United States v. Apodaca (275 F. Supp. 3d 123, 2017)

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The defendants, Agustín Flores Apoda-ca, also known as “El Nino,” “El Barbón,” and “El Ingenierio,” and Panfilo Flores Apodaca, also known as “Charmin,” were indicted separately on two substantively similar counts of conspiring to commit drug trafficking offenses, including distribution of large quantities ¡of cocaine, methamphetamine, heroin, and marijuana, with the intent to.unlawfully import those controlled substances into the United States, as charged in Count One, in violation of 21 Ü.S.C. §§ 959, 960, 963, and 18 U.S.C.>§ 2; and using, carrying and brandishing a firearm, during and in relation to one or more drug trafficking crimes, as charged in Count Two, in violation of 18 U.S.C. §§ 924(c)(1)(A)®, 924(c)(l)(A)(ii), 924(e)(l)(B)(ii), and 2. At the government’s request, over the defendants’ objections, the Court consolidated the defendants’ criminal cases for trial, see Minute Order (dated Jan. 6, 2017), which trial is scheduled to begin on September 18, 2017.

Pending before the Court are twelve pretrial motions filed by each defendant and by the government. These motions are: (1) the defendants’ multi-pronged challenges to the government’s admission in its case-in-chief of court-authorized interceptions of Panfilo’s electronic communications and other co-conspirator statements, including (a) Agustin’s Motion to Compel Discovery (“Agustin’s Discovery Mot.”), ECF No. 40; Panfilo’s Motion to Join and Supplement Agustin’s' Motion to Compel Discovery (“Panfilo’s Discovery Mot.”), ECF No. 41, and an amendment thereto (“Panfilo’s Am. Discovery Mot.”), ECF No. 45; (b) the defendants’ Joint Motion to Suppress Title III Intercepts (“Defs.’ Jt. Mot. Suppress Intercepts”), ECF No. 33; (c) Agustin’s Motion in Li-mine to Preclude Introduction of Post-Arrest Title III Intercepts (“Agustin’s MIL Preclude Post-Arrest Intercepts”), ECF No. 51;. (d) the defendants’ Joint Motion for Pretrial Hearing of Admissibility of Alleged Co-Conspirator Statements (“Defs.’ Jt. Hr’g Mot.”), ECF No. 52; and (e) Agustin’s Motion to Enforce the Rule of Specialty (“Agustin’s Specialty Mot.”), ECF No. 54; (2) Agustin’s Motion to Suppress Statements (“Agustin’s Suppress Stms. Mot.”), ECF No. 48; (3) the defendants’ Joint Motion to Dismiss Count* Two of Indictments (“Defs.’ Count Two Mot.”), ECF No. 50; (4) the defendants’ separate Motions to Strike Improper Aliases, ECF Nos. 53 and 56; and, finally, (5) the government’s Motion to Introduce Co-Conspirator Statements, Other Crimes Evidence at Trial, and Allow Lead Agents at Counsel Table (“Gov’t’s Mot.”), ECF No. 55, Following a summary of the relevant factual background proffered by the government in briefing papers, these motions are addressed in the following sequence; Part II discusses three of the defendants’ motions challenging the introduction of intercepted communications; Part III addresses Agustin’s motion to suppress the statements he made to the U.S. law enforcement agents on two occasions; and, lastly, Part IV discusses the defendants’ joint and joined motions to dismiss the firearms charge in Count Two of the indictments and to strike reference to aliases in the indictments. Pending supplemental briefing, the Court reserves ruling on five motions in full or in part: (1) the.Defendants’ Joint Motion to Suppress Title III Intercepts, ECF No. 33; (2) Agustin’s Motion to Compel Discovery, ECF No, 40; (3) Panfilo’s Motion to Join and Supplement Agustin’s Motion to Compel Discovery, ECF No, 41, (4) Panfilo's Amended Motion to Join and Supplement Agustin’s Motion to Compel Discovery, ECF No. 45; and (5) the portion of the government’s omnibus motion seeking admission of intrinsic or other bad acts, under Federal Rule of Evidence 404(b), ECF No. 65.

I. BACKGROUND

The government proffers that, based on information provided to the Federal Bureau of Investigation (“FBI”) Office in Washington State by a confidential informant (“Cl”) in July 2010, the FBI was able to identify a distribution cell of a larger Mexican drug trafficking organization (“DTO”), known as the Meza Flores DTO (“MF-DTO”), which was based in Guasave, Sinaloa, Mexico, and worked closely with the Hector Beltran Leyva DTO (“BL-DTO”) to traffic tonnage quantities. of cocaine, methamphetamine, heroin, and marijuana into the United States for distribution in the states -of Arizona and Washington, and elsewhere in the United States. See Gov’t’s Mot. Consolidate Cases for Trial (“Gov’t Consolidation Mot.”) at 1-2, ECF No. 16. As set forth in the government’s affidavit in support of Agustin’s extradition from Mexico, the government identified Agustín as a longtime member of the BL-DTO and as the person who introduced his nephew, Fausto Isidro Meza Flores, also known as “Chapo Isidro” (“Chapo Isidro”), into the organization, and alsq worked with his brother, Salome Flores Apodaca, also known’ as “Pelón” and “Fino,” to distribute cocaine, methamphetamine, heroin, and marijuana into the United States. See Agustin’s Specialty Mot., Ex. 1 ¶5 (Gov’t’s Aff. Supp. Extradition of Agustín Flores Apodaca, dated Oct. 9, 2012), ECF No. 54-2. Chapo Isidro is viewed by the government as the leader of the MF-DTO, while his uncles, both defendants Agustín and Panfilo, and Salome, participated in thé distribution of illegal drugs from Mexico into the United States. See Gov’t’s Mot. at 5. In addition, Agustin’s role' within the MF-DTO is described by the government as “synthesizing large volumes of methamphetamine form pre-cursor chemicals,” while “Panfilo grew and harvested marijuana, and also coordinated logistics for the shipments of narcotics into the United States for the DTO.” Id. Both Agustín and Panfilo “carried firearms” and “employed armed- gunmen for protection,” and “were also directly involved in acts of violence including shootouts against rival cartel members and kidnapping individuals who were unable to pay drug debts.” Id.; see also Gov’t’s Opp’n Agustin’s MIL Preclude Post-Arrest Intercepts at 2-3, ECF No. 61.

