U.S. v. Clarke

• Court: U.S. District Court — District of Columbia
• Writing for the Court: John D. Bates
• Citation: U.S. v. Clarke, 611 F.Supp.2d 12 (D. D.C. 2009)
• Decision Date: 28 April 2009
• Docket Number: Criminal Action No. 06-102 (JDB).
• Parties: UNITED STATES of America v. Zion CLARKE, Ricardo de Four, Kevon Demerieux, Kevin Nixon, and Anderson Straker, Defendants.

611 F.Supp.2d 12

UNITED STATES of America v. Zion CLARKE, Ricardo de Four, Kevon Demerieux, Kevin Nixon, and Anderson Straker, Defendants.

Criminal Action No. 06-102 (JDB).

United States District Court, District of Columbia.

April 28, 2009.

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Christopher Michael Davis, Davis & Davis, A.J. Kramer, Office of the Federal Public Defender, Jeffrey Brian O`Toole, O`Toole, Rothwell, Nassau & Steinbach, Thomas Abbenante, Washington, DC, Allen Howard Orenberg, The Orenberg Law Firm, PC, North Bethesda, MD, Reita Pendry, Charlotte, NC, for Defendants.

Bruce R. Hegyi, Jeanne Marie Hauch, U.S. Attorney's Office, Emily A. Miller, U.S. Attorney's Office of the District of Columbia, Washington, DC, for Plaintiff.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Defendants are citizens of the Republic of Trinidad and Tobago ("Trinidad") charged with conspiracy to commit hostage taking resulting in death and hostage taking resulting in death in violation of 18 U.S.C. § 1203. The charges stem from the abduction and death of a United States citizen, Balram Maharaj, in Trinidad in April 2005. Twelve defendants have been extradited to face charges related to Maharaj's kidnapping and seven defendants are scheduled to stand trial in May 2009.¹ Five of those defendants have motions to suppress currently pending before the Court and, after a two-day evidentiary hearing held on March 5 and 6, 2009,² the motions are now ripe for decision. Anderson Straker and Kevin Nixon move to suppress out-of-court photographic identifications made by one of their alleged co-conspirators. Zion Clarke moves to suppress three statements he made to the Federal Bureau of Investigation ("FBI") during interviews in Trinidad and during his extradition to the United States, as well as one statement he made to the Trinidad police. Ricardo De Four and Kevon Demerieux move to suppress statements they made to the Trinidad police and Demerieux also moves to suppress a statement that he made to the FBI while being interviewed in Trinidad. For the reasons that follow, the Court will deny defendants' motions.

DISCUSSION

The resolution of the pending motions requires the Court to make factual findings concerning the identifications and statements that defendants seek to suppress. The Court must first look to the circumstances surrounding the photographic identification procedure used to identify Straker and Nixon in order to determine whether it was sufficiently reliable so as not to violate defendants' due process rights under the Fifth Amendment. The Court heard testimony from FBI Special Agent William T. Clauss, the lead FBI investigator on the case and the individual who conducted the photographic identification procedure with Russel Joseph, a witness and alleged co-conspirator. Clauss's testimony on this subject went unrebutted and the Court found him to be a credible and forthright witness.

The Court must also make factual findings concerning the background and circumstances in which the statements of Clarke, De Four and Demerieux were taken, in order to determine whether they were provided with notice of any Miranda warnings under the Fifth Amendment, how they responded to the notices, and whether their statements were voluntarily given. To make these findings, the Court again heard testimony from Special Agent Clauss, who conducted three of the interviews at issue here (two with Clarke and one with Demerieux) and acted as the FBI's primary liaison with the Trinidad police. The Court also heard testimony from FBI Special Agent Edgar Cruz, who offered testimony on the limited topic of Clarke's extradition to the United States and the statement Clarke made during his extradition. Five officers from the Trinidad police force presented testimony as well—Wendell Lucas, Kendell Abraham, Michael Seales, Larry Lodhar and Eric Park. The Court also heard testimony from Alexis Persad, a Justice of the Peace in Trinidad who was present while Demerieux gave a statement to the Trinidad police. The testimony of the FBI, the Trinidad officers and Persad went unrebutted, and the Court found them to be credible and forthright witnesses, albeit with some uncertainty as to the specifics of a few events due to the passage of time.

Defendants did not present any witnesses, instead relying on the testimony, including cross-examination, of the FBI agents and the Trinidad officials to support their suppression motions. Only De Four presented additional testimonial evidence, in the form of a sworn affidavit from his Trinidad attorney, John Larry Williams, on the issue of the alleged promise of leniency made to De Four by the Trinidad police.³ Def. Ex. 16 (Williams Aff.). With this preface, the Court turns to the task of making the factual determinations necessary to resolve the motions.

