrary to defendants’ characterization, however, no
prosecutor argued that Pierre’s crew committed all of the
hostage takings. The government’s closing did refer to the
“crew” or group of individuals involved in the Maharaj hostage
taking. The government also argued that Pierre was involved
in all of the hostage takings, and indeed was in charge during
each of those hostage takings. The evidence presented at trial
supported each of those points. What the government did not
assert was that Pierre led the same crew in each instance, and
the trial evidence and judge’s instructions protected against
any such conclusion. 4
For all of these reasons, we conclude that the district court
acted within its sound discretion in admitting at trial evidence
about three uncharged hostage takings.
4
For similar reasons, the argument that the proof at trial represented
a material variance from the indictment, even if preserved below, is
meritless. Even if we were to assume that the trial evidence in this
case materially varied from the indictment (and the defendants give
us little reason to think that is the case), the defendants nonetheless
cannot show the requisite substantial prejudice. Given the focused
and limited nature of what was actually argued or established
regarding other incidents involving groups led by Pierre and the
district court judge’s careful limiting instructions, it simply was not
the case that the jury here was “substantially likely” to consider
against the defendants evidence of a RICO conspiracy not charged in
the indictment. See United States v. Celis, 608 F.3d 818, 845-46
(D.C. Cir. 2010).
28
IV.
Confrontation Clause Challenge to Use of
Codefendants’ Statements
Defendants next contend that the district court violated
their Sixth Amendment rights to confront the witnesses against
them when it admitted into evidence redacted confessions
made by their fellow defendants that inculpated them in the
Maharaj hostage taking. 5 We conclude that the admission of
the redacted confessions did not violate the Confrontation
Clause, with the exception of the violation acknowledged by
the government, which, in view of the independent and
overwhelming evidence in support of the conviction, was
harmless.
A.
The conspiracy was alleged to have involved at least a
dozen men, seven of whom were tried jointly in this case.
After they were arrested, five of the defendants gave
statements to law enforcement officials confessing their own
5
In a footnote, all defendants, save Straker, seek to join this
argument. Def. Br. 60 n.27. As discussed supra note 1, adoption
by reference is permitted only to the extent we can readily apply the
proponent’s arguments to the adopter’s case. Some of the
defendants’ Confrontation Clause arguments are purely legal and
can readily be adopted. Others are fact-specific, rendering adoption
by reference inappropriate. Clarke, Demerieux, and Nixon have
made fact-specific arguments that explain how they believe their
constitutional rights were violated by the introduction of their
codefendants’ out-of-court statements. We therefore limit our
consideration of defendants’ fact-specific arguments to those
particular defendants.
29
participation in the Maharaj hostage taking. Before trial, the
government filed a notice of its intent to introduce at trial the
out-of-court statements made by codefendants Clarke,
Demerieux, and Sealey. 6 Defendants objected on Sixth
Amendment grounds to the admission of the statements and
also moved to sever their trials. The district court concluded
that separate trials would not be necessary because each
statement could be adequately redacted and other safeguards
used in order fully to protect the non-declarant defendants’
Sixth Amendment confrontation rights. The district court
ordered the government to redact the statements to remove
references identifying defendants other than the declarant
whenever possible. When full redaction was not possible, the
court instructed the government to replace a particular name
with a neutral term, sufficient to “avoid creating an inevitable
association with a particular defendant or defendants when the
statement is viewed together with other evidence.” J.A. 2079.
The court also provided the government with a detailed set of
guidelines, recounted below, specifying the types of neutral
terms that would be acceptable and those that would not, along
with other safeguards of defendants’ confrontation rights.
6
The government introduced ten confessions made by five
different defendants. Two of those defendants, De Four and
Straker, testified at trial. Defendants cannot raise Confrontation
Clause challenges to the admission of those pretrial statements, as
they had the opportunity to subject De Four and Straker to
cross-examination. See, e.g., Crawford v. Washington, 541 U.S. 36,
68–69 (2004). Furthermore, none of the defendants identifies any
statements or redactions in those confessions that implicated him.
On appeal, therefore, we focus on defendants’ arguments concerning
the introduction of Clarke, Demerieux, and Sealey’s confessions.
30
B.
Defendants contend that the use of neutral-pronoun
redactions was inadequate, and that the Confrontation Clause
instead demands full redaction of codefendants’ confessions to
eliminate any reference to fellow defendants that jurors might
infer to be references to non-declarant defendants. See
Richardson v. Marsh, 481 U.S. 200 (1987). Alternatively,
redactions used here were inadequate because, defendants
claim, when a redacted confession was considered alongside
the other evidence presented at trial, it inevitably pointed an
inculpatory finger at a particular defendant, contrary to Gray v.
Maryland, 523 U.S. 185 (1998).
The government responds that the Confrontation Clause
does not require removal of all references to defendants,
anonymized as the remaining references were, and that full
redaction would have substantially diminished the value of the
statements against the declarants themselves. Full redactions
were not always practicable in this case, the government
contends, because the declarants were charged with
conspiracy. Eliminating from their statements all references
to their co-conspirators jointly on trial would have “deprived
the government of powerful conspiracy evidence” that it was
entitled to use. Gov’t Br. 94.
We review de novo the district court’s legal conclusions
under the Confrontation Clause, United States v. Wilson, 605
F.3d 985, 1003 (D.C. Cir. 2010), and subject to harmless-error
analysis any legal errors it may have made, United States v.
Moore, 651 F.3d 30, 69 (D.C. Cir. 2011).
1.
The Confrontation Clause of the Sixth Amendment
provides a criminal defendant with the right “to be confronted
31
with the witnesses against him,” including the right to
cross-examine those witnesses. U.S. Const. Amend. VI; see
Pointer v. Texas, 380 U.S. 400, 404 (1965). Use of a
defendant’s own confession against him raises no
confrontation issues. The admission of a codefendant’s
confession implicating another defendant, however, poses
special risks to the defendant’s confrontation rights. When
the declarant expressly implicates another defendant yet
renders himself unavailable for cross examination by asserting
his Fifth Amendment right not to testify, use of his statement
violates the defendant’s right to confront his accuser. See
Bruton v. United States, 391 U.S. 123, 137 (1968). But at
least when (1) the jury is instructed to consider the confession
against the declarant only, and (2) redactions are made such
that the statement, together with other trial evidence, neither
expressly identifies defendants nor creates any inevitable
association between them and the criminal activity the
statement describes, there is no Sixth Amendment violation.
See Richardson, 481 U.S. 200, 211; United States v.
Washington, 952 F.2d 1402, 1406–07 (D.C. Cir. 1991).
The framework for analyzing limitations on use of
codefendants’ statements is established by a trilogy of
Supreme Court Confrontation Clause cases: Bruton, 391 U.S.
123, Richardson, 481 U.S. 200, and Gray, 523 U.S. 185. The
district judge who presided over defendants’ joint trial in
Bruton admitted into evidence a non-testifying codefendant’s
confession incriminating the defendant. 391 U.S. at 124.
The Supreme Court found a Sixth Amendment violation,
overruling a prior decision sustaining a conviction in similar
circumstances, because that precedent placed unwarranted
confidence in the efficacy of limiting jury instructions. Id. at
126 (overruling Delli Paoli v. United States, 352 U.S. 232
(1957)). The Bruton Court acknowledged that it is unrealistic
to expect a jury to rely on a statement when deciding the guilt
32
of the confessing codefendant, yet ignore the same statement
when considering the guilt of the defendant it mentions as an
accomplice. Id. at 131, 135–36. Justice Stewart summed up
the inadequacy of limiting jury instructions in such settings:
“A basic premise of the Confrontation Clause . . . is that certain
kinds of hearsay are at once so damaging, so suspect, and yet
so difficult to discount, that jurors cannot be trusted to give
such evidence the minimal weight it logically deserves,
whatever instructions the trial judge might give.” Id. at 138
(Stewart, J., concurring) (internal citation omitted).
The Court has since established that non-testifying
codefendants’ statements may be introduced at joint trials if
sufficient redactions can be made and adequate jury
instructions given to protect the rights of codefendants. In
Richardson, the codefendant’s confession was fully redacted to
eliminate all references to the defendant. 481 U.S. at 203.
The confession only implicated the defendant when it was
considered alongside her own testimony, placing her at the
scene of a critical conversation the confession described. Id.
at 205–06, 208. The Court found no Confrontation Clause
violation in Richardson because the statement was “not
incriminating on its face,” but became potentially
incriminating “only when linked with evidence introduced
later at trial.” Id. at 208. Even then, the inference was not
obvious, such that the limiting jury instructions sufficed to
guard against the remaining risk of “inferential incrimination.”
Id. In contrast to the “[s]pecific” and “vivid” incriminating
statement at issue in Bruton that created an “overwhelming
probability” that jurors would fail to heed limiting instructions,
id. at 208–09, the redacted statement in Richardson made any
incriminating implication sufficiently indirect that jury
instructions could be counted on to “dissuad[e] the jury from
entering onto the path of inference in the first place.” Id. at
208.
 33
The adequacy under the Confrontation Clause of redacting
a non-testifying codefendant’s statement depends on how
effectively the redaction eliminates the statement’s accusatory
implication. Evaluations of such effectiveness are necessarily
contextual. In Gray v. Maryland, the prosecution only
crudely redacted a codefendant’s statement by whiting out the
names of Gray and the other alleged perpetrator (who had since
died), leaving blank spaces separated by commas. 523 U.S. at
188. The police witness reading to the jury from the
confession said “deleted” or “deletion” each time he
encountered a blank. Id. Such redaction did little, if
anything, to cure the prejudice to the defendant. The Court
determined that the “blank space in an obviously redacted
confession . . . points directly to the defendant, and it accuses
the defendant in a manner similar to [the non-testifying
codefendant’s] use of Bruton’s name or to a testifying
codefendant’s accusatory finger,” and thus requires the same
result as in Bruton. Id. at 194. Even though the redacted
confession in Gray never named the defendant on trial, it called
the jurors’ attention to his codefendants’ inculpation of him
with sufficient clarity that no limiting jury instruction could
suffice. The difference in outcomes in Gray and Richardson
depended “in significant part upon the kind of, not the simple
fact of, inference.” Id. at 196. Gray “involve[d] inferences
that a jury ordinarily could make immediately, even were the
confession the very first item introduced at trial,” id., whereas
the inferences in Richardson were attenuated.
The Supreme Court has not yet determined the
permissibility under the Sixth Amendment of the type of
redaction at issue here, which eliminated names and
identifying references to specific defendants (without signaling
that changes had been made), but left intact some of the
statements’ descriptions of people doing things to advance the
crimes with which the defendants were charged. Indeed, the
34
Court in Richardson was careful to note that it “express[ed] no
opinion on the admissibility of a confession in which the
defendant’s name has been replaced with a symbol or neutral
pronoun.” 481 U.S. at 211 n.5. The redactions in this case
fall somewhere between the full redaction that Richardson
sustained, and the obviously inculpatory blank spaces and
deletions that Gray held to be insufficient. The Court has,
however, hinted how redactions might effectively be used in
cases involving several perpetrators: In disapproving the
obvious redactions in Gray, the Court noted that the
incriminating references to “Me, deleted, deleted, and a few
other guys” could have been changed to “Me and a few other
guys.” 523 U.S. at 196.
Our circuit has infrequently considered the kind of
neutral-pronoun redactions approved by the district court in
this case. Evaluation of the potential inculpatory implications
of a non-testifying codefendant’s redacted confession is
necessarily contextual. We have held that putatively
anonymized references to a defendant in a codefendant’s
statement violated Bruton where the statement still called
attention to the declarant’s accusation against the defendant.
See Serio v. United States, 401 F.2d 989, 990 (D.C. Cir. 1968)
(per curiam). Elsewhere, we found neutral-pronoun redaction
constitutionally adequate where, describing a transaction in
which several people were involved, a statement was redacted
to replace the defendant’s name with neutral pronouns that, in
context, did not inevitably refer to the defendant. See
Washington, 952 F.2d at 1406; see also United States v.
Applewhite, 72 F.3d 140, 145 (D.C. Cir. 1995).
Serio, a case we decided immediately after Bruton and
that, like Bruton, involved just two alleged perpetrators, held
that the admission of a codefendant’s confession in which the
defendant’s name was replaced with the phrase “another man”
35
violated the defendant’s confrontation right because of the
“well-nigh inevitable association of [the defendant] as the
‘other man’ referred to in [his codefendant’s] confession.”
401 F.2d at 989–90. After Richardson but before Gray,
however, we sustained in Washington the use of nonobvious,
neutral-pronoun redaction together with limiting jury
instructions in circumstances in which the redacted statement
could have referred to several individuals other than the
defendant. 952 F.2d at 1406. In that context, the neutrally
redacted statement created no “inevitable association” between
the defendant and the inculpatory conduct the statement
describes. Id. (citing Serio, 401 F.2d at 990). Washington
questioned whether Serio’s “inevitable association” standard
might be more protective of defendants’ rights than the Sixth
Amendment requires, but left that matter undecided because
that challenge failed even under Serio. Id. Here, too, we see
no need to consider whether Serio is overprotective, because
that standard was satisfied here.
In sum, at least when “all references to the defendant in a
codefendant’s statement are replaced with indefinite pronouns
or other general terms, the Confrontation Clause is not violated
by the redacted statement’s admission if, when viewed
together with other evidence, the statement does not create an
inevitable association with the defendant, and a proper limiting
instruction is given.” Washington, 952 F.2d at 1406–07. In
such circumstances, provided that the jury is instructed not to
consider the codefendant’s statements as evidence against
anyone but the declarant himself, as happened here, Bruton is
not violated. 7
7
Our approval of the use of neutral pronouns and other general
terms accords with that of other circuits. See, e.g., United States v.
Vasilakos, 508 F.3d 401, 407–08 (6th Cir. 2007) (collecting federal
36
2.
In their Bruton challenge, defendants first argue that the
district court erred by failing to require the government to
redact fully the codefendants’ confessions to eliminate even
anonymized references to other perpetrators. They assert that
neutral-pronoun redactions do not adequately protect
defendants’ confrontation rights because they leave in place
inevitable associations with the defendants. In their view,
only full redaction would suffice. Defendants further contend
that, even if the Sixth Amendment permits jurors to hear
anonymized references to defendants’ criminal activity, the
redactions here were inadequate. The sheer number of
redactions, combined with grammatical errors in redaction,
they claim made it clear to the jury in this case that the
confessions were altered, and thus impermissibly pointed the
finger at them.
