United States v. Karake

• Decision Date: 17 August 2006
• Docket Number: Criminal Action No. 02-0256(ESH).
• Citation: 443 F.Supp.2d 8
• Parties: UNITED STATES of America, v. Francois KARAKE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 8

443 F.Supp.2d 8

UNITED STATES of America, v. Francois KARAKE, et al., Defendants.

Criminal Action No. 02-0256(ESH).

United States District Court, District of Columbia.

August 17, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Reita Pendry, Charlotte, NC, Steven R. Kiersh, Washington, DC, for Defendant Gregoire Nyaminani.

Harry J. Trainor, Jr., Brennan, Trainor, Billman & Bennett, LLP, Upper Marlboro, MD, Jeffrey Brian O'Toole, Julie Sippel Dietrich, O'Toole, Rothwell, Nassau & Steinbach, Washington, DC, for Defendant Leonidas Bimenyimana.

Brenda Jene Johnson, George Z. Toscas, Wendy Leigh Wysong, Jonathan Martin Malis, U.S. Attorney's Office, Washington, DC, for Plaintiff United States of America.

MEMORANDUM OPINION

HUVELLE, District Judge.

I. INTRODUCTION

Defendants Francois Karake, Gregoire Nyaminani and Leonidas Bimenyimana face a four-count indictment relating to the March 1, 1999 killings of two American tourists in Bwindi Impenetrable National Forest ("Bwindi") in southwestern Uganda. The attack on Bwindi that resulted in the deaths of the Americans was carried out by the Liberation Army of Rwanda ("ALIR"). Several other tourists and one Ugandan national park guard were also killed as arresult of ALIR's attack. The United States government asserted extraterritorial jurisdiction to prosecute defendants, all of whom are Rwandan nationals and former members of ALIR. The indictment charges defendants with two counts of murder, 18 U.S.C. § 2332(a), conspiracy to commit murder, 18 U.S.C. § 2332(b), and using a firearm during a crime of violence, 18 U.S.C. § 924(c) & (j). If convicted, defendants face the death penalty.

Defendants have moved to suppress the statements they made to Rwandan and American officials during the course of the investigation into the attack at Bwindi. The investigation spanned roughly four years and required the cooperation of law enforcement officials from at least four countries—Uganda, Rwanda, the United Kingdom and the United States. The investigation produced a total of 29 statements that defendants seek to suppress: 15 by Nyaminani, 7 by Karake, and 7 by Bimenyimana. These many statements fall into two categories: (1) statements made to Rwandan officials out of the presence of any Americans; and (2) statements made in the presence of both American and Rwandan investigators. Except for Nyaminani's two earliest statements, all of the statements at issue were made while defendants were housed at what the Rwandans have referred to as a military "barracks," known as Kami, located outside the Rwandan capital of Kigali. (5/3 p.m. tr. at 65.) Kami Camp, approximately 200 acres in size, houses between 90 and 120 Rwandan soldiers. (Id. at 52.) According to Captain Alex Kibingo, who was in charge of Kami during the relevant time period, the camp was used to store military equipment such as uniforms, guns and bullets. (Id. at 51.) Kami also served as a detention center for Rwandan soldiers who were subject to disciplinary action (id. at 53-54), and captured ALIR soldiers prior to their transport to repatriation camps in Rwanda's Ruhengeri province.¹ (Id. at 11.) Most, but not all, of the statements obtained by Rwandan officials out of the presence of Americans were taken at Kami by Kibingo. Defendants were transported from Kami to the Rwandan National Police Headquarters at Kacyiru ("Police Headquarters" or "Kacyiru") for all of the interrogations in which American investigators participated.