The government attributes three seizures of illegal narcotics in 2010 and 2011 to the MF-DTO. Gov’t’s Consolidation Mot. at 7. First, on September 2, 2010, U.S. law enforcement seized two pounds of methamphetaniine in the gas tank of a silver BMW in' Utah, after recovering information from a Cl that Donato Valle Vega, who owned a used car lot in Centra-lia, Washington, and Salome had discussed selling narcotics in the-Washington area and sending guns to Mexico. Id. at 8. Prior to fthe seizure, the FBI surveilled Vega loading a brown Chevrolet Impala onto a transportation truck, which was subject, on August 2, 2010, to a “sneak and peek” search that revealed approximately USD $56,000 in bundles and two drug ledgers in the Impala. Id. Law enforcement observed Salome arrive at the truck. Id. On September 1, 2010, two men were observed loading a package into a silver BMW at Vega’s used car lot, leading to the traffic stop and recovery of the methamphetamine in the gas tank. Id. ■

Vega subsequently consented to a search of his used car lot in Centralia, Washington, where law enforcement made the second seizure, on September 2, 2010, of thirty-three pounds of methamphetamine and four kilograms of cocaine. Id. Vega then, between September 2 and 8, 2010, made consensually recorded calls with Agustín discussing: (1) the purchase of fifty caliber weapons with United States currency, and as a trade for methamphetamine, a deal Agustín said he would call Salome directly to discuss, id. at 9; and (2) customers, quantities, and pricing for kilograms of cocaine, which discussions were also recorded with Salome, id. On September 14, 2010, Salome tried to sell to a confidential informant of the Drug- Enforcement Administration (“CI-2”) approximately thirty pounds of methamphetamine and four kilograms of cocaine at a meeting held in Phoenix, Arizona. Id. Salome arrived at this meeting in the brown Impala originally surveilled on Vega’s used car lot. Id.

Finally, on June 10, 2011, Mexican authorities seized 2,800 kilograms of marijuana in Nogales, Mexico, following receipt of information provided by another confidential informant (“CI-3”), who reported being present when Agustín, Panfilo, and Salome discussed “their .shared responsibilities for drug trafficking to include money laundering, murder, kidnapping, firearms, and extortion.” Id. CI-3 met with Agustín and Chapo Isidro to arrange the shipment of 2,800 kilograms of marijuana via Nogales to the United States. Id. at 9-10. Prior to the shipment, Agustín escorted CI-3 to Chapo Isidro’s ranch, “where there were approximately 300 gunmen present, armed with automatic rifles, grenades and rocket propelled grenades.” Id. at 10. After' Chapo Isidro approved the transaction, the- marijuana shipment was sent to Nogales for transport by another confidential informant (“Cl—4”), who was “unable to cross the drugs into the United States.” Id. About thirty days later,- the Mexican Army seized the marijuana in No-gales. Id.

' As a result of this seizure, Chapo Isidro, Agustín, and Panfilo held. CI-3, CI-4, and a third informant, (“CI-75”), responsible for paying off the debt for the seized marijuana, and Agustín and Panfilo allegedly tried to take control of CI-3’s properties as part of the debt repayment. Id. In October 2011, Agustín allegedly sent armed gunmen to CI-3’s business in Bamoa, where CI-3 was kidnapped for a total of nineteen days until CI-5 paid USD $200,000 in cash and properties, with an understanding to pay the rest of the debt later. Id. During his kidnapping ordeal, CI-3 was held at a camp where he “saw the bodies of young men who and been tortured and murdered lying about the camp,” and other captives, who “had their legs broken so that they could not escape.” Id.

After CI-3’s release, a lawyer, Pedro Ozuna, advised CI-3 and CI-5 to release their properties to Ozuna, or else pay $1,000,000 to Chapo Isidro and Agustín by December 31, 2011. Id. at 11. Fearing for their lives, CI-3 and CI-5 fled to the United States, but continued to negotiate the debt with Agustín. Id. CI-5 assured Agustín in a consensually recorded call on February 13, 2012, that they were not responsible for the debt and were scared due to the kidnapping, and requested addition time to pay the June 2011 marijuana debt. Id. These discussions continued via Blackberry Messenger (BBM) until, on June 22, 2012, a family member of CI-3 and CI-5 was kidnapped by members of the MF-DTO to force payment of the debt. Id. After Agustín was arrested in Mexico on July 24, 2012, on the United States’, provisional arrest warrant pending an extradition request, CI-5 began receiving BBM messages from Panfilo regarding payment of the debt. Id. The government then sought, and the United States District Court for the Western District of Texas authorized, Title III interceptions of electronic communications over 59 devices used by DTO co-conspirators, from February 2013 to December 2014, including Pan-filo, which wiretap ultimately led to the interception of over 12,500 pertinent intercepts between Panfilo and “other DTO co-conspirators.” Gov’t’s Opp’n Agustin’s MIL Preclude Post-Arrest Intercepts Mot. at 4. In these intercepted communications, Panfilo allegedly discussed “the growing, harvesting, and packaging of marijuana, the production and sale of heroin, the sale of methamphetamine, cocaine, and guns, and violent acts, with other members known and unknown of the [MF-] DTO.” Gov’t’s Consolidation Mot. at 12.

Agustín was indicted on May 2, 2012, in this Court, of conspiring, for a period of about twelve years, from January 2000 through the date of indictment on May 2, 2012, “both dates being approximate and inclusive,” to distribute and import into the United States of 5 kilograms or more of cocaine, 50 grams or more of methamphetamine, 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, 1 kilogram or more of heroin, and 1000 kilograms or more of marijuana; and, for a period of about two years, from July 2010 to May 2012, pursuant to 18 U.S.C § 3238 and within the venue of the District Court for the District of Columbia, of using, carrying or brandishing a firearm during or in relation to drug crime charged in the. prior count. See Agustín Indictment, United States v. Agustin Flores Apodaca, Crim. No. 12-116 at 1-3, 2012 WL 12518529 (D.D.C. May 2, 2012), ECF No. I. Following his arrest by the Mexican Federal Police in Mexico on July 24, 2012, Agustín claims he was subjected to brutal torture that resulted in permanent loss of his vision in one eye, as documented in a medical report by a Mexican forensic specialist, Dr. Jorge Enrique Leon Robles. See Agustin’s Suppress Stms. Mot. at 3. He was also allegedly subjected to multiple death and other forms of threats to his family. Id. at 7.

Before he made an initial appearance in this Court on October 21, 2015, Agustín was interviewed twice by the FBI: the first time, on September 26, 2012, during his detention in a Mexican prison; and, the second time, on October 20, 2015, after he was ordered extradited and during his travel to the United States. See Agustin’s Suppress Stms. Mot. at 1. He seeks to suppress both of those statements. See generally id. Agustín has been in continuous custody in Mexico and the United States since his arrest in July, 2012.

