TERRY COVINGTON, PETITIONER V. UNITED STATES OF AMERICA No. 85-6693 In the Supreme Court of the United States October Term, 1986 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Supplemental Memorandum for the United States in Opposition Petitioner contends that the Republic of the Marshall Islands is not a "foreign country" for the purpose of determining whether the exclusionary rule applies to evidence obtained in the Marshall Islands by non-federal officers engaged in the enforcement of the local law of the Marshall Islands. 1. a. Petitioner is an American civilian employed on an army missile base on the Kwajalein Island of the Republic of the Marshall Islands. The Defense Department has hired a private security force, the Washington Patrol Service (WPS), to patrol the base. Members of the force are not authorized to arrest for violations of United States law but may arrest for violations of local law of the Marshall Islands. Petitioner was arrested by two members of the WPS -- Investigators Guse and Paul -- and charged under local law with committing incest with his 13-year old daughter. At the time of the arrest, Office Guse was also a sworn Micronesian Police Officer. Petitioner was given Miranda-type warnings, /1/ and he simply remarked: "I can't believe this is happening to me." Two other members of the WPS drove petitioner to a Marshall Islands police station. They also advised petitioner of his rights, and he requested to speak to an attorney. Unaware that petitioner had invoked his right to counsel, Investigators Guse and Paul thereafter issued Miranda warnings a third time and petitioner confessed. Sometime later, the local charges against petitioner were dropped. Pet. App. F 3-4. b. On January 10, 1984, an indictment was returned in the United States District Court for the District of Hawaii charging petitioner with carnal knowledge of his 13-year old daughter within the special maritime and territorial jurisdiction of the United States, in violation of 18 U.S.C. 2032. Petitioner moved to suppress his confession under Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981). Following a hearing, the magistrate recommended that the motion be granted, finding that the confession was obtained by Investigators Guse and Paul in violation of local Marshallese law. Pet. App. F 4. The district court affirmed the magistrate's ruling, but it relied on different reasoning (ibid.): The court is unwilling to decide how far Edwards v. Arizona, 451 U.S. 477 (1977) reaches under Marshall law. Edwards, 451 U.S. at 487, has decided for us that such evidence as was obtained in this case is inadmissible in our courts. As a matter of due process and control over our own system of Justice, that rule should apply regardless of where the evidence was obtained, if it is to be introduced here. c. In a divided opinion, the court of appeals reversed and remanded for further proceedings (Pet. App. F). The majority held that the exclusionary rule does not require suppression of an otherwise trustworthy confession obtained "by foreign officers in a foreign country (in violation of United States and) foreign law" (Pet. App. F 7). The court reasoned that no deterrent purpose would be served by requiring foreign police officers to comply with our Miranda rule (id. at 7-8). In determining whether Investigators Guse and Paul were "foreign" law enforcement officers for these purposes, the court first discussed the status of the Republic of the Marshall Islands. The court noted that in 1947, the United States assumed powers of legislation, administration, and jurisdiction over what is now the Republic of the Marshall Islands pursuant to a Trusteeship Agreement with the Security Council of the United Nations, but that the United States does not possess sovereignty over the Trust Territory. Pet. App. F 4-5, citing Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, Art. 3, 61 Stat. 3301, 3302 T.I.A.S. No. 1665, 8 U.S.T.S. 189, 192. Further, the court of appeals observed that the Republic of the Marshall Islands has recently chosen free association with the United States as the political arrangement to take effect upon termination of the trusteeship arrangement. Pet. App. F 5. For these reasons, the court concluded, the Republic of the Marshall Islands is a "foreign country." Ibid. The court of appeals held, however, that the determination that the Republic is a foreign country does not resolve the question whether petitioner's confession should be suppressed, because if Guse and Paul were acting as law enforcement officers of the United States when they obtained the confession, suppression might still be required. The court therefore remanded for a determination of this issue. The court further noted that even if the district court finds that Guse and Paul were not operating as law enforcement officers of the United States, the district court must make a determination of the trustworthiness of the confession prior to admitting it into evidence. Pet. App. F 7-8. Judge Schroeder dissented (Pet. App. F 8-14). She did not disagree with the majority's conclusion that the Republic of the Marshall Islands is an "independent sovereign" (Pet. App. F 10). But she noted that pursuant to the Status of Forces Agreement with the Marshall Islands, /2/ an employee of the United States military who is prosecuted in the local courts of the Marshall Islands for a violation of Marshallese law is entitled to all the rights and guarantees that are provided by the constitution and laws of the Republic of the Marshall Islands. In Judge Schroeder's view, petitioner should not be entitled to fewer rights because he is being prosecuted in the United States courts. Pet. App. F 14. Judge Schroeder also concluded that the protections of Miranda should apply to this case because the United States has an interest in the affairs of the Marshall Islands. Pet. App. F 13. 