I. Motions to Suppress Photographic Identifications—Straker and Nixon

Straker and Nixon were both identified by Russel Joseph—an alleged co-conspirator who has already pled guilty—during a photographic identification procedure conducted by FBI Special Agents Clauss and Christopher Carbonneau at the Federal Courthouse in Washington, D.C. on August 11, 2006. Straker and Nixon contend that admission of those out-of-court identifications would violate the Fifth Amendment because the identification procedure was impermissibly suggestive and, therefore, unreliable. Based on Clauss's testimony at the suppression hearing, and the exhibits admitted in connection therewith, the Court makes the following findings.

A. Factual Findings

Prior to conducting the photo identification procedure on August 11, 2006, Clauss met with Joseph on four separate occasions. Tr. at 123, 132. During those meetings, Joseph explained his role in the plot to abduct Maharaj and he also gave details about the roles of his co-conspirators. Id. at 105. Joseph indicated to Clauss that he would not have difficulty identifying any of the individuals whom he had discussed. Id. at 112.

Joseph met Straker on two separate occasions. Id. at 125. The first was at the Mellow Moods bar on the day of Maharaj's kidnapping. Id. at 106. Joseph observed Straker at the Mellow Moods bar during the group meeting prior to the kidnapping. Id. at 126. Then, later the same day, after Maharaj had been abducted and delivered to his captors, Joseph returned to the Mellow Moods bar and once again observed Straker. Id. at 106, 126. Joseph's second interaction with Straker occurred several days after the kidnapping. At that time, Joseph met Straker in Santa Cruz and the two men walked together to the forest campsite where Maharaj was being held. Id. at 106. After they arrived, Joseph watched Straker interrogate Maharaj. Id. At the conclusion of Straker's questioning, Straker and Joseph descended the hill together and carried on a conversation until they reached the bottom and parted ways. Id. at 106-07.

Joseph's interactions with Nixon (a.k.a. Shaka) were confined to the day of the kidnapping. Id. at 135. When the group departed from the Mellow Moods bar, Joseph and two others, including Nixon, got in what would be the getaway car and proceeded to the Samaan Tree bar to abduct Maharaj. Id. at 107. As Nixon exited the vehicle, he instructed Joseph to wait for the signal. Joseph then parked the car in a position where he could observe the bar. Id. Once in position, he observed another individual enter the bar and he then observed Nixon give the signal to bring the car around. Id. Nixon and the other individual then forced the victim into the car and Joseph drove away with all three men in the back seat. Id. As they left the scene, Nixon held a gun to Maharaj's head. Id. at 108. They returned to the area near the Mellow Moods bar and left the victim near a cocoa field. Id. Shortly thereafter, however, Joseph and Nixon went back to the cocoa field to retrieve the victim. Id. After dropping off another unidentified individual, Joseph and Nixon proceeded up Grand Curacaye Road and gave custody of Maharaj to two other individuals. Id. Joseph and Nixon then drove back to the Mellow Moods bar to rejoin the others. Id.

Clauss testified that based on Joseph's experience with the defendants, he considered doing a one photograph identification for each individual, but ultimately "came to the conclusion that despite the fact that Mr. Joseph had identified several individuals by name, at length and in detail . . . to lend a little bit more objectivity to it, we decided to place the photographs of the individuals we believed he had identified into a six-person photographic lineup." Id. at 109-10. A total of ten six-person photo arrays were prepared by the FBI with the help of the South Florida High Intensity Drug Trafficking Area ("HIDTA"). Id. at 110-11. Although Clauss did not prepare all of the lineups himself, he testified that he reviewed each of them critically before showing them to Joseph. Id. at 111. The lineups contained six photographs of black males, arranged in two rows of three. Gov't Ex. 37a (scanned copy of Straker photo array); Gov't Ex. 38 (scanned copy of Nixon photo array). None of the photographs appear to be more recently taken than the others and all were taken from the neck up and from a full-face viewpoint. Id. The men appear to be approximately the same age and have approximately the same physical build, hair color, hair length and hair style. Id. Each lineup contained only one suspect and the suspects' photographs were not placed in the same location in each lineup—they were placed randomly. Tr. at 139-40. In Straker's lineup all of the men pictured had facial hair (as does Straker), Gov't Ex. 37a; Gov't Ex. 37b (computer printout of Straker photo array), whereas in Nixon's lineup several of the men pictured did not have facial hair (Nixon does), Gov't Ex. 38.

The identification procedure took place at the Federal Courthouse in Washington, D.C., on August...