                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA                     :
                                             :
      v.                                     :      Criminal No. 19-CR-373 (TSC)
                                             :
LOKESH NAIK,                                 :
                                             :
                Defendant.                   :


                                     MEMORANDUM OPINION

        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.




1
  On January 31, 2020, the court granted leave for the government to file a superseding
indictment that will contain technical changes to the indictment. That superseding indictment
has not yet been filed. However, the changes do not affect the court’s opinion on the motion
before it.
2
  Naik initially filed the motion to suppress on January 3, 2020, ECF No. 19. Because that
motion mentioned the complainant’s full name, the parties agreed to seal the motion and the
defense filed a redacted version on the public docket, ECF No. 23. All references to Naik’s
motion refer to the public version.
                                   I.      FACTUAL FINDINGS

       The court found the military investigators who testified at the motions hearing, Yring

Richardson, Ansuman Baral, and Kyle Zimmerman, to be credible witnesses.

    A. Naik’s Personal Background

       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.)

    B. August 9, 2019 Statement

       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.




3
  The court cites to the Defendant’s brief only for facts that the government did not contest, and
which the court therefore accepts as true.
4
  Transcript cites are to the draft transcript the court saved immediately after the hearing. These
cites will be updated when the court and parties receive a final copy of the transcript.


                                                     2
       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

(Video Recording of August 9, 2019, Interview (“Aug. 9 Video”) at 12:40–41 a.m.). 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: “I have a right to talk

privately to a lawyer before[] during, and after questioning and have a lawyer present with me

during questioning. I understand that this lawyer can be one that I arrange for at my own

expense or if I cannot afford a lawyer, and want one, a lawyer will be appointed to me before any

questioning begins.” 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 talk




                                                     3
to 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:

           •   Naik: “But, like, I’m an Indian, how can I get a lawyer when I’m here? Can I go
               home?”

           •   Agent Richardson: “I can’t give you legal advice, I can just tell you that you are
               within your means to get a lawyer.”

           •   Naik: “I has to?”

           •   Agent Richardson: “It’s up to you. It’s totally up to you. That’s why I read you
               your rights.”

           •   Naik: “I don’t have nobody ma’am. I don’t have nobody. I don’t have like
               enough money to pay a lawyer. Because I’m Indian. I get paid like 1,200
               something.”

           •   Agent Richardson: “I understand.”

           •   Naik: “I cannot afford a lawyer ma’am.”

           •   Agent Richardson: “I mean that’s kind of why we go over your rights. This is
               your opportunity for us to hear your side of the story on things. Um, but, you
               know, ultimately things are up to you in regards to, you know, talking.”

           •   Naik: “But, like, can I go home?”

           •   Agent Richardson: “After this? Yeah. You will go home. Give me one second.”



                                                    4
       Id. at 12:50–51.

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.

   C. Statement on August 14, 2019

       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 (Video Recording of

August 14, 2019, Interview (“Aug. 14 Video”) at 2:01–2 p.m.). 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).


                                                     5
       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.

   D. Statement on October 3, 2019

       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. Zimmerman testified that Naik could have refused to talk but did not. Id. at 78:7–10.

       Agent Zimmerman advised Naik of his Miranda rights and walked him through a waiver

form. Id. at 81:1–12. Agent Zimmerman again explained that Naik was suspected, not accused,

of the following offenses: sexual assault, false official statement, burglary, and failure to obey an




                                                      6
order. Def. Ex. 3 (Video Recording of Oct. 3, 2019, Interview (“Oct. 3 Video”) at 8:03 p.m.).

Agent Zimmerman crossed out the word “accused” and directed Naik to initial the change. Id. at

8:03 p.m. Agent Zimmerman then told Naik he had a right to remain silent, that what he said

could be used against him as evidence in a criminal trial, that he had a right to a lawyer and a

lawyer could be appointed for him if he could not afford one, and that he had the right to stop

answering questions or consult with a lawyer even if he waived his rights. Id. at 8:04–6 p.m.

Naik confirmed he understood each of these rights and placed his initials next to each right. Id.

Agent Zimmerman asked if Naik “fully understood his rights” and Naik said he did. Id. at 8:06

p.m. Naik confirmed that he was willing to talk to Agent Zimmerman without a lawyer. Id.