2. a. As we stated in our initial memorandum in opposition to the petition for a writ of certiorari in this case, review of the question presented is premature because the suppression issue has not yet been finally decided. The court below remanded for further factual findings on two questions: (1) whether Investigators Guse and Paul were agents of the United States when petitioner confessed and, therefore, whether the exclusionary rule should apply in this case; and (2) whether petitioner's confession was trustworthy. Consequently, the determination by the court of appeals that the Republic of the Marshall Islands is a foreign country is not dispositive of petitioner's suppression claim. b. In any event, the decision of the court of appeals -- that the Republic of the Marshall Islands is a foreign country for purposes of the exclusionary rule of Miranda and Edwards -- is correct and does not conflict with any decision of this Court or any other court of appeals. The only other court of appeals to have addressed the question has also concluded that the Republic of the Marshall Islands, and specifically Kwajalein Island, the situs of the crime in this case, is a "foreign country." Callas v. United States, 253 F.2d 838, 840 (2d Cir.), cert. denied, 357 U.S. 936 (1958). Review by this Court therefore is not warranted. The Republic of the Marshall Islands is not a territory or possession of the United States or subject to the sovereignty of the United States. Rather, it comprises several island groups over which the United States has been given administrative authority under the Trusteeship Agreement for the Former Japanese Mandated Islands, supra. See Gale v. Andrus, 643 F.2d 826, 828-830, 832 (D.C. Cir. 1980); McComish v. Commissioner of Internal Revenue, 580 F.2d 1323, 1330 (9th Cir. 1978); People of Saipan v. United States Department of Interior, 502 F.2d 90, 94-95 (9th Cir. 1974), cert. denied, 420 U.S. 1003 (1975). See also Commonwealth of Northern Mariana Islands v. Atalig, 723 F.2d 682, 684 (9th Cir.), cert. denied, 467 U.S. 1244 (1984). Under the Agreement, the United States assumed the responsibility for promoting the development of the inhabitants of the Marshall Islands toward self-government. Atalig, 723 F.2d at 684-685. As part of the transition toward self-government, the people of the Marshall Islands have adopted a Constitution. The United States has recognized that constitutional government as the lawful government of the Marshall Islands, and it conducts relations with the Marshall Islands on a government-to-government basis within the framework of the Trusteeship Agreement. Secretary of the Interior Order 3039 (April 25, 1979), reproduced at Pet. App. D. The court of appeals therefore was correct in concluding that the Republic of the Marshall Islands is a "foreign country" for present purposes. Thus, the only question that remains is whether, assuming that the Republic of the Marshall Islands is a foreign country, the exclusionary rule should be invoked in this case. Petitioner appears to accept the well-settled proposition that the exclusionary rule does not apply to evidence obtained in a foreign country by foreign officials, whether or not the evidence was obtained in violation of federal or foreign law. See e.g., United States v. Bagaric, 706 F.2d 42, 69 (2d Cir. 1983), cert. denied, 464 U.S. 840 & 917 (1984) (Miranda violation by foreign officers); United States v. Chavarria, 443 F.2d 904, 905 (9th Cir. 1971) (same); United States v. Mount, 757 F.2d 1315, 1317-1318 (D.C. Cir. 1985) (Fourth Amendment violation by foreign officers); United States v. Hensen, 699 F.2d 18, 25 (1st Cir.), cert. denied, 461 U.S. 958 (1983) (same); United States v. Callaway, 446 U.S. 753, 755 (3d Cir.), cert. denied, 404 U.S. 1021 (1972) (same). Accordingly, petitioner's statements would be subject to suppression only if they were illegally obtained by Investigators Guse and Paul while those men were acting not as Marshallese police officers, but as agents of the United States Government. The district court was directed to address this fact-bound question on remand, and it therefore presents no question warranting review at this time. c. Finally, in 1983, the Republic of the Marshall Islands and the United States concluded the Compact of Free Association (reproduced at Pet. App. E), which, upon entering into force, will complete the transition to self-government. The Compact of Free Association, which was approved by Congress on January 14, 1986 (Pub. L. No. 99-239, 99 Stat. 1770), provides for self-government by the Republic of the Marshall Islands over both internal and foreign affairs, while at the same time providing for the continued responsibility of the United States for security and defense matters. On May 28, 1986, the Trusteeship Council of the United Nations adopted a resolution calling for termination of the United States' trusteeship on the basis of the approval of the Compact by the people of the Marshall Islands. We have been informed by the Department of State that it is the intention of the United States Government to take up the matter of termination with the Security Council this year. The Compact of Free Association will enter into force in conjunction with termination of the Trusteeship Agreement, thereby completing the transition of the Marshall Islands from the status of a foreign territory under United States administration to that of a sovereign nation. As a result of these anticipated developments, the question of the status of the Marshall Islands during the transitional period will not be one of continuing importance. For the foregoing reasons, it is respectfully submitted that the petition for a writ of certiorari should be denied. CHARLES FRIED Solicitor General JULY 1986 /1/ Miranda v. Arizona, 384 U.S. 436 (1966). /2/ Status of Forces Agreement, May 24, 1982, United States -- Republic of the Marshall Islands, Office for Micronesian Status Negotiations, Washington, D.C. This agreement will take effect when the Compact of Free Association takes effect.