Two years after Agustin’s indictment, his brother Panfilo was indicted in March 2014, for substantially the same charges. Specifically, Panfilo is charged, with conspiring, for a period of about fourteen years, from January 2000 through the date of indictment on March 13,- 2014, “both dates being approximate and inclusive,” to distribute and import - into the United States 5 kilograms or more of cocaine, 50 grams or more of methamphetamine, 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, 1 kilogram or more of heroin, and 1,000 .kilograms or more of marijuana; and for a period of about nine years, from January 2005 to the date of indictment on March 13, 2014, ■ pursuant to 18 U.S.C § 3238 and within the venue of the District Court for the District of Columbia, of using, carrying or brandishing a firearm during or in relation to drug crime charged in the prior count. See Indictment (“Panfilo Indictment”), ECF No. 1. Panfilo was arrested in Guasave, Mexico, on April 8, 2015, and has been in continuous custody since then in Mexico and, after his extradition on October 11, 2016, in the United States.

The Court now turns to several of the pending pretrial motions. •

II. DEFENDANTS’ CHALLENGES TO THE INTRODUCTION OF INTERCEPTED COMMUNICATIONS AND ALLEGED CO-CONSPIRATOR STATEMENTS

The defendants bring a multi-faceted challenge to .the government’s introduction of Title III intercepts and other co-conspirator statements at trial. First, Agustín has moved to preclude introduction of the intercepts obtained after he was arrested, arguing that he exited the conspiracy. at the time of his arrest, and, therefore, co-conspirators’ statements, that post-date his arrest cannot be introduced against him. See generally Agustin’s MIL Preclude Post-Arrest Intercepts, ECF No. 51. Second, the defendants have jointly moved for a pre-trial hearing to address the duration of each defendant’s participation in the alleged conspiracy and to determine the admissibility of any statements of alleged co-conspirators pursuant to Federal Rule of Evidence 801(d)(2)(E). See generally Defs.’ Jt. Hr’g Mot., ECF No. 52. Third, Agustín argues that the admission of any Title III wiretap evidence against him would violate the Rule of Specialty and therefore argues that all intercepted communications must be suppressed as to him. See generally Agustin’s . Specialty Mot., ECF No. 54. Each of these motions is addressed in turn.

A. Agustin’s Motion to Preclude Introduction of Post-Arrest Title III Intercepts

Agustín has moved to preclude admission against him of any evidence obtained from the Title III intercepts against him on grounds that he “was arrested in Mexico on July 24, 2012,” at which time he had presumptively “withdrawn from the conspiracy,” and “the wiretap did not commence until February 2013—after the time frame of the charges contained in the Indictment against him,” in reliance on United States v. Escobar, 842 F.Supp. 1519, 1528 (E.D.N.Y. 1994), a non-binding, out-of-Circuit district court decision. Agustin’s MIL Preclude Post-Arrest Intercepts at 1, ECF No. 51. Agustín reasons that if his withdrawal from the conspiracy is marked by his arrest, “the contents of the wiretap intercepts . are inadmissible hearsay and cannot be introduced against him,” under Federal Rule of Evidence 801(d)(2)(E). Id. at 2-3 (citing Bourjaily, 483 U.S. at 175-76, 107 S.Ct. 2775). This argument to preclude admission of the Title III intercepts is based on the faulty premise that Agustin’s arrest is- sufficient Evidence of his withdrawal from the charged conspiracy to bar admission of alleged co-conspirator statements made after that arrest. This is not the law in this Circuit, and Agustín has otherwise failed to sustain sufficiently his burden of showing his withdrawal from the charged conspiracy. Consequently, as explained further below, Agustin’s motion to suppress the wiretap evidence on this ground is denied.

1. ■ Relevant Legal Standard

The law is well-established that “[c]onspiracy is a crime that presumes continuity until accomplishment' or termination; once a defendant becomes a member of a conspiracy, he remains a member until he affirmatively withdraws or the conspiracy ends.” United States v. Moore, 651 F.3d 30, 90 (D.C. Cir. 2011) (citing Hyde v. United States, 225 U.S. 347, 368-70, 32 S.Ct. 793, 56 L.Ed. 1114 (1912)). As a result, “once the government proves that a defendant was a member of an ongoing conspiracy, it has proven the defendant’s continuous membership in that conspiracy unless and until the defendant withdraws.” Id. Contrary to Agustin’s assertion of the applicable law, the mere fact that a defendant is arrested does not, without more, demonstrate withdrawal from a conspiracy. Instead, the D.C. Circuit has made clear that “[t]o establish withdrawal, a defendant may show that it has taken ‘[a]ffir-mative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators.’ ” Osborn v. Visa Inc., 797 F.3d 1057, 1067 (D.C. Cir. 2015) (quoting United States v. U.S. Gypsum Co., 438 U.S. 422, 464, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978)); see also Hyde, 225 U.S. at 369-70, 32 S.Ct. 793 (holding that a'defendant remains a member of the conspiracy “until he does some act to disavow or defeat the purpose ... ”); United States v. Garrett, 720 F.2d 705, 714 (D.C. Cir. 1983) (“[T]o establish an effective withdrawal, the defendant must show that he took affirmative action to defeat or disavow the purpose of the conspiracy.”). As the D.C. Circuit recently noted, “withdrawal from the conspiracy is difficult, requiring an affirmative step.” Bahlul v. United States, 840 F.3d 757, 800 (D.C. Cir. 2016). Thus, withdrawal requires either coming clean to authorities of communicating abandonment to co-conspirators. See United Stales v. Walls, 70 F.3d 1323, 1327 (D.C. Cir. 1995).

2. Analysis

Agustín acknowledges, as he must, that he bears the burden of establishing that he withdrew from the conspiracy upon his arrest, see Agustin’s MIL Preclude Posb-Arrest Intercepts at 3, a burden that must be proven by a preponderance of the evidence, see Smith v. United States, 568 U.S. 106, 109, 133 S.Ct. 714, 184 L.Ed.2d 570 (2013) (holding “that the defendant bears the burden of proof and that such a disposition does not violate the Due Process Clause”); Moore, 651 F.3d at 90 (holding that “the district court correctly instructed the jury that the defendant bore the burden of persuasion to show that he withdrew from the conspiracy” and noting that “[w]e previously have said unequivocally, albeit in the context of sentencing, that the defendant, not the government, ‘has the burden of proving that he affirmatively withdrew from the conspiracy if he wishes to benefit from his claimed lack of involvement’”- (quoting United States v. Thomas, 114 F.3d 228, 268 (D.C. Cir. 1997))); United States v. Dale, 991 F.2d 819, 854 (D.C. Cir. 1993) (“Defendants have the burden of proving they affirmatively withdrew from the conspiracy!;.]”); United States v. Bostick, 791 F.3d 127, 143 (D.C. Cir. 2015) (same). As support for his argument that he withdrew from the conspiracy, Agustín-points to the fact that he was arrested and thereafter “was not intercepted during the twenty-three month wiretap investigation,” and no allegation has been proffered that he took “any other action in furtherance' of the conspiracy ... after his incarceration.” Agustinas MIL Preclude Post-Arrest Intercepts 1. Moreover, Agustín notes that “indeed, the prosecution has stated that it did not intend to use the intercepted communications against him if he was the sole defendant in the case,” Id. at 4.