We do not accept the defendants’ claim that anything short
of full redaction violates their confrontation rights. The
prosecution made full redactions in several places where it
could do so without creating unacceptable confusion or
distortion. But, as Washington makes clear, the Confrontation
Clause does not always mandate full redactions. Carefully
made neutral-pronoun redactions can avoid the defect of
elisions so crude that they “obviously refer directly to
someone, often obviously the defendant.” Gray, 523 U.S. at
196. The critical question is whether the redactions
adequately conceal the fact that the declarant identified the
defendant in particular—a fact that, if known, would make it
appellate decisions); see also United States v. Ramos-Cardenas, 524
F.3d 600, 608–09 (5th Cir. 2008); United States v. Vega Molina, 407
F.3d 511, 519–21 (1st Cir. 2005); United States v. Sutton, 337 F.3d
792, 799–801 (7th Cir. 2003).
37
unlikely that a jury would be able to follow a limiting
instruction. See id.
Viewing the text of the statements as a whole and in the
context of the facts and evidence in the case, we disagree that
the redactions made it obvious that the statements referred to
specific defendants. The neutral-pronoun redactions here
were a far cry from those in Gray, where the method of
redaction only strengthened the inference that the
Confrontation Clause required be attenuated. Despite the
need for frequent redactions in this case, each resulting
statement resembled a confession that a defendant might have
made if he were trying to avoid identifying his co-conspirators.
A defendant endeavoring not to point the finger at his
confederates would need repeatedly to rely on the kinds of
vague references, such as “them” and “the other guy,” that
these redacted statements use. In fact, even before his
statement was redacted, Clarke referred to his co-conspirators
as “fella” or “fellas” six times in two transcript pages. The
government noted such speech patterns, making efforts when
crafting the redactions to mimic the speaker’s own language
patterns and word choices to make the redactions
inconspicuous. The single, ungrammatical redaction
identified by defendants—in which Clarke’s statement
erroneously omitted a definite article before referring to “other
guy”—did not make it obvious that the statement had been
redacted: the awkward language could just as plausibly have
resulted from a misstatement (by either the declarant or
testifying officer) or typographical error in transcribing the
confession.
Defendants also contend that the confessions, redacted as
they were, violated their confrontation rights because, when
considered alongside the other evidence presented at trial, the
confessions created inevitable inculpatory associations with
38
particular defendants. When a confession is redacted with
neutral pronouns, a jury, after hearing all of the evidence
presented in the case, may still very well be able to draw
inferences that the “other guy” mentioned in the confession
was actually one of the defendants. Bruton is not violated,
however, whenever a jury may be able to draw such an
inference. Instead, it is violated when the inferences are so
strong and obvious that a jury cannot be expected to follow
limiting instructions. See Gray, 523 U.S. at 196.
The evidence identified more than a dozen different men
involved in the crimes charged in this case, making it unlikely
that the jury would readily link a statement’s mention of a
“person” or “guy” to a specific defendant. See Washington,
952 F.2d at 1406; see also United States v. Vasilakos, 508 F.3d
401, 408 (6th Cir. 2007); United States v. Vega Molina, 407
F.3d 511, 520 (1st Cir. 2005); United States v. Sutton, 337 F.3d
792, 799 (7th Cir. 2003). There were seven defendants
standing trial and four cooperating co-conspirators who
testified against them, plus several unindicted individuals
whom the cooperators implicated in the hostage taking, not to
mention the participants in the other kidnappings admitted into
evidence, whom the jury could not be sure played no role in
this case. To further attenuate any inculpatory inference,
Clarke’s redacted statements repeatedly referred to someone
named “Igloo,” an apparently fictitious character made up by
Clarke, to whom he ascribed the actions of several different
members of the conspiracy. Because of the number of
identified participants, the statements, redacted as they were
and accompanied by limiting instructions, supported no
“inevitable association” between the persons described and
any of the alleged co-conspirators standing trial, let alone a
particular defendant.
39
Defendants contend that the redacted statements
impermissibly identified them because of the recognizable
roles they played in the crime. Clarke and Demerieux acted as
guards at the camp, and Sealey and Nixon were the gunmen
who abducted Maharaj from the bar. Each of Clarke and
Demerieux’s redacted statements refers to the “other guy” or
“another fella” at the camp with the victim. Sealey’s redacted
statement refers to himself and “the other man” abducting the
victim. Defendants argue that, despite those redactions, the
jury would inevitably associate each of them with a particular,
unnamed “guy” or “fella” based on other trial testimony:
Cooperators Jason Percival and Russel Joseph both stated that
Clarke and Demerieux were at the campsite for the vast
majority of the time between when Maharaj was abducted and
when he died, and, in testifying that they were present when the
victim was abducted, they identified Sealey and Nixon as the
men who entered the bar and abducted Maharaj.
The discernible roles some defendants played were not so
clear and exclusive as defendants contend, however, but often
overlapped with the activities of other defendants and
co-conspirators. For example, the evidence showed that,
when Clarke and Demerieux were guarding the hostage at the
camp, there were often other men, whether defendants or
cooperating co-conspirators, present at the campsite. In light
of the multiple comings and goings at the campsite, any
reference to someone else there did not obviously refer to
Clarke or Demerieux. 8 Similarly, although the testimony
showed that Sealey and Nixon were the two gunmen who
8
Clarke and Demerieux also argue that because their statements
were interlocking and reinforced one another, it furthered the
inevitable association. Given our conclusion the redactions
obscured the references to each man in the other’s statement, we
disagree that the statements were interlocking.
40
abducted Maharaj from the bar, it also showed that many other
people were at the scene of the abduction or involved in the
getaway. Accordingly, even in light of the evidence
introduced at trial concerning each defendant’s role in the
hostage taking, anonymized references to the “other guy” or
“another fella” in the confessions avoided creating an
inevitable association between a confession and any particular
complaining defendant.
Inevitable associations were not created, in large part,
because the district court established guidelines for redaction,
and closely supervised the redaction process in order to ensure
that the admission of the confessions at trial did not violate
Bruton and its progeny:
First, the trial judge required full redactions where
feasible without distorting the statement’s meaning.
See Richardson, 481 U.S. at 211.
Second, when it was impossible to redact fully a
portion of a confession, the district court directed
the government to use only non-obvious, partial
redactions, replacing the defendants’ proper names
or nicknames with a variety of neutral pronouns to
make the resultant statements appear natural and
match the defendants’ own speech.
Third, the court required that the statements be
scrubbed of any other designations or identifiers
based on a defendant’s physical characteristics or
role in the hostage taking (such as driver or guard).
See Harrington v. California, 395 U.S. 250, 253
(1969); United States v. Nash, 482 F.3d 1209, 1218
(10th Cir. 2007); United States v. Hoover, 246 F.3d
1054, 1059 (7th Cir. 2001).
41
Fourth, the court directed that redactions avoid
referring to specific numbers of persons, in order
further to weaken the jury’s ability to correlate the
statements’ references to unnamed individuals with
members of otherwise-identified pairs or clusters of
defendants.
Fifth, the court reviewed drafts of the prosecution’s
redacted statements and required additional
changes to conform them to the court’s Bruton
guidelines. That safeguard helped to avoid
clumsiness in redactions that could have been
inculpatory.
Sixth, by only allowing prosecution witnesses to
use the statements to aid in their testimony without
admitting the documents themselves into evidence,
the court ensured that the jury did not see written
(and perhaps discernibly altered) copies of the
redacted confessions.
Finally, and perhaps most importantly, the district
court recognized that redactions would be effective
to protect defendants’ confrontation rights because
of the large number of actors involved in the
alleged crime. As the court observed, the greater
the number of alleged perpetrators involved in the
charged offense, the more indirect the inference
that the jury could draw from the redacted
statements.
Given the context of this case and the care the district court
took regarding use of codefendants’ redacted statements, any
inferences created by the statements were attenuated.
Defendants do not contend, nor do we believe based on our
review of the record, that a jury could from a statement alone
42
immediately make a connection between a specific defendant
and one of the “guys,” “fellas,” or other people the statement
mentions. When considered along with the other evidence
presented at trial and with appropriate limiting instructions, the
redacted confessions introduced here created no inevitable
association between the persons the declarants described and
particular defendants. 9
For all of these reasons, we conclude that the redacted
statements admitted into evidence at defendants’ trial did not
violate Bruton.
9
Defendants also argue that the Supreme Court’s decision in
Crawford, should increase the skepticism with which we review
Bruton claims. See 541 U.S. 36. Crawford announced a general
rule of inadmissibility of out-of-court statements by witnesses who
are unavailable and so not subject to cross-examination. The Court
there dealt with statements that, unlike the statements here, were not
otherwise admissible as codefendant confessions. The Crawford
Court held that the admissibility against a defendant of a testimonial
statement by a non-testifying declarant depends, not merely on the
statement’s reliability, but on whether the defendant had a prior
opportunity to cross-examine the declarant, because the
Confrontation Clause establishes “that reliability be assessed in a
particular manner: by testing in the crucible of cross-examination.”
Id. at 61. Crawford applies to statements admitted against a
defendant; a statement that has been effectively Bruton-ized,
however, is one that has been redacted so that it can, with appropriate
limiting jury instructions, be deployed only against the declarant and
not against the objecting codefendant. See Bruton, 391 U.S. at 135–
36; see also Richardson, 481 U.S. at 206. Crawford accordingly
does not apply here, where we have determined that the statements
are admissible under the Bruton line of cases because, properly used,
they create no inevitable inculpating association with defendants.
43
3.
Finally, we conclude that the error acknowledged by the
government—cooperating co-conspirator Leon Nurse’s use of
Nixon’s name while testifying about the contents of an out-of
court confession made by Sealey—was harmless. A Bruton
error does not necessarily require reversal, because “[i]n some
cases the properly admitted evidence of guilt is so
overwhelming, and the prejudicial effect of the codefendant’s
admission is so insignificant by comparison, that it is clear
beyond a reasonable doubt that the improper use of the
admission was harmless error.” Schneble v. Florida, 405 U.S.
427, 430 (1972). This is such a case.
At trial, cooperator Nurse testified that, when he and
Sealey were incarcerated pending trial, Sealey told Nurse
about his participation in the kidnapping. Nurse had been
instructed for his testimony regarding Sealey’s out-of-court
statement not to refer to any other defendant by name, but
violated that instruction by naming Nixon when recounting
Sealy’s confession. Nurse recounted that Sealey “said at the
scene—at the scene of the kidnapping, [s]ir, he said that Mr.
Nixon didn’t really want to come out of the—.” Clarke, 767
F. Supp. 2d at 35. Recognizing the error, the district court
immediately instructed the jury to disregard that piece of
testimony. The government concedes that was a Bruton
violation.
The error was harmless beyond a reasonable doubt in view
of its limited inculpatory value and the ample other evidence of
Nixon’s guilt presented during the ten-week trial. Nurse used
Nixon’s name only a single time. That single, explicit
reference merely placed Nixon at the scene of the hostage
taking, and did not describe his ensuing actions. In
comparison to that isolated utterance, the other evidence of
44
Nixon’s guilt was overwhelming. Cooperators Joseph and
Percival each testified in detail about Nixon’s involvement in
the hostage taking. Joseph testified that he drove Nixon and
Sealey to the bar where Maharaj was abducted, that Nixon was
armed, and that Nixon entered the bar and moments later
returned with Sealey and the victim. After Nixon and Sealey
forced Maharaj into the back of the getaway car, Joseph stated,
he drove the group to a cocoa field and Nixon and Sealey led
the victim into the field and left him there. Joseph further
recounted that he and Nixon later returned to move Maharaj
from the cocoa field to the campsite where Clarke and
Demerieux guarded him. Cooperator Percival’s testimony
closely paralleled and reinforced Joseph’s account. Both men
also testified that, during the abduction, Nixon wore a Rasta
hat, a detail that was corroborated by an eyewitness who did
not participate in the abduction. Given the overwhelming
evidence of Nixon’s guilt, Nurse’s single reference to Nixon
was harmless beyond a reasonable doubt.
V.
Brady/Napue Claim
The Constitution’s “fair trial guarantee,” United States v.
Ruiz, 536 U.S. 622, 628 (2002), requires the prosecution to
timely turn over any information in the government’s
possession that is materially favorable to a criminal defendant,
Brady v. Maryland, 373 U.S. 83 (1963), and forbids the
prosecution’s introduction of false testimony, Napue v. Illinois,
360 U.S. 264 (1959). Those are grave obligations, grounded
in both the Fifth and Sixth Amendments to the Constitution.
See Ruiz, 536 U.S. at 628.
Six of the defendants—Clarke, De Four, Nixon, Sealey,
Demerieux, and Pierre—argue that the prosecution violated
45
both Brady and Napue. Specifically, those defendants object
that Agent William Clauss’s and Sergeant Wendell Lucas’s
testimony misleadingly implied that Clarke led them to the
campsite where Maharaj had been held, when in fact Clarke led
them to another location. The defendants also argue that the
prosecutors violated both Brady and Napue when they elicited
testimony from Percival indicating that Demerieux “hit the
man [i.e., Maharaj] in his head with a big stone and dent his
head,” even though available x-ray evidence revealed no such
head injury. Lastly, the defendants argue that the prosecution
breached its Brady obligations when it failed timely to turn
over cooperator Russell Joseph’s initial confession, which
identified someone other than De Four as a driver in the
kidnapping. 10
The prosecution’s behavior leaves much to be desired,
falling far short of this court’s expectations. Nevertheless,
each of the defendants’ claims ultimately fails on the merits.
A Brady violation occurs when the prosecution (i) fails to
disclose to the defense, whether willfully or inadvertently, (ii)
exculpatory or impeachment evidence that is favorable to the
accused, and (iii) the withholding of that information
10
Before the district court, Clarke and Demerieux moved for a new
trial based on the campsite issue; Demerieux moved for a new trial
based on the x-ray evidence; and De Four and Sealey moved for a
new trial based on the Joseph confession. The other defendants did
not raise or join those individual claims below, and so review as to
them is for plain error only. See United States v. Johnson, 437 F.3d
69, 74 (D.C. Cir. 2006). Moreover, because the defendants’ brief
addresses the Brady and Napue claims only as they specifically
relate to Clarke, Demerieux, and De Four, all of the other defendants
on each claim have failed to make even a plausible argument for
relief, so their arguments fail at the starting gate.
46
prejudices the defense. See United States v. Andrews, 532
F.3d 900, 905 (D.C. Cir. 2008) (citing Strickler v. Greene, 527
U.S. 263, 281–82 (1999)); see also Brady, 373 U.S. at 87.
When, as here, disclosure by the prosecution happened late
rather than not at all, the defendant must show a “reasonable
probability that an earlier disclosure would have changed the
trial’s result” to establish prejudice. United States v. Dean, 55
F.3d 640, 663 (D.C. Cir. 1995); see also United States v.
