United States District Court, D. Colorado
ORDER REQUIRING FURTHER BRIEFING
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE.
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.
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.
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
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).
Court therefore requires further briefing on the following
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?
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
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.
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,  it is not clear why a “shocks the
conscience” standard should apply to foreign
interrogation, as opposed to a traditional voluntariness
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.
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 ...