Naik, Agent Zimmerman, and Agent Probst all signed the waiver form. Gov’t Ex. 5 (Waiver

Form dated Oct. 3, 2019).

        The agents questioned Naik for approximately 22 minutes, with no breaks. Hr’g Tr. at

82:18-19 (Testimony of Agent Zimmerman). Naik was given a bottle of water. Id. at 82:20–

83:2.

                                         II.     ANALYSIS

        “Miranda v. Arizona, of course, safeguards [suspects’] Fifth Amendment right against

self-incrimination by requiring law enforcement to advise them of their rights to silence and an

attorney, and by limiting the government’s use at trial of statements obtained in ‘unwarned’

interrogations.” United States v. Abu Khatallah, 275 F. Supp. 3d 32, 60 (D.D.C. 2017) (citing

Miranda v. Arizona, 384 U.S. 436 (1966)).




                                                     7
    A. Custody

       For Miranda protections to attach, the defendant’s statements must be made during

custodial interrogation. 5 The D.C. Circuit has held there are two components to the Miranda

custody analysis. First, the court must determine “whether, in light of the objective

circumstances of the interrogation, a reasonable person would have felt he or she was not at

liberty to terminate the interrogation and leave.” United States v. Hallford, 756 F. App’x 1, 6

(D.C. Cir. 2018) (citing Howes v. Fields, 565 U.S. 499, 509 (2012)). This is an objective inquiry,

so the “subjective views harbored by either the interrogating officers or the person being

questioned’ are irrelevant.” Id. (quoting J.D.B. v. North Carolina, 564 U.S. 261, 270–71

(2011)). “A finding of Miranda custody is more likely, for example, when the questioned

individual did not ‘come voluntarily’ or otherwise ‘invite’ or ‘consent’ to the interview at issue.”

United States v. Hallford, 280 F. Supp. 3d 170, 179 (D.D.C. 2017), aff’d, 756 F. App’x 1 (D.C.

Cir. 2018) (quoting Yarborough v. Alvarado, 541 U.S. 652, 661 (2004)). Other relevant factors

include the “location, duration, and manner” of the questioning, whether the suspect is physically

restrained, whether the agents are armed, and whether the suspected is isolated. Id. (citing

Fields, 565 U.S. at 509).

       The court finds that, under the circumstances of the questioning on all three days, “a

reasonable person would have felt that [he] was not at liberty to terminate the interrogation and

leave.” See Hallford, 756 F. App’x at 6. Naik is an Indian national who is unfamiliar with the

U.S. justice system. Naik’s supervisor drove him to and from each interrogation, during which

he was questioned by armed agents. The first interrogation lasted two hours, the second over




5
  The government does not dispute that the questioning was an interrogation. (See ECF No. 29
(“Gov’t Br.”) at 4–13, ECF No. 79 (“Gov’t. Surreply”).)


                                                     8
five hours, and the third twenty minutes. While Naik was not restrained or under arrest, the

agents informed him each time that he was a suspect in a criminal case and subjected him to

accusatory questioning. Agents Richardson, Baral and Zimmerman testified that they believed

Naik could end the interview at any time, but they did not testify that they told him he could stop

the questioning, other than during the recitation of his Miranda rights. And, during the first

interrogation, on August 9, 2019, interrogation, the agent specifically told Naik he could only

leave “after this.” Under these circumstances, a reasonable person would not believe they were

at liberty to refuse to answer questions and leave.

       Second, the court must determine “whether the relevant environment presents the same

inherently coercive pressures as the type of station house questioning at issue in Miranda.”

Hallford, 756 F. App’x at 6. “Coercive pressures include ‘the shock’ of being arrested and

questioned after being ‘yanked from familiar surroundings in the outside world’ and ‘cut off

from his normal life and companions’; ‘the hope’ that speaking will allow the interviewee ‘to

leave and go home’; and a reason to think that the interrogating officers have ‘authority to affect

the duration’ of the interviewee’s confinement.” Id. (quoting Fields, 565 U.S. at 511–12).

While Naik was not formally under arrest, during each interrogation the agents and Naik were

alone in a room in a building across the base and away from Naik’s familiar surroundings.

Further, the agents identified themselves as agents with the Army’s Criminal Investigations

Division and were armed during each interview. These circumstances provide the same

“coercive pressures” as a traditional station house questioning, and the court finds that Naik was

in custody during each interrogation and was entitled to Miranda protections.