(Ralph) Wilson, 160 F.3d 732, 742 (D.C. Cir. 1998) (defendant
bears burden of proving “reasonable probability”). In this
context, a “reasonable probability” means “a probability
sufficient to undermine our confidence in the actual outcome
that the jury would have acquitted.” United States v.
Tarrantino, 846 F.2d 1384, 1417 (D.C. Cir. 1988).
The district court denied each of the Brady claims. The
government argues that the ruling should be reviewed only for
clear error, reasoning that “[t]he clearly erroneous standard
ordinarily governs review of a judge’s findings in a criminal
case on issues other than the defendant’s guilt,” including
review of a district court’s “conclusion that [the defendant]
suffered no prejudice by his late access to the evidence[.]”
United States v. Paxson, 861 F.2d 730, 737 (D.C. Cir. 1988)
(first alteration in original). Since Paxson was decided,
however, the Supreme Court has clarified that “there is never a
real ‘Brady violation’ unless the nondisclosure was so serious
that there is a reasonable probability that the suppressed
evidence would have produced a different verdict.” Strickler,
527 U.S. at 281. That prejudice element requires an inquiry
into “material[ity],” Andrews, 532 F.3d at 905, and
materiality under Brady is a “question of law,” subject to de
novo review, United States v. Oruche, 484 F.3d 590, 595 (D.C.
Cir. 2007). Accordingly, our review is de novo.
47
A Napue violation occurs when the government
introduces false or misleading testimony or allows it to go
uncorrected, see Giglio v. United States, 405 U.S. 150, 153
(1972), even though the government knew or should have
known that the testimony was false, see, e.g., United States v.
Agurs, 427 U.S. 97, 103 (1976). If a defendant makes that
showing, a new trial is required if there is “any reasonable
likelihood that the false testimony could have affected the
judgment of the jury[.]” United States v. Gale, 314 F.3d 1, 4
(D.C. Cir. 2003) (quoting Agurs, 427 U.S. at 103).
Because none of the Napue violations asserted on appeal
was raised below, we review for plain error, reversing only if
we perceive that “(1) there is error (2) that is plain and (3) that
affects substantial rights, and (4) . . . the error seriously affects
the fairness, integrity, or public reputation of judicial
proceedings.” Johnson, 437 F.3d at 74 (citing United States v.
Olano, 507 U.S. 725, 732 (1993)).
A.
At trial, both Agent Clauss’s and Sergeant Lucas’s
testimony misleadingly indicated that Clarke led them to the
campsite where Maharaj was held. But, in fact, Maharaj was
never held at that campsite, and the government knew the
testimony was misleading at the time it was given. The
government nevertheless chose not to reveal that to the defense
until the overnight recess after the defense cross-examination
of Agent Clauss, when it faxed a diagram of the campsite with
a cover memo stating it was “believed to be Clauss diagram
from false campsite.” J.A. 3936–38. The prosecution
admitted that “[w]e knew, the government knew that this was
not going to be the right campsite.” J.A. 3945.
48
The district court found both that “the government knew”
all along that the testimony was about a false campsite, and that
the testimony misled the court (“I know I didn’t know it”), and
“confused” the jury. J.A. 3964–65. The district court
nevertheless denied the motion for a new trial because,
“notwithstanding the government’s failure to disclose the
evidence earlier, Clarke was able to incorporate it into his
defense.” Clarke, 767 F. Supp. 2d at 53.
The government’s use of knowingly misleading testimony
that confuses the court, jury, and defense alike, compounded
by its greatly delayed release of information revealing the
deceptive content, is deeply disappointing and troubling
behavior, unbefitting those who litigate in the name of the
United States. See, e.g., United States v. Ash, 413 U.S. 300,
319 (1973) (“The primary safeguard against abuses of [the
prosecutorial process] is the ethical responsibility of the
prosecutor, who, as so often has been said, may ‘strike hard
blows’ but not ‘foul ones.’”) (quoting Berger v. United States,
295 U.S. 78, 88 (1935)).
But prosecutorial misbehavior alone does not a Brady
violation make. A reasonable possibility of concrete
prejudice from the false testimony or the delayed disclosure
must be shown. That has not been demonstrated here.
Moreover, the testimony was corrected, and Clarke failed to
demonstrate that the misleading content of the initial testimony
could nevertheless have affected the judgment of the jury.
Clarke’s Napue challenge thus also fails.
To begin with, all parties agreed on a stipulation to be read
to the jury exposing the government’s misleading presentation:
The parties, meaning the government, the United States of
America, and Mr. Clarke, stipulate and agree that the
49
campsite that FBI Agent Clauss and Sergeant Lucas
testified about that was visited by Zion Clarke in the
custody of law enforcement personnel on January 6, 2006,
was not a location to where Mr. Maharaj was ever taken or
at which he was ever held.
J.A. 4713–14.
That stipulation dispelled the confusion and set the
groundwork for defense arguments countering the testimony.
Indeed, it was materially indistinguishable from Clarke’s
proposed curative instruction to the jury. 11 The only
difference is that the stipulation did not include the phrase “it is
now conceded by the government.” The defendants,
however, have not demonstrated how the omission of that
single phrase could have had any material impact on the jury’s
consideration of all the relevant evidence presented in the case.
Clarke’s counsel, moreover, used that stipulation in closing
arguments to attack Agent Clauss and Sergeant Lucas’
credibility. The jury thus was fully aware that both agents had
misled them, and that the campsite to which Clarke had led law
enforcement was not, in fact, a crime scene. That left the jury
free to draw whatever inference it found more persuasive from
Clarke’s actions.
Defendants object that earlier disclosure would have
permitted a more thoroughgoing presentation of a defense
theory that Clarke led police to the wrong campsite precisely
because he was not involved in the actual crime. But
11
Clarke’s counsel proposed the following stipulation: “[Y]ou
heard testimony yesterday that Zion Clarke led agents to the
campsite where Mr. Maharaj was held. It is now conceded by the
government that that was not the campsite where Mr. Maharaj was
held.” J.A. 3963.
50
defendants identify no evidence that Clarke was unable to
present or any argument that he was precluded from making as
a result of the tardy disclosure. Nor did Clarke request a
continuance to develop this defense or ask that a mistrial be
declared. The specific showing of concrete prejudice that
Brady requires thus has not been made.
Finally, the extensive evidence of Clarke’s guilt confirms
that the ill-timed disclosure could not have affected the
outcome. The jury heard Clarke’s four separate, “exhaustive
and detailed” confessions, Clarke, 767 F. Supp. 2d at 54, as
well as corroborating testimony from Joseph and Percival.
Most relevantly, the jury heard that, on the day after leading
officers to the false campsite, Clarke led them to the site where
Maharaj was held and ultimately buried. Accordingly, the
defendants have not met their burden of demonstrating a
reasonable probability that either the misleading testimony or
its belated disclosure made a difference in the outcome of their
cases.
B.
At trial, prosecutors asked Percival if Kenneth Pierre
(Wayne Pierre’s brother, an uncharged, non-testifying, alleged
co-conspirator) had said anything about Maharaj’s condition
during the kidnapping. According to Percival’s reply,
Kenneth Pierre had said that Demerieux “hit the man in his
head with a big stone and dent his head.” J.A. 3436. But
when Trinidadian police x-rayed Maharaj’s skull to investigate
this claim, they found no such damage to his skull.
Defendants did not learn of this x-ray evidence until the
government turned over Agent Clauss’s grand jury testimony
referring to the x-ray weeks after Percival testified.
51
Demerieux’s counsel moved for a mistrial, arguing that
she would have obtained testimony from the person who
conducted the x-ray if she had known earlier that it existed.
But the prosecution noted that Dr. Des Vignes, the Trinidadian
forensic pathologist who conducted Maharaj’s autopsy, had
reported that he “did not see any fracture on [Maharaj’s] head,”
and that all parties had that report long in advance of Percival’s
testimony. J.A. 4610–11, Gov’t Br. 136. The district court
denied the motion for a mistrial, finding that “the evidence was
disclosed in time for [Demerieux’s] counsel to make effective
use of it.” Clarke, 767 F. Supp. 2d at 41.
This Brady claim fails because there is no reasonable
probability that earlier disclosure would have affected the
jury’s verdict. First, the substance of the x-ray evidence—the
absence of any fractures in Maharaj’s skull—had already been
disclosed to the defense through Dr. Des Vignes’s report,
which had been released to defense counsel well before
Percival’s testimony. Thus the delayed release of the x-ray
itself did not deprive the defense of its powerful ammunition
for cross-examination.
Second, Demerieux’s counsel made extensive use of the
late-developing x-ray evidence to undermine Percival’s
credibility, including by dramatically confronting the
Trinidadian forensic pathologist with the x-ray of Maharaj’s
skull showing no fracture. Demerieux’s closing argument
underscored that the x-ray was “proof positive [that] what
Jason Percival claims happened didn’t happen.” J.A. 5131.
Demerieux fails to demonstrate how earlier release of the x-ray
evidence would have made it any clearer to the jury that,
whatever else Mr. Maharaj may have suffered, there was no
support for Percival’s testimony that Demerieux hit Mr.
Maharaj over the head with a rock.
52
Third, earlier access to the x-ray evidence could not have
overcome the abundant evidence of Demerieux’s guilt,
including his two confessions, and Joseph’s testimony that
Demerieux guarded Maharaj and took part in his
dismemberment. The reality is that the alleged assault with
the rock formed a small part of a very large trial. Evidence of
Demeriux’s involvement in a brutal kidnapping and in
dismembering Mr. Maharaj’s body made the issue of whether
Mr. Maharaj was also hit with a rock of little relevance. There
thus is no reasonable possibility that the delayed disclosure
affected the jury’s judgment, or that earlier disclosure would
have made any difference on the jury’s consideration of the
case.
Finally, Demerieux’s Napue claim also fails. For many
of the same reasons, he has not shown any reasonable
probability that the misleading testimony influenced the jury’s
verdict.
C.
In his initial confession after his arrest in 2006, Russell
Joseph claimed that Ricardo Stevenson (who was not charged
in this case) drove the “clear car” after Maharaj’s abduction. 12
But at trial, Joseph testified that defendant De Four drove the
clear car. The defense learned of the earlier confession a mere
two hours before Joseph took the stand.
De Four promptly raised a Brady objection. His counsel
acknowledged, however, that the disclosure came in time for
him “to use” the initial confession in cross-examination. In
12
The “clear car” was tasked with clearing the roads ahead of the
get-away car, watching for police, and relaying information back.
Gov’t Br. 8.
53
addition, the court granted a mid-trial continuance that
afforded De Four’s counsel an “opportunity to conduct an
additional investigation in Trinidad,” including five days to
depose witnesses there. J.A. 4018.
The district court subsequently denied De Four’s Brady
motion, reasoning that the disclosure came early in a
two-month long trial and that the lengthy continuance mid-trial
had allowed the defendants to conduct further investigation.
For that reason, the “disclosure occurred in time for defense
counsel to use it effectively.” Clarke, 767 F. Supp. 2d at 44.
The court also held that any error was harmless, because the
evidence of De Four’s guilt was “overwhelming.” Id. at 46–
47.
The district court properly denied the Brady claim because
the belated disclosure was not prejudicial. The record shows
that De Four made powerful use of Joseph’s contradictory
statements. De Four forced Joseph to admit on the stand and
in front of the jury that he had lied to police when he accused
an innocent man in a capital crime, and that he had done so to
protect himself. And De Four’s counsel skewered the
inconsistency in Joseph’s explanation for his lies, which was
that Trinidadian police told him to leave the “soldiers” out of
his account. As it turns out, both Stevenson and De Four were
soldiers in the Trinidadian military, so there was no reason to
finger Stevenson rather than De Four in the initial confession.
But devastating cross-examination alone does not answer
De Four’s claim of prejudice. He argues that the belated
disclosure impaired his entire defense strategy. More
specifically, De Four argues that the pre-trial disclosure that
Brady required would have allowed him to argue that Joseph
was right the first time and that Stevenson was the real clear car
driver. In so doing, De Four continues, his defense could have
54
undermined other critical testimony from Percival linking him
to the crime by demonstrating a pattern of kidnappings in
which Stevenson was the clear car driver.
De Four, however, does not argue that earlier disclosure
would have prompted a different strategy at trial. Instead, he
claims that he would have made the same arguments that
ultimately “foundered at trial for lack of proof,” Def. Br. 108,
but that he would have provided more evidence to back them
up. This is not a case, in other words, in which the defense
would have had to turn on a dime to change its trial strategy in
light of late-disclosed evidence. Instead, the initial Joseph
confession fit hand-in-glove with the third-party defense
strategy De Four’s counsel had planned all along.
De Four claims that earlier disclosure would have alerted
him to the importance of the Gopaul kidnapping, a previous
crime in which Stevenson drove the clear car. Armed with
that evidence, De Four argues that he would have had a better
shot at convincing the jury that Percival had orchestrated a web
of lies designed to frame him.
The district court had already ruled that the government
could not introduce evidence about the Gopaul kidnapping,
given its potential to prejudice the jury. The record shows that
De Four had ample time to reevaluate the importance of the
Gopaul kidnapping and, if he desired, seek the court’s
permission to incorporate it into his third-party defense. Early
in June, just after the start of the trial, De Four had a transcript
of Percival’s testimony identifying Stevenson as the clear car
driver in the Gopaul kidnapping. In July, his counsel
interviewed Stevenson in Trinidad during a week-long break in
the trial. If De Four needed still more time to investigate after
the disclosure of Joseph’s confession, he could have sought a
55
further continuance from the district court for that purpose.
But he did not.
On top of that, overwhelming evidence supported the
jury’s decision to convict. De Four confessed at length to his
participation in the crime. His cell phone records
corroborated that confession. And other witnesses confirmed
De Four’s role in the crime, including one witness who
testified that De Four actively participated in planning the
abduction and later reported back on its success. Nothing in
Joseph’s first confession or in the Gopaul case lends credibility
to De Four’s argument that the police tricked him into
confessing.
De Four himself admits, in fact, that the jury was not
“required to acquit him if they believed that he did not drive the
clear car,” and argues only that “the Government’s case against
him would surely have been weaker.” Def. Br. 108. Maybe
so, but not so much weaker that it would have made a
difference. The evidentiary weight against De Four
eliminates any reasonable probability that more or earlier
investigation would have changed the outcome. 13
Finally, all six defendants ask us to consider the
cumulative impact of the Brady and Napue violations on the
trial. That approach might work in a case where multiple
errors affect the same defendant. If the prosecution fails to
turn over two pieces of impeachment evidence, for example, an
error-by-error approach might find no Brady violation in either
case because for each scenario the evidence as a
whole—including the evidence left unimpeached because of
13
The district court also denied Sealey’s Brady motion arising from
this same tardy disclosure. Because Sealey’s arguments on appeal
make no showing of prejudice, his claim fails as well.