This evidence falls far short of showing affirmative withdrawal from the conspiracy, particularly in light of other evidence proffered by the government. At the outset, the mere fact that Agustín was arrested does not amount to withdrawal. As the Supreme Court has, observed, “[p]assive nonparticipation in the continuing scheme is not enough to sever the meeting of minds that constitutes the conspiracy.” Smith, 568 U.S. at 112-13, 133 S.Ct. 714; see also United States v. Wilson, 605 F.3d 985, 1037 (D.C. Cir. 2010) (noting defense concession that “his imprisonment” did not, standing alone, constitute a withdrawal from the conspiracy); United States v. Wilkerson, 656 F.Supp.2d 22, 44 (D.D.C. 2009) (noting “correct” reading of the law “that incarceration by itself is not an affirmative act of withdrawal and creates no presumption of withdrawal”). (citing United States v. Melton, 131 F.3d 1400, 1405 (10th Cir. 1997) (“Although a conspirator’s arrest or incarceration by itself is insufficient to constitute his withdrawal.from the conspiracy, an arrest may under certain circumstances amount to a withdrawal.” (internal quotation omitted))); United States v. Harris, 542 F.2d 1283, 1301 (7th Cir. 1976) (“The arrest or incarceration of a conspirator may constitute a withdrawal for a conspirator, but it does not as a matter of-law.”).

Indeed, when given an opportunity two months after his arrest to “come clean to authorities,” during a visit by FBI and DEA agents at the Altiplana Federal Rehabilitation Center in Toluca, Mexico, on September 26,2012, Agustín instead made, in -the government’s view, “a self-serving exculpatory statement” indicating “that he was only a business man, involved in agriculture and denied any involvement in drug trafficking.” Gov’t’s Opp’n .to Agustin’s MIL Preclude Post-Arrest Intercepts at 7. Agustín did not clearly communicate any withdrawal from the conspiracy or take any affirmative steps to do so. Certainly, by virtue of his arrest, Agustin’s role in the conspiracy necessarily changed but that simply does not amount to withdrawal. See Garrett, 720 F.2d at 714 (rejecting withdrawal defense and observing that the defendant “confuses abandonment of criminal purpose with the mere fact that his role in the criminal venture, the success of which he always intended, had come to an end”).

In short, Agustín has not met his burden of showing that he withdrew from the conspiracy either before or during the period of the Title III interceptions and, consequently, those communications in furtherance of the conspiracy would be appropriately admissible against him. See United States v. Thomas, 114 F.3d 228, 267-68 (D.C. Cir. 1997) (finding that where the defendant failed to meet burden of showing affirmative withdrawal from conspiracy, “drugs handled by the conspiracy” after the defendant’s “claimed lack of involvement” were properly attributed to him); United States v. Childress, 58 F.3d 693, 733 (D.C. Cir. 1995) (“[Because he does not claim he affirmatively withdrew from the conspiracy, Childress is criminally responsible ... for all of his compatriots’ foreseeable conduct in furtherance of those goals.”); United States v. Alcorta, 853 F.3d 1123, 1139-41 (10th Cir. 2017) (rejecting the defendant’s argument that intercepted calls were improperly admitted as not in furtherance of the conspiracy when communications occurred after the arrest of two co-conspirators since the argument that “the conspiracy terminated upon” the arrests was “based on an erroneous factual premise,” given that the defendant’s drug operations did not end with the arrests).

For these reasons, Agustin’s motion to exclude Title III intercepts obtained after his arrest on the ground that his arrest effectively marked his withdrawal from the conspiracy is denied.

B. Defendants’ Joint Motion for Pretrial Hearing of Admissibility of Alleged Co-Conspirator Statements

Agustín and Panfilo have jointly moved for “a hearing in order to make a pre-trial determination as to the duration and participation of each defendant in the alleged conspiracy and to determine the admissibility of any statements of alleged co-conspirators pursuant to Fed. R. Evid. 801(d)(2)(E).” Defs.’ Jt. Mot. Pretrial Hr’g of Admissibility of Alleged Co-Conspirator Statements (“Defs.’ Jt. Mot. Hr’g”) at 1, ECF No. 52. In support, the defendants cite three “substantial reasons to conduct such a pre-trial hearing,” id. at 5: first, although they are charged with a conspiracy that began in 2000, “the only evidence that has been provided to the defense consists of events that took place ten years later,” id.; second, the government’s evidence regarding the three drug seizures, which occurred in September 2010 and June 2011, includes alleged conversations of Agustín with informants, but “no mention” of Panfilo,” id. at 5-6; and, finally, despite reference to the BL-DTO in the extradition papers, no “specific discovery concerning” this DTO, which is a “separate criminal organization,” has been provided and should not be admissible, id. at 6.

The government objects to holding a pre-trial hearing, proffering that, through witness testimony at trial, the “Government will show that the Defendants, their nephew and brother along with other co-conspirators were working together to traffic narcotics from Mexico into the United States.” Gov’t’s Opp’n to Defs.’ Jt; Mot. Hr’g at 5, EOF No. 60. For the reasons set out below the defendants’ joint motion for a pretrial hearing on this issue is denied.

1. Relevant Legal Standard

Federal Rule of Evidence 801(d)(2)(E) provides that an out-of-court statement is not hearsay if it is “offered against an opposing party and ... was made by the party’s coconspirator during and in furtherance of the conspiracy,” with further instruction that “the statement must be considered, but does not by itself establish ... the existence of the conspiracy or participation in it under (E).” Fed. R. Evid. 801(d)(2). Upon' objection to admission of an alleged co-conspirator’s out-of-court statement, “the district court must find by a preponderance of the evidence that a conspiracy existed and that the defendant and declarant were members of that conspiracy.” United States v. Gewin, 471 F.3d 197, 201 (D.C. Cir. 2006) (citing Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)). As reflected in the Rule itself, an out-of-court statement cannot alone support the necéssary finding that the defendant and declarant were together involved in a conspiracy. Fed. R. Evid. 801(d)(2); see also Gewin, 471 F.3d at 201 (noting “that the finding [of conspiracy’s' existence and defendant and declarant’s membership in conspiracy] must rest on some independent evidence of the conspiracy”) (citing United States v. Gatling, 96 F.3d 1511, 1520-21 (D.C. Cir. 1996)). Thus, the ultimate admissibility determination must rest both on finding that the challenged co-conspirator statement is in furtherance of the conspiracy and, at least partially, on some independent evidence of the conspiracy.