                                                      9
       B. Waiver

       Naik argues that his waivers of his Miranda rights were involuntary, in part because they

were taken after he invoked his right to counsel, and that his waivers were not knowing or

intelligent. Naik also argues that his statements were involuntary under the Due Process clause.

           1. Legal Standard

       The government must prove by a preponderance of the evidence that Naik’s waiver of his

Miranda rights was voluntary, knowing, and intelligent. Berghuis v. Thompkins, 560 U.S. 370,

384 (2010).

       A waiver is knowing and intelligent if it was “made with a full awareness of both the

nature of the right being abandoned and the consequences of the decision to abandon it.” Moran

v. Burbine, 475 U.S. 412, 421 (1986). But “[t]he Constitution does not require that a criminal

suspect know and understand every possible consequence of a waiver.” Colorado v. Spring, 479

U.S. 564, 574 (1987). “A court must take into account ‘the education, experience and conduct of

the accused’—including a defendant’s ‘alienage and unfamiliarity with the American legal

system’—when determining whether a waiver was knowing and intelligent, ‘the significance of

these factors will be limited to determining whether a defendant knew and understood the

warnings that were read to him.’” United States v. Bourdet, 477 F. Supp. 2d 164, 183 (D.D.C.

2007) (citing United States v. Yunis, 859 F.2d 953 (D.C. Cir. 1988)).

       A waiver is involuntary if the “‘defendant’s will was overborne’ when he gave his

statement.” United States v. Murdock, 667 F.3d 1302, 1305–06 (D.C. Cir. 2012) (citing

Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). Courts should consider, inter alia, “the

defendant’s age and education, the length of detention, whether the defendant was advised of his

rights, and the nature of the questioning.” Id. The D.C. Circuit has held that “egregious facts




                                                    10
[are] necessary to establish that the statements . . . made during questioning [are] involuntary.”

Hallford, 816 F.3d 850, 863 (D.C. Cir. 2016) (quoting United States v. Mohammed, 693 F.3d

192, 198 (D.C. Cir. 2012)). “Statements made where the circumstances are ‘less than

‘egregious’ are usually voluntary.” Id. But “[a]n express written or oral statement of waiver of

the right to remain silent or of the right to counsel is usually strong proof of the validity of that

waiver.” North Carolina v. Butler, 441 U.S. 369, 373 (1979). The voluntariness inquiry is the

same under Miranda and the Due Process Clause. Colorado v. Connelly, 479 U.S. 157, 169

(1986).

          While a suspect can waive his Miranda rights, “special protections apply once the suspect

has invoked his constitutional right to counsel during custodial interrogation.” United States v.

Straker, 800 F.3d 570, 622 (D.C. Cir. 2015). A suspect must “unambiguously request counsel”

for these protections to apply. Davis v. United States, 512 U.S. 452, 459 (1994). In Davis, the

Supreme Court held that “if a suspect makes a reference to an attorney that is ambiguous or

equivocal in that a reasonable officer in light of the circumstances would have understood only

that the suspect might be invoking the right to counsel, [Supreme Court] precedents do not

require the cessation of questioning.” Id.

          “Once a suspect asserts the right [to counsel], not only must the current interrogation

cease, but he may not be approached for further interrogation ‘until counsel has been made

available to him[.]’” McNeil v. Wisconsin, 501 U.S. 171, 176–77 (1991) (quoting Edwards v.

Arizona, 451 U.S. 477, 484–85 (1981)). Further, if law enforcement later interrogates the

suspect without counsel, those statements are “presumed involuntary” and are therefore

inadmissible as substantive evidence at trial. Id. at 177. This is true “even where the suspect

executes a waiver and his statements would be considered voluntary under traditional standards.”




                                                      11
Id. at 177. This is because “if a suspect believes that he is not capable of undergoing [custodial]

questioning without advice of counsel, then it is presumed that any subsequent waiver . . . is

itself the product of the ‘inherently compelling pressures’ [of custodial interrogation] and not the

purely voluntary choice of the suspect.” United States v. Straker, 800 F.3d 570, 622 (D.C. Cir.