56
the other alleged violation—would be enough to sustain the
conviction. But the synergistic force of the omitted evidence
considered together might well generate a reasonable
probability of altering the evidentiary balance. Taking all the
errors together thus keeps the Brady inquiry from devolving
into a game of evidentiary whack-a-mole. See Kyles v.
Whitley, 514 U.S. 419, 420 (1995) (“[T]he state’s disclosure
obligation turns on the cumulative effect of all suppressed
evidence favorable to the defense, not on the evidence
considered item by item.”).
But a cumulative approach does not help the defendants
here. Each alleged violation only affected one of the
defendants, and no two errors affected the same defendants.
There simply was no defendant-specific cumulative impact
that could alter the prejudicial effect of the prosecution’s
substantial missteps.
VI.
Miranda Claims
Sealey and Demerieux challenge the denial of their
motions to suppress custodial statements that they gave to the
Trinidadian police and to the FBI on the ground that their
statements were obtained in violation of Miranda v. Arizona,
384 U.S. 436 (1966). Because the Trinidadian and FBI
interrogations were independent and distinct, and because
Sealey and Demerieux do not challenge the legal sufficiency of
the Miranda warnings that the FBI gave before questioning, we
hold that no violation of Miranda occurred. 14
14
De Four and Straker purport to join Demerieux’s and Sealey’s
Miranda claims. Def. Br. 115 n.50. But “Fifth Amendment rights
57
A.
1.
The FBI began its investigation into the Maharaj hostage
taking in April 2005, led by Special Agent Clauss. A separate
investigation by Trinidadian police was already underway, led
by Constable Phillip Forbes. Between April 2005 and
January 2006, FBI Agent Clauss flew to Trinidad five times.
He traveled there twice in April or May 2005, to begin the
investigation. He returned in October, at which time the
Trinidadian police brought a new witness to the U.S. Embassy
for an interview with FBI agents. Constable Forbes remained
present during the interview, but did not ask any questions.
The following month, Agent Clauss returned to meet the
new Trinidadian homicide detective assigned to the case,
Sergeant Lucas. Agent Clauss informed Sergeant Lucas that
the FBI had an ongoing investigation, but did not attempt to
direct the investigation of the Trinidadian police. Agent
Clauss explained that the Trinidadian police “were conducting
their own investigation regarding what they believed was a
homicide,” while he and his partner, FBI Agent Edgar Cruz,
were investigating the hostage taking. J.A. 2479. “They
were parallel investigations that were clearly similar in
nature,” Agent Clauss testified, “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[.]” Id.
Agents Clauss and Cruz returned to Trinidad on January 3,
2006, and met with Sergeant Lucas and his team of
are, a fortiori, personal rights” in which De Four and Straker cannot
share. Bryson v. United States, 419 F.2d 695, 699 (D.C. Cir. 1969).
58
investigators. Sergeant Lucas told Agent Cruz that the
Trinidadian police planned to make their first arrests the
following morning. True to their word, the Trinidadian police
arrested Clarke and Demerieux the next day. The FBI was not
invited to participate in the arrests. But Agents Clauss and
Cruz did question Demerieux later that day with “members of
the Trinidad[ian] police force[.]” United States v. Clarke, 611
F. Supp. 2d 12, 40 (D.D.C. 2009).
Demerieux was again interviewed by the Trinidadian
police and FBI agents on January 5th, “albeit briefly.”
Clarke, 611 F. Supp. 2d at 40. The district court found that,
during both interviews, Demerieux (i) was “notified of his
rights” under both U.S. and Trinidadian law, (ii) “agreed to
waive his rights,” (iii) “did not request a lawyer,” and (iv) “was
not mistreated, threatened or coerced by law enforcement[.]”
Id. at 41. Concluding that they had insufficient evidence to
hold Demerieux, the Trinidadian police released him. Id.
After his arrest, Clarke, who was in Trinidadian custody,
agreed to show the Trinidadian police a forest camp where he
claimed Maharaj had been held. Agents Clauss and Cruz
were invited to accompany a “large group of Trinidad[ian]
police officers” to the site. Clarke, 611 F. Supp. 2d at 26.
The next day, Clarke identified the location “where the two
containers holding the victim’s remains were buried.” Clarke,
767 F. Supp. 2d at 21. The FBI later assisted with the
recovery and identification of those remains. Id.
The Trinidadian police also arrested Straker on January
6th. Straker, 596 F. Supp. 2d at 84. A few days later,
Sergeant Lucas informed Agent Clauss of the arrest. Id. at 85.
Sergeant Lucas then allowed Agent Clauss to interview
Straker, remaining present during that interview. Id.
59
On March 31, 2006, the Trinidadian police rearrested
Demerieux, and Sergeant Lucas informed Agent Clauss of the
arrest later that same day. Clarke, 611 F. Supp. 2d at 41. The
district court found that, when Agent Clauss and Sergeant
Lucas spoke on the phone, they “did not discuss the substance
of the investigation and Clauss did not attempt to direct the
investigative efforts of the Trinidad[ian] police in any way.”
Id.
2.
When the Trinidadian police rearrested Demerieux, they
“informed him of his rights under Trinidad[ian] law,” which
include, among others, the right to remain silent, the right to
speak with a legal representative, relative, or friend, and a
warning that statements may be used against the accused in
court. Clarke, 611 F. Supp. 2d at 22, 41. Demerieux neither
invoked his rights nor requested to contact a lawyer. Once at
the police station, Demerieux “indicated that he wanted to give
a statement.” Id. at 42. The Trinidadian police reiterated the
warnings required under Trinidadian law, and specifically
advised Demerieux “that he had the right to contact a lawyer,
relative or friend.” Id. Demerieux reaffirmed his desire to
give a statement. The Trinidadian police then contacted a
Justice of the Peace, who met privately with Demerieux,
questioning him about how the police had treated him and
whether he had voluntarily agreed to give a statement. Id.
Demerieux said that he had been treated well and confirmed his
desire to give a statement. The Justice of the Peace explained
to Demerieux that he had the right to contact an attorney and
informed him that he did not have to give a statement. Id.
Once that meeting concluded, “Demerieux was ready to give a
formal statement.” Id.
60
A Trinidadian officer transcribed Demerieux’s statement
by hand, including “a certification that expressed Demerieux’s
understanding of his rights, his waiver of his rights and his
desire to give a statement.” Clarke, 611 F. Supp. 2d at 42.
That certification was read aloud to Demerieux, who indicated
his understanding and signed his name. After finishing his
statement, Demerieux was given the opportunity to review it,
and the Trinidadian police also read it aloud to him. Id.
After Demerieux made several changes, he “signed the
statement and acknowledged that it was true and had been
made of his own free will.” Id.
Agents Clauss and Cruz arrived back in Trinidad the next
day. Clarke, 611 F. Supp. 2d at 43. The Trinidadian police
“granted the FBI access to Demerieux,” who “agreed to
conduct an interview with them.” Id. Agent Clauss, though
aware that Demerieux had given a statement the day before,
testified that he had neither seen it nor discussed its substance
with anyone from the Trinidadian police. Id.
Agents Clauss and Cruz then began their own interview
with Demerieux. They presented him with an international
advice of rights form, which they read to him “verbatim[.]”
Clarke, 611 F. Supp. 2d at 43. The form generally advised
Demerieux of his Miranda rights, but informed him that
appointment of counsel could not be assured while he
remained in foreign custody. 15 Agent Clauss also “explained
Demerieux’s rights to him in a more informal way.” Id.
15
The form stated in full:
We are representatives of the U.S. government. According to
our laws, you are entitled to certain rights. Before we ask you
61
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[ian] 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 your 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 to 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[ian] 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 statement and waiver of rights:
I have read this notice of my rights and I understand what my
rights are.
I am prepared to give a statement and to answer questions.
62
“After the verbal warnings, Demerieux then initialed and
signed the form, waiving his rights and agreeing to speak to the
agents.” Clarke, 611 F. Supp. 2d at 43. Demerieux never
requested an attorney. Id. The two FBI agents conducted the
three-hour interview alone, without anyone from the
Trinidadian police participating. Id. The district court found
that “the FBI treated Demerieux fairly and there is no evidence
of any coercive tactics.” Id.
3.
The Trinidadian police arrested Sealey on August 8, 2006.
Straker, 596 F. Supp. 2d at 102. Later that day, Sealey told a
Trinidadian police officer that he wanted to talk about the
kidnapping. In response, the officer “identified herself as a
Trinidad[ian] police officer, and cautioned him as to his rights
under Trinidad[ian] law[.]” Id. After Sealey reiterated his
desire to talk, the Trinidadian officer “requested the presence
of a Justice of the Peace.” Id. The Justice of the Peace spoke
“privately with Sealey.” Id. at 102. After that meeting, the
Justice of the Peace advised the officer that Sealey wanted to
speak with his father. Id. Sealey, his father, and the Justice
of the Peace then had a private meeting, at which, according to
the Justice of the Peace’s handwritten certification, Sealey
I do not wish to have an attorney at this time.
I understand and know what I am doing.
I have received no promises or threats nor have I been subjected
to pressure or coercion of any sort.
Dkt. 258-5 (Aug. 11, 2008).
63
confirmed that he was making his statement “knowingly and
voluntarily.” Id.
Meanwhile, having been notified of Sealey’s arrest, FBI
Agent Marvin Freeman arrived at the police station. Straker,
596 F. Supp. 2d at 102. The Trinidadian officers did not
“include Freeman in their preparations, having had no
discussions with him about the investigation before that day.”
Id. at 103. During Sealey’s interview by Trinidadian officers,
Agent Freeman sat in an adjacent cubicle “over 10 feet away
and could hear the interview taking place.” Id. The
Trinidadian police officers did not consult with Agent Freeman
during the interview, and “Freeman did not make any
suggestions to the officers about any areas of inquiry.” Id.
One Trinidadian police officer read Sealey his rights under
Trinidadian law, and asked him to sign the following
statement: “‘I, Michael Bourne, also known as Christopher
Sealey and Boyie, wish to make a statement. I want someone
to write down what I say. I have been told that I need not say
anything unless I wish to do so and that whatever I say may be
given in evidence. I have also been told that I have the right to
retain a legal adviser.’” Straker, 596 F. Supp. 2d at 103.
Sealey signed the statement, and Sealey’s father and the Justice
of the Peace signed as witnesses. Id.
Sealey confessed to his role in the kidnapping, and a
Trinidadian police officer handwrote a transcript. Straker,
596 F. Supp. 2d at 103. She then read the transcript to Sealey,
who made corrections, each of which he signed. Id. Sealey
also handwrote the following statement: “The above
statement has been read to me, and I have been told that I can
correct or add anything I wish. This statement is true. I have
made it of my own free will.” Id. Sealey’s father and the
Justice of the Peace signed as witnesses, and the Justice of the
64
Peace wrote an additional certification about the interview,
“summarizing his initial private meeting with Sealey and his
father and Sealey’s waiver of rights, and then confirming that
Sealey had been read the full statement in the presence of his
father before making the handwritten certification that it was
correct.” Id. at 104.
After they finished questioning Sealey, the Trinidadian
police allowed Agent Freeman to interview him. Straker, 596
F. Supp. 2d at 104. Agent Freeman read Sealey his rights
based on an “‘international advice of rights’ form.” Id.; see
supra note 15. Sealey signed the form, and his father, who
remained present throughout, signed as a witness, along with
another Trinidadian police officer. Id. at 105. The district
court found that “Sealey did not ask to stop the interview, nor
did he appear to be in distress or discomfort.” Straker, 596 F.
Supp. 2d. at 105.
B.
Before trial, Demerieux moved to suppress his March 31st
statement to the Trinidadian police, and his April 1st statement
to the FBI. Clarke, 611 F. Supp. 2d at 40. Sealey likewise
moved to suppress the statements he made on August 8, 2006,
both to the Trinidadian police and to the FBI. Straker, 596 F.
Supp. 2d at 105.
As relevant here, both argued that the statements were
inadmissible because the Trinidadian police and the FBI were
engaged in a “joint venture,” and accordingly Miranda
warnings were required before the interviews by the
Trinidadian police. Id.; Clarke, 611 F. Supp. 2d at 40. They
also contended that the statements should be suppressed
because they were involuntary. See Straker, 596 F. Supp. 2d
at 105; Clarke, 611 F. Supp. 2d at 40.
65
The district court rejected both motions. See Straker, 596
F. Supp. 2d at 108–09; Clarke, 611 F. Supp. 2d at 44–45.
Relying on the government’s concession, the court assumed
that Miranda applies to FBI questioning of non-resident aliens
held in foreign custody abroad. Clarke, 611 F. Supp. 2d at 29
& n.12 (quoting Gov’t Opp’n to Clarke Mot. at 20 (Dkt. No.
353)); see also id. at 43–44. The court noted, however, that
Miranda did not govern the interrogations by the Trinidadian
police unless those interrogations were “the product of a joint
venture,” which exists when “‘United States law enforcement
agents actively participate in the questioning of the defendant
or the foreign officials act as agents or virtual agents of the
United States.’” Id. at 43–44 (quoting Straker, 596 F. Supp.
2d at 106).
With respect to Demerieux’s March 31st statement to the
Trinidadian police, the court found no “active participation” by
the FBI, as Agents “Clauss and Cruz did not even arrive in
Trinidad until the following day[.]” Clarke, 611 F. Supp. 2d
at 44. The district court further determined that the “two law
enforcement entities were conducting independent
investigations, they were not sharing information, and the FBI
was in no way directing the activities of the Trinidad[ian]
police.” Id. Finding “no evidence that the Trinidad[ian]
police were acting as agents, or virtual agents, of the FBI at the
time he made his statement on March 31,” the district court
concluded that there was no joint venture. Id. The court
further found that “Demerieux was well aware of his rights,
voluntarily agreed to waive those rights, and gave a statement
to the Trinidad[ian] police of his own free will.” Id. The
court reached the same conclusion about the voluntariness of
Demerieux’s April 1st statement to the FBI. Id. at 44–45.
 66
With respect to Sealey’s August 8th statements, the
district court found “simply no evidence” that the separate
interviews of Sealey by the Trinidadian police and the FBI
amounted to a joint venture. Straker, 596 F. Supp. 2d at 106.
The district court found that the testimony “overwhelmingly
established that there were two distinct interviews[.]” Id.
