David Zapp, a criminal defense lawyer from New York City, recently convinced a federal judge to suppress statements made by a defendant in custody in Colombia. At the time of his arrest, DEA officials did not advise the defendant of his Miranda warnings, which must be given to suspects in custody prior to questioning. They include the right to remain silent, the right to an attorney, and the right to know that any statement they make may be used against them. The agents did not believe they were obligated to give these warnings while making an arrest outside the United States, but in court, Zapp argued that, “giving Miranda warnings should not depend on where a suspect is arrested.”
He spoke to us about his recent victory.
DZ: First of all, let me say that I was not retained to fight this case, but to negotiate a guilty plea. However, during the negotiations, it became clear that the government did not have sufficient evidence to convict the defendant of exporting drugs into the United States, the only crime over which the U.S has jurisdiction in narcotics cases committed abroad.
The defendant was an air traffic controller who had allegedly falsified flight plans to allow drug dealers to fly undetected within Colombia’s borders. While this arguably made him a narcotics conspirator, it did not make him an exporter. So I told the defendant that he should not plead guilty. Like many who are extradited, he believed that because you are involved in narcotics activity in Colombia, you must plead guilty in the United States. This is not true. No one should plead guilty in the U.S. until the U.S. has proof of “exportation.”
Q: But isn’t that risky? Waiting too long to plead guilty?
DZ: No. Time is not of the essence. Prosecutors in many districts are always willing to let defendants plead guilty at any point.
Q: Why?
DZ: Because they don’t want to take these cases to trial in the first place. A judge once said that no one wants to try cases. Not judges, not prosecutors, not defense attorneys, only defendants. It’s why defendants should not give up their right to trial too quickly or too cheaply. This is especially true in extradition cases.
Q: Why in extradition cases?
DZ: Because extradition cases are a pain for everyone involved. You have to get witnesses from other countries. You have to get evidence from other countries and you need the State Department with its red tape to get it for you. Then you have the problem of translating intercepted recordings of conversations, and choosing the recordings you want to present among the thousands intercepted. During this time you also have the prosecutors bugging you. Then there’s the trial itself. That could take months, in addition to the pre-trial preparation that also takes months. But if a defendant pleads guilty, it’s over. No preparation, no trial. A plea of guilty takes fifteen to thirty minutes and the case is closed. So anytime a prosecutor gets a chance to end a case with a guilty plea, he will.
So I wouldn’t worry about making a decision right away. The boat’s not leaving any time soon, and you can always get on board. That’s why I always say: push these prosecutors to trial and you will get a good plea offer. A prosecutor will be motivated to give you a good plea offer if he thinks you’re going to trial. They’re human, and they don’t want to spend their weekends at the office preparing for your trial if they don’t have to. But if you do wind up going to trial, it is not the worst case scenario, especially in Washington D.C.
Q: Why Washington, D.C.?
DZ: Because the juries are great in Washington, D.C. Washington is a city with a large African American population. As a result, the juries are largely African American, with no particular affection for or sympathy with the white establishment that seemingly runs the federal government. Local government may have its local leaders, but the federal government is run by white people. Judges are overwhelmingly white. Prosecutors are overwhelmingly white. But juries are generally black.
And while I’m not saying that African Americans will acquit you under any circumstances, they will surely put the government to the test. This doesn’t mean that white jurors can’t be fair. In the Lopesierra case, for example, tried in Washington, they were eminently fair. But I digress. In my case, the defendant was arrested in Colombia by the CNP (Colombian National Police). After the arrest the CNP turned him over to the DEA saying that the defendant wanted to talk to them (laughs) and that the defendant, according to the agents, simply started talking (laughs). Although the agents admittedly did not inform the defendant of his Miranda rights, they stated that they may have asked him some questions to “clarify” his statements.
After reviewing the case, the prosecutor knew that the agents were at fault so he argued that an interrogation did not take place, just a one-way conversation by the defendant. A one-way conversation does not require Miranda warnings because agents don’t do any questioning. The judge didn’t buy it though, and suppressed the evidence which consisted of defendant’s written statement and all his oral statements given after the agents began their questioning.
She accepted the story that the defendant had actually agreed to cooperate with the DEA, not surprisingly, but she said that after the questioning began, it was an “interrogation” and the agents had to give the Miranda warnings. Surprisingly, though, she did not accept the defendant’s principal argument, that the Miranda warnings should have been given by the CNP because the investigation was a “joint venture,” and when it is, everyone has to follow U.S. law.
Q: Why do you think it wasn’t surprising that the judge believed the defendant was willing to cooperate voluntarily?
DZ: Because judges rely on an agent’s information to be in the interest of justice. The way a prosecutor wins a case is by working with the evidence presented by the agents. Here, the agents admitted to their mistake, so that made the decision to suppress the evidence easier for the judge.
Q: Then why did you find it surprising that she did not believe the investigation was “joint?”
DZ: Because the evidence was overwhelming. The agent testified that the DEA funded the investigation, directed the investigation, worked “hand in hand” with the CNP, gave leads to the CNP, provided transportation, offices, hotel rooms and wiretap equipment. Meetings were held jointly and the DEA case agent would, in his words, “determine what direction the investigation would take.”
How much more “joint” can a venture be? I think there are many federal judges who would have found it a “joint venture.” This was devastatingly harmful testimony and will be a subject of discussion in future cases. For the first time, an agent acknowledged publicly the jointness of these ventures. And we are talking about an agent that has been in Colombia for five years. That covers a lot of “joint ventures.” The agent should be commended for his candor.
But there was also something that didn’t surprise me.
Q: And what was that?
DZ: That judges are generally intellectually honest. They may be conservative and pro-government, but they will obey the law. The law said that DEA agents had to give Miranda warnings anywhere and the judge followed the law. What I don’t get is why the U.S. is so loath admit to that these “joint” ventures exist and simply instruct the CNP to give the Miranda warnings as well.
Q: Thank you for your time, Mr. Zapp
DZ: My pleasure.