2. Analysis

The parties agree on the law applicable.to determining whether alleged co-conspirator statements are admissible under Rule 801(d)(2)(E) but dispute the preferable timing for when this determination should be made. In this regard, Federal Rule of Evidence 104(b) expressly addresses the circumstance in which the relevance, and therefore the admissibility, of evidence “depends on whether a fact exists,” and authorizes a court to “admit the proposed evidence on the condition that the proof be introduced later.” Fed. R. Evid. 104(b). Notwithstanding this timing rule allowing deferral of the determination of the prerequisites for admission of co-conspirator statements with conditional admission of the challenged statements,'the defendants, relying on United States v. Jackson, 627 F.2d 1198 (D.C. Cir. 1980), seek a pretrial hearing at which the government will present evidence to support its charged conspiracy and the defendants’ participation in it, along with the co-conspirators whose out-of-court statements the government intends to introduce. Defs.’ Jt. Mot. Hr’g at 5-6. Indeed, the D.C. Circuit has suggested that the “preferred practice is for the trial court to make these determinations before the hearsay evidence is admitted.” United States v. Slade, 627 F.2d 293, 307 (D.C. Cir. 1980); Jackson, 627 F.2d at 1218 (“[T]he better practice is for the court to determine before the hearsay evidence is admitted that the evidence independent of the hearsay testimony proves the existence of the conspiracy sufficiently to justify admission of the hearsay declarations.”)-

Yet, in these same cases, the Circuit has acknowledged that, due to “practical impediments,” “it is just impractical in many cases for a court to comply strictly with the preferred order of a proof by taking the testimony of such witnesses piecemeal," waiting until a conspiracy is fully proved by independent evidence, and then recalling from their normal pursuits, those who testify to hearsay declarations of co-conspirators.” Jackson, 627 F.2d at 1218. Consequently, “the court is vested with considerable discretion to admit particular items of evidence ‘subject to connection.’” Id, (internal citation omitted); see also Slade, 627 F.2d at 307 (acknowledging that'the trial court “retains discretion ... to admit particular co-conspirafor statements conditioned on a later showing of substantial independent evidence of the three prerequisites for their admission”).'

In particular, “a decision on a motion should be deferred, if disposing of the motion involves deciding issues of fact that are inevitably bound up with evidence about the.alleged offense itself." United States v. Wilson, 26 F.3d 142, 159 (D.C. Cir. 1994). Doing so conserves judicial resources by avoiding “what would .otherwise become a- separate trial on the.issue .of admissibility,” United States v. Gantt, 617 F.2d 831, 845 (D.C. Cir. 1980), abrogated on other grounds by In re Scaled Case, 99 F.3d 1175,1178 (D.C. Cir. 1996). If, howeyer, “at the close of the government’s case, or at any other critical point,” the government has failed to meet its burden, the. court “must upon motion, and may sua sponte, strike the testimony that has not been sufficiently connected and direct the jury to disregard it,” Jackson, 627 F.2d at 1218 (citing authorities). Where such an instruction “cannot cure the prejudice threatened by the inadmissible hearsay!,] a mistrial is required.” Id.

As recognized by the D.C. Circuit, the "practical impediments” to holding a pretrial hearing on the preliminary questions about the existence of a conspiracy and the defendant and declarant’s participation in it, has led to the general practice in this jurisdiction to defer these determinations until the trial. See, e.g., United States v. Hassanshahi, 195 F.Supp.3d 35, 52-53 (D.D.C. 2016) (deferring to trial “final ruling on the admissibility of’ alleged co-conspirator emails); United States v. Knowles, 2015 WL 10890271, at *2, 2015 U.S. Dist. LEXIS 178210, at *7-9 (D.D.C. Dec. 30, 2015) (“Standard practice in this district is to allow the government to admit coconspirator statements conditionally, subject to connection by the government at trial.”) (quoting United States v. Larrahondo, 885 F.Supp.2d 209, 220 (D.D.C. 2012))); United States v. Savoy, 889 F.Supp.2d 78, 111-12 (D.D.C. 2012) (denying the defendant’s motion for pretrial hearing and deferring determination ,of conspiracy to trial); United States v. Loza, 763 F.Supp.2d 108, 111-12 (D.D.C. 2011) (“In this, district it is common practice for a court to avoid.a‘disfavored ‘mini-trial’ of the evidence’ by deferring its determination regarding the admissibility of alleged co-conspirator statements until after the close of the government’s case.” (citing United States v. Cooper, 91 F.Supp.2d 60, 78 (D.D.C. 2000) (declining to hold a pretrial evidentiary hearing on this issue), and United States v. Hsin-Yung, 97 F.Supp.2d 24, 37 (D.D.C. 2000) (rejecting a request for a pretrial hearing on admissibility of co-conspirator statements because “having a pretrial hearing essentially would create a time-consuming mini-trial before the trial”)); United States v. Eiland, 2006 U.S. Dist. LEXIS 11726, at *18-19 (D^D.C. Mar. 1, 2006) (denying a defense motion for pretrial determination of the admissibility of alleged co-conspirator statements). The reasons proffered by the government for following this general practice in this case are persuasive.

In particular, despite the pre-trial discovery evidentiary gaps identified by the defendants, the government indicates that the charged “conspiracy will be evidenced at trial through the testimony of cooperating witnesses (the Defendants’ co-conspirators), co-con,spirator statements and through evidence of drug seizures in Mexico and the United States.” Gov’t’s Opp’n to Defs.’ Jt. Mot. Hr’g at 4. Plainly, some of the same witnesses will be testifying about the existence and activities of the charged conspiracy and the co-conspirator statements. Requiring these witnesses to testify twice, first at a pretrial hearing and second at the trial itself, would result in dupli-cative testimony, “allow defense counsel two bites at the apple to cross-examine the cooperating witnesses in. this case,” id. at 10; and raise “a significant concern about the safety of these cooperating witnesses and their families,” id: at 11, in light of proffered government evidence about the use of weapons, kidnapping, and other violence associated with the charged conspiracy. See United States v. White, 116 F.3d 903, 915, 916 (D.C. Cir. 1997) (noting that “courts routinely admit hearsay statements of co-conspirators subject to connection through proof of a conspiracy” and affirming trial court’s sequencing' of proof since defendants’ proposed preliminary hearing for proof of conspiracy “would have been wasteful of judicial time, as the hearing and trial testimony on the murder would have been largely duplicative,” and “seriously increased. the risks to the witnesses”); United States v. Edelin, 128 F.Supp.2d 23, 45-46 (D.D.C. 2001) (denying the defendant’s request for an advance determination of conspiracy since such a pretrial hearing “would be lengthy, further delaying the trial in this case and placing an unreasonable burden on the government,” and “would jeopardize the safety of cooperating witnesses and other persons”). These considerations militate strongly in favor of permitting the government to introduce the co-conspirator statements, subject to connection, at trial.