The court also determined that “the Trinidad[ian] police and
Freeman were not acting jointly with respect to the
investigation of Sealey at the time the interview took place,”
finding that the FBI (i) “did not participate in Sealey’s arrest on
August 8, 2006”; (ii) “was [not] even remotely involved in
setting up Sealey’s interview with the Trinidad[ian] police”;
and (iii) “was not allowed to participate in the Trinidad[ian]
officers’ interview of Sealey, observe the interview, or submit
any questions,” but was instead “only permitted to conduct [its]
own separate interview.” Id. at 106–07. Thus, “under even a
broad view of the ‘joint venture’ standard,” the district court
concluded, “[w]hatever information-sharing or cooperation
might have occurred with respect to other defendants, there is
nothing to support a finding that the Trinidad[ian] police and
the FBI were acting ‘jointly’ on August 8, 2006[.]” Id. at 107.
C.
The parties dispute the standard of review applicable to the
joint-venture question. Demerieux and Sealey contend that
the district court’s factual findings are reviewed for clear error,
but that the ultimate question of whether the facts found
constitute a joint venture is a legal question reviewed de novo.
That is analogous to how we review a district court’s
conclusion that, under the totality of the circumstances, an
accused “waived his fifth and six[th] amendment rights
‘voluntarily, knowingly, and intelligently.’” United States v.
Yunis, 859 F.2d 953, 958 (D.C. Cir. 1988) (quoting Miranda,
384 U.S. at 444). The government, by contrast, argues that
67
our review is for clear error only. We need not resolve the
question in this case because, even reviewing de novo, we
affirm.
D.
1.
We note at the outset that the government concedes that
the Fifth Amendment privilege against self-incrimination
protects nonresident aliens facing criminal trial in the United
States, even when, as here, the questioning by federal
authorities took place abroad. Gov’t Br. 187–88 n.93
(“Below, the government conceded the applicability of the
Fifth Amendment to the FBI’s overseas actions.”); Oral Arg.
Tr. 135:18–19 (“[W]e appropriately concede it[.]”); see also In
re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d
177, 198–201 (2d Cir. 2008) (so concluding). Relatedly,
despite some equivocation below, see Clarke, 611 F. Supp. 2d
at 29 n.12, the government has conceded on appeal the
applicability of Miranda to interrogations by U.S. authorities
of individuals in foreign police custody, see Oral Arg. Tr. 135;
Gov’t Br. 187–88 n.93. For those reasons, we assume,
without deciding, that Miranda applies to statements obtained
by U.S. authorities from suspects held in foreign custody
abroad.
The Fifth Amendment’s self-incrimination clause
provides that no “person” “shall be compelled in any criminal
case to be a witness against himself.” U.S. CONST. AMEND. V.
As the Supreme Court held in Miranda, that privilege against
compelled self-incrimination is “applicable during a period of
custodial interrogation.” 384 U.S. at 460–61. That is
because “the compulsion to speak in the isolated setting of the
police station may well be greater than in courts or other
68
official investigations,” id. at 461, which “heightens the risk
that an individual will not be ‘accorded his privilege under the
Fifth Amendment . . . not to be compelled to incriminate
himself,’” Dickerson v. United States, 530 U.S. 428, 435
(2000) (quoting Miranda, 384 U.S. at 439) (alterations in
original).
To protect against that risk, Miranda set forth “concrete
constitutional guidelines for law enforcement agencies and
courts to follow.” 384 U.S. at 442. “Those guidelines
established that the admissibility in evidence of any statement
given during custodial interrogation of a suspect would depend
on whether the police provided the suspect with four
warnings”: that “a suspect ‘has the right to remain silent, that
anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed for him prior to
any questioning if he so desires.’” Dickerson, 530 U.S. at 435
(quoting Miranda, 384 U.S. at 479).
A different rule applies, however, to statements obtained
abroad by foreign officials. See Wayne R. LaFave et al., 2
Criminal Procedure § 6.10(d) (3d ed. 2013) (“[T]hough a
defendant may be entitled to keep out of a prosecution in this
country a confession by him which was involuntarily given to a
foreign policeman, he may not obtain the suppression of a
confession obtained by such an official merely because the
Miranda warnings were not given.”). As a prophylactic rule,
Miranda safeguards the constitutional privilege against
compelled self-incrimination by deterring negligent or willful
police misconduct that could impinge upon the Fifth
Amendment right. See Oregon v. Elstad, 470 U.S. 298, 308
(1985) (noting a principal aim of Miranda is “deterrence”);
Michigan v. Tucker, 417 U.S. 433, 447 (1974) (discussing the
“deterrent purpose of the exclusionary rule”). But because the
69
Miranda exclusionary rule would “have little, if any, deterrent
effect upon foreign police officers,” In re Terrorist Bombings,
552 F.3d at 202, courts have held that “statements obtained
from a defendant by foreign law enforcement officers, even
without Miranda warnings, generally are admissible” as long
as they are “voluntary,” United States v. Abu Ali, 528 F.3d 210,
227 (4th Cir. 2008); see also LaFave, supra, § 6.10(d) n.59 (it
is “commonly assumed” that the voluntariness requirement
still applies to confessions obtained during overseas
interrogations by foreign officers, but “it may well be that . . .
the defendant can object only if the confession was obtained by
methods making its reliability suspect or, perhaps, by methods
which ‘shock the conscience’”). 16
Under the “joint venture” doctrine, custodial statements
obtained by foreign officials without Miranda warnings are
inadmissible in United States courts if those officials were
“engaged in a joint venture with, or . . . were acting as agents
of, United States law enforcement officers.” Abu Ali, 528
F.3d at 228. Demerieux and Sealey argue that the FBI and the
Trinidadian police were engaged in such a coordinated, joint
investigation, and accordingly the statements given to the
Trinidadian police without Miranda warnings must be
16
We have never decided what standard determines the
admissibility of statements obtained abroad by foreign police
officers, though it has been suggested that the ordinary voluntariness
standard governs. See Yunis, 859 F.2d at 971 (Mikva, J., specially
concurring) (arguing that voluntariness standard should apply
because, “[i]n Bram v. United States, 168 U.S. 532 (1897), the Court
excluded a confession from an American trial, notwithstanding that
the coercive interrogation was conducted by a foreign police officer
in a foreign country”). We need not decide that question today
because Demerieux and Sealey do not dispute voluntariness distinct
from their Miranda claims.
70
suppressed. Demerieux and Sealey also argue that their
statements to the FBI should have been suppressed under
Missouri v. Seibert, 542 U.S. 600 (2004), which generally
prevents police from sanitizing an unwarned statement by
giving the suspect after-the-fact Miranda warnings and then
having the suspect repeat the incriminating statement.
2.
The “joint venture” doctrine ensures that United States
law enforcement agents cannot circumvent their obligations
under Miranda just by outsourcing custodial interrogation to
foreign agents while still “actively participat[ing] in the
questioning conducted by foreign authorities,” United States v.
Yousef, 327 F.3d 56, 145 (2d Cir. 2003), or by having “the
foreign officials act as [their] agents or virtual agents,” Straker,
596 F. Supp. 2d at 106.
Demerieux and Sealey acknowledge that the FBI did not
participate at all, let alone “actively participate,” Yousef, 327
F.3d at 145, in the Trinidadian police interrogations, Oral Arg.
Tr. 119:25–120:1 (“[T]his was clearly not a joint venture in the
questioning[.]”). And Demerieux and Sealey do not attack as
clear error the district court’s factual findings concerning the
operational independence of the interrogations. Id. at 109:8–
9. Indeed, Demerieux and Sealey concede that, if the inquiry
is confined to the days of their respective interrogations, there
is nothing to support a conclusion that the Trinidadian police
and the FBI were acting jointly. Id. at 109:11–14.
Focusing instead on several preceding incidents of
cooperation between the two law enforcement agencies,
Demerieux and Sealey assert that the cooperation rose to the
level of a “prior joint investigative venture” from which the
interrogations by the Trinidadian police “sprang.” Def. Br.
71
120. They point in particular to: (i) Agent Clauss’s meeting
with the Trinidadian police in late 2005 and the resulting
exchange of information between the two law enforcement
agencies; (ii) the Trinidadian police’s aid to the FBI in securing
an interview of a cooperating witness in January 2006; (iii) the
joint trips by the FBI and the Trinidadian police to investigate
campsite where Maharaj was said to be held and where
Maharaj was buried, and the forensic assistance provided by
the FBI during the discovery and autopsy of Maharaj’s
remains; and (iv) the joint interview of Straker by the FBI and
the Trinidadian police on January 9, 2006.
We need not decide whether the joint-venture inquiry
turns on the amount of coordination across the whole
eighteen-month, multi-defendant investigation or only in the
discrete interrogations to which Miranda could apply.
Compare United States v. Emery, 591 F.2d 1266, 1268 (9th
Cir. 1978) (inquiring into the totality of the involvement of
U.S. law enforcement agents in the investigation and arrest of
suspects), with Yousef, 327 F.3d 145–46 (inquiring into U.S.
law enforcement officers’ participation in the interrogations to
which Miranda could have applied). Even assuming that the
nature of the full investigative relationship governs, the
isolated incidents of routine cooperation between the
Trinidadian police and the FBI do not amount to the type of
closely coordinated investigative effort that would trigger the
joint venture doctrine.
To begin with, there was no “coordination and direction”
of the Trinidadian investigation by the FBI. See Abu Ali, 528
F.3d at 229. Nor is there evidence of “active” or “substantial”
participation by U.S. law enforcement agents in the
Trinidadian investigation. While FBI officers were physically
present during one Trinidadian interrogation, such silent
observation does not make the interrogation the FBI’s own for
72
purposes of Miranda. See id. (“[M]ere presence at an
interrogation does not constitute the ‘active’ or ‘substantial’
participation necessary for a ‘joint venture[.]’”); see also
Pfeifer v. Bureau of Prisons, 615 F.2d 873, 877 (9th Cir. 1980);
Kilday v. United States, 481 F.2d 655, 656 (5th Cir. 1973).
Nor is it enough that foreign law enforcement agents granted a
U.S. law enforcement agent permission to question a suspect.
See United States v. Heller, 625 F.2d 594, 599–600 & n.7 (5th
Cir. 1980) (no joint venture where U.S. officers had to get
permission from British authorities to interview the suspect,
Mirandized the suspect when questioning him, and did not
discuss with British authorities the separate un-Mirandized
interrogation those authorities had conducted).
Likewise, the forensic assistance provided by the FBI
during the recovery, autopsy, and identification of Maharaj’s
remains does not trigger Miranda both because the assistance
was limited in time and scope, and because it served the FBI’s
own independent investigative efforts. See United States v.
Bagaric, 706 F.2d 42, 69 (2d Cir. 1983) (“[C]lose cooperation
between American and Canadian officials [was] insufficient to
upset [the trial court’s] finding that [the Canadian official]
conducted the search on his own country’s authority and in
connection with an ongoing Canadian investigation.”); see also
Heller, 625 F.2d at 599–600 (no joint venture when, inter alia,
participation by U.S. law enforcement officers in suspect’s
arrest “was peripheral at most”); United States v. Mundt, 508
F.2d 904, 906–07 (10th Cir. 1974) (Miranda inapplicable
where U.S. law enforcement officer “merely . . . played a
substantial part in the events which led up to the arrest of
[defendant], but once the arrest was made the Peruvian Police
took over”).
Instead, the types of joint ventures that have triggered
Miranda have involved levels of coordination and interaction
73
far more extensive than what occurred here. There is no
evidence in this case, for example, that the Trinidadian police
were “acting on behalf of” the FBI “in an effort to extradite”
Demerieux and Sealey to the United States. Cranford v.
Rodriguez, 512 F.2d 860, 863 (10th Cir. 1975).
Nor is this case like Emery, 591 F.2d at 1268, on which
Demerieux and Sealey heavily rely. There, agents of the U.S.
Drug Enforcement Agency contacted Mexican officials about
suspected drug activity, coordinated surveillance, supplied an
undercover agent as the pilot for a drug transport plane in a
Mexican sting operation, signaled when to arrest the suspects
after determining that drugs were located in suitcases, and were
present at the suspects’ interrogation. See id. Such extensive
coordination, active participation, and direction by U.S. law
enforcement officers far surpasses the limited cooperation
between the Trinidadian police and the FBI here. 17
Indeed, if the isolated and infrequent interactions and
courtesies that occurred here sufficed, all manner of routine
international cooperation would be subject to Miranda’s
strictures regardless of whether U.S. law enforcement officers
have any practical authority over or responsibility for the
interrogations and investigative measures undertaken by
foreign officials. Miranda is a prophylaxis designed to
regulate and deter the coercive conduct of domestic law
enforcement officers. See In re Terrorist Bombings, 552 F.3d
at 202. It is not meant to police independent foreign
investigative activities that U.S. law enforcement officers do
not direct and cannot control.
17
We have found no case, and defendants have cited none, in which
the type of occasional interactions at issue here amounted to a joint
venture.
74
3.
Because there was no joint venture, Seibert does not
require suppression either. In Seibert, the Supreme Court
evaluated a police protocol under which the interrogating
officer deliberately withheld Miranda warnings until the
suspect confessed, and then gave the full Miranda warnings
post hoc before having the suspect repeat the confession.
Seibert, 542 U.S. at 605–07 (plurality).
When confronted with such question-first-and-warn-later
tactics, courts must determine “whether it would be reasonable
to find that in these circumstances the warnings could function
‘effectively’ as Miranda requires.” Seibert, 542 U.S. at 611–
12. The Seibert plurality focused on such factors as “the
completeness and detail of the questions and answers in the
first round of interrogation, the overlapping content of the two
statements, the timing and setting of the first and the second,
the continuity of police personnel, and the degree to which the
interrogator’s questions treated the second round as continuous
with the first.” Id. at 615. Concurring in the judgment,
Justice Kennedy stated that he “would apply a narrower test
applicable only in the infrequent case . . . in which the two-step
interrogation technique was used in a calculated way to
undermine the Miranda warning.” Id. at 622 (Kennedy, J.,
concurring in the judgment).
In light of the fractured decision in Seibert, courts have
debated whether the plurality opinion’s multifactor test
controls, or whether Justice Kennedy’s concurrence is the
narrower rationale that is binding under Marks v. United
States, 430 U.S. 188, 193 (1977). Compare United States v.
Courtney, 463 F.3d 333, 338 (5th Cir. 2006) (“[W]e find
Seibert’s holding in Justice Kennedy’s opinion concurring in
75
the judgment.”), with United States v. Heron, 564 F.3d 879,
884 (7th Cir. 2009) (“[T]he Marks rule is not applicable to
Seibert,” as “Justice Kennedy’s intent-based test was rejected
by both the plurality opinion and the dissent[.]”).
We need not pick sides in that debate because (i) Seibert
does not apply on these facts and, even if it did,
(ii) Demerieux’s and Sealey’s statements were admissible
under both the plurality’s and Justice Kennedy’s tests.