2015) (quoting Arizona v. Roberson, 486 U.S. 675, 681 (1988)). The Edwards rule is “designed

to prevent police from badgering a defendant into waiving his previously asserted Miranda

rights.” Michigan v. Harvey, 494 U.S. 344, 350 (1990). Therefore, only when the later

questioning is “at the suspect’s own instigation” can a court find a valid waiver of Miranda

rights. Maryland v. Shatzer, 559 U.S. 98, 104 (2010) (internal quotation marks omitted).

       If, however, there is a break in custody between a suspect invoking their right to counsel

and the later questioning, then the Edwards presumption of involuntariness ends. Id. at 110.

This break in custody, however, must be longer than fourteen days. Id. The 14-day limitation

“provides plenty of time for the suspect to get reacclimated to his normal life, to consult with

friends and counsel, and to shake off any residual coercive effects of his prior custody.” Id.

           2. August 9, 2019, Statement

       The court must first determine whether Naik “unambiguously” invoked his right to

counsel. While he was being advised of his rights before his interrogation on August 9, 2019,

Naik asked Agent Richardson, “how can I get a lawyer when I’m here?” This statement is akin

to the one made in United States v. Allegra, 187 F. Supp. 3d 918, 924 (7th Cir. 2015), in which

the Seventh Circuit held that the defendant had invoked his right to counsel by saying “So can

you provide me with an attorney?” Id. These clear statements—“so can you provide me with an

attorney” and “how can I get a lawyer”—are neither ambiguous nor equivocal.




                                                    12
       To be sure, “mere suggestions by the suspect that he ought to or may wish to speak to a

lawyer, or mere inquiries about the possibility of speaking to a lawyer” are not an unambiguous

invocation of the right to counsel. United States v. Abu Khatallah, 275 F. Supp. 3d 32, 69

(D.D.C. 2017) (collecting cases). In Abu Khatallah, the court found that the defendant had not

invoked his right to counsel by stating “Is there an attorney here?” Id. Here, however, Naik did

not only reference a lawyer, but directly asked Agent Richardson “how” he could get a lawyer.

A reasonable officer would interpret this as a request for a lawyer—not, as Agent Richardson

testified, as a request for legal advice. Moreover, if Agent Richardson viewed Naik’s request for

counsel as a request for legal advice, she could have stopped the interrogation and allowed Naik

to obtain advice from counsel.

       Further, after asking how he could get a lawyer, Naik repeatedly asked Agent Richardson

to clarify his rights, which Agent Richardson failed to do. Naik first told Agent Richardson, “let

me tell you right now ma’am, I cannot afford no lawyers right now because I don’t have one.”

Aug. 9 Video at 12:43 a.m. Agent Richardson responded only “ok.” Id. When Naik then

informed her that he could not afford an attorney, she responded that it was “within his means”

to obtain a lawyer. Id. at 12:50 a.m. Agent Richardson testified that she meant it was within

Naik’s “rights,” not his “financial means.” Hr’g Tr. at 37:19–23 (Testimony of Agent

Richardson). But, given that Naik had just said that he could not afford a lawyer, it would have

been reasonable for him to infer that Richardson was referring to his financial ability to pay a

lawyer, not his right to have a lawyer. When Naik then asked whether he has to get a lawyer,

Agent Richardson responded, “that’s why I read you your rights,” Aug. 9 Video at 12:50 a.m.,

and therefore refused to clarify or reiterate his right to appointed counsel. When Naik repeated

that he could not afford a lawyer, Agent Richardson merely responded “that’s kind of why we go




                                                    13
over your rights” without clarifying that he was entitled to an appointed lawyer. Id. Agent

Richardson and Agent Steele not only ignored Naik’s initial query about how he could obtain

counsel, they then implied that Naik was able to hire his own lawyer. The agents’ responses to

Naik’s questions undermined and contradicted their administration of his rights, especially given

that Naik is an Indian national unfamiliar with the U.S. legal system. Cf. Yunis, 859 F.2d 953

(explaining “alienage and unfamiliarity with the American legal system” are among the objective

factors weighed by the court in deciding whether a waiver is knowing and intelligent).

       There is no evidence that Naik instigated the questioning after he invoked his right to

counsel. Rather, Agent Richardson told him he could go home “after this,” then obtained Naik’s

consent to search his room and began interrogating him about the events of August 7. Because

Naik’s statements were made in response to questioning immediately after he invoked his right

to counsel, his statements were involuntary. Therefore, the court finds the government

questioned Naik on August 9, 2019, in violation of his Miranda rights. See Shatzer, 559 U.S. at

104. Accordingly, Naik’s statements in response to that questioning are inadmissible in the

prosecution’s case-in-chief.