Accordingly, the defendants’ joint motion for a pretrial hearing on the admissibility of co-conspirator statements is denied.

C. Agustin’s Motion to Enforce the Rule of Specialty

In yet another effort to bar admission against him of “any and all information obtained as the result of the Government’s Title III wiretap in this case,” Agustin’s Mot. Enforce the Rule of Specialty (“Agustin’s Specialty Mot.”) at 1, EGF-;N,o. 54,. Agustín-contends, that the admission of such interceptions “would also constitute an impermissible constructive amendment of the Indictment- that formed the basis of the extradition request,” id., and thereby violate the Rule of Specialty. As -grounds for this contention, he asserts that “the basis for the extradition included only events that took place before May 2, 2012—the date the Indictment was returned,” and the government indicated no intent “to use post-indictment evidence against Agustín [], or that it reserved the right to do so.” Id.

Indisputably, the Title III intercepts Agustín seeks to exclude were obtained after the indictment against this defendant was returned in May 2012 and his arrest in July 2012. See Gov’t’s Opp’n to Agustin’s Specialty Mot. at 8, ECF No. 64 (stating the government’s intention “to introduce other crimes evidence and co-conspirator statement evidence,” including “statements of Co-defendant Panfilo intercepted pursuant to the Government’s Title III electronic interception investigation” that “occurred after May 2, 2012, the date the Defendant was indicted”). Nevertheless, Agustin’s contention falls far short of violating the Rule of Specialty, which poses no obstacle to admission of post-indictment evidence against him.

The Rule of Specialty is a doctrine that “an internationally extradited defendant may be tried only ‘for the offenses specified in the warrant of extradition Day v. Trump, 860 F.3d 686, 689 (D.C. Cir. 2017) (quoting 18 U.S.C. § 3192, and citing United States v. Rauscher, 119 U.S. 407, 423-24, 7 S.Ct. 234, 30 L.Ed. 425 (1886) (an extradite may not be “delivered up” to be “tried for any other offense than that [with which he was] charged in the extradition proceedings”)); United States v. Kember, 685 F.2d 451, 458 (D.C. Cir. 1982) (explaining that the Rule of Specialty “requires that a requisitioning state may not, without the permission of the asylum state, try or punish a fugitive for any crimes committed before the extradition except the crimes for which he was extradited” (internal citations omitted)). This doctrine is expressly incorporated into the Mexico-United States Extradition Treaty, which provides that “[a] person extradited under the present Treaty shall not be detained, tried, or punished in the territory of the requesting Party for an offense other than that for which the extradition has been granted .... ” Extradition Treaty Between the United States of America and the United Mexican States, art. 17, Feb. 6, 1980, 31 U.S.T. 5059 (emphasis added).

At the outset, as the government points out, Gov’t’s Opp’n to Agustin’s Specialty Mot., at 5 n.2, Agustín may not have standing to raise a challenge under the Rule of Specialty since the D.C. Circuit has declined to resolve conflicting authority and opine “as to whether a criminal defendant—as opposed to the extraditing state—has standing to assert the doctrine of specialty.” United States v. Lopesierra-Gutierrez, 708 F.3d 193, 206 (D.C. Cir. 2013); see also United States v. Todd, 287 F.3d 1160, 1165 (D.C. Cir. 2002) (recognizing “that we are leaving certain legal questions raised by the Government unresolved,” including “whether [defendant] lacks standing to bring a claim [of violation of rule of specialty] based on alleged threats to prosecute him for visa and tax fraud,” when he was not extradited to face such charges); United States v. Sensi, 879 F.2d 888, 892 n.1 (D.C. Cir. 1989) (declining to resolve this question); Casey v. Dep’t of State, 980 F.2d 1472, 1476 n.4 (D.C. Cir. 1992) (“[I]t remains an open question in this circuit whether Casey has ‘standing’ to raise his claims after extradition.”).

At the same time, assuming that the merits of this argument may properly be reached, the D.C. Circuit has stressed that “the doctrine of specialty governs prosecutions, not evidence.” Lopesierra-Gutierrez, 708 F.3d at 206. Consequently, evidence admitted to bolster proof of the crime for which the defendant was extradited does not amount to a violation of the Rule of Specialty. Id. For example, in Lo-pesierrar-Gutierrez, the D.C. Circuit found that “the doctrine of specialty has no bearing” on the admission at trial of the extradited defendant’s involvement in a conspiracy to ship cocaine in 1996, which occurred prior to the start of the charged conspiracy, and was admitted “for the limited-purpose of showing knowledge or intent.” 708 F.3d at 205-06; see also United States v. Mosquera-Murillo, 153 F.Supp.3d 130, 186 (D.D.C. 2015) (denying the defendants’ objection to admission of other crimes evidence as a violation of the Rule of Specialty since the evidence did not alter the charges for which defendants were being prosecuted).

The evidence that the government intends to introduce against Agustín simply does not alter the specific charges for which he was indicted and extradited. Thus, the Rule of Specialty has no bearing on admission of this post-indictment evidence and provides no basis for exclusion. Accordingly, Agustin’s invocation of the Rule of Specialty as grounds to ’exclude the Title III wiretap evidence against him is denied.

III. AGUSTIN’S MOTION TO SUPPRESS STATEMENTS

Agustín has also filed a motion- seeking suppression of “any and all statements made to law enforcement agents, whether Mexican or -United States law’ enforcement, at any time subsequent to his arrest in Mexico in' July, 2012, to the present.” Agustin’s Suppress Stms. Mot. at 1. Agus-tín focuses in particular on statements he made to U.S. law enforcement agents on two different dates: September 26, 2012, when agents questioned him while he was imprisoned in Mexico, and October 20, 2015, when he was being transported by law enforcement agents from Mexico to the United States. See id. Agustín argues that his statements on these two occasions, and all evidence derived therefrom, must be suppressed because “(1) admission would violate the Defendant’s Sixth amendment rights; (2) the statements are the subject of involuntary acts predicated upon, amongst other factors, the substantial fear of additional torture; (3) the statements were purposely obtained in violation of the Fifth Amendment; and, ([4]), the statements were elicited via a deliberate two-step interrogation procedure of the sort forbidden by Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) and Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).” Id. at 10. The government maintains that Agustin’s statements, are admissible because he “made a knowing, intelligent, and voluntary waiver of his Fifth and Sixth Amendment rights, and made un-coerced statements to law enforcement officers.” Gov’t’s Opp’n Agustin’s Suppress Stms. Mot. at 1. At hearings on August 2 and August 7, 2017, the Court heard testimony from two government witnesses, Drug Enforcement Administration (“DEA”) Special Agent Luis de La Cruz and FBI Special Agent Dean Giboney, and two defense witnesses, Dr.-Miguel Angel Carvajal Quino-nez and Dr. Jorge Enrique Leon Robles. In light of this testimony, and the arguments presented by the parties in their written submissions and during the hearing, the motion to suppress is denied.

