United States v. Naik
| Decision Date | 02 February 2020 |
| Docket Number | Criminal No. 19-CR-373 (TSC) |
| Parties | UNITED STATES OF AMERICA v. LOKESH NAIK, Defendant. |
| Court | U.S. District Court — District of Columbia |
Defendant Lokesh Naik is charged in an indictment with two counts of aggravated sexual abuse in violation of 18 U.S.C. § 2241(a) and one count of abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1). (ECF No. 1 ("Indictment")).1 Naik moves to suppress statements he made to Army Criminal Investigative Division agents on August 9 and 14, 2019, and on October 3, 2019, arguing they were involuntary and made in violation of his Miranda rights. (ECF No. 23 ("Def. Br.").)2
The court held an evidentiary hearing on January 31, 2020, on the motion to suppress and other motions. The court heard testimony from three military criminal investigation agents involved in Naik's questioning and entered into evidence the video recordings of Naik's three statements. Based on that testimony and the entire evidentiary record, and for the following reasons, the court will GRANT in part and DENY in part Defendant's motion to suppress.
The court found the military investigators who testified at the motions hearing, Yring Richardson, Ansuman Baral, and Kyle Zimmerman, to be credible witnesses.
Naik is an Indian national who has worked on U.S. military operating bases in Afghanistan for approximately ten years. (ECF No. 61 ("Def. Reply") at 1.)3 At the time of the alleged sexual assault, Naik was working at a military base in Jalalabad, Afghanistan, FOB Fenty, for Global Sourcing Solutions, a subcontractor with the U.S. Department of Defense.
Naik's native language is Hindi. He learned English while working on base. Hr'g Tr. 57:4-12, 58:20-22 (Jan. 31, 2020) (Testimony of Agent Baral).4 He has two years of college education. (Def. Reply at 1.) Until his transfer to the United States for this prosecution, Naik had never been to the United States or had any experience with its criminal justice system. (Id.)
On August 9, 2019, Naik's supervisor transported Naik across FOB Fenty to "EDOC," where Agents Richardson and Steele questioned him. Hr'g Tr. 18:5-17 (Testimony of Agent Richardson). When he arrived, Naik was instructed to empty his pockets and was searched. Id. at 19:8-14. Agent Richardson escorted Naik to the interview room, without touching him. Id. at 19:13-21. Neither agent was wearing a badge, and both were in civilian clothes. Id. at 19:22-24; 21:10. Both agents had guns in hip holsters, which were covered by their shirts; neither agent ever unholstered their gun. Id. at 20:1-9; 21:14-20.
Richardson initially testified that Naik was free to refuse to answer questions. She then testified, after being asked whether he could have refused to come in for questioning, that "we usually ask them to come and at least talk to us, and then he can say no at any point." Id. at 20:15-20.
The agents then asked Naik for information for an administrative form and chatted with him about his day. Id. at 20:21-21:3. Then they went over his rights. First, Agent Richardson explained to Naik that he was suspected, not accused, of the following offenses: failure to obey an order, sexual assault, offense concerning a government computer, and burglary. Def. Ex. 1 (). Naik asked the agent to explain the burglary charge; she did so. Id. Agent Richardson directed Naik to cross out the word "accused" on the form, so that it read only that he was "suspected," and to initial the change. Id. Naik complied. Id. Agent Richardson then read the provisions on the form stating that Naik had the right to remain silent and that his statements could be used against him as evidence in a criminal trial. Naik confirmed he understood each of these rights. Id.
Agent Richardson then informed Naik of his right to counsel: Id. at 12:41-42 a.m. She then asked whether Naik understood, and he said "yes." Id. Agent Richardson then directed Naik to initial each of the three rights they had just discussed. Id. at 12:42 a.m. Naik then said, "let me tell you right now ma'am, I cannot afford no lawyers right now because I don't have one." Id. at 12:43 a.m. Agent Richardson said "ok," and informed Naik of a fourth right, that he could cease questioning at any time or that he could talkto a lawyer at any time despite waiving the other rights. Id. She asked if he understood, and Naik responded "yes, that I am telling you the information without a lawyer." Id. Agent Richardson replied, "ok that's fine." Id.
