Opinion
03 Cr. 294 (RPP).
November 5, 2004
OPINION AND ORDER
On September 13, 2004, Defendant Ramiro Lopez-Imitola moved to suppress any and all statements made by him to the Colombian authorities at the time of his arrest on April 4, 2003, in Cucuta, Colombia, on the ground that the Colombian authorities did not advise him of his Miranda rights. This motion is denied for the reasons that follow.
BACKGROUND
Defendant Ramiro Lopez-Imitola is charged with heading a conspiracy that imported "massive amounts" of heroin from Venezuela into the United States. (Superseding Indictment S5 03 Cr. 294, filed May 20, 2003, ¶ 3.) He was initially charged in a sealed indictment on March 11, 2003. (Letter from Neil M. Barofsky, A.U.S.A., to Court, dated Oct. 5, 2004 ("Gov't Letter"), at 2.) The government alleges that the Defendant ran a highly organized enterprise, using couriers to pick up heroin in Cucuta, Colombia, to transport it to Caracas, Venezuela, and then to import it into the United States. (Id. at 1.) The government believed that the Defendant used Colombia as a base of operations and requested that the Colombian Government attempt to arrest him if he could be located. (Id. at 2.) In late March 2003, Special Agent Dean Bobel of the Drug Enforcement Administration ("DEA") received information that the Defendant was in Cucuta, Colombia, which is a town located on the Venezuela-Colombia border. (Affidavit of Dean Bobel, dated Oct. 4, 2004 ("Bobel Aff."), ¶ 2.) Special Agent Bobel was the sole DEA agent in Colombia assigned to this case, and he had sole responsibility for communication with Colombian law enforcement to arrange for the arrest of Defendant. (Affidavit of Special Agent Bobel, dated Oct. 25, 2004 ("Supp. Bobel Aff."), ¶ 2.) After being advised of the Defendant's presence in Cucuta, Colombia, Special Agent Bobel contacted the Colombian National Police ("CNP") heroin task force group and requested that the CNP arrest Defendant for extradition. (Bobel Aff. ¶ 3.) Special Agent Bobel spoke, in Spanish, with Major Harvey Gerardo Grijalba Suarez of the CNP regarding the arrest of Defendant. (Supp. Bobel Aff. ¶ 2; Affidavit of Harvey Gerardo Grijalba Suarez, dated Oct. 28, 2004 ("Suarez Aff."), ¶ 1.)
On April 4, 2003, the CNP unit located and arrested Defendant in Cucuta, Colombia. (Gov't Letter at 1.) After his arrest, Defendant was informed that his arrest was the result of being accused of narcotics trafficking and that he had certain rights under Colombian law, including: (1) his right to meet with his lawyer; (2) his right to have an attorney present during any statement he might make; (3) his right to remain silent; (4) his right to medical attention; (5) his right not to be kept incommunicado; and (6) his right to certain personal items. (See Proceedings of Communication of the Rights of the Arrested Under the Terms of the Constitution form and translation, dated Apr. 4, 2003 ("Advice of Rights"), attached as Ex. A to Def.'s Mot.) Defendant signed the Advice of Rights form and placed a thumbprint on the form. (Id.) Defendant thereafter allegedly told the CNP Major who headed the task force that he did not want an attorney, and conversed with the Major for several hours, during which time he allegedly made several inculpatory statements, including acknowldgement of his drug trafficking activities. (Gov't Letter at 3.) Major Juarez states that the Defendant "made all his statements voluntarily, and was not subject to any threats or coercion." (Suarez Aff. ¶ 3.) No United States law enforcement agents were present during the questioning, nor was any request made by any United States law enforcement agent that the CNP should question Defendant. (Bobel Aff. ¶¶ 4-5; Suarez Aff. ¶ 2.)
DISCUSSION
Defendant maintains that his statements made to the CNP should be suppressed because he was not advised of his Miranda rights prior to questioning by the CNP Major. (Def.'s Mot. at 2-3.) However, "the law is settled that statements taken by foreign police in the absence of Miranda warnings are admissible if voluntary." United States v. Yousef, 327 F.3d 56, 145 (2d Cir. 2003); see also United States v. Welch, 455 F.2d 211, 213 (2d Cir. 1972) (stating that "since the Miranda requirements were primarily designed to prevent United States police officers from relying upon improper interrogation techniques and as the requirements have little, if any, deterrent effect upon foreign police officers, the Miranda warnings should not serve as thesine qua non of admissibility"); United States v. Bin Laden, 132 F. Supp. 2d 168, 182 n. 9 (S.D.N.Y. 2001).
