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United States v. O'Neal

United States District Court, D. Colorado

February 8, 2017

1. KATHERINE O'NEAL, Defendant.



         This matter is before the Court on Defendant's Motion to Suppress Statements. (ECF No. 39.) The parties have unknowingly stumbled into a legal thicket regarding the standard for judging whether statements made to foreign officers are admissible. The Court requires further briefing on this topic.[1]

         “The cases are unanimous in holding that a [Miranda] warning is not essential to the validity of a confession which has been given in a foreign country.” United States v. Mundt, 508 F.2d 904, 906 (10th Cir. 1974). The parties agree, however, that statements may nonetheless be ruled inadmissible in certain circumstances, particularly, (1) when the United States officials substantially participate in the relevant questioning, or when foreign officers are effectively the agents of the United States while questioning the defendant; or (2) the judicial conscience is shocked by circumstances in which the defendant makes statements to foreign officials. (See ECF No. 39 at 5-9; ECF No. 41 at 9-21.) As explained below, the Court desires additional clarity on both of these circumstances.

         It seems intuitively sound that United States participation in a foreign interrogation, either directly or through foreign officers acting as United States agents, would implicate the United States's duties under the Fifth Amendment. And in Mundt, supra, the Tenth Circuit seemingly endorsed this view when it asked “whether the participation by the American authorities [in a Peruvian interrogation] was so extensive as to require that the [defendant's] statements be excluded.” 508 F.2d at 906.

         Mundt appears simply to assume that the Fifth Amendment applies to American officials acting abroad, but the Supreme Court has never been able to agree on this principle, even when the subject of the questioning was an American citizen (as Defendant is). In Reid v. Covert, 354 U.S. 1 (1957), a plurality stated that “[w]hen the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.” Id. at 6 (plurality opn. of Black, J.). However, as elucidated in later Supreme Court opinions, the justices in the plurality opinion and the other justices who concurred in the judgment split precisely on this point of whether constitutional protections applied abroad on account of citizenship or on consideration of the practical exigencies of applying such protections abroad. See Boumediene v. Bush, 553 U.S. 723, 759-62 (2008); United States v. Verdugo-Urquidez, 494 U.S. 259, 269-70 (1990).

         The Court therefore requires further briefing on the following questions:

         • Assuming the United States sufficiently participates (directly or constructively) in a foreign interrogation, what is the source of the United States's obligation, if any, to afford the witness protection against self-incrimination?

         • If the United States has such an obligation, is it discharged by giving a proper Miranda warning?[2]

         • Assuming there is an obligation to give a proper Miranda warning, is that obligation discharged by a foreign official giving such a warning, or a similar warning under local law that is materially equivalent to a Miranda warning?


         Although the parties appear to agree that statements obtained by foreign officials in conscience-shocking circumstances are inadmissible, the Court has significant reservations that such a standard exists in lieu of a traditional voluntariness inquiry (discussed below). But there is also a serious question whether any standard can apply and still be consistent with Supreme Court pronouncements about the reach of the due process clause.

         A. The parties have not cited, nor could the Court locate, a Supreme Court or Tenth Circuit decision announcing a “shocks the conscience” standard in the context of statements made to foreign officials. To be sure, United States v. Delaplane, 778 F.2d 570 (10th Cir. 1985), states that the Fourth Amendment exclusionary rule does not apply to foreign searches and seizures except “(1) where foreign police conduct shocks the judicial conscience, ” or “(2) where American agents participated in the foreign search, or the foreign officers acted as agents for their American counterparts.” Id. at 573 (internal quotation marks and citations omitted; alterations incorporated). But whatever the basis for these exceptions regarding foreign searches and seizures, [3] it is not clear why a “shocks the conscience” standard should apply to foreign interrogation, as opposed to a traditional voluntariness inquiry.

         Defendant and the Government cite numerous extra-circuit authorities-mostly from the Second, Fifth, and Eleventh circuits-that contain some variant of a “shocks the conscience” test for foreign interrogations. See, e.g., United States v. Frank, 599 F.3d 1221, 1228-29 (11th Cir. 2010); United States v. Yousef, 327 F.3d 56, 146 (2d Cir. 2003); United States v. Heller, 625 F.2d 594 (5th Cir. 1980). But, as pointed out in United States v. Karake, 443 F.Supp.2d 8 (D.D.C. 2006), these decisions ultimately trace back to cases that unthinkingly apply the foreign search-and-seizure test to the foreign interrogation standard, or that simply do not announce any true “shocks the conscience” test. Id. at 52 n.74.

         B. As noted, Miranda warnings are generally not (and conceivably never) necessary in foreign interrogations. However, even if a suspect in a domestic interrogation validly waives his or her Miranda rights (or is not facing a “custodial interrogation” within the meaning of Miranda), any statements extracted from that suspect must still have been made “voluntarily.” See, e.g., Beckwith v. United States, 425 U.S. 341, 348 (1976) (statements resulting from noncustodial questioning can still be challenged on ...

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