1. Relevant Legal Standard

As noted, Agustín argues that the September 2012 statement was obtained in violation of his Fifth Amendment rights, and that the October 2015 statement was obtained in violation of his Fifth and Sixth Amendment rights. The Fifth Amendment provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V. Under the Sixth Amendment, a defendant is guaranteed the right to have counsel present “at all critical stages of the criminal proceedings,” including “before trial.” Missouri v. Frye, 566 U.S. 134, 140, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) (internal quotation marks omitted); accord Lafler v. Cooper, 566 U.S. 156, 162, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (stating that the Sixth Amendment guarantees defendants “the effective assistance of competent counsel” during plea negotiations (internal quotation marks omitted)). “Critical -stages include arraignments, postin-dictment interrogations, • postindictment lineups, and the-entry of.a guilty plea.” Frye, 566 U.S. at 140, 132 S.Ct. 1399.

The Supreme Court, held in Miranda v. Arizona that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming.from custodial interrogation of the defendant , unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda requires law enforcement to warn a person subject to custodial interrogation, before any interrogation has begun, “that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602. “Unless a suspect ‘voluntarily, knowingly and intelligently’ waives these rights, any incriminating responses to questioning may not be introduced into evidence in the prosecution’s case in chief in a subsequent criminal proceeding.” Pennsylvania v. Muniz, 496 U.S. 582, 589, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (internal citation omitted).

Where, as here, the government acknowledges that,the defendant was in custody when questioned by authorities, see Gov’t’s Opp’n Agustin’s Suppress Stms. Mot. at 3 (noting that Agustín was “released] to the custody of the FBI”); see also id. at 6-7, 9-15, the government bears the burden of proving, by a preponderance of the evidence, that the defendant validly waived his Miranda rights to overcome a motion to suppress any resulting statements, see Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (198.6). As noted, in order, to be valid, such a waiver must be both knowing and voluntary. United States v. Yunis, 859 F.2d 953, 961 (D.C. Cir. 1988). Thus, “‘[fjirst, the relinquishment of the rights must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception[;. and, s]econd, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.’ ” Id. (internal alterations omitted) (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). The D.C. Circuit has instructed that, “courts use an ‘objective standard’ for evaluating a defendant’s waiver, and this takes into account ‘the education, experience, and conduct of the accused.’ ” Id. at 965 (quoting Pettyjohn v. United States, 419 F.2d 651, 654 n.7 (D.C. Cir. 1969)).

2. Analysis

Agustín contests the admissibility of the statements he made to U.S. law enforcement officers on September 26, 2012, and October 20, 2015, insisting that those statements were not voluntarily and knowingly given but instead were the product of lingering fear of authority that Agustín developed after having been tortured by Mexican authorities. In documenting his torture, the defendant relies on “a medical report by one of the foremost forensic specialists in Mexico, Dr. Jorge Enrique Leon Robles,” which report was “introduced into the criminal case dossier in the Mexican tribunal as evidence of the extreme torture and physical injury ... the Defendant suffered while in custody.” Agustin’s Suppress Stms. Mot. at 3; see also generally Agustin’s Reply Supp. Suppress Stms. Mot., -Ex. A, Leon Robles Torture Report, ECF No. 71-1. The report explains that the defendant was brutally beaten,-resulting in “a deteriorating muscular-skeletal disorder,” “chronic head and neck pain,” and “permanente] damage[ ] [to] his vision.” Agustin’s- Suppress Stms. Mot., at 4-5. The report -also indicates that, upon his arrest, the defendant was “forced to sign documents which incriminate him .while' receiving multiple death threats towards his family.” Id. at 3.

The threshold question in this analysis is whether Agustín was in fact tortured by Mexican authorities, which the government continues to dispute. In light of the credible, unrebutted testimony of both Dr." Car-vajal Quinonez and Dr. Leon Robles, the Court finds that Agustín was tortured upon, his arrest by Mexican officials. In particular, Dr. Carvajal Quinonez testified that Agustin’s retina tear was consistent with torture, and Dr. Leon Robles, who specializes in forensic medicine, is an expert on torture, and regularly examines individuals for determinations of torture, testified at length about his previous examination of Agustín and his conclusion that Agustín had been tortured, which conclusion is well documented in Dr. Leon Robles’s forensic report. In particular, Dr. Leon Robles testified that he believed that, among other things, Agustín was violently beaten by Mexican authorities upon his arrest, and that these authorities used a form of torture called “the blender” or “the little onion,” which causes the subject of the torture to experience intense neck pain. Dr. Leon Robles testified that he believed that Agustín was subjected to these forms of torture based on the “organic manifestations” observed during his examination. Moreover, Dr, Leon Robles conducted a psychological evaluation and concluded that Agustín suffered from Post-Traumatic'Stress Disorder (“PTSD”), as evidenced by “intrusive memories of what had happened,” “repeated nightmares,” loss of trust in himself and others, and a generalized loss of interest. According to Dr. Leon Robles, Agustin’s behavior while he discussed his torture was likewise consistent with PTSD, including crying, shaking, hands, an active carotid gland, increased blood circulation and heart rate, and excessive sweating. Furthermore, Dr. Leon Robles performed a cortisol test on Agustín, which came back at less than median, indicating the presence of PTSD. In sum, Dr. Leon Robles testified that he was “certain” that Agustín was tortured by Mexican authorities, and that he was suffering from PTSD seven months after that torture when Dr. Leon Robles conducted his examination. On this undisputed evidence, the Court finds that Agustín was tortured by Mexican authorities upon his arrest. Accordingly, the dispositive question is whether that torture renders Agustin’s statements involuntarily. Each of Agustin’s contested statements to U.S. law enforcement is addressed in turn.

a. The September 2012 Statement

The government put on testimony by DEA Special Agent Luis de La Cruz, who questioned Agustín in September 2012 in a small cell at the Mexican prison along with FBI Special Agent Britton Boyd. Agent de La Cruz testified that he and Agent Boyd were accompanied by a Mexican attorney, and were seated at a table across from Agustín and separated from him by a “mésh” wall. A Mexican prison guard stood outside the cell. As soon as Agustín entered the room, the agents introduced themselves and read Agustín an Advice of Rights (“AOR”) form in Spanish, as he read along. Agustín did not ask any questions about the AOR form, but proceeded to sign it, thereby waiving his rights to remain silent and speak to an attorney before answering law enforcement’s questions. See Agustin’s Signed AOR Form, Suppression Hearing, Gov’t’s Ex. 10; Translated AOR Form, Suppression Hearing, Gov’t’s Ex. 11. Agent de La Cruz stated that he did not observe any injuries on Agustin’s body, and that he does not recall Agustín being restrained during the questioning. Further, Agent de La Cruz stated that Agustín spoke in a calm voice, that he sensed no fear in Agustin’s voice, nor did he observe that Agustín was shaking. Agustín did mention that he was “beaten up” on the day of his arrest, but the agents told him that they were not there to discuss what occurred the day of his arrest and that he should speak with his attorneys if he had concerns about his treatment. The interview lasted for between thirty and forty minutes, and Agus-tín did not at any time indicate that he did not wish to speak with the agents. During the conversation, Agustín did not admit to involvement in drug trafficking and maintained that he was a businessman.