First, Seibert applies only when the accused is questioned
first, then warned later. See 542 U.S. at 611–12. That did not
happen here. The district court found—and Demerieux and
Sealey do not dispute—that the Trinidadian police’s warnings
under Trinidadian law were “functionally equivalent” to those
required by Miranda. Straker, 596 F. Supp. 2d at 107 n.24;
Clarke, 611 F. Supp. 2d at 44 n.27; see also Oral Arg. Tr.
111:9–18. Simply put, there was no two-step interrogation
because (i) the Trinidadian police and the FBI were not acting
in concert and, in any event, (ii) both gave warnings the
adequacy of which under Miranda Demerieux and Sealey do
not challenge.
Second, Justice Kennedy’s test applies only when police
deliberately use a two-step interrogation to thwart Miranda.
See Seibert, 542 U.S. at 622 (Kennedy, J., concurring in the
judgment). Such deliberate evasion is absent in this case.
Demerieux and Sealey concede both that “there was no
evidence of a protocol that directed the FBI to swoop in after
[the Trinidadian police] secured a confession,” Reply Br. 59,
and that the Trinidadian police and the FBI were not acting
jointly on the days of their interrogations, see Oral Arg. Tr.
119:25–120:6. There accordingly was no “interrogation
technique designed to . . . undermine[] the Miranda warning
76
and obscure[] its meaning.” Seibert, 542 U.S. at 618
(Kennedy, J., concurring in the judgment).
Third, even under the Seibert plurality’s multifactor test,
Demerieux’s and Sealey’s claim would fail. Although both
the Trinidadian police and the FBI thoroughly questioned
Demerieux and Sealey, and thus elicited confessions the
content of which largely overlaps, those two factors do not
outbalance the other considerations demonstrating the efficacy
of the intervening FBI Miranda warnings. To start, given the
timing and setting of the first statement to the Trinidadian
police and the second statement to the FBI, “a reasonable
person” “could have seen” the FBI’s questioning “as a new and
distinct experience” during which he retained “a genuine
choice whether to follow up on the earlier admission” to the
Trinidadian police. Seibert, 542 U.S. at 615–16. The
Trinidadian police began their interviews by apprising
Demerieux and Sealey of their rights under Trinidadian law,
while the FBI informed them of their rights under U.S. law.
Those separate rounds of separate warnings not only made
Demerieux and Sealey aware that each round of questioning
was distinct, but also reminded them on each occasion that they
had the right to remain silent. The distinctness of the
interrogations is particularly stark for Demerieux, whose
interrogation by the FBI came a day after his interrogation by
the Trinidadian police. See Clarke, 611 F. Supp. 2d at 42.
Furthermore, unlike in Seibert, there was a sharp
discontinuity of police personnel, and the FBI did not “treat[]
the second [interrogation] as continuous with the first.”
Seibert, 542 U.S. at 615. Not only were the FBI agents who
interrogated Demerieux and Sealey different from the
Trinidadian police officers who initially questioned them, but
the FBI agents represented an entirely different law
enforcement authority from an entirely different country.
77
Equally importantly, the FBI agents did not refer back to
the prior Trinidadian interrogations in an effort to elicit the
same confessions. In Seibert, by contrast, the “same officer”
who conducted the first, unwarned interrogation returned “only
15 to 20 minutes” later and led the suspect “over the same
ground again.” 542 U.S. at 613, 616. Indeed, that officer
“set the scene” for the second round of questioning “by saying
‘we’ve been talking for a little while about what happened on
Wednesday the twelfth, haven’t we?’” Id. at 616. And when
the suspect equivocated or departed from her prior statement,
the officer referred “back to the confession already given,”
reinforcing the impression “that the further questioning was a
mere continuation” of the earlier interrogation. Id. Here, a
reasonable person would have viewed the Trinidadian police’s
and the FBI’s interrogations as two “independent
interrogations.” Id. at 614.
VII.
Edwards Claim
Defendant Straker separately challenges the denial of his
motion to suppress the statement he gave to the FBI on July 29,
2007, on the ground that it was obtained after he had invoked
the right to counsel, in violation of Edwards v. Arizona, 451
U.S. 477 (1981). Because Straker voluntarily reinitiated
communication with the FBI, we reject his claim. 18
18
De Four and Sealey purport to join Straker’s argument. Def. Br.
133 n.58. However, they cannot vicariously invoke Straker’s
personal Fifth and Sixth Amendment protections under Edwards.
See supra note 14, supra; see also United States v. Sabatino, 943
F.2d 94, 96 n.1 (1st Cir. 1991) (“Sixth Amendment rights . . . are
78
A.
1.
The Trinidadian police arrested Straker on January 6,
2006, interrogating him once that day and again the next.
Straker, 596 F. Supp. 2d at 84–85. On both occasions the
Trinidadian police informed Straker of his rights under
Trinidadian law before questioning him, including 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.” Id. at 85.
Straker denied any knowledge of the kidnapping or killing.
Id. A day later, on January 8th, Straker met with his attorney,
who told “Straker not to sign any documents or speak to
anyone.” Id.
On January 9th, Sergeant Lucas allowed the FBI to
interview Straker. Straker, 596 F. Supp. 2d at 85. During the
interview, Sergeant Lucas and three FBI agents—Clauss, Cruz,
and Freeman—sat at the table across from Straker. Id.
Agent Clauss read the standard FBI international
advice-of-rights form to Straker, advising him of his Miranda
rights with the standard caveat that appointment of counsel
cannot be assured while he remains in foreign custody. Id. at
86. Discussions were “calm [and] relaxed.” J.A. 2187.
Straker’s conversational tone left both Sergeant Lucas and
Agent Cruz with the “distinct impression that [Straker] wanted
to cooperate,” J.A. 2291 (Agent Cruz), and was “trying to
make a deal or something,” J.A. 2161 (Sgt. Lucas).
personal in nature and cannot vicariously be asserted[.]”) (citing
Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979)).
79
About halfway through the interview, Straker told the
agents that he had an attorney. Straker, 596 F. Supp. 2d at 86.
Straker said that he did not wish to talk about the details of the
case “at this time,” but would “rather talk to my attorney before
I talk any further.” J.A. 2257. The session continued “for
another hour or so,” with “intermittent questions from the FBI
about Straker’s biographical and family information” and
Straker otherwise “‘leading most of the conversation.’”
Straker, 596 F. Supp. 2d at 86. Near the end of the session,
Straker said that “‘after having access to his attorney, he would
be willing to speak to the agents.’” Id. at 87. Agent Clauss
then advised Straker that, “after he talked to his attorney, if he
wanted to make an attempt to contact” them, they “would be
willing to follow up with him at that point.” J.A. 2191. To
that end, Agent Freeman gave Straker his card, which
contained his contact information at the U.S. Embassy in
Trinidad. Straker, 596 F. Supp. 2d at 87. The FBI then
ended the interview. Id.
“[A]bout two weeks” later, having met with his lawyer in
the interim, Straker attempted to contact Agent Freeman by
telephone. Straker, 596 F. Supp. 2d at 88–89, 94. There is
no recording of Straker’s message, but Agent Freeman testified
that “it was to the effect of ‘this is Anderson Straker; can you
contact me?’” Id. at 89. Agent Freeman never returned
Straker’s call, however, because he was advised “not to do so”
by a Trinidadian official in light of Straker’s “legal
representation” in Trinidadian courts. Id. at 89.
Straker was formally charged by the Trinidadian
authorities on January 10, 2006, and he remained “in custody
in Trinidad” for the next eighteen months. Straker, 596 F.
Supp. 2d at 87–89. The FBI did not attempt to contact him at
any point during those intervening months. Id. at 89.
 80
2.
Straker was formally indicted in the United States on
September 20, 2006. Straker, 596 F. Supp. 2d at 89. But he
remained in Trinidadian custody until his extradition to the
United States on July 29, 2007. Id. After formally arresting
Straker at the airport in Trinidad, Agent Clauss orally advised
Straker of his Miranda rights and gave him an FBI advice of
rights form, which included the full Miranda warnings. Id. at
89 & n.13. Straker signed the form’s waiver of rights,
indicating that “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.” Id. at 89. Both
Clauss and Cruz signed as witnesses, and, according to their
testimony, “Straker appeared willing to sign and . . . did not
raise any questions about his rights.” Id.
The FBI interviewed Straker upon arrival in Puerto Rico.
Straker, 596 F. Supp. 2d at 90. Straker did not ask to stop the
questioning “and overall seemed ‘cooperative.’” Id.
According to FBI notes, Straker “acknowledged having a role
in planning the kidnapping of Balram Maharaj and described
the roles of several co-defendants.” Id.
B.
Straker moved to suppress his July 29, 2007 statement to
the FBI. He argued that, because he had invoked his right to
counsel when the FBI interviewed him in Trinidad in January
2006, the FBI was barred from subjecting him to further
custodial interrogation eighteen months later when he was
extradited to the United States. See Straker, 596 F. Supp. 2d
at 84. Straker grounded his argument on Edwards v. Arizona,
which held that, once a suspect invokes his right to counsel,
police generally may not obtain a waiver of that right just by
81
later reopening the interrogation. 451 U.S. at 484–85.
Instead, the suspect must himself reinitiate any discussion. Id.
Straker argued that he had done nothing to invite a resumption
of questioning, thus rendering his waiver of Miranda rights
invalid.
The district court denied Straker’s motion. Straker, 596
F. Supp. 2d at 99–100. The court again relied on the
government’s concession 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.” Id. at 90–91.
The district court then noted that Edwards establishes a
“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.” Id. at 91 (citing
Arizona v. Roberson, 486 U.S. 675, 681–82 (1988); Minnick v.
Mississippi, 498 U.S. 146, 151–52 (1990)). Describing it as a
“close call,” the district court concluded that the message
Straker left for Agent Freeman a few weeks after the January 9,
2006 interview “initiated” further communication with the FBI
under Oregon v. Bradshaw, 462 U.S. 1039 (1983) (plurality),
and that Straker had voluntarily, knowingly, and intelligently
waived his right to counsel. Straker, 596 F. Supp. 2d at 93–
95.
In so concluding, the district court credited the testimony
of Agent Freeman, finding that Straker left “at least one voice
mail message about two weeks after the January 9 interview,
asking Freeman to call him.” Straker, 596 F. Supp. 2d at 94.
The court also considered “the context in which the message
was left” to be “important,” stressing that Straker had said in
the first interview that “he wanted to leave the door open for
further discussions” after he consulted his lawyer. Id.
Straker then, of his own initiative, used the business card that
82
the FBI agent had left him “for th[e] purpose” of reopening
communication to call and ask Agent Freeman to speak with
him. Id. In the district court’s view, that sequence of events
could “reasonably be construed to indicate that [Straker’s]
initiation of communication [was] directed toward the
investigation.” Id.
The district court also concluded that, upon his
extradition, Straker voluntarily, knowingly, and intelligently
waived his Fifth Amendment right to counsel before giving his
July 29, 2007 statement, finding that (i) Straker had
“familiarity generally with the Miranda warnings from his
January 2006 interview”; (ii) Straker was properly advised of
his Miranda rights by Agent Clauss on July 29, 2007 and
agreed to waive those rights by signing the waiver on the FBI’s
advice of rights form; (iii) the only “coercive circumstance” on
July 29th was the handcuffs Straker wore; and (iv) the FBI had
no contact with Straker in the eighteen months between the
January 2006 interview and the July 2007 interview, leaving no
opportunity for the FBI to “badger” Straker into signing the
waiver. 596 F. Supp. 2d at 95–96. Finally, the court held
that this waiver applied as well to Straker’s Sixth Amendment
right to counsel post-indictment. Id. at 100 (citing Patterson
v. Illinois, 487 U.S. 285 (1988)).
C.
The district court’s factual findings are reviewed for clear
error. See Yunis, 859 F.2d at 958. The government argues
that “initiation” is a fact question reviewed for clear error.
Straker argues, however, that the ultimate question of whether
those facts amount to an “initiation” under Edwards is
reviewed de novo. Straker is correct. The question whether a
given set of facts meets the legal threshold needed to overcome
Edwards’s prophylactic protection of Fifth and Sixth
83
Amendment rights is reviewed de novo. See United States v.
Whaley, 13 F.3d 963, 968–69 (6th Cir. 1994) (“While we
accept, unless clearly erroneous, the facts that the district court
found, whether those facts together constitute an ‘initiation’
under Edwards is a legal question we review de novo.”); cf.
Yunis, 859 F.2d at 958 (waiver of Fifth and Sixth Amendment
rights).
D.
1.
Because the government does not contest the issue, we
assume without deciding that both the Fifth Amendment
privilege against self-incrimination and the Miranda and
Edwards doctrines govern the admissibility at trial of
statements obtained by U.S. authorities from nonresident
aliens who first assert their right to counsel while held in
foreign custody.
Ordinarily a suspect can waive his Miranda rights. See
Maryland v. Shatzer, 559 U.S. 98, 104 (2010). But special
protections apply once the suspect has invoked his
constitutional right to counsel during custodial interrogation.
When that happens, the Supreme Court has interposed a
“second layer of prophylaxis.” Id. (quoting McNeil v.
Wisconsin, 501 U.S. 171, 176 (1991)). “[W]hen 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.” Edwards, 451 U.S. at 484. That is
because, “if a suspect believes that he is not capable of
undergoing [custodial] questioning without advice of counsel,
then it is presumed that any subsequent waiver . . . is itself the
product of the ‘inherently compelling pressures’ [of custodial
84
interrogation] and not the purely voluntary choice of the
suspect.” Roberson, 486 U.S. at 681 (quoting Miranda, 384
U.S. at 467); see also Montejo v. Louisiana, 556 U.S. 778,
794–95 (2009) (Edwards prevents police from “badgering” a
defendant into waiving his previously asserted “right to have
counsel during custodial interrogation—which right happens
to be guaranteed (once the adversary judicial process has
begun) by [both the Fifth and Sixth Amendments.]”).
Consequently, it is only when the subsequent questioning is “at
the suspect’s own instigation” that a valid waiver of Miranda
rights will be found. Shatzer, 559 U.S. at 104 (internal
quotation marks omitted).
The government does not dispute that Straker exercised
his right to counsel during the January 9, 2006 interrogation
when he said that he wanted to speak to his lawyer. As the
case comes to us, the government has also conceded that
Straker was in Miranda custody at the time of that
interrogation, and that there was no break in that custody
during the eighteen months leading up to the FBI’s July 29,
2007 interrogation. Gov’t Br. 191 n.96. We thus assume
that the “judicially prescribed prophylaxis” of Edwards applies
on these facts, Shatzer, 559 U.S. at 105, without needing to
decide whether and for how long Edwards applies while the
accused is held in continuing foreign custody. In addition,
because Straker does not argue that any purported initiation of
conversation with the FBI lapsed during the year and a half
between when he left his phone message for Agent Freeman
and the interrogation at which he confessed, we need not
decide if an officer must immediately act upon, or whether a
waiver of Miranda rights must follow closely on the heels of, a
suspect’s “initiation” of conversation with the authorities.