There are two exceptions to this rule. Under the first exception, the "joint venture" doctrine, statements elicited by foreign police in the absence of Miranda warnings must be suppressed if "United States law enforcement agents actively participate[d] in questioning conducted by foreign authorities," or if United States personnel "use foreign officials as their interrogation agents in order to circumvent the requirements ofMiranda." Yousef, 327 F.3d at 145-46; see also Bin Laden, 132 F. Supp. 2d at 187. Under the second exception, statements obtained by foreign officials under circumstances that "shock the judicial conscience" must be suppressed. Yousef, 327 F.3d at 146 (holding that the exception had no application in the case of defendant Ismoil because he did not allege any mistreatment by the foreign officials and did not allege that his statements were obtained in a way that would "shock the judicial conscience").
As a matter of law, "evidence that the United States may have solicited the assistance of a foreign government in the arrest of a fugitive within its border is insufficient . . . to constitute United States participation under the joint venture doctrine." Yousef, 327 F.3d at 146 (holding that the arrest of defendant Ismoil by Jordanian officials at the request of the United States and his allegations that the Jordanian officials repeatedly asked him questions, spoke on the telephone in English during the interrogation, and did not advise him of his Miranda rights were insufficient to show that the Jordanian officials were acting as agents of the United States Government) (citingUnited States v. Lira, 515 F.2d 68, 71 (2d Cir. 1975)).
As to the "joint venture" exception, Defendant does not allege that United States agents themselves "actively participated" in his questioning. Additionally, according to Major Suarez and Special Agent Bobel, United States law enforcement agents were not in Cucuta, Colombia and did not participate in the questioning. (Suarez Aff. ¶ 2; Bobel Aff. ¶ 5.) Defendant's only allegation of United States law enforcement involvement in the questioning is that "[i]t is entirely reasonable to conclude that the questioning of defendant by Colombian authorities was done at the behest of United States law enforcement authorities." (Def.'s Mot. at 2-3.) However, Special Agent Bobel states that no United States law enforcement agent requested that the CNP question the Defendant and that they did not provide questions to be asked of the Defendant. (Bobel Aff. ¶¶ 4-5.) Special Agent Bobel also states that he was the sole DEA agent involved in this case and that, to his knowledge, no other agent would have been involved in communications with the CNP regarding the arrest of Defendant. (Supp. Bobel Aff. ¶ 2.) Furthermore, Major Suarez, who took the Defendant's statement, states that he was never asked by Special Agent Bobel or anyone else to question the Defendant. (Suarez Aff. ¶ 2.) Thus, no evidence of United States law enforcement involvement in the questioning of Defendant by Colombian officials has been presented. Accordingly, the "joint venture" exception to the general admissibility of statements resulting from such questioning is inapplicable. See Yousef, 327 F.3d at 145-46;Lira, 515 F.2d at 71.
As for the second exception, under which statements obtained under circumstances that "shock the judicial conscience" must be suppressed, Defendant does not allege that his statements were involuntary and has not submitted an affidavit or any evidence that questions the actual voluntariness of his statement. Rather, Defendant admits that he was questioned after being advised of his rights under Colombian law, which included the right to remain silent and the right to counsel. (See Affidavit of Ramiro Lopez-Imitola, dated Sept. 10, 2004, attached to Def.'s Mot.; Def.'s Mot. at 2.) Additionally, Major Suarez states that Defendant made his statements voluntarily and was "not subject to any threats or coercion." (Suarez Aff. ¶ 3.) Defendant argues that he was not informed "that anything he says can be used against him in a court of law" or that "if he cannot afford an attorney one will be appointed for him," and thus, was not fully informed of his Miranda rights. (Def.'s Mot. at 2.) Defendant also argues that there is no indication that he specifically waived his rights. (Id.) However, both of these arguments are irrelevant to the "shock the judicial conscience" exception, as it is well established that non-Mirandized statements obtained by foreign officials are generally admissible. See Yousef, 327 F.3d at 145. As in Yousef, Defendant does not allege any mistreatment by Colombian officials, and thus, the second exception is inapplicable.
Additionally, it is unnecessary to hold an evidentiary hearing to determine whether suppression is required in this case. InYousef, the Second Circuit ruled that it was appropriate for a district court to deny a defendant's request for a hearing and to rely on an agent's affidavit, in which the agent asserted the United States had no role in the defendant's questioning by foreign police. Yousef, 327 F.3d at 146; see also, United States v. Restrepo, 2002 WL 10455, at *7 (S.D.N.Y. Jan. 3, 2002) (rejecting, without a hearing, a defendant's motion to suppress his non-Mirandized statements made to foreign law enforcement officials where defendant failed to allege that these statements were "involuntary or coerced" or obtained through "shocking conduct").
CONCLUSION
For the foregoing reasons, Defendant's motion to suppress the statements he made to the Colombian law enforcement officials on April 4, 2003, in Cucuta, Colombia is denied.
IT IS SO ORDERED.