Agent Richardson then asked whether Naik had been read his rights before or seen the waiver form, and he responded that this was the first time he had seen the form. Id. Agent Richardson asked if Naik was willing to speak to the agents now, and he said, "yes ma'am." Id. Then both Naik and Agent Richardson signed the waiver form. Id. at 12:44; Gov't Ex. 3 (Waiver Form dated Aug. 9, 2019).
Approximately six minutes later, Agent Richardson asked for Naik's consent to a search of his room. Aug. 9 Video at 12:50 a.m. The following exchange ensued:
Agent Richardson returned to discussing the forms to search Naik's room, and then began questioning him about the events of August 7. Id. The questioning lasted approximately two hours. Id. at 25:19-20.
On August 14, 2019, Naik's supervisor again drove him across FOB Fenty to "EDOC," where Agent Baral questioned him. Hr'g Tr. 54:5-13 (Testimony of Agent Baral). Agent Baral was dressed in civilian clothes and his badge was not visible. Id. at 54:1-7. He carried a gun on his hip, which was covered by his shirt; he never unholstered his gun during the interview. Id. at 54:8-15. Baral testified that Naik could have refused to talk but did not. Id. at 54:18-21.
Agent Baral advised Naik of his "31 Bravo" rights (the military equivalent of Miranda rights) and walked him through a waiver form. Id. at 57:9-25. Agent Baral testified that the "31 Bravo" rights provide more protection to a suspect than the standard Miranda rights. Id. Agent Baral explained that Naik was suspected, not accused, of the following offenses: sexual assault, false official statement, burglary, and failure to obey an order. Def. Ex. 2 (). He directed Naik to cross out the word "accused" and initial the change. Id. at 2:01 p.m. Agent Baral explained to Naik that he had the right to remain silent and that what he said could be used against him as evidence in a criminal trial. Id. at 2:03. Naik confirmed he understood each of these rights. Agent Baral then explained to Naik that he had a right to a lawyer and that if he could not afford one, a military lawyer could be assigned to him. Id. at 2:04 p.m. Naik confirmed he understood and asked no questions. Agent Baral told Naik he had a right to stop answering questions or consult with a lawyer even if he waived his rights. Id. at 2:04 p.m. Then both Naik and Agent Baral signed the waiver form. Gov't Ex. 4 (Waiver Form dated Aug. 14, 2019).
The questioning lasted approximately 5 hours and forty minutes. Hr'g Tr. at 66:14-16 (Testimony of Agent Baral). The room was air conditioned but remained hot because it was approximately 120 degrees outside. Id. at 66:19-23. Agent Baral took several breaks and provided Naik with water. Id. at 59:25-60:11. Baral ended the questioning and gave Naik food when he said he was hungry. Id. at 60:18-23.
Agent Baral testified that he told Naik that other people had heard the complainant tell Naik "no" multiple times during the alleged sexual assault. Id. at 67:17-24. This was false; Baral testified that he made a strategic decision to lie to Naik about this evidence to pressure him into telling the truth. Id. at 67:23-68:16. After Baral repeatedly confronted Naik with this claim for two and a half hours, raising his voice and getting closer to Naik, Naik told Baral that the complainant had said no. Id. at 71:25-72:3; 72:24-73:4. Agent Baral also accused Naik of "grooming" the complainant "like a child molester" because Naik had been nice to her before the alleged sexual assault. Id. at 73:22-74:2. Agent Baral also called Naik a "predator." Id. at 7:4:3-4.
On October 3, 2019, Naik's supervisor drove him, for the third time, across FOB Fenty to "EDOC," where Agents Zimmerman and Probst questioned him. Hr'g Tr. 77:6-11 (Testimony of Agent Zimmerman). Both agents were dressed in civilian clothes and did not have badges. Id. at 77:11-19. Both agents carried guns, in their holsters, which were not visible. Id. at 77:20-25....
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