Once Straker invoked his right to counsel during an
interrogation to which Miranda has been stipulated to apply,
85
the FBI could not “subject [him] to further interrogation . . .
unless [Straker] himself initiate[d] further communication,
exchanges, or conversations with the[m].” Edwards, 451 U.S.
at 484–85. The parties agree that the plurality opinion in
Bradshaw governs our inquiry into whether Straker’s
telephone call to Agent Freeman initiated discussion with the
FBI. Straker Suppl. Br. 1 (“[T]he plurality opinion in Oregon
v. Bradshaw does provide a framework for evaluating whether
Straker evinced a willingness to engage in a generalized
discussion.”); Gov’t Suppl. Br. 7–11 (arguing that the
Bradshaw plurality controls the initiation question).
Under the Bradshaw framework, whether Straker’s
telephone message to Agent Freeman constitutes initiation
turns on whether the statement “evinced a willingness and a
desire for a generalized discussion about the investigation.”
Bradshaw, 462 U.S. at 1045–46. On the other hand, if
Straker’s statement concerned “routine incidents of the
custodial relationship”—“such as a request for a drink of water
or a request to use a telephone,” that would not suffice and the
Edwards bar on further questioning would remain intact. Id.
at 1045.
It bears noting that the “initiation” inquiry is distinct from,
and antecedent to, the question whether “subsequent events
indicated a waiver of the Fifth Amendment right to have
counsel present during the interrogation.” Bradshaw, 462
U.S. at 1044. The latter inquiry is rigorous, requiring that we
determine whether the government has proven that the
“purported waiver was knowing and intelligent,” id. at 1046,
and “indulge in every reasonable presumption against waiver,”
Brewer v. Williams, 430 U.S. 387, 404 (1977). In conducting
the initiation inquiry, by contrast, we ask not what the suspect
intended to do, but what intention the police officer “could
reasonably have ... interpreted” the suspect’s
86
statements—even if “ambiguous”—to “evince[],” without any
legal presumption one way or the other. Bradshaw, 462 U.S.
at 1045–46.
Taken together and viewed from the perspective of a
reasonable officer, both the content and the context of Straker’s
message “evinced a willingness and a desire” to reinitiate
communications with the FBI concerning the criminal
investigation. Bradshaw, 462 U.S. 1045–46. Straker, in
fact, does not dispute that he called the number Agent Freeman
had given him and left a voicemail message “asking Freeman
to call him back.” Straker, 596 F. Supp. 2d at 89, 94.
The government concedes that statement, considered in
isolation, would not evince a desire to resume discussion of the
investigation because it gives no specific indication of what
Straker wished to discuss. Oral Arg. Tr. 131. We agree.
But that statement does not stand alone. When considered in
context and on this record, an officer could reasonably have
understood Straker’s statement as inviting renewed discussion
about the investigation. Like the statement in
Bradshaw—“Well, what is going to happen to me
now?”—Straker’s message asking Freeman “to call him back,”
Straker, 596 F. Supp. 2d at 89, “could reasonably have been
interpreted by the officer as relating generally to the
investigation,” Bradshaw, 462 U.S. at 1046.
First, Straker left the voicemail just a couple weeks after
specifically advising Agent Clauss and Agent Freeman that,
once he spoke with his lawyer, he “would be willing to speak
to” them. J.A. 2259. Indeed, as the district court explained,
“[t]he record is compelling that Straker made his request for
counsel subject to an understanding that he would have an
opportunity to contact the FBI later if he so wished.” Straker,
596 F. Supp. 2d at 93. Viewed in that context, Straker’s
87
voluntary decision to call Agent Freeman a couple weeks later
and leave a message asking Freeman to call him back could
reasonably have been viewed as Straker following up where he
left off with the FBI and initiating discussion of the
investigation. See United States v. Hart, 619 F.2d 325, 326–
27 (4th Cir. 1980) (per curiam) (concluding that defendant,
after having twice invoked his right to counsel, reinitiated
communication with law enforcement when “he telephoned
the Washington Field Office stating that he wished to speak
with the arresting agent”).
Second, when during the interview Straker “indicated that
‘after having access to his attorney, he would be willing to
speak to the agents,’” Straker, 596 F. Supp. 2d at 87, Agent
Clauss invited Straker, after talking with his attorney, to
contact the FBI if he still wanted to talk. Agent Freeman then
provided Straker a business card with a designated number to
call “if he wanted to make an attempt to contact” them. J.A.
2191. And that designated number is the one Straker used to
make his call.
Third, nothing about the context or content of Straker’s
message suggests that it was “a necessary inquiry arising out of
the incidents of the custodial relationship.” Bradshaw, 462
U.S. at 1046. Because Straker was not in actual or even
apparent U.S. custody during the weeks between the initial
interrogation and Straker’s message, there is no plausible basis
for concluding—and Straker does not even argue—that he was
calling Agent Freeman to discuss his conditions of
confinement or the future procedural course for him while in
Trinidadian custody, neither of which the FBI could control.
Moreover, when Straker called Agent Freeman, he had not yet
been indicted in the United States, so a reasonable officer
would not have interpreted Straker’s call as inquiring about
extradition or other aspects of criminal processing. Nor
88
would it have made sense for Straker to call Agent Freeman to
request a drink of water, see Bradshaw, 462 U.S. at 1045,
discuss “procedural matters” like “bond, scheduling, and a
preliminary hearing,” Haynes v. State, 934 So. 2d 983, 989–91
(Miss. 2006), or talk about anything else relating to the routine
aspects of being in police custody.
Straker nevertheless argues (Suppl. Br. 1) that there was
another possible reason for his call: an effort to seek the FBI’s
aid in locating his father. He points to a conversation he had
with Agent Clauss during the January 9th interrogation in
which he stated that Clauss resembled his father and suggested
that the FBI might be able to help find his father in the United
States. Straker Suppl. Br. 8–11; see also Straker, 596 F. Supp.
2d at 86. But the district court found that the comment was
understood at the time to be a “joke[],” Straker, 596 F. Supp.
2d at 86, part of what Agent Clauss described as a “jovial”
story, not a serious request, J.A. 2187. In any event, the
question is not whether the initiation of discussion about the
investigation is the only possible explanation for Straker’s
reaching out. The relevant question is whether a reasonable
officer could have understood Straker’s telephone call as
indicating that Straker wanted to talk generally about the
investigation. Although we, like the district court, think this is
a “close call,” Straker, 596 F. Supp. 2d at 94, considering the
content and all the surrounding circumstances, the FBI agents
could reasonably have interpreted Straker’s voluntary reaching
out and the message he left as “evinc[ing] a willingness and a
desire for a generalized discussion about the investigation”
itself. Bradshaw, 462 U.S. at 1045–46.
2.
While Straker initiated conversation with the FBI relating
to the investigation, the burden remains on the government to
89
prove that, under the totality of the circumstances, Straker
subsequently waived his Miranda rights voluntarily,
knowingly, and intelligently. See Bradshaw, 462 U.S. at
1044. Reviewing the district court’s finding of waiver de
novo, see Yunis, 859 F.2d at 958, we affirm.
To begin with, the record amply demonstrates that Straker
understood his rights and the significance of any waiver
decision. During Straker’s January 2006 interview, the FBI
advised him of his Miranda rights, and he “demonstrated that
he understood his rights well enough to make an initial
decision declining to speak about the investigation until he had
consulted with his Trinidad[ian] attorney.” Straker, 596 F.
Supp. 2d at 95. Agent Clauss advised Straker of his Miranda
rights a second time during extradition, using the FBI’s
standard advice-of-rights form. And Straker, having had
eighteen months to consult with his attorney, signed the
waiver-of-rights statement. Id. There is no indication that
Straker was coerced into signing that statement. Nor was
there any opportunity for the FBI to badger Straker into doing
so, since no one from the FBI even contacted Straker for the
year and a half preceding his extradition. See id. at 96–99.
Straker does not challenge any of the district court’s
factual findings and points to no facts undermining the
reliability of the waiver, resting his argument entirely on the
“presumption against waiver of constitutional rights.” Def.
Br. 140. But the presumption is just that—a presumption that
can be, and in this case was, overcome.
3.
Straker footnotes an argument that, because his Sixth
Amendment right to counsel attached after the message he left
for Agent Freeman, that message could not have constituted a
90
waiver of that right. Def. Br. 141 n.60. Maybe. But that is
beside the point. We agree with the district court that the
Miranda warnings provided by the FBI during Straker’s
extradition—after his Sixth Amendment right to counsel had
attached—“sufficiently apprised Straker of ‘the nature of his
Sixth Amendment rights, and of the consequences of
abandoning those rights, so that his waiver on [that] basis will
be considered a knowing and intelligent one.’” Straker, 596
F. Supp. 2d at 101 (quoting Patterson, 487 U.S. at 296)
(alteration in original). Thus, when Straker validly waived his
Fifth Amendment rights after being given Miranda warnings,
he waived his Sixth Amendment right to counsel as well. See
Patterson, 487 U.S. at 300 (“So long as the accused is made
aware of the dangers and disadvantages of self-representation
during postindictment questioning, by use of the Miranda
warnings, his waiver of his Sixth Amendment right to counsel
at such questioning is knowing and intelligent.”) (internal
quotation marks omitted); see also Montejo, 556 U.S. at 795
(“[T]he right under both [the Fifth and Sixth Amendments] is
waived using the same procedure.”).
VIII.
Denial of Defendants’ Motions for Severance
Defendants Sealey and Straker challenge the district
court’s refusal to sever the charges against them, arguing that
the evidence presented against their codefendants at trial
compromised the jury’s ability to make an individualized
determination of guilt as to each of them. 19
19
In footnotes, additional defendants seek to join Sealey and
Straker’s severance arguments. The same legal standards apply to
each defendant’s motion to sever, but the fact-specific nature of the
91
“Joint trials play a vital role in the criminal justice
system,” promoting efficiency and avoiding the “scandal and
inequity of inconsistent verdicts.” Zafiro v. United States,
506 U.S. 534, 537 (1993) (internal quotation marks omitted).
For these reasons, and to “‘conserve the time of courts,
prosecutors, witnesses, and jurors,’” we have urged district
courts to grant severance “sparingly.” United States v. Celis,
608 F.3d 818, 844 (D.C. Cir. 2010) (quoting United States v.
Mardian, 546 F.2d 973, 979 (D.C. Cir. 1976)). Severance is
warranted where there is a “serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or
innocence.” Zafiro, 506 U.S. at 539. Where joinder of
defendants in an indictment or trial “appears to prejudice a
defendant,” district courts should, in their discretion, order
separate trials. Fed. R. Crim. P. 14(a). Severance is not
required, however, “when there is substantial and independent
evidence of each [defendant’s] significant involvement in the
conspiracy.” United States v. Moore, 651 F.3d 30, 96 (D.C.
Cir. 2011) (alteration in original) (internal quotation marks
omitted), aff’d on other grounds sub nom., Smith v. United
States, 133 S. Ct. 714 (2013). Moreover, “[a]bsent a dramatic
disparity of evidence” against defendants whose trials might be
joined, “any prejudice caused by joinder is best dealt with by
inquiry renders adoption by reference inappropriate. See supra note
5; United States v. Solis, 299 F.3d 420, 441 n.46 (5th Cir. 2002)
(“[S]everance issues are fact-specific, requiring a showing of
‘specific compelling prejudice,’ and so cannot be [] adopted by
reference.”) (internal citation omitted). Only Sealey and Straker
have attempted to apply the law, as they see it, to the evidence that
pertains to them. We decline to determine in the first instance,
without defendant-specific briefing, how the law applies to their
codefendants as well. See generally Carducci v. Regan, 714 F.2d
171, 177 (D.C. Cir. 1983).
92
instructions to the jury to give individual consideration to each
defendant.” United States v. Slade, 627 F.2d 293, 309 (D.C.
Cir. 1980); see Zafiro, 506 U.S. at 539. “We review the denial
of a motion to sever for abuse of discretion, which we will not
find if the jury could reasonably compartmentalize the
evidence introduced against each individual defendant.”
Celis, 608 F.3d at 844 (internal quotation marks omitted).
Sealey argues that he suffered prejudice from the joint trial
because he “participated in a kidnapping” but “had no part in”
the victim’s death, creating a risk that the evidence against
Sealey’s codefendants would “rub off” on him. Def. Br. 122–
23. In addition, both Sealey and Straker contend that they
were prejudiced by the introduction of evidence of past hostage
takings, discussed supra Section III, in which they did not
participate. The district court addressed and rejected
defendants’ “spillover prejudice” arguments, concluding that
the substantial and independent evidence against Sealey and
Straker enabled the jury to reasonably compartmentalize the
evidence of guilt against each of them from the rest of the
evidence at trial. Clarke, 767 F. Supp. 2d at 26.
Defendants assert that the district court misapplied the law
governing severance. We see no legal error. The district
court not only measured the strength of the evidence against
Sealey and Straker, but also the degree to which it was
independent of the evidence against their codefendants. Both
assessments were critical to determining whether the evidence
against them was sufficiently “substantial” and “independent.”
See, e.g., Celis, 608 F.3d at 844–45.
The evidence the government introduced of Sealey and
Straker’s guilt was both substantial and independent. A
reasonable jury could have found that the government’s
evidence established their culpability and role in the
93
conspiracy. As the district court determined, Sealey’s
detailed confession to the Trinidadian police, a separate
confession to the FBI, and trial testimony from two
co-conspirators overwhelmingly supported the jury’s
conclusion that he was one of the conspirators who abducted
Maharaj at the Samaan Tree Bar. Sealey, with his
codefendants, participated in the getaway as well, transporting
Maharaj to the cocoa fields where he was initially held. While
the evidence did not show him to have participated in every
stage, it sufficed to support the jury’s finding that Sealey
played a significant role in the hostage taking.
Straker, too, confessed to his role in the hostage taking,
and his confession was supplemented by his own trial
testimony and the trial testimony of three co-conspirators.
Indeed, one of Straker’s co-conspirators testified that the
kidnapping was Straker’s idea. The evidence of Straker’s
guilt, like that of Sealey’s, was substantial and independent
from the evidence introduced against their codefendants, such
that the jury could readily compartmentalize the evidence
against each of them from the rest of the evidence at trial.