Defendants advance two principal arguments. First, they argue that their statements were the product of physical and psychological coercion, resulting from both their conditions of confinement and their treatment while in Rwandan custody, and were therefore obtained in violation of the due process clause of the Fifth Amendment. Second, defendants claim that the Miranda warnings issued by American interrogators were inadequate to permit defendants to make a knowing and voluntary waiver of their Fifth Amendment rights against self-incrimination. Moreover, defendants advance a corollary argument that a joint venture existed between the United States and Rwandan governments, and therefore, they were entitled to the protections provided by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), with respect to the interrogations conducted outside the presence of any American officials. See, e.g., Reid v. Covert, 354 U.S. 1, 5-7, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); United States v. Covington, 783 F.2d 1052, 1056 (9th Cir.1986). Defendants' motion therefore presents several legal questions: 1) Has the government demonstrated by a preponderance of the evidence that each confession was voluntary within the meaning of the, Fifth Amendment? 2) Was there a knowing, voluntary and intelligent waiver of Miranda during the joint interrogations conducted by Americans and Rwandans?² 3) Did a joint venture exist between the American and Rwandan governments, and, if so, what was the scope and legal effect of that joint venture? As all parties agree, the resolution of these issues is intensely fact-specific. See, e.g., Haynes v. Washington, 373 U.S. 503, 513-14, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) (voluntariness determination requires examination of the "totality of the circumstances"); Covington, 783 F.2d at 1056 ("Whether or not United States officials are substantially involved, or foreigners are acting as their agents or employees, is a question of fact to be resolved in each case."). But, in determining the answers to these questions, it is not the Court's role to decide the issue of guilt or the truthfulness of the many confessions. See United States v. Bowie, 198 F.3d 905, 912 (D.C.Cir.1999) ("Suppression hearings do not determine a defendant's guilt or punishment.").

The Court conducted a five-week evidentiary hearing to determine the suppression issues. Over the course of 22 days of testimony and one day of oral argument, the Court heard from 19 witnesses (11 defense, 8 prosecution), including 11 Rwandan nationals, 8 of whom testified in the Rwandan language Kinyarwanda. The Court received written reports and heard testimony regarding defendants' physical and mental condition from six expert witnesses—two psychiatrists, two forensic pathologists, a dermatologist and an internist with expertise in the treatment of torture survivors. Two former cabinet ministers from the current Rwandan government testified. Two Rwandan witnesses were permitted to use a pseudonym and to testify under seal regarding their treatment as detainees at Kami Camp. The transcript from the hearing consists of 3913 pages, and the record includes more than 110 exhibits, including photographs and a video of Kami Camp, photographs of defendants and the victims, defendants' written statements, as well as the notes, reports and correspondence of both American and Rwandan investigators. In addition to Defendants' Joint Motion to Suppress ("Defs.' Mot.") and the government's opposition thereto, the Court received briefing from the parties on the permissible scope of cross-examination of defendants, the application of Fed.R.Crim.P. 12.2 as it relates to the government's ability to use a defendant's statements to his own expert for impeachment purposes, matters related to discovery of classified information under CIPA, and supplemental briefing on legal issues identified by the Court as critical to the resolution of the motion.

Based on the record and the arguments of the parties, the Court makes the following findings of fact and conclusions of law, and holds that the statements defendants gave to both the Rwandan and American interrogators starting in December 2001 are the product of coercion and therefore inadmissible.

II. FACTUAL BACKGROUND

A. Historical Context

Explaining the causes of the well-known and turbul'ent history of Rwanda is a task that need not be attempted here. Nevertheless, this history provides the backdrop to the events which are before the Court and is important to an understanding of the complicated factual setting presented by this case.

While the origin of the classification is a matter of some dispute, it is clear that for much of the second half of the twentieth century Rwandan society was divided largely along ethnic lines between Hutu, Tutsi and Twa.³ The Hutu majority, which was thought to have been disfavored under Belgian colonial rule, assumed power in a series of elections in 1960-61 known as the "Hutu Revolution." With the establishment of a Hutu-dominated government, many members of the previously ascendant Tutsi minority were displaced or fled, creating a substantial refugee population. In the mid-1980s, this refugee population spawned the Rwandan Patriotic Front ("RPF"), a group made up primarily of Tutsi refugees who had grown up in neighboring countries and advocated the overthrow of Rwanda's Hutu regime. The military wing of the RPF, known as the Rwandan Patriotic Army ("RPA"), invaded Rwanda in 1990. The invasion was repelled, however, by the Armed Forces of Rwanda (known by its French acronym "FAR"), with the assistance of several foreign nations. Despite the failed 1990 invasion, the RPA continued to engage in guerrilla warfare over the next several years. From 1990 to 1994, divisions continued to grow within Rwanda between hard-line proponents of Hutu solidarity, on the one hand, and the Tutsi minority and moderate Hutus, on the other.

On April 6, 1994, the airplane carrying the long-time President of Rwanda, Juvenal Habyarimana, was shot down outside Kigali. (5/22 a.m. tr. at 21.) Responsibility for the assassination has never been confirmed. Habyarimana's death touched off a slaughter of the minority Tutsi population and many Hutus who were considered to be sympathetic to the Tutsis. The extent of the violence that followed is astonishing. Within the first five days after Habyarimana's plane went down, an estimated 20,000 Rwandans were killed,...