Opinion
No. 09-1954-cr.
May 23, 2011.
Appeal from the United States District Court for the Southern District of New York (Chen, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
B. Alan Seidler, New York, N.Y., for Appellant.
Anjan Sahni, Assistant United States Attorney for the Southern District of New York, (Preet Bharara, United States Attorney for the Southern District of New York, Jesse M. Furman, Assistant United States Attorney for the Southern District of New York; David O'Neil, Department of Justice, Washington, D.C. on the brief).
Present: RALPH K. WINTER, ROSEMARY S. POOLER, B.D. PARKER, Circuit Judges.
SUMMARY ORDER
Bashir Noorzai appeals from the April 30, 2009 judgment of conviction of the United States District Court for the Southern District of New York (Chin, J.) finding him guilty of one count of conspiracy to import one kilogram or more of heroin into the United States and to distribute one kilogram or more of heroin knowing or intending it would be imported into the United States, in violation of 21 U.S.C. §§ 952(a), 959, 960(b)(1)(A) and 963; and one count of conspiracy to distribute and to possess with intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. Noorzai was sentenced principally to a concurrent term of life imprisonment on each count, followed by five years of supervised release and a fine of $25,000. On appeal, Noorzai argues the district court erred in admitting self-incriminating statements because those statements were not made voluntarily in violation of his Fifth Amendment rights. We assume the parties' familiarity with the underlying facts, procedural history, and specification of issues for review.
Noorzai, a native of Afghanistan, argues the government tricked him into coming to the United States, luring him here to ostensibly to talk about a possible role for him in rebuilding Afghanistan. Once here, he met regularly with an agent who identified himself as being with the Department of Justice, was read his Miranda rights, and escorted to a hotel. For ten days, Noorzai was questioned on a variety of issues, including Noorzai's knowledge of, and participation in, narcotics trafficking. Each day, Noorzai was read his Miranda rights, and each day he waived those rights and continued to talk to the Department of Justice agents. What Noorzai did not know is that several months before he arrived in the United States, a grand jury returned a sealed indictment charging him with violations of the federal drug laws, and an arrest warrant had been issued. Because the government conducted its interrogation without informing him of the outstanding indictment and warrant, Noorzai argues, his waiver of his Miranda rights was not voluntary.
To prove a valid waiver, the government must show (1) that the relinquishment of the defendant's rights was voluntary, and (2) that the defendant had a full awareness of the right being waived and of the consequences of waiving that right. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Courts look to the totality of the circumstances in assessing the voluntariness of the waiver. Id. "In applying the totality of the circumstances test, those factors that a court should consider to determine whether an accused's confession is voluntary center around three sets of circumstances: (1) the characteristics of the accused, (2) the conditions of interrogation, and (3) the conduct of law enforcement officials." Green v. Scully, 850 F.2d 894, 901-02 (2d Cir. 1988).
Considering the totality of the circumstances, the statements are admissible. Noorzai knew the agents he was speaking to worked for the U.S. Department of Justice, and he was read his Miranda rights while being transported from the airport to the hotel, and every day after that. Noorzai does not argue that he did not understand the nature of those rights, nor does he argue that he did not understand what those rights were, or what those rights meant. Even assuming Noorzai would not have actually been free to leave the hotel, there is no record evidence to demonstrate that he knew that. He had his own room, agents did not sleep in the room with him, he retained his passport and other personal items, and had access to a computer with internet availability and a telephone. There is no evidence that Noorzai was threatened in any way, and the record indicates that on several occasions Noorzai declined the agents' request to meet. There is nothing in the record to suggest that the Miranda warnings were not translated properly for him. Nor are there any grounds for finding that Noorzai's statements were coerced.
Noorzai also asserts an ineffective assistance of counsel claim, arguing that his lawyer made false promises and representations to him to induce him to go to trial. We decline to address the ineffective assistance of counsel claim on direct appeal, without prejudice to Noorzai's right to raise the issue in a habeas petition. United States v. Khedr, 343 F.3d 96, 99 (2d Cir. 2003).
We have examined the remainder of Noorzai's claims and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.