The presentation of other-crimes evidence also did not
prejudice Sealey and Straker. That evidence did not concern
them, and, as we have already discussed, the district court gave
adequate limiting jury instructions in connection with the
presentation of that evidence. Sealey and Straker fail to
identify any defect in the manner in which the other-crimes
evidence was presented that might have led the jury
erroneously to apply it against them.
Straker’s reliance on our decision in United States v.
Sampol, 636 F.2d 621 (D.C. Cir. 1980) (per curiam), is not
persuasive. In that case, Ignacio Novo was charged alongside
members of an underlying conspiracy to assassinate the
94
Chilean Ambassador to the United States. The charges
against Novo, however, were limited to making false
statements to a grand jury and misprision of a felony. We held
that the joint trial prejudiced Novo because the “grossly
disparate” charges and intermingled presentation of evidence
at trial created a situation in which “[t]here was never [a] clear
distinction between the different defendants and the evidence
against each of them.” 20 Id. at 645, 647. Disparate charges
also led the Sixth Circuit to require severance in United States
v. Davidson, 936 F.2d 856, 861 (6th Cir. 1991). There were
no such defects here. Sealey and Straker were instrumental
participants in the conspiracy to take Maharaj hostage, they
were charged with the same offenses as their codefendants, and
the evidence presented at trial was not intermingled so as to
create the false impression that Sealey or Straker were
involved in any of the uncharged conduct.
If there were any such prejudice, moreover, it would have
been cured by the district court’s carefully selected and crafted
jury instructions. The judge gave well-timed cautions to
jurors at key points: on the first day of trial; before the
introduction of the other-crimes evidence; a final “Other
Crimes Evidence” instruction at the close of trial; and a final
instruction reiterating that “each defendant is entitled to have
the issue of his guilt as to each of the crimes for which he is on
trial determined from his own conduct and from the evidence
that applies to him as if he were being tried alone.” J.A. 1929
20
A further distinguishing feature between this case and Sampol is
that our holding there expressly rested on “a cumulation of
circumstances” that prejudiced defendant Novo: confusion of
charges, grossly disparate charges, and Novo’s inability to present a
full defense and cross-examine witnesses whose testimony implied
that he participated in additional crimes for which he was not
charged. Sampol, 636 F.3d at 651.
95
(emphasis omitted); see also J.A. 1931 (Instruction 2.55); J.A.
3026–27, 3205–07.
It is in the nature of a conspiracy prosecution that the
evidence against each member will differ, and that the
members of the conspiracy will have different roles. That
some co-conspirators will be more central than others does not
render joint trial inappropriate as long as the jury can
reasonably compartmentalize the substantial and independent
evidence against each defendant. See, e.g., Celis, 608 F.3d at
844–45; United States v. Mejia, 448 F.3d 436, 446–47 (D.C.
Cir. 2006). We find no abuse of discretion here, where the
government presented substantial and independent evidence
against Sealey and Straker establishing their significant roles in
the conspiracy, and the district court sought to cure any
potential prejudice with careful instructions to the jury.
IX.
Closing Argument
Defendants Sealey and Nixon object to the government’s
rebuttal closing argument, claiming that the prosecution
advanced an alternative factual theory of guilt for Sealey and
Nixon that was inconsistent with the evidence at trial and the
government’s initial closing argument. 21 We review
21
Defendants De Four and Straker purport to adopt by reference
Sealey and Nixon’s objection to the government’s rebuttal closing.
Def. Br. 130 n.57. As discussed supra note 5, not every argument is
an appropriate candidate for adoption by reference. Sealey and
Nixon make a fact-specific objection to the government’s purported
shift in theory of their guilt during closing argument. De Four and
Straker do not explain how that objection could apply to them as
well, and we refrain from guessing.
96
allegedly improper prosecutorial argument for “substantial
prejudice,” and the district court’s denial of defendants’
motions for new trials based on that objection for abuse of
discretion. Moore, 651 F.3d at 50.
Sealey and Nixon contend that the government’s evidence
and initial closing argument were aimed at proving that Sealey
entered the Samaan Tree Bar, grabbed Maharaj, and dragged
him outside to the waiting Nixon. They characterize the
government’s rebuttal closing argument as advancing the
contrasting theory that it was Nixon who entered the bar, not
Sealey. After comprehensively reviewing the evidence at trial
and the government’s two closing arguments, the district court
found defendants’ characterization of the proceedings “wholly
lacking in merit” and “simply not borne out by the record.”
Clarke, 767 F. Supp. 2d at 91, 94. We do as well.
The evidence at trial included testimony that two men
entered the bar and “grabbed” Maharaj, J.A. 2895–96, and that
Nixon exited first, followed by Sealey, who was “pulling
[Maharaj] out of the bar,” J.A. 3061. Sealey’s statement to the
Trinidadian police also indicated that he and another man both
“went inside the bar,” and that both he and another man
“end[ed] up sticking the man up.” J.A. 4395. Consistent
with that evidence, the prosecutor argued in closing that both
Sealey and Nixon entered the bar. J.A. 4966. Nothing in the
government’s evidence at trial, or in its initial closing,
suggested that Sealey alone entered the Samaan Tree Bar.
In his closing argument, it was Sealey who argued that he
was not the man who “went in and grabbed Mr. Maharaj”
because some eyewitnesses described a muscular gunman
wearing a “rasta hat,” and Sealey was neither muscular nor was
there any evidence that he wore such a hat. J.A. 5094–97.
Sealey’s argument implied that only one abductor entered the
97
bar, and that it was not him. In response, the prosecutor
argued that the eyewitness testimony was not inconsistent with
the government’s theory that both Sealey and Nixon entered
the bar, and that it was Nixon who was muscular and wearing a
“rasta hat.” J.A. 5194–95.
We see no necessary inconsistency between the
prosecutor’s rebuttal and the initial closing arguments, nor
with the evidence at trial. The government argued throughout
that Sealey and Nixon entered the Samaan Tree Bar and
abducted Maharaj. The evidence supported that theory.
Granted, two eyewitnesses testified that only one gunman
entered, which presented Sealey and Nixon each with an
opportunity to claim he was not involved. See Clarke, 767 F.
Supp. 2d at 92. But, as the district court concluded, the fact
that eyewitnesses may “have inconsistent recollections on
some points is no surprise.” Id. The jury could reasonably
have credited testimony describing Nixon’s actions without
also crediting the witnesses’ recollection that Nixon entered
the bar alone. As the government consistently argued, other
evidence supported the conclusion that both Sealey and Nixon
abducted Maharaj.
Defendants have failed to show the “substantial prejudice”
from a prosecutorial argument that is required to warrant a new
trial. Moore, 651 F.3d at 50. As just noted, the
government’s evidence and closing arguments were consistent.
We find no error—much less an abuse of discretion—in the
district court’s denial of Sealey and Nixon’s motions for new
trials based on the prosecutor’s rebuttal closing argument.
98
X.
Due Process Claim
Straker argues that he was deprived of his Fifth
Amendment right to due process because he was unable to
obtain “Blue Files” from Trinidadian authorities, which he
contends are law enforcement records documenting charges,
arrests, or convictions of persons in Trinidad, including the
cooperating witnesses. Clarke, 767 F. Supp. 2d at 70–71.
Straker argues that the information might have assisted his
impeachment of witnesses who testified against him. Id. at
70–71. 22
The district court denied Straker’s motion for a new trial,
finding no due process violation. We agree completely with
the district court’s analysis and affirm. We review the denial
of a motion for a new trial for an abuse of discretion, see
United States v. Becton, 601 F.3d 588, 594 (D.C. Cir. 2010),
though we review de novo the constitutional question whether
any limitation on Straker’s defense violated his Fifth
Amendment right to due process, see United States v. Lathern,
488 F.3d 1043, 1045–46 (D.C. Cir. 2007).
The “right to present a defense is a fundamental element of
due process of law, and the preclusion of all inquiry by the
defense on a particular aspect of the case violates that right.”
United States v. Stewart, 104 F.3d 1377, 1384 (D.C. Cir. 1997)
(citations and internal quotation marks omitted). Straker,
however, has failed to demonstrate any material impairment of
his defense.
22
Clarke, De Four, and Sealey adopt this claim. Def. Br. 141 n.61.
Our analysis applies equally to those defendants.
99
First, Straker has not demonstrated that the “Blue Files” he
sought even exist, and the government’s inquiries to
Trinidadian officials suggest that they do not. Nor does
Straker explain what information the Blue Files would have
contained that he did not already receive in the arrest and
conviction records provided to him by the prosecution. There
thus is no evidence that the district court or prosecution
impeded any viable avenue of inquiry.
Second, Straker enjoyed a robust opportunity to
cross-examine the cooperating witnesses and to attack their
credibility based on the arrest and conviction records that the
U.S. government disclosed. Straker makes no proffer that the
Blue Files would have allowed him to pursue any line of
impeachment that he did not already cover. On top of that,
Straker had ample opportunity, even without the arrest records,
to impeach the cooperating witnesses with their plea
agreements and quests for leniency at sentencing. See Clarke,
767 F. Supp. 2d at 67–71 (chronicling defense counsel’s
“extensive” impeachment efforts). That alone answers
Straker’s claim that he was precluded from “all inquiry” into
the witnesses’ credibility. See Stewart, 104 F.3d at 1384
(court did not “preclude all defense inquiry” into issue by
“rul[ing] out repetitive questioning and further questioning of
the expert witness”).
Third, the Due Process Clause governs the conduct of the
court and the prosecution, not of foreign governments’
responses to letters rogatory. Straker, however, identifies
nothing that either the court or prosecution did wrong. Quite
the opposite, Straker acknowledges that the district court “was
completely accommodating” in granting to defense counsel
whatever investigative resources were needed, authorizing the
issuance of letters rogatory seeking documents from Trinidad
100
through diplomatic channels, and permitting defense counsel
to travel to Trinidad several times. Def. Br. 141 n.62. In
addition, the U.S. government repeatedly inquired about the
so-called “Blue Files” with “knowledgeable individuals in the
Trinidadian government, and was informed” that such files did
not exist. Clarke, 767 F. Supp. 2d at 71.
In sum, because Straker did not establish that the Blue
Files even exist, that they contain any impeachment
information materially different from what he already had and
used, or that the district court or prosecution did anything at all
to impair his presentation of a defense, no due process
violation occurred, and the district court’s denial of the motion
for a new trial was well within its discretion.
XI.
Admissibility of Expert Fingerprint Testimony
Straker’s challenge to the admission of expert fingerprint
testimony fares no better. 23
To demonstrate Straker’s consciousness of guilt, the
government introduced as evidence a note with an
accompanying news article that Straker sent Percival in which
Straker asked Percival not to testify. Clarke, 767 F. Supp. 2d
at 23. The news article suggested “that the U.S. Attorney’s
Office did not have the power to ensure that a court would
grant [Percival] leniency for his cooperation.” Id. The note
23
De Four purports to join Straker’s argument. Def. Br. 145 n.65.
De Four did not join Straker’s motion below, so we would review his
claim for plain error only. Because we find no error at all, De
Four’s claim necessarily fails.
101
was linked to Straker through the testimony of FBI fingerprint
examiner Dawn Schilens. Id.
At the outset, Schilens testified “on her qualifications as
an expert in the field of fingerprint identification and analysis,
which included employment as a physical scientist/forensic
examiner in the latent print operation unit of the FBI, her
certification following an 18-month training program, and her
experience in having conducted over 140,000 fingerprint
comparisons.” Clarke, 767 F. Supp. 2d at 73. When the
government offered Schilens as an expert in the field of
fingerprint identification, Straker did not object. Id. After
she testified, however, Straker moved to strike her testimony
under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), arguing that Schilens failed “to articulate an error
rate” in the fingerprint methodology she used. Clarke, 767 F.
Supp. 2d at 73.
The district court denied the motion to strike and the
subsequent motion for a new trial, finding that “Schilens did
present testimony on the error rate.” Clarke, 767 F. Supp. 2d
at 73. Finding no abuse of discretion, see United States v.
Day, 524 F.3d 1361, 1369 (D.C. Cir. 2008), we affirm.
The admission of expert testimony is governed by Federal
Rule of Evidence 702. In Daubert, the Supreme Court held
that Rule 702 requires a district court, before admitting expert
testimony, to determine whether the “reasoning or
methodology underlying the testimony is scientifically valid
and . . . whether that reasoning or methodology properly can be
applied to the facts in issue,” 509 U.S. at 592–93. Among the
factors Daubert instructed courts to consider in determining
the reliability “of a particular scientific technique” is the
“known or potential rate of error.” 509 U.S. at 594.
102
Here, Schilens “testified that there are two different types
of error—the error rate in the methodology and human error.”
Clarke, 767 F. Supp. 2d at 73 (citations omitted). She further
testified that her “‘methodology, ACE–V, does not have an
inherent rate of error’—that is, ‘[t]here is a zero rate of error in
the methodology.’” Id. (citations omitted) (alteration in
original). But Schilens did not articulate the rate of human
error, though she acknowledged the potential for such error.
See id.
Straker contends that Schilens’s failure to articulate the
rate of human error in the ACE-V methodology rendered her
testimony based on that methodology inadmissible. That is
wrong. The factors listed in Daubert “do not constitute a
definitive checklist or test,” but rather “may or may not be
pertinent in assessing reliability, depending on the nature of the
issue, the expert’s particular expertise, and the subject of [the]
testimony.” Kumho Tire Co. v. Carmichael, 526 U.S. 137,
150 (1999) (internal quotation marks and alteration omitted).
No specific inquiry is demanded of the trial court. See id. at
152.
The reliability of Schilens’s fingerprint methodology was
“properly taken for granted.” Kumho Tire, 526 U.S. at 152.
“Numerous courts have found expert testimony on fingerprint
identification based on the ACE-V method to be sufficiently
reliable under Daubert,” and “against such a backdrop, it is
difficult to discern,” without more, “any abuse of discretion
when the district court decides to admit expert testimony that
relies on the ACE-V method.” United States v. Peña, 586
F.3d 105, 110–11 (1st Cir. 2009) (internal quotation marks
omitted) (collecting cases).
Beyond that, Straker has identified no harm resulting from
the admission of Schilens’s testimony. Evidence at trial
103
showed that Straker played a pivotal role in the conspiracy
from its inception, and the testimony of the cooperating
witnesses established that he played a central role in plotting
the crime’s execution. That testimony, coupled with Straker’s
confession, constituted “devastating evidence” of Straker’s
guilt. United States v. Smith, 640 F.3d 358, 368 (D.C. Cir.
2011). There is no reasonable possibility that the admission
of Schilens’s testimony with its omitted human error rate had
any “discernible effect on the jury’s verdict.” Id.
XII.
For the foregoing reasons, we affirm defendants’
convictions and the judgment of the district court.
So ordered.