           3. August 14, 2019, Statement

       Naik’s next statement was taken just five days later, on August 14, 2019. Because the

break in custody was less than 14 days, the Edwards presumption of involuntariness continues to

apply. See Shatzer, 559 U.S. at 104. Again, there is no evidence that Naik instigated the second

interview, after he had invoked his right to counsel in the first interview.

       The government argues that the court must decide whether the later statements were

“sufficiently insulated from the prior constitutional violation as to be considered voluntary.”

(ECF No. 79 (“Gov’t. Surreply”) at 5 (citing Oregon v. Elstad, 470 U.S. 298 (1985)). In Elstad,




                                                     14
the Supreme Court held that where officers violated Miranda by questioning a defendant without

warning him of his rights, but did not otherwise employ coercive tactics, the future investigatory

process was not tainted such that a later warned statement must be excluded. Id. at 307, 311.

But that analysis does not apply where the statement was taken in violation of a suspect’s right to

counsel under the Edwards prophylaxis, which ensures that law enforcement do not “badger” a

defendant into waiving his already asserted rights. Harvey, 494 U.S. at 350. Therefore, when a

suspect invokes his right to counsel, a court must presume that any later waiver of his rights is

“itself the product of the ‘inherently compelling pressures’” of the custodial interrogation.

Straker, 800 F.3d at 622 (quoting Roberson, 486 U.S. at 681). Therefore, only when the later

questioning is “at the suspect’s own instigation” can a court find a valid waiver of Miranda

rights. Shatzer, 559 U.S. at 104 (internal quotation marks omitted). The government fails to

address this caselaw in its supplemental memorandum (although it does invoke Shatzer’s 14-day

limitation below for the third statement).

       As the court noted above, Naik’s second interview was five days after his first interview

and not at his instigation. Moreover, the Supreme Court has suggested that a sufficient break in

custody reduces or eliminates the coercive effects of a rights violation by allowing a suspect “to

get reacclimated to his normal life, to consult with friends and counsel, and to shake off any

residual coercive effects of his prior custody.” Shatzer, 559 U.S. at104. Here, however, Naik

remained on base, and it appears he was not free to return to India while the investigation was

ongoing. Hr’g Tr. at 54:22–25 (Testimony of Agent Baral), 86:13–89:14 (Testimony of Agent

Zimmerman). Therefore, Naik could not return home to consult with friends and family between

the first and second questioning. Nor was he able to consult with a lawyer, as he was never

informed how he could get a lawyer on base, despite asking during the first interview.




                                                    15
Therefore, the court finds the government questioned Naik on August 14, 2019, in violation of

his Miranda rights. See Shatzer, 559 U.S. at 104. Accordingly, Naik’s statements in response to

that questioning are inadmissible in the prosecution’s case-in-chief.

           4. October 3, 2019, Statement

       Naik did not invoke his right to counsel for the October 3, 2019, statement. However,

that statement was taken nearly two months after Naik invoked his right to counsel on August 9,

so any coercive effects of the first interrogation had worn off, see id., and therefore his waiver is

not presumptively involuntary.

       The court finds that under the circumstances in which it was given, Naik’s October 3

statement was voluntary. The interrogation lasted only twenty minutes, Naik was advised of his

rights, and the agent did not engage in any “egregious” conduct during questioning. Hallford,

816 F.3d at 863. Naik’s waiver of his rights was also knowing and intelligent; his personal

background and education show he was capable of understanding what he was doing. Naik also

said he understood the rights he was waiving and specifically stated he was willing to talk to the

agent without a lawyer. The court therefore finds the government has met its burden to show

Naik’s waiver was knowing and intelligent on October 3. Because Naik’s October 3, 2019,

statement was not taken in violation of his Miranda rights, it is admissible in the prosecution’s

case-in-chief.

                                        III.    CONCLUSION

       Accordingly, the Court will GRANT in part and DENY in part the motion to suppress. A

corresponding Order will issue separately.




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Date: February 2, 2020


                         Tanya S. Chutkan
                         TANYA S. CHUTKAN
                         United States District Judge




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