Agustín argues that his September 2012 statement was not voluntary or knowing in light of his “past torture and fear of additional torture when he was interrogated by United States agents in the presence of Mexican officials.” Agustin’s Suppress Stms. Mot. at 11. The government responds that “the Defendant was apprised of his rights, waived those rights, and gave a voluntary statement.” Gov’t’s Opp’n Agustin’s Suppress Stms. Mot. at 10. To be precise, during the September 2012 interview, the law enforcement agents provided Agustín with AOR form, in Spanish, and “[a]fter reading the AOR and having the AOR read to him, the Defendant signed and executed the AOR form and did not request counsel.” Id. According to the government, although “a Mexican prison official was present in the statement room,” Agustín “responded to the agents in a conversational tone” and “did not indicate that he was in any distress or request medical attention,” and the agents did not observe any physical trauma on his body. Id. Further, “[assuming the alleged torture was conducted,” the statements obtained by U.S. law enforcement agents in September 2012 are admissible because they are “‘so attenuated from the illegal search or seizure that the taint of the unlawful government conduct was dissipated.’” Id. at 11-12 (quoting United States v. Holmes, 505 F.3d 1288, 1293 (D.C. Cir. 2007). The government contends that the three-factor test for assessing whether a statement is sufficiently attenuated from the initial unlawful search or seizure is satisfied here. See id. at 12 (citing United States v. Brodie, 742 F.3d 1058, 1063 (D.C. Cir. 2014) (referencing the three factors to be addressed, including (1) the amount of time between the illegality and the discovery of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the illegal conduct)).

The totality of the circumstances surrounding Agustin’s September 2012 statement to U.S. authorities compel the conclusion that it was voluntarily and knowingly given, notwithstanding Agustin’s previous torture by Mexican authorities. As explained by Agent de La Cruz, no Mexican law enforcement officer was in the room when Agustín spoke with Agent de La Cruz and Agent Boyd, and Agustín was separated from the agents by a mesh wall. He was given an AOR form, which he read, and he proceeded to speak with the agents in a calm demeanor. Notably, far from admitting his guilt, Agustín maintained that he was merely a businessman and was not involved in drug trafficking, which indicates that he had his wits about him and did not feel coerced to make inculpatory admissions. On these facts, Agustin’s September 2012 statement was voluntary and knowing and is admissible at trial.

b. The October 2015 Statement

The government elicited testimony concerning the October 2015 statement from Special Agent Giboney, who is assigned to the FBI’s Seattle field office, and who participated in Agustin’s extradition from Mexico to the United States along with Special Agent Boyd. Special Agent Gibo-ney testified that he first came into contact with Agustín at the Mexico City airport, at which point both Mexican and U.S. authorities conducted medical examinations of Agustín to ensure his fitness for extradition. After this processing, Agustín was escorted onto an FBI jet by three to five agents. He was placed near the rear of the plane in a chair at a table and was restrained with handcuffs, a bellyband, and leg irons. Agustin’s eyesight and hearing were temporarily restricted with goggles and earmuffs during take-off and landing. There were several FBI agents on the flight, along with the pilot and co-pilot; no Mexican authorities were on the plane. During the flight, Agustín was given water and soda and was offered a meal, which he declined. Special Agent Giboney testified that Agustin’s demeanor was relatively calm but evinced some nervousness, and that overall he was very cooperative. The Special Agents’ first interaction with Agus-tín occurred shortly after take-off. ,The conversation was in Spanish, and began with Special Agent Boyd, explaining to Agustín that he was being extradited .to the United States on drug trafficking and firearm charges, Six minutes into the conversation, Agustín was given the AOR form. He requested his reading glasses to review the AOR form. After reading it, Agustín stated that he understood his rights and that he had no questions about the form but questions about the case against him. Agustín declined to sign the AOR form, stating that he had previously spoken to an attorney who advised him not to sign anything. Nevertheless, Agustín agreed to speak with the agents and asked them how his name had ended up on the “black list,” the slang term for an OFAC list of individuals subject to economic sanctions. Agustín also discussed horse racing and horse purchases he had made. The interview lasted approximately one to one- and-a-half hours.

Agustín seeks suppression of his October 2015 statement on three grounds. First, Agustín argues that his post-arrest statements “were not knowing, intelligent, and voluntary” because he was unfamiliar with the U.S. justice system; he was “terrified because he thought he may again be tortured;” and the defendant suffered through torture while in custody in Mexico. Agustin’s Suppress Stms. Mot. at 14-16. Second, Agustín contends that he “told the government agents that he was represented by counsel, that counsel had advised him not to make any statements not to sign any waivers,” and that the agents “persisted in questioning him notwithstanding his refusal to execute a Miranda waiver,” Id. at 10. Finally, he argues that the law enforcement agents who transported him from Mexico to the United States “engaged in a deliberate two-step interrogation: they first questioned [him] prior to affording him Miranda warnings” and “then, and only then, administered the warnings.”. Id. at 13 (citing Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004)).

The government argues that the defendant’s statements made during the October 2015 interview are admissible because “the Defendant was apprised of his rights, orally waived those rights, and then gave voluntary statements to law enforcement.” Gov’t’s Opp’ri Agustin’s Suppress Stms. Mot. at 15 (emphasis in original) (noting that the defendant was provided an AOR form to review, though he declined to sign the form, but nevertheless spoke with the law enforcement agents). The government maintains that Agustin’s telling of events is “factually incorrect” because although he indicated that he had a lawyer, and the lawyer had instructed him not to sign anything, Agustín nevertheless' expressed a desire to speak with the agents. Id. at 15-16 (“[T]he Defendant’s statements about his attorney were not an invocation of his right to have counsel present. The mere mention of an attorney and reference to advise from an attorney is not an unambiguous invocation of the right to counsel.”). As for Agustin’s contention that-he-was subjected to a “deliberate two-step interrogation,” the government asserts that “[the] [a]gents did not ask any questions of the Defendant until he had orally agreed to waive his rights after he read the [AOR] form,” and that the agents merely “informed Defendant of the nature of the charges and a background of the investigation that had led to his extradition” before providing the